Nos. 1232 April Term, 1978, 905 April Term, 1979, Appeal from the Judgment of Sentence and Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 7702527A
George W. Bills, Jr., Pittsburgh, for appellant.
Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Hester, Brosky, Rowley, McEwen, Johnson and Popovich, JJ. Rowley, J., concurs in result. Popovich, J., files dissenting opinion. Hester, J., joins dissenting opinion by Popovich, J. McEwen, J., concurs in dissenting opinion by Popovich, J.
[ 309 Pa. Super. Page 448]
Commencing January 30, 1978, appellant was tried on charges of rape*fn1 and statutory rape.*fn2 A mistrial was declared when the jury could not reach a unanimous verdict and a new trial was held in April, 1978. At the conclusion of the second trial, appellant was convicted of rape and a direct appeal followed. Subsequently, appellant filed a pro se P.C.H.A.*fn3 petition raising the claim that he had received ineffective assistance from his trial counsel. The petition was denied following a hearing at which appellant was represented by court appointed counsel. Before us are the consolidated appeals from the judgment of sentence and denial of the P.C.H.A. petition. Because we find counsel to have been ineffective, we reverse and remand for a new trial.
Appellant, who is black, was tried on charges stemming from the rape of a young black girl. Under such circumstances, where defendant and victim are members of the same race, racial prejudice would not normally be at issue. Appellant contends, however, that the prosecution made
[ 309 Pa. Super. Page 449]
attempts to arouse prejudicial feelings in the jury by pointing out to them appellant's wife, who is white.
Appellant's argument before us is that at the first trial the prosecutor improperly drew attention to his wife and that this should have put his attorney on notice that he might point her out at the second trial. Armed with this knowledge, he contends that counsel should either have filed a motion in limine to prohibit such an identification, requested that the voir dire questions probe the jurors' racial prejudices, or objected to the identification when it was made at the second trial and moved for a mistrial. Trial counsel took no action.
In assessing the merits of appellant's claim, we are guided by the following principles.
We must first determine whether the claim abandoned by counsel is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Even if the claim is of arguable merit, counsel will not be found ineffective unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Id., 472 Pa. at 277, 278, 372 A.2d at 695-6.
Finally, counsel will be found to have been effective as soon as it is determined that his decision 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).
With these principles in mind, we turn to appellant's claim which stems from the following facts.
Mr. Taliaferro testified at both trials and was cross-examined by the prosecutor each time. The prosecuting attorney was the same at the trials. During the first trial, the prosecutor asked the following questions of appellant:
Q. How tall are you, sir?
A. I'm approximately 6'7".
[ 309 Pa. Super. Page 450]
Q. You heard the police officer indicate that the description he received from Lisa Simms was that it was a black male, approximately 6'7", medium Afro?
Q. You're married with one child. How old is your child?
A. She'll be three in February.
Q. Where were you married?
A. Well, basically it's a common law agreement until this thing gets over with and then, you know, we'll have to go to the court as far as that goes.
Q. So there's never really been any formal ceremony, anything of that nature?
Q. Is that your wife there in the back of the court room in ...