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COMMONWEALTH PENNSYLVANIA v. JOSEPH MCFARLAND (02/23/82)

submitted: February 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MCFARLAND, APPELLANT



No. 790 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Sect. at Nos. 296-299 8007. Philadelphia

COUNSEL

Alexander Zdrok, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ.

Author: Spaeth

[ 304 Pa. Super. Page 472]

This appeal is from judgment of sentence for involuntary deviate sexual intercourse, simple and aggravated assault, and indecent assault. Appellant was found guilty by a judge sitting without a jury. His counsel filed a post-verdict motion assigning no error but "reserv[ing] the right to make allegations in support of post-verdict relief after reviewing the trial transcript." When the post-verdict motion was listed for argument, counsel told the court that he had reviewed the trial transcript and could make no allegations in support of any post-verdict relief. The court thereupon denied the post-verdict motion and imposed sentence. This appeal was filed, and new counsel was appointed. Appellate counsel argues that for various reasons, trial counsel was ineffective. With respect to some of these reasons, we can tell from the record that counsel's arguments are without merit. With respect to others, however, we cannot make that determination. We therefore remand for a hearing on trial counsel's effectiveness.

The Commonwealth's evidence may be summarized as follows. At about 10:30 p. m. on June 26, 1980, appellant and his victim left The Holmesberg Tavern in Philadelphia to go to the victim's apartment, several doors away, where the victim said she had some marijuana. Upon arriving at the apartment, appellant followed the victim inside and they smoked a marijuana cigarette. When they had finished the cigarette, the victim said she wanted to leave. Appellant refused to leave the apartment unless the victim kissed him. After two light kisses, appellant announced, "We're not going nowhere. You're either going to blow me or lay me." He then hit the victim, pushed her down on the couch, tied a leather shoelace around her neck, creating a choke collar, and forced her to perform fellatio. Suddenly appellant passed out, and the victim escaped. Outside her apartment she met two neighbors, Steve and Fred Dollery, who removed the shoelace from her neck. After calming down somewhat, she returned to the tavern and told the bartender

[ 304 Pa. Super. Page 473]

    what had happened. He eventually convinced her to report the incident to the police, who took her to a hospital and photographed the bruises and abrasions on her neck from the shoelace. Afterwards, she stayed for several days at a friend's house.

Appellant's trial counsel cross-examined the victim and the bartender, although he asked no question of the victim's friend. He did not call appellant or any other witness in appellant's defense.

The standard for determining whether counsel has been ineffective is well established. As the Supreme Court explained in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

Our task in cases of this nature . . . encompasses both an independent review of the record and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives. Perhaps Brubaker v. Dickson, 310 F.2d 30, 38 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110 [10 L.Ed.2d 143] (1963), best describes this necessary process: "Facts are alleged from which it would appear that these potential defenses would have suggested themselves to a reasonably diligent trial counsel. The defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice." We cannot emphasize strongly enough, however, that an inquiry ceases and ...


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