Appeal from the Judgment of Sentence of April 29, 1987 in the Court of Common Pleas of Tioga County, Criminal Division, at No. 156 C.A. 1986.
Raymond E. Ginn, Jr., Wellsboro, for appellant.
James E. Carlson, District Attorney, Wellsboro, for Com., appellee.
Brosky, Del Sole and Hoffman, JJ.
[ 374 Pa. Super. Page 164]
This appeal is from the judgment of sentence for involuntary deviate sexual intercourse, statutory rape, corruption of the morals of a minor, and conspiracy. Appellant contends that the trial court erred in (1) precluding a defense witness from testifying by ruling that, if the witness testified, she would be subject to cross-examination concerning "other crimes" committed by appellant; (2) denying appellant's pro se motion to remove defense counsel; and (3) denying appellant's motion for the trial judge to recuse himself. In addition, appellant contends that trial counsel was ineffective for failing to (1) object to the testimony of the child victim, who appellant alleges was incompetent to testify; (2) comply with the court's order directing counsel to present evidence in support of appellant's motion to change venue; (3) object to the Commonwealth's introduction of a prior consonant statement made
[ 374 Pa. Super. Page 165]
by the victim; (4) object to the testimony of a witness who testified in violation of a sequestration order; and (5) object to references made by the victim regarding appellant's prior criminal activity.*fn1 For the reasons that follow, we vacate the judgment of sentence and remand the case to the trial court for an evidentiary hearing on appellant's final ineffectiveness claim.
On May 8, 1986, appellant was arrested and charged with the above-stated offenses. The charges arose from appellant's alleged sexual abuse of his girlfriend's twelve-year-old son. On December 9, 1986, following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. On April 29, 1987, appellant was sentenced to an eight-to-sixteen-year term of imprisonment on the involuntary deviate sexual intercourse charge,*fn2 to run consecutively to a sentence appellant was serving for a prior conviction. On the same day, trial counsel was granted leave to withdraw, and present counsel was appointed. This appeal followed.
Appellant first contends that the trial court erred in precluding a defense witness from testifying by ruling that, if the witness testified, the Commonwealth could cross-examine her with regard to "other crimes" allegedly committed by appellant. At trial, appellant called his wife, Helen Knapp, to the stand. The Commonwealth then requested an offer of proof. During the side-bar discussion on the offer, the court noted that, if Helen Knapp were called to
[ 374 Pa. Super. Page 166]
the stand, she might be subject to cross examination with regard to her awareness of attempts made by appellant to convince the victim to commit perjury. N.T. December 9, 1986 at 48. Appellant maintains that "[a]s a result of the trial court's indication in this regard, the defense decided not to call Mrs. Knapp to the stand." Appellant further notes that he has never been convicted of subornation of perjury, and thus the court's ruling that it would allow cross-examination on this issue was erroneous.
Essential to appellant's argument is an assumption that evidence of his attempt to have the victim perjure himself is relevant and may be offered only if that conduct resulted in a conviction. We disagree with this proposition. In Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972), our Supreme Court noted that
It is undoubtedly true that evidence of a party's attempt to embrace a juror is admissible to show his unwillingness to rely on the soundness of his cause. Subornation of a witness and proof of flight as an admission of guilt are analogues. Power v. Grogan, 232 Pa. 387, 399, 81 A. 416 (1911); McHugh v. McHugh, 186 Pa. 197, 203, 40 A. 410 (1898); Commonwealth v. Brown, 23 Pa. Super. 470, 502 (1903).
Id., 447 Pa. at 339, 290 A.2d at 250 (emphasis supplied). See also Commonwealth v. Brooks, 352 Pa. Super. 394, 405, 508 A.2d 316, 322 (1986) (court did not err in admitting into evidence letter written by defendant where letter was relevant because it "relate[d] to an issue in the truth determining process; i.e., the guilt or innocence of appellant. The letter bears directly on this question and suggests that the writer was attempting to hide his involvement in the crime by compelling a witness to change her testimony."). Because evidence relating to appellant's attempt to have the victim commit perjury was admissible, we conclude that the trial court did not err in ruling that appellant's wife might be subject to cross-examination in this regard if she took
[ 374 Pa. Super. Page 167]
the stand in appellant's behalf.*fn3
Appellant next contends that the trial court erred in denying his pre-trial motion to remove defense counsel. The decision whether to appoint new counsel rests in the discretion of the trial court. See Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 619 (1976); Commonwealth v. Bell, 328 Pa. Super. 35, 47, 476 A.2d 439, 446 (1984). Although an indigent defendant is entitled to free counsel, he or she is not entitled to free counsel of his or her choice, Commonwealth v. Tyler, supra 468 Pa. at 197, 360 A.2d at 619, and appointed counsel may be rejected only "for good cause shown." Id. (quoting Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968)); Commonwealth v. Bell, supra. A "mere dissatisfaction" with appointed counsel is inadequate to establish "good cause shown." Commonwealth v. Bell, supra. If the defendant can show that irreconcilable differences exist between counsel and client, however, a trial court's refusal to appoint new counsel is an abuse of discretion and the defendant is entitled to a new trial. Commonwealth v. Tyler, supra 468 Pa. at 197-98, 360 A.2d at 619; Commonwealth v. Bell, supra.
