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COMMONWEALTH PENNSYLVANIA v. DONALD BRISTOW (03/15/88)

filed: March 15, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONALD BRISTOW, APPELLANT



Appeal from the Judgment of Sentence April 23, 1987, in the Court of common Pleas of Philadelphia County, Criminal No. 84-12-2220-2227.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

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

McEwen, Olszewski and Cercone, JJ.

Author: Olszewski

[ 372 Pa. Super. Page 50]

This is an appeal from the judgment of sentence entered after a jury found appellant guilty of rape, involuntary deviate sexual intercourse, statutory rape, corruption of a minor, incest, indecent assault, indecent exposure, and simple assault. Appellant argues that his trial counsel rendered ineffective assistance of counsel by: (1) failing to seek recusal of the trial judge since the trial judge had presided over appellant's preliminary hearing in this matter; (2) failing to properly preserve for appellate review the issue of the sufficiency of the evidence to sustain appellant's convictions; (3) failing to properly preserve for appellate review the issue of the competency of the victim in this matter; and (4) failing to file a motion to modify sentence challenging the trial court's sentencing of appellant. We find appellant's contentions to be meritless; accordingly, the judgment of sentence is affirmed.

During the summer of 1982 or 1983, appellant raped and sodomized his four-year-old daughter. The victim's

[ 372 Pa. Super. Page 51]

    brother witnessed the rape when he peeked into appellant's bedroom to see why his sister was screaming. Both children reported the incident to an aunt after they moved out of appellant's house. Following a bench trial, appellant was convicted of rape, involuntary deviate sexual intercourse, statutory rape, corruption of a minor, incest, indecent assault, indecent exposure, and simple assault. Post-verdict motions were filed and denied. On April 23, 1987, appellant was sentenced to forty-two to eighty-four months in prison. Trial counsel was then permitted to withdraw and new counsel was appointed. This timely appeal followed.*fn1

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 the burden of proving to the contrary rests on the party alleging counsel's ineffectiveness. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant's first contention is that trial counsel rendered ineffective assistance when he failed to seek recusal of the trial judge since the trial judge had presided over

[ 372 Pa. Super. Page 52]

    appellant's preliminary hearing in this matter. We disagree.

The determination of whether a trial judge should recuse himself depends upon the following:

Commonwealth v. Lewis, 314 Pa. Super. 298, 303-04, 460 A.2d 1149, 1151-1152 ...


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