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COMMONWEALTH PENNSYLVANIA v. ROBERT W. WETZEL (03/21/80)

filed: March 21, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT W. WETZEL, APPELLANT



No. 1561 April Term, 1978, Appeal from the judgment of sentence of the Court of Common Pleas of Clearfield County, Criminal Division, at No. 78-84-CRA.

COUNSEL

Earle D. Lees, Jr., Assistant Public Defender, Clearfield, for appellant.

Kim C. Kesner, Assistant District Attorney, Clearfield, for Commonwealth, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Montgomery

[ 276 Pa. Super. Page 446]

The Appellant, Robert W. Wetzel, files this direct appeal from his conviction and sentencing, following a jury trial, on a charge of indecent assault. Appellant was represented at trial and on post-trial motions by a privately retained defense counsel. On this appeal, he is represented by the office of the Public Defender for Clearfield County. It is Appellant's contention on appeal that his counsel was not effective at trial or on post-trial motions. Our review of the record leads us to conclude that this claim has merit. We will reverse.

Prior to any discussion of the substance of Appellant's claim, it is appropriate to note that Appellant has followed correct procedure in initially raising his ineffective counsel argument on this direct appeal, as it is the first stage at which Appellant is represented by new counsel who could be expected to challenge the effectiveness of trial and post-trial counsel.*fn1 See Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Further, it is worthy of mention that in the evaluation of claims of ineffective assistance by defense counsel, we are guided by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

[ 276 Pa. Super. Page 447]

". . . counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests."

It is Appellant's specific claim on this appeal that his trial attorney was ineffective in failing to object to testimony by a witness for the Commonwealth referring to prior criminal activity by the Appellant. Further, it is argued that counsel was ineffective in failing to request instructions from the court to the jury to disregard such testimony. We believe that such contentions by Appellant are well founded.

The record in the instant case shows that the victim, a middle aged widow, testified she accepted a ride to work offered by the Appellant, whom she knew as a co-worker. During the course of the ride, the Appellant stopped the car, reached over and grabbed at the woman's breast. The indecent assault charge against Appellant was based on that incident. The victim testified that she had only accepted a ride with Appellant under the most compelling circumstances. She explained that she was caught out of doors during a rain storm on the night of the incident, waiting for her regular ride to work, then long overdue, when the Appellant offered to drive her to work in his car. She testified that she only knew the Appellant slightly at that time, but that she was afraid of him.

In an apparent attempt to test the credibility of this witness, Appellant's defense counsel questioned her first regarding why she was afraid of the Appellant. She explained that she had seen him drunk at work on several occasions. Counsel asked how long the victim had worked at the same work place as the Appellant. The record shows the

[ 276 Pa. Super. Page 448]

    following colloquy between defense counsel and the victim concerning this matter:

QUESTION: Before this incident, a year ...


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