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COMMONWEALTH PENNSYLVANIA v. RICHARD PETRAS (11/30/87)

filed: November 30, 1987.

COMMONWEALTH OF PENNSYLVANIA,
v.
RICHARD PETRAS, APPELLANT



Appeal from judgment of sentence entered March 18, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 8504-0012.

COUNSEL

James Bacon, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Kelly and Watkins, JJ.

Author: Kelly

[ 368 Pa. Super. Page 374]

Following a bench trial, appellant, Richard Petras, was convicted of involuntary deviate sexual intercourse involving oral sodomy on a thirteen year old male. On March 18, 1986, appellant was sentenced to a term of three to six years imprisonment. Appellant contends in this appeal that trial counsel rendered ineffective assistance thereby denying

[ 368 Pa. Super. Page 375]

    him a fair trial. We remand for an evidentiary hearing with respect to one of appellant's allegations of ineffectiveness.

The facts and procedural history of this case are accurately set forth in the opinion of the trial court and will be repeated herein only as necessary for the disposition of the contentions raised by appellant. Appellant contends that, individually and collectively, alleged errors by trial counsel denied him a fair trial. Specifically, appellant contends that his attorney was ineffective in: 1) failing to interview and/or call Edwin C. as a defense witness; 2) failing to impeach the victim with prior inconsistent statements; 3) failing to properly cross-examine the police officers; 4) failing to demand a bill of particulars or to request a continuance; and 5) failing to object to allegedly improper and inflammatory information presented to the sentencing court in the presentence report. We find no merit in appellant's second, third, fourth, and fifth contentions. With regard to appellant's first contention, we find we must remand for an evidentiary hearing. We shall discuss each allegation of ineffectiveness seriatim.

The burden of establishing ineffective assistance of counsel rests upon the appellant as counsel's stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). "In this Commonwealth we have long used, to gauge ineffectiveness of counsel's stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)." See Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the effectiveness of counsel was described by our Supreme Court as follows:

Our task . . . 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 . . . . We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's

[ 368 Pa. Super. Page 376]

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

235 A.2d at 352-53. Our Supreme Court also made clear that, for relief to be granted, the accused must demonstrate that counsel's ...


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