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COMMONWEALTH PENNSYLVANIA v. ROGER MCINTOSH (10/16/81)

filed: October 16, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ROGER MCINTOSH, APPELLANT



No. 2602 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 422 of 1977.

COUNSEL

Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.

Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Cavanaugh, Johnson and Lipez, JJ.

Author: Cavanaugh

[ 291 Pa. Super. Page 354]

Appellant, Roger McIntosh, was tried by a jury, convicted, and sentenced to imprisonment on charges arising out of physical abuse of an 18-month-old child.

Appellate counsel who is different from appellant's trial counsel raises a number of issues only one of which we discuss here for we conclude that a new trial must be granted on that issue. We remand for a new trial because appellant received ineffective assistance of counsel when his trial counsel failed on post-trial motions to raise the issue of the admissibility of polygraphic evidence procured through stipulated testing of the appellant.

On November 21, 1976, appellant, McIntosh, was with his son Marcus McIntosh. The child was taken by the Fairless Hills Rescue Squad to Lower Bucks Hospital after receiving an emergency call concerning the child's physical condition. He was transferred later to St. Christopher's Hospital in Philadelphia where he was diagnosed as exhibiting a battered child syndrome based upon the presence of fresh and old injuries. The prosecution of McIntosh grew out of this diagnosis. Appellant's version of events leading up to the hospitalization was that while he and Marcus were together he began to choke on a sandwich that he was eating and that the apparent injuries came from his frantic efforts to assist the child and from a subsequent fall which the child experienced followed by a convulsion.

[ 291 Pa. Super. Page 355]

McIntosh and his trial attorney entered into a stipulation with the District Attorney that he would undergo a polygraphic examination prior to trial. The agreement was that the case would be nol prossed if the results showed no deception but that if the results showed deception on the relevant questions the Commonwealth would have the right to use such evidence through the polygraphic examiner at trial. The examiner found that appellant was "attempting deception" on the two relevant questions. At trial, the examiner, Detective Baetzel of the Bucks County District Attorney's office testified as to these results over the objection of defense counsel. However, the issue was not raised on post trial motions, and, therefore, the issue of the admissibility of the polygraphic testimony was not before the court en banc below. It has been raised here by appellant's new counsel in the form of a plea that appellant was deprived of the effective assistance of counsel at the post trial motion stage. It is established that appellant counsel, if new to the case, may allege the ineffectiveness of prior counsel whether at trial or on post verdict motions: Commonwealth v. Womack, 270 Pa. Super. 494, 411 A.2d 827 (1979). When, as here, the ineffectiveness of counsel is apparent on the face of the record, we will reach the merits of a claim of ineffectiveness, in the interests of judicial economy, despite the absence of a hearing or determination on the issue below. Commonwealth v. Sample, 270 Pa. Super. 47, 53, 410 A.2d 889 (1979).

In determining whether a criminal defendant was deprived of the effective assistance of counsel we inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel's stewardship must be examined by the standards as they existed at the time of counsel's action, and counsel will not be deemed ineffective for failing to predict future developments in the law at the time he

[ 291 Pa. Super. Page 356]

    decided on a course of action. Commonwealth v. Triplett, 476 Pa. ...


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