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VERNETTE KITRELL v. JUAN R. DAKOTA (04/07/88)

filed: April 7, 1988.

VERNETTE KITRELL, APPELLEE,
v.
JUAN R. DAKOTA, APPELLANT



Appeal from the Order entered December 3, 1986 in the Court of Common Pleas of Philadelphia County, Civil Division, No. D.R. No. 84-10827.

COUNSEL

Joel F. Bigatel, Philadelphia, for appellant.

Fern L. Kletter, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Montemuro and Kelly, JJ.

Author: Kelly

[ 373 Pa. Super. Page 68]

Appellant, Juan Dakota, appeals from an order determining paternity and awarding child support. We affirm.

Appellant raises four contentions on appeal. First, appellant contends the trial court erred in failing to recuse itself, sua sponte, as the result of its exposure to allegedly inadmissible and highly prejudicial evidence regarding blood test results during a pre-trial hearing. We find no merit in this contention. Next, appellant contends that trial counsel was ineffective in failing to conduct permitted discovery, failing to effectively cross-examine the plaintiff, and failing to object to prejudicial remarks by the prosecution. Appellant concedes this issue is without merit; however, appellant contends the trial court's disposition was only proper because post-trial counsel was ineffective in failing to present evidence in support of the claims of trial counsel's ineffectiveness. In Banks v. Randle, 337 Pa. Super. 197, 486 A.2d 974 (1984), this Court announced that the standard then applicable for disposition of ineffectiveness claims in criminal cases was to be applied to ineffectiveness claims in

[ 373 Pa. Super. Page 69]

    civil paternity proceedings. In this case we reconsider Banks in light of clarification of the criminal ineffectiveness standard provided by Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and other recent cases, and conclude that those clarifications apply equally to claims of ineffective assistance of counsel in civil paternity proceedings. Applying the Pierce analysis, we find no merit in appellant's contentions of ineffective assistance. Finally, appellant contends that the evidence was insufficient to establish paternity; we find no merit in the contention.

FACTS AND PROCEDURAL HISTORY

On August 20, 1984, appellee, Vernette Kitrell, filed a complaint requesting child support for her minor child, naming appellant as putative father and defendant. Appellee testified at the paternity trial on October 10, 1985, that she first met appellant at an Indian Powwow in August of 1983 and that they commenced a sexual relationship in September 1983 which continued until appellee was 3-1/2 months pregnant with the subject child. She denied having relations with any other man between September and November of 1983; she indicated that her last menstrual cycle occurred in October of 1983. She testified further that she informed appellant of her pregnancy in late November 1983, and that appellant continued to see her but informed her they could not marry as he was engaged to another. Appellant denied these facts at trial. The trial court, sitting as finder of fact, however, specifically found appellee's version of events to be more credible. The court ruled that appellee had established that appellant was the father of the child by the preponderance of the evidence; accordingly, an order was entered finding appellant to be the father of the child.

Appellant filed post-trial motions alleging, inter alia, ineffective assistance of trial counsel. At that juncture appellant had been represented by two different counsel, pre-trial counsel, trial counsel, and pre-trial counsel again for post-trial proceedings. Pre-trial counsel had requested and was granted permission by the trial court to conduct

[ 373 Pa. Super. Page 70]

    civil discovery; he intended to depose the appellee. However, when trial counsel succeeded pre-trial counsel, she chose not to depose appellee. Instead, trial counsel elected to file a motion to suppress evidence of blood test (HLA) results (which was granted) and to proceed to trial. Pre-trial counsel, in turn, succeeded trial counsel, and asserted in post-trial motions that trial counsel was ineffective for failing to depose the appellee and for failing to object to the prosecution's remark made during pre-trial motions that the blood tests were "99.99 per cent."

The trial court granted an evidentiary hearing on the issue of trial counsel's alleged ineffectiveness; however, post-trial counsel elected to forego the opportunity to present evidence in support of those claims (e.g. testimony of appellant and/or trial counsel) and instead presented argument that trial counsel also ineffectively cross-examined the appellee at trial. We note that this new argument had not been presented in appellant's written post-trial motions.

All of appellant's post-trial motions, including the ineffectiveness claims, were denied. Subsequently, on August 20, 1986, a hearing was held to determine appellant's support obligation. After argument on appellant's exceptions to the recommended award, the court entered a final order of support. Post-trial counsel was permitted to withdraw and present counsel (appellant's third) was appointed to ...


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