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COMMONWEALTH PENNSYLVANIA v. THOMAS POINDEXTER (02/08/88)

submitted: February 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS POINDEXTER, APPELLANT



Appeal from Judgment of Sentence of July 9, 1985, in the Court of Common Pleas of Philadelphia County, Criminal, No. 652-679 April Term 1984.

COUNSEL

MaryAnn F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Montemuro and Watkins, JJ.

Author: Olszewski

[ 372 Pa. Super. Page 568]

This is an appeal from the judgment of sentence entered after a jury convicted appellant of three counts each of rape, statutory rape, and involuntary deviate sexual intercourse. Appellant presents us with four issues for our review: (1) whether counsel was ineffective for failing to seek the recusal of the preliminary hearing judge; (2) whether counsel was ineffective for failing to challenge the bills of information as to one of the victims, A.P., on the basis of double jeopardy; (3) whether the trial court erred by preventing defense counsel from questioning one of the victims, A.P., about a statement she made to the police concerning her sexual conduct with another adult male; and (4) whether the prosecutor failed to prove that the sexual intercourse was by forcible compulsion or by threat of forcible compulsion. In addition, although represented by counsel on this appeal, appellant included the following pro se argument which was attached as a supplemental argument to counsel's brief: whether trial counsel was ineffective for failing to call certain witnesses. For the reasons stated below, the judgment of sentence is affirmed.

The trial court aptly stated the facts as follows:

Defendant sexually abused his three daughters, [A.P., Cl.P., and Ca.P.], commencing on or about January 1, 1974, before they had attained puberty, and continuing on a frequent basis up to August 26, 1983. At all relevant

[ 372 Pa. Super. Page 569]

    times, his youngest daughters [Cl.P. and Ca.P.], were under the age of 14; [A.P.], the eldest, turned 15 six months before the last incident. The instant charges were filed against defendant on November 2, 1983.

Trial court opinion at 1-2. Appellant was sentenced to a concurrent term of 5-to-10 years' imprisonment on each of the three involuntary deviate sexual intercourse bills and a consecutive term of 5-to-10 years' imprisonment on each of the three rape bills.

Appellant's first contention is that counsel was ineffective for failing to seek the recusal of the preliminary hearing judge since he was the same judge who had presided over a trial for appellant less than two years earlier. When confronted with a claim of ineffectiveness of counsel, this Court must determine whether the issue underlying the charge of ineffectiveness is of arguable merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If the issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis in promoting the client's interests. Id. In addition, appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. See Commonwealth v. Verdekal, 351 Pa. Super. 412, 506 A.2d 415 (1986). Counsel is presumed to be effective and ...


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