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filed: November 2, 1984.


No. 00638 Pittsburgh, 1982, Appeal from Order and Judgment of the Court of Common Pleas, Criminal Division, of Erie County at Nos. 374 and 590 of 1980.


Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Cavanaugh

[ 335 Pa. Super. Page 208]

The appellant, Donald L. Gaerttner, was convicted of involuntary deviate sexual intercourse, indecent assault and corruption of a minor, following a jury trial before Nygaard, J.*fn1 His motions for new trial and in arrest of judgment were denied and he was sentenced to imprisonment for consecutive terms totaling not less than thirteen and one-half nor more than twenty-seven years. He has appealed to this Court from the judgment of sentence.

The testimony established that in early January, 1980, Melissa Decker, a young girl of ten years of age, was taken by her mother, Nancy Decker, to live with the appellant until Mrs. Decker obtained a place to live for herself and her three children, including Melissa. Mrs. Decker's mother, Mildred Engelhardt, also resided at the Gaerttner residence during this time. During the period that Melissa Decker resided at the appellant's home from January 2, 1980, until January 12, 1980, the appellant and George Elliott allegedly sexually assaulted Mellissa Decker on a number of occasions.

The appellant has raised several issues on appeal. The first issue deals with alleged ineffective assistance of counsel which may be sub-divided into four categories as follows: (1) trial counsel (Mr. Vogel) and post-trial counsel (Mr. Zak) were ineffective for failing to challenge the competency of the victim, Melissa Decker, an eleven-year-old child who was, according to the testimony of a psychologist, mentally retarded; (2) trial counsel did not permit the appellant to testify in his own behalf although he wanted to; (3) trial counsel failed to call the appellant's wife as a witness to attack the credibility of the Commonwealth witnesses;

[ 335 Pa. Super. Page 209]

    and (4) trial counsel failed to adequately prepare defense witnesses prior to trial and to call other witnesses.*fn2

Three of the four alleged instances of ineffectiveness of counsel were raised by Mr. Zak in his amendments to the motion for new trial, and were considered by the court below in a hearing on April 26, 1982.*fn3 The only issue of ineffectiveness not raised by Mr. Zak in the court below was the issue dealing with the failure to challenge the competency of the victim to testify and we shall hereafter deal with this issue.

With respect to the allegation that Mr. Vogel did not permit the appellant to testify, Mr. Vogel testified that he thought it would have been extremely poor strategy for the appellant to testify, especially in view of his prior criminal record, although he thought that the appellant would testify. The appellant wanted to testify as to what he considered to be a conspiracy against him by the state police, the Children's Organization of Northwestern Pennsylvania and certain individuals and his counsel thought that such testimony would not be regarded as credible by the jury. However, the appellant made up his own mind not to testify

[ 335 Pa. Super. Page 210]

    and he was not in any way coerced into this decision by Mr. Vogel.

The appellant's next contention is that Mr. Vogel was ineffective for not calling appellant's wife to testify in his behalf. Defense counsel spoke with the appellant's wife prior to trial and before she had been confined to Muncy for conviction on charges of hindering the apprehension of, and tampering with, witnesses, matters involved in this case. Mr. Vogel felt that her testimony would not be beneficial to the appellant because she had expressed hostility towards him, was related to him and her testimony would be mainly cumulative.*fn4 Mrs. Gaerttner testified at the hearing of April 26, 1982, that she wanted to testify at her husband's trial and that she would have testified that as far as she knew her husband had not sexually assaulted the child. She also testified that she told Mr. Vogel that it would have been a very traumatic experience for her to testify.

The hearing of April 26, 1982, also dealt with the appellant's allegation of ineffectiveness of counsel based on failure to adequately prepare defense witnesses and to call other witnesses. Mr. Vogel testified that there were several defense witnesses that he advised against calling because their testimony went to the conspiracy theory that the appellant wanted to pursue and which counsel felt would be disadvantageous to pursue. Counsel felt that his best defense was to rely on the testimony of Dr. Pizzat, a

[ 335 Pa. Super. Page 211]

    psychologist called by the Commonwealth. "I felt that was a good opportunity for us to have a defense on which we could hang our hats because Dr. Pizzat had testified that Melissa Decker was of a personality type that was intellectually deficient that would make her willing to believe things that did not happen and that her perception of reality could be distorted and that she could remember something as truthful and believe it as true and testify it is the truth when it in fact never had happened and I felt that type of approach was much more beneficial than getting into the conspiracy type of theory he discussed with me." With respect to not calling certain witnesses, "counsel will not be deemed ineffective for having failed to call a witness unless the appellant is able to demonstrate that the witness's testimony would have been helpful to the defense." Commonwealth v. McCaskill, 321 Pa. Super. 266, 275, 468 A.2d 472, 476 (1983). The appellant has not indicated in any way how the testimony of witnesses who were not called would have helped him.

Appellant also contends that defense counsel did not adequately prepare the two defense witnesses who did testify, Mildred Engelhardt and Nancy Decker. Trial counsel spoke to the two witnesses on a number of occasions before trial. He warned the witnesses, who in effect would be testifying against their own daughter and grand-daughter, that they would be subject to cross-examination. At trial the victim's mother, Nancy Decker, testified that she was a friend of appellant and had taken her daughter, Melissa, to stay at the appellant's home in January, 1980 until she got settled in her own home. She testified as follows concerning the appellant's conduct towards her daughter:

We were talking in my kitchen and she says, "Mommy, I wish this stuff would hurry up and be over, I am tired of it." I said, "Missy, tell the truth. Did it happen or didn't it?" And she kind of looked down at me and I said, "Missy, did it?" she says, "No." And I said, "Then why are you doing this?" Then Missy, she said, "Because

[ 335 Pa. Super. Page 212]

Children's Services told me if I didn't testify against Donny, she said, that they would see that I would never see you again."

