Appeal from the Order Entered on January 20, 1983 in the Court of Common Pleas of Montgomery County, Criminal Division, No. 4021 July Term, 1975.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Jeffrey A. Kroberger, Erdenheim, for appellee.
Spaeth, President Judge, and Olszewski and Cercone, JJ. Spaeth, President Judge, files a dissenting opinion.
[ 342 Pa. Super. Page 308]
This case arises on appeal by the Commonwealth ("appellant") from an Order dated January 8, 1983 in which the Court of Common Pleas of Montgomery County vacated the judgment of sentence originally imposed and granted the defendant a new trial. The Order was in response to defendant's petition under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., in which defendant contended that trial counsel was ineffective in (1) failing to call the identification witnesses at the pre-trial suppression hearing and (2) in eliciting evidence of defendant's prior convictions for sex related offenses from defendant on direct examination where defendant was on trial for a sex offense. The court below found this conduct by trial counsel to constitute ineffective assistance of counsel and, therefore, granted defendant a new trial. We reverse.
Defendant was found guilty of Involuntary Deviate Sexual Intercourse, Burglary, Felonious Restraint, Corruption of Minors and Indecent Assault. The charges arose out of an incident where a man (allegedly the defendant) entered the bunk room of a camp building at a private summer day camp and there invited a nine-year-old girl to accompany him into an older camp building. Once in the older building, the man grabbed the girl, put one hand over her mouth holding a knife in his other hand, threatened to kill her if she said anything, and forced her to engage in the act of sodomy. The victim observed the man throughout the occurrence in both the bunk room and the lobby of the first
[ 342 Pa. Super. Page 309]
camp building which were well lighted and in the older building which was not well lighted. The incident occurred at noon on a sunny day. The director of the camp, the second witness, observed the man making a telephone call in the lobby of the first building. Both the victim and the director of the camp reported the crime to the police and gave a description of the man responsible. He was described as white, mustached and dressed in maroon pants and jacket. Maroon pants and jacket were found in defendant's house when it was searched.
Both the witness and the victim independently identified defendant in photographic arrays prior to his arrest. At the pre-trial suppression hearing, the officer who conducted the photographic identification process testified that he presented two photographic arrays to each of the identifying witnesses. The first array contained eight photographs of white males, one of which was the petitioner. After viewing this array neither of the identifying witnesses was able to make a positive identification. In the presence of the witnesses, the officer took out the picture of defendant and substituted an older photograph of him. Based on this later array, both witnesses identified the defendant. Neither witness was called to testify at the suppression hearing.
At the suppression hearing, trial counsel filed a motion to exclude defendant's prior convictions from being entered into evidence. The court ruled that the motion was premature. Counsel did not raise this motion at any subsequent proceeding. At trial, on direct examination, counsel asked defendant questions which revealed his prior convictions on sexual offenses.
Trial commenced following denial of defendant's motion to suppress identification and items seized. At the request of defendant's counsel, defendant was seated in the courtroom, rather than at counsel table, in a row of seats with a few other white males selected by his counsel. When asked to identify her assailant, the victim ...