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filed: November 21, 1980.


No. 877 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CI-7306574A


Paul Bogdon, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

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

Author: Montgomery

[ 282 Pa. Super. Page 304]

The procedural history of this direct appeal from a judgment of sentence is somewhat complicated. The Appellant, Thomas C. Reidenbaugh, was indicted on several charges, including rape, arising out of an incident which involved an alleged attack on two females by Appellant and three companions, including his brother, Charles Reidenbaugh. Appellant and his brother entered pleas of not guilty and were tried together before a jury. The Appellant was represented at trial by an attorney from the office of the Allegheny County Public Defender. After a guilty verdict, Appellant's trial counsel filed timely post-trial motions for new trial and in arrest of judgment. Such motions were denied by the court and the Appellant was thereafter sentenced to undergo a term of imprisonment of from three and one-half (3 1/2) to seven (7) years on the rape count. Sentence was suspended as to the remaining counts.

Appellant, still represented by the office of the Public Defender of Allegheny County, filed a timely direct appeal to our Court in November, 1975. We affirmed the conviction by an Order filed on February 2, 1977. See Commonwealth v. Reidenbaugh, 245 Pa. Super. 612, 372 A.2d 428 (1977).

The Appellant, still represented by the Public Defender, filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court in early March, 1977. In April, 1977, Appellant filed a petition with the Supreme Court seeking leave to withdraw his Petition for Allowance of Appeal to permit him to examine the original record in order to file an amended Petition for Allowance of Appeal. He also apparently rejected further representation by the Allegheny

[ 282 Pa. Super. Page 305]

County Public Defender. In August, 1977, the Supreme Court granted Appellant's petition.

In September, 1977, the Appellant filed a pro se Petition for Allowance of Appeal in the Supreme Court raising claims of ineffective assistance of counsel at trial and on appeal. On April 7, 1978, the Supreme Court issued the following Per Curiam Order:

"Petition for allowance of appeal granted. Order of the Superior Court affirming the judgment of sentence is vacated and the case is remanded to the Superior Court for another appeal on the merits from the judgment of sentence entered by the Court of Common Pleas of Allegheny County."

Thus, the Appellant's case is again before our Court.

The Appellant's brother and co-defendant, Charles Reidenbaugh, had earlier followed a similar procedural pattern in his appeal after his conviction and sentencing in the lower court. The Pennsylvania Supreme Court had issued a virtually identical remand Order in the brother's case one year prior to the issuance of the above-quoted Order in the Appellant's case. Our Court thereafter reviewed the Supreme Court's remand order in the second appeal of Charles Reidenbaugh, and a majority of the Court construed the Supreme Court's order to mean that some merit was found in Charles Reidenbaugh's claim of ineffectiveness of his initial appellate counsel. See Judge Spaeth's Majority Opinion in Commonwealth v. Reidenbaugh, 266 Pa. Super. 315, 404 A.2d 697 (1978). Therefore, we found that all issues raised on the second appeal were properly before our Court. The same conclusion is mandated in this case.

Several of the Appellant's arguments on this appeal are based upon claims of ineffective assistance of counsel at trial. It is appropriate to state several well-recognized principles applicable in our review of such claims. It is clear that the effectiveness of trial counsel must be raised in the first proceeding in which the defendant is represented by counsel other than the one whose stewardship is challenged.

[ 282 Pa. Super. Page 306]

    brother had a prior conviction for a sex offense involving a young girl. Appellant also argues that his attorney was ineffective in failing to preserve this issue for appeal.*fn3

The Appellant argues that while the information which was disclosed only related to his brother, it also tainted him. He reasons that the charges against both him and his brother arose from the same factual situation and the close relationships between the brothers was continually apparent to the jury. Upon our review of the record with respect to this issue, we can speculate that Appellant's defense counsel may have failed to object for several strategic reasons. First, while the testimony may have been prejudicial to his brother's interests, it is not clear that any legally cognizable prejudice resulted to Appellant as a result of the testimony. A strenuous objection arguing prejudice may have unnecessarily implanted in the juror's minds the idea that there was a connection between the brother's record and Appellant's truthfulness or even criminal propensities. Counsel may have also concluded that the admission of prior crimes by the brother would make his co-defendant, the Appellant, appear more law abiding, as no such evidence of prior crimes would be introduced as to him. In the appeal of Charles Reidenbaugh, our Court recognized the possibility that his attorney may have asked the questions now in issue to give the jury the impression that his client was completely truthful-even to the point of admitting prior crimes. Appellant's counsel may have also believed that the challenged colloquy had the same beneficial effect.

While we have expressed several possible strategic grounds upon which Appellant's counsel may have relied, in

[ 282 Pa. Super. Page 308]

    not raising an objection, the present record does not provide sufficient information for us to reach a determination as to counsel's specific reasons for not objecting. Therefore, in accordance with the procedure enunciated in Commonwealth v. Twiggs, supra, we will remand this matter to the lower court for a hearing on this issue of ineffectiveness.

It is appropriate to note that this disposition necessarily implies the premise that the disclosure of Charles Reidenbaugh's prior criminal record to the jurors was not prejudicial per se to the Appellant. In every case where a claim of ineffective counsel requires an evaluation of defense counsel's strategy by the court, it is possible that the particular course chosen may have involved possible prejudice to the appellant. A criminal defendant under our system of justice is entitled to a fair trial, but not necessarily a perfect one. Thus, the defendant is bound by the reasonable strategy employed by his counsel in his defense. See Commonwealth ex rel. Washington v. Maroney, supra, Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 207 A.2d 829 (1965). In the instant appeal the Appellant's arguments of ineffectiveness presume the fact that the introduction of the evidence of prior crimes by his brother and co-defendant was prejudicial. The Commonwealth argued in the appeal of Charles Reidenbaugh that even if the introduction of such evidence was in error, it was not prejudicial so as to require reversal. See Commonwealth v. Reidenbaugh, 266 Pa. Super. at 321-324, 404 A.2d at 700-701. Our Court found it appropriate, in remanding the case to allow the lower court to evaluate all of the factors involved, including the argument of a lack of prejudice. We believe the same factors would require consideration in the instant case and direct the lower court's attention to our Opinion in the earlier case for guidance.

The Appellant next argues that the lower court improperly sustained an objection by the prosecution to a question asked by his co-defendant's counsel in an effort to rehabilitate a witness. Further, he claims that he was denied the effective assistance of counsel when his own attorney failed to preserve the issue for appeal.

[ 282 Pa. Super. Page 309]

The record shows that prior to the scheduled trial of Appellant and his brother, a third person accused in the same criminal episode, Dennis R. Shultzaberger, pleaded guilty to two counts of a five count indictment and was sentenced on the charges pursuant to a plea bargain with the Commonwealth. At the trial of the Appellant and his brother, Shultzaberger was called as a defense witness. He testified, consonant with the other defense testimony, that neither of the Reidenbaugh brothers engaged in sexual intercourse with either of the alleged victims. He further stated that he had engaged in sexual intercourse with the older woman, but that such relations were consensual on her part. On cross-examination, the attorney for the Commonwealth, over defense objection by Appellant's brother's counsel, was permitted to ask questions which resulted in Shultzaberger agreeing he had admitted raping the older victim. On redirect examination, defense counsel asked:

"Was the reason that you pled guilty due to the fact that you made a deal . . . . with ...

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