Here, appellant does not allege that irreconcilable differences existed between himself and counsel. Instead, appellant alleges only that "[he] and his counsel had a relationship which was 'strained.'" Brief for Appellant at 16. We cannot conclude that such a bald allegation is tantamount to "good cause shown." Cf. Commonwealth v. Johnson, 309 Pa. Super. 117, 126, 128-29, 454 A.2d 1111, 1115, 1116-17
[ 374 Pa. Super. Page 168]
(1983) (court did not abuse discretion in denying request for new counsel where defendant asserted only that he lacked confidence in counsel). Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion to remove trial counsel.
Appellant next contends that the trial court erred in denying his motion for the trial judge to recuse himself.
The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Furthermore, the "decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion." Commonwealth v. Kane, 199 Pa. Super.Ct. 89, 91, 184 A.2d 405, 406 (1962).
In general, a "trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned." Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting from A.B.A. Standards Relating to the Function of the Trial Judge § 1.7) . . . .
Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983). See also Municipal Pub. Inc. v. Snyder, 322 Pa. Super. 464, 481, 469 A.2d 1084, 1092 (1983).
Here, appellant produced no evidence that would tend to establish bias, prejudice, or unfairness necessitating recusal. As the trial court noted in its Opinion in response to appellant's motion,
A hearing was held August 19, 1986 on the omnibus pre-trial motions filed by counsel and by the defendant pro se.
The defendant filed a motion to recuse the Judge . . . . At the hearing, the defendant gave as reasons for recusal that the Judge had made statements regarding the defendant. The defendant could not be specific about the statements. It appears that the defendant recalls the
[ 374 Pa. Super. Page 169]
Court, when it was District Attorney, made a statement that he ran from me. The defendant was charged with a motor vehicle offense for leaving the scene of an accident in 1977. The Court may have made the statement in arguing the matter to the jury.
The petition states that the Court made degrading statements regarding the defendant. The only statement the Court recalls regarding the defendant are [sic] a matter of record in sentencing at Number 266 Criminal Action, 1980 and Number 265 Criminal Action, 1980.
Trial Court Opinion, August 19, 1986 at 1 (emphasis supplied). On appeal, appellant again fails to specify his reasons for recusal. Appellant merely reiterates that "the trial court, both as District Attorney and presiding Judge has had previous contact with [appellant]." Brief for Appellant at 17. This type of argument was specifically rejected by our Supreme Court in Commonwealth v. Darush, supra:
[W]e have never held and are unwilling to adopt a per se rule that a judge who had participated in the prosecution of a defendant may never preside as judge in future unrelated cases involving that defendant. Absent some showing of prejudgment or bias we will not assume a trial court would not be able to provide a defendant a fair trial based solely on prosecutorial participation.
501 Pa. at 22, 459 A.2d at 731. Because we cannot assume bias or prejudice based upon the court's prior contacts with appellant, and because appellant has failed to demonstrate in what respect the court was actually biased or prejudiced against him, we conclude that the trial court did not err in refusing appellant's recusal motion.
Appellant next raises five claims of ineffective assistance of trial counsel. 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. See Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d
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, 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. See Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant's 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. See Commonwealth v. Pierce, 515 Pa. 153, 157-59, 527 A.2d 973, 975 (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 515 Pa. at 159-63, 527 A.2d at 976-77. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an appellant must show the 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 466 U.S. at 687, 104 S.Ct. at 2064.
In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa. Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa. Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) our Supreme Court noted that,
Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.
[ 374 Pa. Super. Page 171]
This Court will no longer consider claims of ineffective assistance of counsel in the abstract.
Id., 492 Pa. at 563, 424 A.2d at 1335.
Appellant first contends that the child victim was incompetent to testify, and that trial counsel was ineffective for failing to object to the testimony of this witness. The competency of a witness is a matter for the trial court to determine, and the court's determination will not be overturned absent an abuse of discretion. Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982); Commonwealth v. Gaerttner, 335 Pa. Super. 203, 214, 484 A.2d 92, 98 (1984).
In order to be testimonially competent, a witness must have the ability to (1) perceive the event with a substantial degree of accuracy, (2) remember it and (3) communicate about it intelligibly (4) mindful of his duty to tell the truth under oath.
Commonwealth v. Goldblum, supra. See also Commonwealth v. Hall, 267 Pa. Super. 204, 209, 406 A.2d 765, 768 (1979).
Appellant focuses his attack here on the fourth criterion listed above, "which we have also described as 'the moral responsibility to be truthful.'" Commonwealth v. Hall, supra, 267 Pa. Superior Ct. at 209-10, 406 A.2d at 768 (quoting Commonwealth v. Mangello, 250 Pa. Super. 202, 203, 378 A.2d 897, 898 (1977)). Appellant maintains that the victim was incompetent to testify because he "could not understand the meaning of the oath nor the distinction between a truth and a lie." We disagree. In Commonwealth v. Payton, 258 Pa. Super. 140, 392 A.2d 723 (1978), we noted that,
There is more to a child's consciousness of the duty to speak the truth than being able to give a clear example of a lie or to understand the concept of an "oath." In fact, the trial judge's opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives
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to questions such as "What is a lie?" and "What will happen to you if you tell a lie?"
Id., 258 Pa. Superior Ct. at 143, 392 A.2d at 725 (citation omitted). See also Commonwealth v. Short, 278 Pa. Super. 581, 588, 420 A.2d 694, 697 (1980).
Here, the child witness, in response to questioning by the prosecutor regarding his responsibility to tell the truth, testified as follows:
Q. All right. Now, Jonathan, just a minute ago, or a moment ago, you were over in front of Mr. Clark and you raised your right hand and you swore to tell the truth. You took an ...