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COMMONWEALTH PENNSYLVANIA v. MICHAEL FETZNER (03/21/88)

filed: March 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL FETZNER, APPELLANT



Appeal from the Judgment of Sentence of January 12, 1987 in the Court of Common Pleas of Erie County, Criminal Division, at No. 1266 of 1986.

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Paul Susko, Assistant District Attorney, Erie, for Com., appellee.

Brosky, Del Sole and Hoffman, JJ.

Author: Hoffman

[ 372 Pa. Super. Page 471]

This is an appeal from the judgment of sentence for statutory rape,*fn1 corruption of minors,*fn2 interference with

[ 372 Pa. Super. Page 472]

    custody of children,*fn3 and impersonation of a public servant.*fn4 Appellant contends that (1) the trial court erred by (a) denying his motion for a mistrial, (b) denying his demurrers to the charges of statutory rape, corruption of minors, and impersonation of a public servant; (2) trial counsel was ineffective for failing to request a pre-trial competency hearing and a pre-sentencing psychiatric evaluation; and (3) the sentencing court (a) abused its discretion by failing to state adequate reasons on the record for his sentence and (b) failed to merge the convictions for statutory rape and corruption of minors for sentencing purposes. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the trial court has adequately disposed of appellant's first contentions relating to trial court error in its opinion and, accordingly, affirm the disposition of those issues on the basis of the court's opinion. See Trial Court Opinion of January 7, 1987. For the reasons that follow, we vacate the judgment of sentence and remand the case for the appointment of new counsel and an evidentiary hearing.

On July 5, 1986, appellant was arrested and charged with the above-stated offenses. The charges stemmed from an incident involving appellant's alleged enticement of a thirteen-year-old girl to his home by forging a note to her mother, while posing as a juvenile enforcement officer. Following a jury trial, appellant was found guilty of all charges. After denial of post-trial motions, appellant was sentenced to an aggregate term of eight-to-sixteen years imprisonment. Appellant then filed a motion to modify sentence which the court denied. This appeal followed.

Appellant contends that trial counsel was ineffective for failing to request (a) a pre-trial competency hearing to determine his mental capacity to stand trial, and (b) a pre-sentencing psychiatric evaluation to determine his mental capacity to be incarcerated. Appellant's counsel below was a member of the Erie County Public Defender's Office.

[ 372 Pa. Super. Page 473]

On appeal, appellant is represented by another member of the same office.

Initially, the determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant' claim does have arguable merit, we must determine whether "the course chosen by counsel had some reasonable basis designed to serve the best interests of the client." Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel's ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an appellant must show that the error was "so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable." Strickland v. Washington, supra at 686, 104 S.Ct. at 2063-64.

We note here with importance that appellant's trial and appellate counsel are both members of the same Public Defender's Office. As a general rule, a public defender may not argue the ineffectiveness of another member of that public defender's office who represented the client at a previous stage in the proceedings. See, e.g., Commonwealth v. Glaze, 366 Pa. Superior Ct. 517, 520, 531 A.2d 796,

[ 372 Pa. Super. Page 474798]

(1987). Subsequently, an exception to the general rule was expanded to allow one member of a public defender's office to raise the ineffectiveness of another member of the same office provided that reversible error was apparent on the record. See Commonwealth ...


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