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decided*fn*: March 15, 1989.


Appeal from the Order of the Superior Court entered 7/23/87 at No. 2836 Phl. 1986 reversing the judgment of sentence by the Court of Common Pleas on 10/16/86 at No. 245-251 December Term 1976.


Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Laurie Magid, Philadelphia, for appellant.

Jeremy Gelb, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result. Nix, C.j., files a dissenting opinion in which Zappala, J., joins.

Author: Mcdermott

[ 521 Pa. Page 484]


On November 26, 1976 at approximately 11:05 p.m., a Philadelphia Police Officer received a description over his van radio of a male who had just raped and robbed two women.*fn1 While receiving this information the officer observed appellee, Leonard Hutchinson, who matched the description. Mr. Hutchinson was stopped by the officer, placed in the back of the officer's police van, and taken some five blocks to the scene of the crime for identification purposes. While he was being escorted out of the back of the van one of the victims unhesitatingly identified appellee as the assailant. Moments later Mr. Hutchinson was displayed to the other victim who also responded in like fashion. Mr. Hutchinson was then arrested.

Leonard Hutchinson was found guilty by a jury in the Court of Common Pleas of Philadelphia on September 23, 1977, of rape, involuntary deviate sexual intercourse, and robbery.*fn2 Post-trial motions were denied and appellee was sentenced to a period of incarceration of thirteen to sixty years. Appeal was taken to the Superior Court which

[ 521 Pa. Page 485]

    affirmed the judgment of sentence. Allocatur was denied on January 16, 1980. Subsequently, appellee, acting pro se, filed a petition for relief under the Post Conviction Hearing Act,*fn3 in which he requested a new trial. This petition was later amended by counsel. His primary claim was that trial counsel was ineffective.

Following an evidentiary hearing the PCHA court denied requested relief and appellee appealed to the Superior Court. That Court, by per curiam order, 370 Pa. Super. 647, 533 A.2d 1075, reversed the lower court and remanded for a new trial.*fn4 The Commonwealth then filed a petition for allowance of appeal which was granted. We now reverse the order of the Superior Court.

The issue before the Court is whether trial counsel provided ineffective assistance of counsel when he failed to introduce a prior consistent statement which had been uttered by Mr. Hutchinson. The facts relevant to a resolution of this issue are as follows.

After formal arrest and while still in custody the following statement was purportedly made by appellee: "I have been at my grandmother's house on Camac Street and was going home when a cop stopped me. I don't know anything about robbing or raping anyone."*fn5

At trial defense counsel, during cross examination, attempted to elicit this statement from the detective to whom it was made. The Commonwealth's objection was sustained, with the court determining that this statement was not only hearsay but outside the scope of direct examination as well. No further attempt to introduce this statement was made by defense counsel, even after the Commonwealth made efforts toward impeaching defendant's credibility

[ 521 Pa. Page 486]

    and that of his mother and grandmother.*fn6 It is this failure which appellee alleges rendered trial counsel ineffective.

Approaching our task of determining whether counsel's assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then we examine whether the defendants' allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel those chosen were reasonable in effecting the client's interests, Id.; Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Finally, we require that the defendant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983).

In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant: their accuracy to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra.

Turning to the question of whether appellee's underlying claim had arguable merit, this Court has discussed the admissibility of a prior consistent statement thusly:

[ 521 Pa. Page 487]

    to be proved by the person to whom the declaration was made, in order to support the credibility of the witness.

Lyke v. Lehigh Valley Railroad Co., 236 Pa. 38, 48, 84 A. 595, 601 (1912). Because such statements are hearsay, their use as a means to rehabilitate the credibility of an impeached witness' testimony is severely limited; and such statements are admissible only if it is alleged that the witness' present testimony is recently fabricated or a result of corrupt motives. Commonwealth v. Gaddy, 468 Pa. 303, 317, 362 A.2d 217, 223 (1976). Furthermore, evidence of such statements is "admissible only in rebuttal and then only for the purpose of showing that that which the witness now testifies to has not been recently fabricated". Commonwealth v. Gaddy, 468 Pa. 303, 316, 362 A.2d 217, 223 (1976), quoting Commonwealth v. Wilson, 394 Pa. 588, 602-03, 148 A.2d 234, 242 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). As a further restriction upon admissibility the statement must have been made at a time "before its ultimate effect on the question trying could have been foreseen" Craig v. Craig, 5 Rawles 91, 97-98 (1835). In more recent times this court has interpreted this caveat to mean before "any corrupt motive has arisen" Commonwealth v. Gaddy, supra, 468 Pa. at 317, 362 A.2d at 223 (1976). See also Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101 (1956); Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960); Commonwealth v. Vento, 410 Pa. 350, 189 A.2d 161 (1963).

If one testifies that they did a certain thing at a given time, they may be challenged that they said something different before. Such is impeachment by a prior contradictory statement. Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency, unless that consistency, by allegation of recent fabrication is challenged. When challenged, evidence of prior and continued consistency may be offered. Evidence of prior consistency, absent such challenge is not required and is essentially

[ 521 Pa. Page 488]

    cumulative and repetitious. To regularly allow testimony of prior consistency may easily become a device to merely augment the credibility of witnesses by others.

In the present case, although appellee's credibility was partially impeached by several inconsistencies which were brought out during cross examination, at no time during his trial were there any allegations of recent fabrication. Furthermore, the statement in issue was made after appellee's arrest: clearly not a time when the effect of the statement could not have been foreseen.

It is well settled that counsel's performance will not be considered ineffective for failure to assert a meritless claim, Commonwealth v. Christy, 511 Pa. 490, 497, 515 A.2d 832, 835 (1986), cert. denied sub nom Christy v. Pennsylvania, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987). Because appellee's statement did not qualify as an admissible prior consistent statement appellee's underlying claim was without merit. Consequently, there can be no finding of ineffectiveness.

Accordingly, we reverse the order of the Superior Court, and reinstate the judgment of sentence.


Accordingly, we reverse the order of the Superior Court, and reinstate the judgment of sentence.

NIX, Chief Justice, dissenting.

The sole issue in this case is whether trial counsel was ineffective for failing to introduce on rebuttal a prior consistent statement given by appellee to the police at the time of his arrest. In my judgment, such an omission was clearly a material oversight on counsel's part and justified the Superior Court's determination that trial counsel was ineffective.

[ 521 Pa. Page 489]

The relevant facts are that appellee offered the alibi that he had just left his grandmother's house where he had visited his mother who had been ill. Appellee's mother and grandmother offered alibi testimony, after which appellee's counsel sought to introduce a statement appellee had made to police to the same effect during appellee's direct testimony. The trial judge properly denied appellee the right to admit his statement into evidence, and the Superior Court affirmed the trial judge's ruling in this regard. These rulings were indisputably correct, since appellee had not even been cross-examined at the point where his prior consistent statement was offered. The Commonwealth had presented no evidence that his claim of alibi had been recently fabricated.

The cross-examination of appellee focused on numerous inconsistencies in appellee's alibi. Thereafter, appellee's counsel did not seek or attempt to admit his prior consistent statement either on redirect or rebuttal. Before 1 the PCHA court, appellee's trial counsel testified that he was aware of the fact that the prior consistent statement was important and, having failed to get it in on direct testimony, simply overlooked its subsequent admission due to the pressure of the trial.

*fn* This decision was considered and rendered prior to March 7, 1989.

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