Q. And this is a statement made by your daughter to you?

A. My Melissa, yes, sir.

Q. Around Christmas time of 1980?*fn5

The second witness on behalf of the appellant was Mildred Engelhardt, Melissa's grandmother. She also testified that she was a friend of the appellant and had known him since he was a little boy. She stayed at the appellant's house from January 2, 1980, until January 12, 1980, when her grandaughter was there and she testified that she never left the house during that time. She further stated that during the period when the alleged offenses occurred Melissa never said anything to her about the appellant doing anything to her.

Appellant contends that Mr. Vogel was ineffective for not spending more time with the defense witnesses "educating them as to the trial process." Defense counsel reviewed the testimony of the two defense witnesses, and went over their testimony with them. If they had been believed by the jury their testimony could have been helpful to the appellant.

We find the above allegations of ineffectiveness of trial counsel to be without merit. Initially, we note that the burden of proving ineffective assistance of counsel falls upon the appellant. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978). It is by now basic that the standard by which we gauge counsel's effectiveness is whether the particular course chosen by counsel had some

[ 335 Pa. Super. Page 213]

    reasonable basis designed to effectuate his client's interest, and the balance tips in favor of finding effectiveness as soon as it is determined that trial counsel's decision had a reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Manning, 263 Pa. Super. 430, 398 A.2d 212 (1979). The fact that the appellant was found guilty of the charges against him does not give credence to the theory that counsel's conduct was not designed to effectuate his client's interest. On the contrary, we are convinced that Mr. Vogel, an experienced defense attorney, was most careful and thoughtful in the preparation of his defense.

The fourth area in which the appellant's present counsel claims ineffectiveness was not raised in the court below. Appellate counsel contends the trial counsel (Mr. Vogel) and post-trial counsel (Mr. Zak) were not effective as both

[f]ailed to challenge the competency of a child witness where the court had made a ruling of competency prior to the testimony of a later Commonwealth witness, a clinical psychologist, who testified that the child suffered from minimal brain dysfunction which interfered with her memory function, that she was mentally retarded, and also that the child could easily misperceive events, relate the misperceptions as reality, and, therefore, lie non-deliberately.

The thrust of this contention is that Melissa was not a competent witness and counsel below were ineffective for not raising the issue of her competency. We do not agree. Melissa was ten years old at the time of the alleged offense and eleven years old at the time of the trial. The trial judge pursued the question of her competency to testify and found her qualified. Before Melissa testified the court inquired whether she knew the difference between lying and telling the truth and the consequences of not telling the truth. The court determined that Melissa was competent to testify and stated,

With respect to the question of this witness, I find a capacity to communicate and to frame and to actually

[ 335 Pa. Super. Page 214]

    express intelligent answers to my questions, has a mental capacity to observe and remember what she has observed and a definite consciousness, both in the words she has spoken and in her demeanor, in her duty to speak the truth and is competent to testify.

The issue of the witness's competency was specifically decided by the court prior to her testimony. Where a witness is under fourteen years of age, the trial judge must make a careful inquiry into his or her mental capacity. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980). Nevertheless, the competency of a prospective witness is a matter left to the discretion of the trial judge, whose ruling will not be reversed in the absence of an abuse of discretion. Commonwealth v. Fultz, 316 Pa. Super. 260, 462 A.2d 1340 (1983). In Commonwealth v. Short, supra, the victim was a nine-year-old child who had been sexually assaulted, and who was found to be a competent witness. In our own case, the judge inquired of Melissa as to whether she went to church and if she knew what happens to people who don't tell the truth and she responded that they get into "deep trouble." While she stated that she did not know what an oath is, that did not render her incompetent per se. As noted in Commonwealth v. Payton, 258 Pa. Super. 140, 143, 392 A.2d 723, 725 (1978),

There is more to a child's consciousness of the duty to speak the truth than being able to give a clear example of a lie or to understand the concept of an "oath." In fact, the trial judge's opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives to questions such as "What is a lie?" and "What will happen to you if you tell a lie?"

See also, Commonwealth v. Mangello, 250 Pa. Super. 202, 378 A.2d 897 (1977).

The appellant contends that notwithstanding the trial court's determination of competency, that subsequent to the testimony to the Commonwealth's psychologist, the question of competency should have been raised again, and

[ 335 Pa. Super. Page 215]

    failure to do so amounted to ineffective assistance of counsel. Dr. Pizzat, a clinical psychologist, testified on behalf of the Commonwealth. He had administered I.Q. and personality tests to Melissa at the request of the Children's Service Agency of Erie County. Her overall I.Q. was 69 "which is considered to fall in the mildly retarded range." He further stated that "from these findings, we assume that Melissa is kind of behind schedule; at the time I tested her, she is what might be called a slow learner." Dr. Pizzat also testified:

Q. Can you tell us anything from your testing and from that interview about Melissa's ability or propensity for fabrication or make up?

A. I felt from my findings of her personality functions that she wasn't likely to be manipulative or to make up stories about this case. I think that she would tend to be pretty honest in terms of how she saw things happening. I didn't think that she would fabricate, in other words.

Appellant contends that the following testimony of Dr. Pizzat on cross-examination by Mr. Vogel required counsel to challenge Melissa's competency as a witness:

Q. You said from your findings that she seemed to you to be honest about how she saw things?

A. Yes.

Q. Now, the use of that latter part of that phrase, how she saw things, did that mean that in your opinion sometimes her perception might differ from reality, that she might be ...

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