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COMMONWEALTH PENNSYLVANIA v. ELBERT FERGUSON (08/25/88)

filed: August 25, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ELBERT FERGUSON, APPELLANT



Appeal from Judgment of Sentence April 8, 1987, in the Court of Common Pleas of Franklin County, Criminal, No. 42-1986.

COUNSEL

Lenora M. Smith, Philadelphia, for appellant.

Theodore E. Hinckley, Assistant District Attorney, Chambersburg, for Com., appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Olszewski

[ 377 Pa. Super. Page 248]

This is an appeal from a judgment of sentence entered after appellant was found guilty by jury of statutory rape, corruption of minors, and criminal conspiracy. Appellant claims that: (1) trial counsel was ineffective for failing to object to the Commonwealth's improper impeachment of a defense witness, and appellant should be granted a new trial because of the improper impeachment; and (2) appellant should be awarded a new trial because the trial court permitted the Commonwealth's expert witness to testify as to a matter within the exclusive province of the jury. For reasons discussed below, we vacate the judgment of sentence and remand for a new trial.

In July 1984, appellant moved in with Brenda Jones*fn1 and her daughter, M.J. Within a few weeks, appellant began having sexual relations with the eleven-year-old girl. M.J. succumbed to appellant's advances on a regular basis, sometimes at Ms. Jones' request, for approximately two years. On December 16, 1985, appellant was arrested and charged with statutory rape, corruption of a minor, and conspiracy. Ms. Jones was also charged in the case; however, Ms. Jones subsequently chose to enter an A.R.D. program. After trial by jury, appellant was found guilty on all charges and sentenced to a total of three to twenty-five years' imprisonment.

Appellant first alleges that he was denied effective assistance of counsel when trial counsel failed to object to the Commonwealth's improper impeachment of Ms. Jones by questioning her as to her placement in A.R.D. When

[ 377 Pa. Super. Page 249]

    assessing ineffective assistance of counsel claims, we must first determine if the underlying claim is of arguable merit; and if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Carroll, 355 Pa. Super. 569, 513 A.2d 1069 (1986). In addition to the foregoing, appellant has the burden of proving that he was prejudiced by counsel's conduct such that the trial result would likely have been different but for the error. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant claims that his trial counsel was ineffective for failing to object to the following cross-examination of Ms. Jones by the Commonwealth:

Q. Mrs. Ferguson, you were formally [sic] Brenda Jones, were you not?

A. Yes, sir.

Q. And as Brenda Jones, you were charged with your alleged complicity in these sexual crimes, were you not?

A. Yes, sir.

Q. And under that program you were given probation for two years for your charges that you were charged, with the sexual offenses involving [M.J.], were you not?

A. Yes, sir.

Q. And you were given a cost to pay, were you not?

A. Yes, sir.

Q. And you were ordered that you could not see your daughter except under supervision of Children and Youth Services limited momentary ...


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