John H. Chronister, Assistant Public Defender, York, for appellant.
Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
Price,*fn* Beck and Johnson, JJ.
[ 309 Pa. Super. Page 44]
Appellant, Dale Stitzel, was convicted by a jury of the crime of rape.*fn1 After denial of post verdict motions contesting only the sufficiency of the evidence to support the verdict, the trial court sentenced appellant to a term of imprisonment of not less than five years nor more than ten years. From this judgment of sentence, appellant appealed to this court. However, prior to decision, appellant's new appeal counsel petitioned for and was granted by this court a remand for purposes of conducting an evidentiary hearing as to the effectiveness of trial counsel's representation.*fn2 On March 31, 1980, an evidentiary hearing was held on appellate counsel's allegations of ineffective assistance by
[ 309 Pa. Super. Page 45]
trial counsel. Subsequently, by order dated May 9, 1980, the hearing court dismissed appellant's "petition for new trial."*fn3 Now appellant pursues his appeal from the judgment of sentence.
In his brief, appellant raises two issues for our consideration. First, appellant questions the sufficiency of the evidence presented by the Commonwealth at trial to support his conviction for rape. Second, appellant asserts that trial counsel rendered ineffective representation.
Turning our focus to appellant's second issue, we note that appellant has lumped together in his brief four separate allegations of ineffectiveness under the general rubric of ineffective assistance of trial counsel. Since we find that one of appellant's allegations of ineffective assistance of trial counsel warrants reversal of judgment of sentence and a new trial, we will not discuss the other arguments appellant raises concerning the ineffectiveness of trial counsel,*fn4 nor will we discuss appellant's first issue.
In analyzing appellant's claim of ineffectiveness, we must first determine whether appellant raises an issue of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude that appellant has raised an issue of arguable merit, we then must examine the approach employed by trial counsel in light of the available alternatives to determine whether counsel had
[ 309 Pa. Super. Page 46]
We recognize the possibility that the trial judge may have properly exercised his discretion to retain juror # 4 on the panel when the fact of acquaintance was disclosed at trial.*fn6 But, we do not here evaluate the trial judge's decision at trial, we evaluate trial counsel's stewardship during jury selection. We are here concerned with the alleged failure of trial counsel to ascertain during the jury selection process whether a potential juror (juror # 4) was acquainted with the family of the victim. Further, we note that in Commonwealth v. Badger, 482 Pa. 240, 244, 393 A.2d 642, 644 (1978), our supreme court disapproved of the use of a harmless error standard "in determining whether counsel is effective . . . because assistance of counsel is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error."*fn7 See also Commonwealth v. Williams, 273 Pa. Super. 147, 416 A.2d 1132 (1979). Therefore we must reject the harmless error analysis of the trial court and apply the traditional Maroney-Hubbard test for determining whether trial counsel rendered ineffective assistance of counsel.
We begin our analysis by determining whether the issue appellant raises has arguable merit. It is well settled that it is the duty of the parties to ascertain, by proper examination at the time the jury is empaneled, the existence of any reasons for objection to the jurors. Commonwealth v. Aljoe, 420 Pa. 198, 206, 216 A.2d 50, 54 (1966). It is the purpose of jury selection voir dire to provide counsel with an opportunity to determine if the prospective jurors are subject to challenge for cause. Commonwealth v. Legree, 256 Pa. Super. 128, 389 A.2d 634 (1978). Here, the thrust of the inquiry that trial ...