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COMMONWEALTH PENNSYLVANIA v. RICHARD WIENCKOWSKI (02/17/88)

filed: February 17, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD WIENCKOWSKI, APPELLANT



Appeal from the Judgment of Sentence March 23, 1987 in the Court of Common Pleas of Philadelphia County, Criminal No. 84-09-219 220 223 & 224.

COUNSEL

Aaron C. Finestone, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cirillo, President Judge, and Brosky and Beck, JJ.

Author: Cirillo

[ 371 Pa. Super. Page 156]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County challenging the conviction of Richard Wienckowski by a jury for possession of an instrument of crime, simple assault, involuntary deviate sexual intercourse, and kidnapping. C. Van Youngman, Esquire, represented Wienckowski at trial and subsequently filed post-verdict motions challenging the weight and sufficiency of the evidence. Aaron Finestone, Esquire, represented Wienckowski on these post-verdict motions, and supplemented them with post-verdict motions alleging ineffective assistance of counsel. An evidentiary hearing was held on the ineffectiveness issue. Shortly thereafter, the post-verdict motions, both initial and supplemental, were argued, briefed, and denied.

[ 371 Pa. Super. Page 157]

On the lesser charges of simple assault and possession of an instrument of crime, Wienckowski was sentenced to identical one-to two-year periods of incarceration to run concurrently with a six- to fifteen-year sentence on the involuntary deviate sexual intercourse conviction. On the kidnapping charge, he received a sentence of four to fifteen years to run consecutively with the sentence on the sex offense, bringing his period of incarceration to a total of ten to thirty years. Counsel filed a motion to reconsider sentence in which he argued merger and challenged the imposition of consecutive sentences. The trial judge granted him limited relief by suspending the sentence for simple assault on the grounds of merger and reimposing the same sentence on the other convictions.

On appeal, Wienckowski raises three issues with respect to his conviction and sentencing. First, he argues that his trial counsel was ineffective in: (1) giving an inadequate opening statement; (2) bringing out damaging evidence which had not been introduced by the Commonwealth; and (3) attacking Wienckowski's character during closing argument and pronouncing him guilty of crimes for which he had not been charged. Wienckowski's second contention is that the trial court's verdict was based on insufficient evidence or was contrary to the weight of the evidence, due to the lack of credibility of the complaining witness. The appellant's final contention is that the trial court erred in imposing consecutive sentences. We affirm.

Ineffectiveness of Counsel

In any ineffectiveness of counsel claim, the standard for determining counsel's ineffectiveness is based upon the presumption of competent stewardship, and the burden of proving otherwise is on the defendant. See Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d 1140 (1987).

To make out a valid claim of ineffectiveness of counsel, then, a defendant must first demonstrate that the underlying issue is of arguable merit. If so, inquiry must then be made into whether the course of action chosen by counsel was not reasonably designed to protect the defendant's

[ 371 Pa. Super. Page 158]

    best interests. Id. Finally, the defendant must show that he was actually prejudiced by his counsel's ineffectiveness. Commonwealth v. ...


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