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COMMONWEALTH PENNSYLVANIA v. ANTHONY L. ERIE (02/17/87)

filed: February 17, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY L. ERIE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Crawford County at No. 1984-351.

COUNSEL

Robert J. Casey, Jr., Philadelphia, for appellant.

John M. Dawson, District Attorney, Meadville, for Com., appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ.

Author: Popovich

[ 361 Pa. Super. Page 46]

Appellant, Anthony L. Erie, was convicted by a jury of rape and terroristic threats. After denying post-trial motions, the court sentenced the appellant to concurrent terms of imprisonment of five (5) to ten (10) years on the rape charge and one (1) to two (2) years on the terroristic threats charge.

A notice of appeal to the Superior Court was filed, and appellant's new counsel subsequently filed a motion to remand for a hearing on the issue of ineffective assistance of counsel and supplemental post-trial motions. This court granted appellant's motion and directed the lower court to conduct an evidentiary hearing. The lower court then denied appellant's motion for a new trial, and this appeal followed. After a careful study of the record, we must reverse and remand for a new trial.

On appeal, appellant alleges that trial counsel was ineffective for: (1) failure to preserve the issue of the introduction of evidence for the complainant's motive to fabricate, i.e. the complainant's Juvenile Court record and court orders; (2) failure to object to the introduction of a purported tacit admission by appellant at the time of his arrest; (3) failure to call exculpatory witnesses; (4) stipulation to the testimony of a lab expert regarding evidence of intercourse since it impeached appellant's credibility; and, (5) failure to object to repeated introduction of good character evidence of the complainant.

The standard for evaluating the effectiveness of counsel is set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

We cannot emphasize strongly enough, however, that 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 to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance

[ 361 Pa. Super. Page 47]

    tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

However, our initial inquiry is whether the issues counsel is charged with not pursuing were of arguable merit. If we conclude that issues were of arguable merit, then and only then do we proceed to inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Hubbard, 472 Pa. 259, 276-79, 372 A.2d 687, 695-96 (1977).

Counsel is presumed to have rendered effective assistance. The burden of proving to the contrary rests with the defendant. Commonwealth v. Murray, 338 Pa. Super. 580, 582, 488 A.2d 45, 46 (1985). "Moreover, the courts of this State have repeatedly said that counsel will not be deemed ineffective in the absence of some showing that the defendant was prejudiced by counsel's alleged shortcomings." Commonwealth v. Litzenberger, 333 Pa. Super. 471, 482, 482 A.2d 968, 974 (1984).

We look first to appellant's allegation that trial counsel was ineffective for failing to preserve the issue of the introduction of evidence for the complainant's motive to fabricate, i.e. the complainant's Juvenile Court record and court orders. After a careful study of the record, we agree that the issue is of arguable merit.

The record shows that prior to the commencement of trial, the Commonwealth filed a motion in limine, seeking to prevent reference at trial to the complainant's juvenile adjudication as a dependent child. The request was granted by the lower court over the objection of appellant's trial counsel. As a result of the lower court's decision, appellant was unable to cross-examine the complainant regarding her Juvenile Court record, including her relationship with her boyfriend, Ronald Faulk, or introduce copies of the record or court orders for the jury's consideration. Appellant's trial counsel did not raise the issue in his post-trial motions.

[ 361 Pa. Super. Page 48]

The juvenile order in question shows that the complainant was restricted from seeing her boyfriend, Ron Faulk, under certain circumstances and that Juvenile Court had imposed a curfew on her that required her to ...


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