Appeal from the Judgment of Sentence of the Court of Common Pleas, Perry County, Criminal Division, at No. 112 of 1986.
C. Joseph Rehkamp, New Bloomfield, for appellant.
Gloria J. McPherson, Assistant District Attorney, New Bloomfield, for Com., appellee.
Cavanaugh, Brosky and Watkins, JJ.
[ 370 Pa. Super. Page 275]
This is an appeal from the judgment of sentence after a jury trial in which appellant was convicted of rape and involuntary deviate sexual intercourse.
Appellant alleges: (1) that the trial judge failed to give a cautionary instruction on the limited purpose of testimony from the victim that appellant, in order to threaten the
[ 370 Pa. Super. Page 276]
victim, told her about a prior rape episode; (2) that trial counsel was ineffective in failing to object to the admission of this testimony without the cautionary instruction and in neglecting to object to references of the prior rape conviction in the prosecutor's closing; (3) that trial counsel was ineffective for failing to place into evidence that appellant had called the State Police, who were looking for him, which evidence would have strengthened appellant's defense of consent; (4) that trial counsel was ineffective in failing to call appellant and vigorously cross-examine the victim who presented the only testimony concerning the rape; and (5) that the evidence was insufficient to convict appellant of rape. Because none of these contentions has merit, we affirm.
In contending, initially, that the trial judge was required to give a cautionary instruction regarding the limited purpose of the complainant's testimony that appellant told her about a previous rape conviction, appellant urges us that this matter is controlled by Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). In Claypool, the Supreme Court held that testimony given as to defendant's statement to the victim of his prior criminal activity in order to threaten and intimidate the victim is admissible when force or threat of harm is also an element of the crime for which a defendant is presently standing trial. There, Claypool was charged with rape, involuntary deviate sexual intercourse and simple assault. As was the case here, the victim in Claypool testified concerning an admission that defendant had made to her at the time of the perpetration of the offenses. That admission was, as here, that Claypool had been previously incarcerated for rape. Also, as here, the purpose of this testimony was to demonstrate Claypool's intimidation of and threats to the victim to force the sexual acts upon her and, consequently, to negate the defense of consent.
In carving out this new exception to the general rule of inadmissibility of prior crimes, the Supreme Court went on to state:
[ 370 Pa. Super. Page 277]
Although we have determined that evidence of prior criminal acts which the defendant himself makes relevant to prove the crimes with which he is charged is admissible, we are still mindful of the potential for misunderstanding on the part of the jury when this type of evidence is admitted. Therefore, such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.
508 Pa. at 205-06, 495 A.2d at 179.
It is this language which appellant insists creates, at least by implication, a per se rule mandating a cautionary instruction by the trial court regardless of whether or not it is requested.
In Commonwealth v. McCann, 503 Pa. 190, 469 A.2d 126 (1983), our Supreme Court was asked to consider whether the trial court was required to charge on the possible implications of a jury verdict of not guilty by reason of insanity without a specific request therefor or objection to the trial court's failure to do so. The McCann court relied on its earlier decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), that a defendant who raises the defense of insanity is entitled to a jury instruction on the consequences of a verdict of acquittal due to insanity. Yet, the McCann court refused to construe the broad language in Mulgrew that "'a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after return of a verdict of not guilty by reason of insanity'" as a per se rule requiring such an instruction, whether or not requested, in all cases raising the insanity defense. 503 Pa. at 195, 469 A.2d at 128, quoting Commonwealth v. Mulgrew, supra, 457 Pa. at 278, 380 A.2d at 352.
We read Claypool's directive that a cautionary instruction must accompany the admission of evidence of prior crimes in situations similar to the one at bar no different from the broad language in Mulgrew which the McCann court held did not create any per se rule, especially
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when this argument in both McCann and Mulgrew, as well as here, was coupled with the alternate theory of trial counsel's ineffectiveness in failing to request such instruction or in neglecting to object to the trial court's dereliction in that regard. Moreover, were we to make a contrary determination we would be usurping our Supreme Court's seminal and still viable decision in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), that failure to timely object during the course of presentation of evidence cannot be saved for appellate review by alleging basic and fundamental error if not properly preserved. See Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986). Instead, our decision on this initial matter, we believe, is controlled by McCann and Mulgrew, and we will proceed to analyze this issue, as did the Supreme court in those cases, on the basis of appellant's ineffectiveness claim.*fn1
Having so concluded, the next logical step is to consider whether trial counsel was ineffective in neglecting to object to the failure of the trial court to give a cautionary instruction and in failing to request same from the trial court. We are also asked to determine whether trial counsel was similarly derelict in failing to object to various references of the prior rape conviction made by the prosecutor in closing. In doing so, we are guided by the principles recently set forth by our Supreme Court in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Pierce once again reiterated the now firmly entrenched rule for determining
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ineffectiveness originally announced in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), as follows:
Our standard governing ineffectiveness claims was set forth in Commonwealth ex rel. Washington v. Maroney, [supra], which requires that we independently review the record and examine counsel's stewardship in light of the available alternatives. As we stressed in Maroney:
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 tips in favor of a finding of ...