Appeal from the Judgment of Sentence in the Court of Common Pleas of Blair County, Criminal Division, No. 199 of 1985
Norman D. Callan, Public Defender, Altoona, for appellant (at 770) and appellee (at 880).
Darlee E. Sill, Assistant District Attorney, Altoona, for Com., appellant (at 880) and appellee (at 770).
Tamilia, Watkins and Cercone, JJ.
[ 380 Pa. Super. Page 283]
This matter involves cross-appeals, appellant/defendant appealing the judgment of sentence and appellant/Commonwealth appealing the trial judge's failure to impose the mandatory five year sentence for offenses against infant persons pursuant to 42 Pa.C.S. § 9718. Appellant Vincent Francis Crum appeals judgment of sentence rendered May 13, 1988. He was convicted on August 27, 1985 by a judge sitting without a jury of rape, 18 Pa.C.S. § 3121, indecent assault, 18 Pa.C.S. § 3126, and corruption of minors, 18 Pa.C.S. § 6301. After denial of post-verdict motions, appellant/defendant was sentenced to serve two and one-quarter to four and one-half years incarceration for the rape conviction to be followed by three years probation for the corruption of a minor conviction; the indecent assault conviction was held to have merged for sentencing purposes. Notice of appeal at No. 00770 Pittsburgh, 1988 was filed by appellant Crum on May 20, 1988; the cross appeal was later filed by the Commonwealth on June 1, 1988 at No. 00880 Pittsburgh,
[ 380 Pa. Super. Page 2841988]
. At No. 00770, appellant Crum urges his trial counsel was ineffective for many reasons, and he seeks a new trial. At No. 00880, the Commonwealth contends the court erred by failing to sentence Crum to the mandatory five year period of incarceration as required by 42 Pa.C.S. § 9718.
We first address appellant/Crum's appeal at No. 00770 Pittsburgh, 1988. The incident which resulted in the conviction occurred on or about August 2, 1984 in Altoona, Pennsylvania. Appellant Crum was involved in a relationship with the mother of the victim and in this manner had access to the victim on occasions when the mother was not present. The victim, who was born February 16, 1969, was fifteen years old at the time of the incident.
Crum first contends his trial counsel was ineffective for bringing into the trial on cross-examination of the victim the issue of her consent, as demonstrated by Polaroid photographs of her which Crum had taken in Texas prior to the August 1984 incident. The photographs showed the victim nude and semi-nude in various positions, and the defense counsel attempted to examine her about the fact that they showed her with a smile. Crum urges counsel was ineffective for introducing consent as a defense, because the defense was Crum had not committed the act on August 2, 1984. On this basis, he urges his counsel did not conduct himself at the minimum level of competency.
The Supreme Court recently reiterated in Commonwealth v. Collins, 519 Pa. 58, 545 A.2d 882 (1988), the standard of review in cases where ineffectiveness is alleged.
In resolving a claim of ineffective assistance of counsel, we have long followed the standard set forth in [ Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)]. In Washington, this Court observed that, in gauging the performance of an attorney at trial, the process must entail a ...