Appeal from the Judgment of Sentence entered January 22, 1988 in the Court of Common Pleas of Lackawanna County, Criminal Division, No. 84 CR 1052 (A, B).
Anne M. Nelson, New Jersey, for appellant.
Amil M. Monora, Assistant District Attorney, Scranton, for Com., appellee.
McEwen, Montemuro and Kelly, JJ. Montemuro, J., concurs in the result.
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Appellant was convicted of rape and related offenses with regard to his sexual abuse of his teenage daughter. On appeal he contends: counsel was ineffective in failing to adequately question prospective jurors regarding whether they, or friends, or relatives had been victims of similar crimes, or whether they had been exposed to movies or other media presentations relating to incest; prosecutorial misconduct required a new trial; and juror misconduct required a mistrial. We find no merit in the contentions and affirm judgment of sentence.
Facts and Procedural History
Between June of 1983 and January of 1984, appellant engaged in a continuous course of sexually abusive conduct toward his fourteen year old daughter. The abuse occurred after appellant had been granted custody of his daughter, who had previously resided with his former spouse and in a foster home. The assaults, which involved non-consensual sexual fondling, usually occurred late in the evening after he closed the bar he operated in Gouldsborough, Pennsylvania. On January 3, 1984, appellant called his daughter into
[ 384 Pa. Super. Page 432]
his bedroom and proceeded to forcibly rape her. No one else was home at the time.
The victim made no report of any of the incidents of incestuous abuse to anyone until ten days after the rape. After watching a television movie about incest entitled "Something About Amelia" she confided to a friend that she too had been incestuously abused. The next day she told her school counselor, and later she repeated the same information to case workers from the County Children and Youth Services Offices.*fn1
At trial appellant contended that his daughter had fabricated the charges because of conflicts between him and her regarding her poor grades, misconduct in school, and dating relationship with a male 10 years her senior. Despite extensive efforts to impeach her testimony as not credible on these and other grounds,*fn2 the jury credited the victim's testimony and convicted appellant of rape, indecent assault, and indecent exposure.
Post-verdict motions were filed, evidentiary hearings were conducted, and eventually the post-verdict motions
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were denied. Appellant was sentenced to a two to four year term of imprisonment. This timely appeal followed.
I. Ineffective Assistance/Voir Dire
Appellant first contends that counsel was ineffective in failing to conduct adequate voir dire relating to potential bias based on the nature of the charges. Appellant argues that counsel was ineffective in failing to question jurors individually on voir dire as to whether they, or their friends, or relatives had been victims of similar abuse, and whether they had viewed any movies or other media presentations relating to incest. We cannot agree.
Counsel is presumed competent. In order to establish ineffectiveness, appellant must establish that: an act or omission was arguably ineffective; no objectively reasonable basis designed to effectuate appellant's interests could exist for the act or omission; and, but for the act or omission challenged there is a reasonable probability that the result would have been more favorable to appellant. See Commonwealth v. Davis, 381 Pa. Super. 483, 554 A.2d 104 (1989); Commonwealth v. Carelli, 377 Pa. Super. 117, 546 A.2d 1185 (1988) (allocatur denied). In assessing appellant's claim that counsel was ineffective during the conduct of voir dire we must consider the limited role counsel plays in voir dire in non-capital trials in Pennsylvania.
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The sole legitimate purpose of voir dire is to ensure selection of a competent, fair, and impartial jury. Commonwealth v. Drew, 500 Pa. 585, 588-89, 459 A.2d 318, 320 (1983); Commonwealth v. Hathaway, 347 Pa. Super. 134, 142-43, 500 A.2d 443, 447 (1985); Commonwealth v. Bullock, 384 Pa. Super. 269, 273-274, 558 A.2d 535, 537 (1989); Commonwealth v. Newman, 382 Pa. Super 220, 237, 555 A.2d 151, 159 (1989). While the trial court must provide reasonable latitude for counsel to discover and expose grounds to challenge members of the venire for cause, the court must also consider the countervailing privacy interests of the members of the ...