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filed: June 8, 1988.


Appeal from the PCHA Order of May 19, 1987 in the Court of Common Pleas of Somerset County, Criminal Division, at No. 223 Criminal 1982


Joseph B. Policicchio, Somerset, for appellant.

James B. Yelovich, District Attorney, Somerset, for Com., appellee.

Wieand, McEwen and Hoffman, JJ.

Author: Hoffman

[ 375 Pa. Super. Page 369]

This appeal is from the order below denying appellant's petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that trial counsel was ineffective for (1) proceeding to select a jury without appellant being present; (2) failing to move to suppress certain business records introduced by the Commonwealth;

[ 375 Pa. Super. Page 370]

(3) failing to offer two letters into evidence; and (4) reporting ready for trial even though he had failed to verify the availability of an essential defense witness. For the reasons that follow, we vacate the order below and remand for a new trial.

On January 28, 1983, following a jury trial, appellant was found guilty of misapplication of entrusted property, 18 Pa.C.S.A. § 4113(a), and tampering with public records, id. § 4911(a)(1). Appellant was later sentenced to a five-year term of probation. The judgment of sentence was affirmed by this Court on May 17, 1985. See Commonwealth v. Morocco, 345 Pa. Super. 619, 496 A.2d 853 (1985). In 1986, appellant filed a pro se PCHA petition. Present counsel was appointed and on October 14, 1986, a hearing was held on the petition. On May 19, 1987, the court denied the petition, and this appeal followed.

On appeal, appellant raises four 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. 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'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. 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

[ 375 Pa. Super. Page 371]

    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 2063-2064.

Appellant first contends that counsel was ineffective for "failing to notify appellant of the time and place of jury selection, thereby causing appellant to be absent during said jury selection; and counsel was ineffective by proceeding to select a jury without the presence of appellant." After carefully reviewing the record and the briefs submitted by the parties, we conclude that the PCHA court has properly disposed of this issue in its well-reasoned opinion.

Appellant next contends that trial counsel was ineffective for failing to move to suppress business records that were introduced by the Commonwealth. Appellant notes that, with regard to the tampering with public records charge, the Commonwealth's theory was that certain expense vouchers that appellant submitted were for days on which internal agency records showed appellant to have been marked on vacation, on holiday, or simply "off". To prove its theory, the Commonwealth, without objection by trial counsel, introduced semi-monthly time reports and cumulative leave reports that were maintained by the Somerset County Office on Aging.*fn1 Appellant argues that these reports were not admissible as business records of the Agency because they were not "validated" by the agency.*fn2

[ 375 Pa. Super. Page 372]

Because these documents did not qualify as business records, appellant contends, trial counsel was ineffective for failing to object to their admission. We disagree.

In this Commonwealth, the admissibility of business records is governed by statute. 42 Pa.C.S.A. § 6108(b) provides that,

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

Id. The purpose of this legislation is

     to merely require that the basic integrity of the record keeping is established. Where it can be shown that the entries were made with sufficient contemporaneousness to assure accuracy and that they were made pursuant to the business practices and not influenced by the litigation in which they are being introduced, a sufficient indicia of reliability is provided to overcome their hearsay nature.

In re Estate of Indyk, 488 Pa. 567, 572, 413 A.2d 371, 373 (1979) (footnote omitted). "Whether a document should be admitted under the 'business record' exception is within the discretionary power of the trial court provided such is exercised within the bounds of [§ 6108]." Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 340, 455 A.2d 637, 640 (1982).

[ 375 Pa. Super. Page 373]

Appellant does not dispute that the semi-monthly reports and cumulative leave reports at issue here were made "in the regular course of business at or near the time of the act, condition or event" as required by § 6108(b). Instead, appellant invites us to conclude that, even if the records satisfy the § 6108 reliability test, they are rendered unreliable, and hence inadmissible, simply because the Agency, as an internal matter, seeks to further verify the information by use of "validation letters." Appellant can cite no authority in support of this proposition, and we fail to see any reason why the absence of such a superfluous test should in any way impeach the reliability of a record made and kept in accordance with the standards outlined in § 6108.*fn3 At best, the absence of the validation letters provided counsel with a basis to attack the weight that should be attached to these records. Accordingly, we agree with the PCHA court's conclusion that these records were admissible. Because the records were admissible, we must conclude that appellant's claim that trial counsel was ineffective for failing to object to their admission does not possess arguable merit, and appellant is not entitled to relief on this ground.

As a corollary to this argument, appellant also contends that counsel was ineffective for failing to call the former personnel officer of the Agency, Judy Dill, to testify. Appellant argues that "Mrs. Dill would have testified that Appellant was not sent a validation letter for [the] year 1981. Such testimony would have either had a direct bearing on the admissibility of the records as business records or would have attacked the accurateness of the same as being unaudited, unchecked and unverified ...

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