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COMMONWEALTH PENNSYLVANIA v. HAROLD W. SMITH (04/17/89)

submitted: April 17, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HAROLD W. SMITH, JR.



Appeal from the Order entered in the Court of Common Pleas of Northumberland County, Criminal Division, No. CR No. 87-17.

COUNSEL

Anthony J. Rosini, Asst. Dist. Atty., Shamokin, for Com.

Allen K. Neyhard, Watsontown, for appellee.

Tamilia, Popovich and Melinson, JJ. Tamilia, Judge, dissenting.

Author: Melinson

[ 389 Pa. Super. Page 628]

This is a Commonwealth appeal from an Order dated November 14, 1988 in the Court of Common Pleas of Northumberland County. The trial court Order granted Harold W. Smith, Jr., the appellee, a new trial. We affirm.

Smith was charged with indecent exposure and corruption of minors for alleged incidents involving his seven-year-old stepdaughter. At Smith's trial, the alleged victim testified. Following the child's testimony, the Commonwealth presented the testimony of a family therapist who counseled the child following the alleged incidents. The counselor, Ms. Wiley, was asked on direct examination whether she had "an opinion as to [the child's] ability to in character tell

[ 389 Pa. Super. Page 629]

    the truth." The counselor then offered her opinion as to the child's character for telling the truth. No objection was raised by Smith's attorney. Subsequently, Smith was convicted of the crimes charged. Trial counsel withdrew from Smith's representation after filing post-verdict motions. Supplemental post-verdict motions, requesting a new trial, were filed by Smith alleging the ineffectiveness of trial counsel for failing to object to the expert's opinion as to the truth-telling capabilities of the seven-year-old child. The trial court granted Smith's motion for a new trial on this ground. This is the Commonwealth's appeal of the trial court's Order.

On appeal, the Commonwealth argues that "the lower court erred in granting [Smith's] motion for a new trial on the basis of ineffective assistance of counsel as the Commonwealth's testimony did not infringe on the fact[-]finder's obligation to determine the credibility of the witnesses and the introduction of testimony regarding the character for truthfulness of the victim, if in error, was harmless beyond a reasonable doubt." We disagree.

There are three elements to a valid claim of ineffective assistance of counsel. First, we inquire into whether the underlying claim is of arguable merit, that is, whether the disputed action or omission is of questionable legal soundness. If the underlying claim is of arguable merit, we then ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interests. If he did, our inquiry ends. If not, the defendant will be granted relief if he can demonstrate that counsel's improper course of conduct was prejudicial to his interests. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988).

Under Pennsylvania law, only evidence of a general reputation for truthfulness in the community is admissible as character testimony. Commonwealth v. Stiefel, 286 Pa. Super. 259, 428 A.2d 981 (1981) (Vander Voort, J. dissenting);

[ 389 Pa. Super. Page 630]

    argument at bar. We shall not allow, through circumvention of an established principle of Pennsylvania law, the introduction of testimony which is clearly inadmissible. Finally, evidence impairing the child's reputation for veracity was not offered by Smith; moreover, the Commonwealth witness gave her personal opinion, not general reputational testimony, as to the truth-telling ability of the child. Accordingly, there is merit to Smith's contention that counsel was ineffective for failing to object to the admission of this testimony. We further find that counsel had no reasonable basis for allowing its introduction. See Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Thek, 376 Pa. Super. 390, 546 A.2d 83 (1988).

We also find that the admission of the testimony prejudiced Smith and warranted the grant of a new trial ordered by the trial court. The Pennsylvania Supreme Court has stated:

The question of whether a particular witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness . . . . The phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess. For this reason, the question of a witness' credibility has routinely been regarded as a decision reserved exclusively for the jury.

Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986) (citations omitted) (emphasis added); see Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Dunkle, 385 Pa. Super. 317, 561 A.2d 5 (1989).

By testifying as to the child's character for telling the truth, the Commonwealth witness usurped ...


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