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COMMONWEALTH PENNSYLVANIA v. PATRICK L. BAILEY (11/18/83)

filed: November 18, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
PATRICK L. BAILEY, APPELLANT



No. 410 Pittsburgh 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF MARCH 20, 1981 IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, CRIMINAL NO. 360 CRIMINAL, 1979

COUNSEL

Charles F. Gilchrest, Sharon, for appellant.

Harry A. Penich, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Cavanaugh, Rowley and Cirillo, JJ.

Author: Cirillo

[ 322 Pa. Super. Page 256]

Appellant was tried before the Honorable Albert E. Acker and a jury in the Mercer County Court of Common Pleas, and found guilty of indecent assault. 18 Pa.C.S. ยง 3126. Appellant's trial counsel, a public defender, filed boiler plate post-verdict motions. Appellant sent a letter to Judge Acker raising additional grounds for post-verdict relief, including several instances of ineffective assistance of counsel. Judge Acker appointed new post-trial counsel, who filed amended motions. After conducting post-trial hearings on appellant's claims on May 8 and 27, 1980, Judge Acker denied the amended motions on December 8, 1980, and reaffirmed his order in an opinion dated January 31, 1981. Judgment of sentence was imposed March 20, 1981, and this appeal followed.

The incident involved in this case occurred at about 4:30 p.m. on August 18, 1979, in the Shenango Dam camping area. The nine-year-old victim, whom we will call Jane H., testified at trial to the following events: She was at the

[ 322 Pa. Super. Page 257]

    camp that day with her family. Her mother had given her some trash to throw away, and she went to the rest room to put the trash in a can by the door. Appellant, a park rest room attendant, appeared and told her to take the trash to a dumpster, which she did. Jane then returned to the rest room to relieve herself, and passed appellant coming out of the rest room. Jane entered the third stall. The door to the stall had no lock and would not close completely. She heard footfalls getting louder and appellant walked in on her by accident. He apologized and excused himself, but returned shortly. The child was on her feet wiping herself with her pants at her knees. Appellant entered the stall and pushed her up against the wall with his hand on her shoulder. He then stooped and put his hands on her crotch, one from in front and one from behind, and began kissing her stomach. He tried to kiss her face. Jane asked what he was doing, but he did not respond. She began to scream. Appellant stood up and told her not to tell anyone. She ran screaming from the rest room and immediately told her parents what had happened.

Appellant's defense was designed to show that Jane had a vivid imagination of which the assault was a product. He did not deny being at the rest room at the time in question, or walking in on Jane by mistake. He testified that when he opened the stall door she was standing with her back to the door, and was knocked forward. He reached to help her, then quickly excused himself.

Appellant now maintains that his trial counsel rendered ineffective assistance in seven particular respects.

Our task in cases of alleged ineffectiveness of counsel 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. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed

[ 322 Pa. Super. Page 258]

    to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Id.; Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981).

If the underlying claim or strategy foregone by counsel was without arguable merit, our inquiry into counsel's effectiveness is at an end; counsel cannot be deemed ineffective for failing to advance a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Only if the foregone claim is found to be of arguable merit do we proceed to determine whether there was some reasonable basis for counsel's actions designed to protect his client's interests. Id.; Commonwealth v. Norris, 305 Pa. Super. 206, 451 A.2d 494 (1982).

There is a presumption in the law that counsel was effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, supra. The burden of proving counsel's ineffectiveness never shifts from the party alleging it. Washington v. Maroney, supra.

Appellant first alleges that counsel was ineffective for failing to object to the trial court's qualification of Jane H. as competent to testify. Any such objection would have been groundless.

When a child under the age of fourteen is called to testify, the competency of the infant witness must be independently established. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In order for competency to be established it must be shown that the infant witness is conscious of the duty to tell the truth. Id. Appellant argues that Jane H. did not evidence a consciousness of the duty to tell the truth, because she only gave terse "yes" answers to leading questions from the trial judge; she did not indicate that she knew the meaning of "truth" and "lie"; and she did not indicate that she knew the moral consequence of telling a lie.

Appellant's contention is partly belied by the record. In response to Judge Acker's query what she had been taught

[ 322 Pa. Super. Page 259]

    about God, Jane answered that God was always watching you and knew when you lied. Jane's response bespeaks an independent perception that divine moral retribution attaches to the act of lying.

In Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980), we upheld a competency determination over a contention similar to appellant's. There the minor witness testified she could not tell a lie because the judge and her mother would punish her, although she could not explain the difference between "the truth" and "a lie." We think the showing of Jane H.'s competency also compares favorably with showings held adequate in other cases. See Commonwealth v. Payton, 258 Pa. Super. 140, 392 A.2d 723 (1978) (not error to permit six-year-old victim to testify although she could not give an accurate example of a lie and did not know concept of divine retribution); Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) (competency determination upheld despite child's inability to explain the meaning of "oath").

Appellant relies on Commonwealth v. Rimmel, 221 Pa. Super. 84, 289 A.2d 116 (1972). There we overturned competency rulings allowing two eight-year-old girls, seven at the time of the incidents, to testify against the defendant on indecent assault charges. We held that the girls had evidenced comprehension of neither the difference between truth and falsehood, nor the moral responsibility to tell the truth under oath, where they knew only that they would be hollered at, beaten, or punished for lying.

Rimmel was distinguished in Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974); Commonwealth v. Mangello, 250 Pa. Super. 202, 378 A.2d 897 (1977); and Commonwealth v. Short, supra. The same distinction recognized in these cases obtains in the present case. Whereas in Rimmel the minor witnesses were able to relate their duty to tell the truth only to their fears of physical or ...


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