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filed: December 30, 1982.



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.

Author: Johnson

[ 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 counsel allegedly omitted is to determine the existence and depth of any acquaintance a potential juror has to the victim's relatives. The response that

[ 309 Pa. Super. Page 48]

    would have been elicited may have provided grounds for a challenge for cause because of bias or the existence of a "close" relationship to the case. See Commonwealth v. Colon, 223 Pa. Super. 202, 299 A.2d 326 (1972). Hence, we believe it would have been proper voir dire to question juror # 4 regarding his acquaintance to the victim's father.

In essence, appellant argues further that the failure of his trial counsel to make this inquiry of juror # 4 precipitated a violation of his federally guaranteed right to a fair trial by an impartial jury. In Commonwealth v. Cornitcher, 447 Pa. 539, 551-2, 291 A.2d 521, 527 (1972), it was emphasized that when a defendant questions the impartiality of only one juror, a violation of his federal right to an impartial jury is implicated. Here juror # 4's response that he knew the victim's father "fairly well" indicates more than a passing acquaintance; rather it indicates a substantial connection with the victim's father, who at trial was a witness for the prosecution. This response alone may have been sufficient under Colon, supra, to cause the exclusion of the juror by invoking a presumption of the likelihood of prejudice.*fn8

[ 309 Pa. Super. Page 49]

For these reasons, we believe that appellant has raised an issue of arguable merit.

Next, we must weigh the alternatives available to trial counsel to determine whether trial counsel had some reasonable basis. We note initially that "sloth and lack of awareness" by trial counsel during jury selection may constitute ineffective assistance of counsel. See Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Our inquiry is whether trial counsel made an informed choice, which at the time the decision was made reasonably would have been considered as advancing and protecting the appellant's interest. Commonwealth v. Roundtree, supra.

We begin our analysis by determining whether trial counsel did indeed fail to ask juror # 4 during the jury selection process whether he knew the victim's father. At trial during the trial judge's voir dire, juror # 4 stated that he had not been asked whether or not he knew the victim's father. At the evidentiary hearing following remand, trial counsel could not recall asking if anyone on the panel knew the victim's family.*fn9 Additionally, we note that trial counsel could not seem to recall correctly, at trial, what had been asked during jury selection.*fn10 There is evidence in the record that could reasonably support the inference that trial counsel did not inquire whether any of the potential jurors were acquainted with the victim's family.*fn11 From our review

[ 309 Pa. Super. Page 50]

    of the record, we conclude that there is sufficient credible evidence to establish that trial counsel failed to inquire of, at least, juror # 4, whether or not he was acquainted with the victim's family.

Trial counsel testified at the hearing that as a matter of strategy during jury selection, he did not want anyone on the jury who knew the victim, her family, or the appellant. Presumably that would include someone who knew the victim's father. Trial counsel went on to state that had he known about juror # 4's acquaintance with the victim's father, the mere potential of partiality would have caused him to challenge the juror.*fn12

We note that had trial counsel made appropriate inquiries, and presumably gotten the same answers as did the trial judge during his voir dire, trial counsel would have had the option of attempting to challenge juror # 4 for cause*fn13 or, failing this, he could have exercised a peremptory challenge.*fn14

[ 309 Pa. Super. Page 51]

Thus, had trial counsel made the appropriate inquiries, he would have had the means to eliminate juror # 4 from the jury panel.

From all the evidence in the record, we cannot say that trial counsel made a deliberate "informed choice" employed to advance the interests of his client.

Since "a finding of ineffectiveness [can] never be made unless [it can be] concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized," see Commonwealth v. Badger, supra, we next consider whether in this case the inquiry that trial counsel failed to make would have offered appellant a substantially greater potential for success.

From examination of the trial record, it is apparent that the evidence presented by either party did not overwhelmingly establish appellant's innocence or guilt, contrary to the implication in the trial judge's opinion on appellant's allegations of ineffectiveness. A more accurate observation about the evidence is that it distilled itself into a classic case of credibility whereby the jury's verdict hinged upon which version of the facts it found more credible, the victim's or the appellant's. Under these circumstances, of which trial counsel should have been aware, the presence of a juror potentially partial to the victim could have easily swayed the jury's determination of the crucial credibility issue. Trial counsel, had he ascertained the fact of acquaintance, would have had the opportunity to ensure his client a fair and impartial judgment at trial of his and the victim's respective credibilities by simply exercising a peremptory challenge to juror # 4. While we recognize that these considerations are to some degree speculative, the recognition of the possibility of prejudice or bias from such a relationship is certainly justification for our concluding that

[ 309 Pa. Super. Page 52]

    trial counsel did a disservice to his client during jury selection when he failed to ask the appropriate questions which would have prompted him to remove this juror. Cf. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Under the circumstances of this case, the removal of this juror is obviously the course that offered a substantially greater potential for success, especially since the realization of this possibility of bias could very well be a decisive factor on the crucial issue of credibility in this case for juror # 4 and, through him, the remaining jurors.

We find no apparent reasonable basis in the record that dissuades us from concluding that trial counsel was ineffective. It is apparent from the record that trial counsel failed to implement, during jury selection, his own professed strategy of preventing persons who knew the victim or the victim's family from sitting on the jury. Indeed, the record supports the inference that trial counsel asked none of the potential jurors if they were acquainted with the victim or her family.*fn15 During the evidentiary hearing, trial counsel did not specify any other considerations so imperative as to justify him in permitting juror # 4 to remain on the panel, despite juror # 4's acquaintance with the victim's father.

We therefore hold, as we must, without regard for any harmless error analysis based on the voir dire held at trial, that trial counsel rendered ineffective assistance of counsel during the jury selection process by failing to ascertain that juror # 4 was acquainted with the victim's father. This failure foreclosed trial counsel from removing juror # 4 from the panel to ensure his client of a fair and impartial jury to determine the crucial issue of credibility that was sure to arise at trial.

We do not construe our holding today to require a finding of ineffective assistance of counsel any time trial counsel fails to ask a meritorious voir dire question; rather, we are persuaded that here the entire case hinged upon the credibilities of appellant and the victim, and trial counsel, through omission without reasonable basis, placed a potentially

[ 309 Pa. Super. Page 53]

    biased juror on the panel to the detriment of his client's interests.

*fn* Died Jan. 30, 1983.

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