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COMMONWEALTH PENNSYLVANIA v. JOSEPH TAVARES (03/07/89)

filed: March 7, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH TAVARES, APPELLANT



Appeal from the judgment of sentence of April 10, 1987, in the Court of Common Pleas of Philadelphia County, Criminal No. 85-11-0284/0287.

COUNSEL

Robert N. Dellavella, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Del Sole and Beck, JJ. Del Sole, J. files a dissenting statement.

Author: Beck

[ 382 Pa. Super. Page 319]

Joseph Tavares appeals the judgment of sentence of three to ten years imprisonment following a bench trial in which he was convicted of attempted involuntary deviate sexual intercourse (IDSI), indecent assault, and unlawful restraint.

[ 382 Pa. Super. Page 320]

Tavares, an attendant at Inglis House, a home for handicapped persons, entered the room of David Savage, a nineteen year old resident with cerebral palsy. David was talking with another resident, Michael Panunto, who also has cerebral palsy and who was sitting in his wheelchair next to David's bed. Tavares asked the two if they wanted to have sex. Thinking he meant "with a girl, not with a man" David said yes. Michael, who communicates through the use of a speak and spell word board, indicated, "No." Tavares pushed David's wheelchair against the door to hold it closed. He pulled down David's bedsheet, removed his bed bag, and placed Michael's hand on David's penis. David said "knock it the fuck off, Joe" and Michael removed his hand. Tavares then placed Michael's hand back on David's penis, and pushed Michael's head down to within an inch or two of David's penis. Michael tried to pull his head back up, but could not overcome Tavares' hold. The episode ended when David's father knocked on the door and an attendant brought in lunch trays. Shortly thereafter, Michael telephoned his mother and, with the aid of the speak and spell, communicated what had happened. Mrs. Panunto went to Inglis house where both Michael and David repeated to her the story of what had occurred. Mrs. Panunto reported the incident to the head of nursing, and after a week with no result, she reported the incident to police.

Tavares was convicted in a non-jury trial of attempted IDSI, indecent assault, and unlawful restraint. It appears that post-verdict motions were never formally made. However, the judge ruled upon them. Although failure to file post-verdict motions usually results in waiver of the issues raised, Tavares' issues raised in the context of ineffectiveness of counsel are properly before us on direct appeal. See Commonwealth v. Johnson, 347 Pa. Super. 93, 500 A.2d 173 (1985) (issues of ineffectiveness of trial counsel must be raised by new counsel at earliest possible stage of proceedings.)

[ 382 Pa. Super. Page 321]

Tavares contends that trial counsel was ineffective for failing to file post-trial motions and for failing to include all assignments of error therein. In examining a claim of ineffective assistance of counsel, the reviewing court must first determine whether the issue underlying the ineffectiveness claim is of arguable merit. Second, it must be determined whether the course chosen by counsel had some reasonable basis aimed at protecting the defendant's interests. Finally, the court must find that counsel's action or inaction resulted in prejudice to the defendant. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Throughout this process the law presumes effectiveness of counsel and the defendant has the burden of proving ineffectiveness. Commonwealth v. Tyson, 363 Pa. Super. 380, 526 A.2d 395 (1987). As appellant in the instant case contends that trial counsel was ineffective for failing to file post-trial motions, we now consider each of the issues under the three-pronged test for ineffectiveness set forth in Pierce.

We initially test whether Tavares' first claim has arguable merit. Tavares contends that the trial court erred in convicting him of attempted IDSI and indecent assault as he did not engage in the proscribed conduct with either of the complainants. The IDSI statute provides in pertinent part:

3123. Involuntary deviate sexual intercourse

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S.A. section 3123 (Purdon 1983). The indecent assault statute provides:

3126. Indecent Assault

A person who has indecent contact with another not his spouse, or causes such other ...


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