Appeal from the Judgment of Sentence entered January 22, 1987, Court of Common Pleas, McKean County, at No. 52, Criminal 1986.
Phillip B. Friedman, Bradford, for appellant.
Robert L. Saunders, Bradford, for appellee.
Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Brosky, J., files a concurring opinion, in which Cirillo, President Judge, joins. Tamilia, J., files a concurring opinion.
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On this appeal, we are asked to determine whether spousal incompetency to testify to confidential communications under 42 Pa.C.S. § 5914 is removed by virtue of the exceptions
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to such incompetency set forth in 42 Pa.C.S. § 5913. We hold that it is. Since this case involved violence done upon a minor child in the care or temporary custody of the defendant/husband, an enumerated exception found in § 5913, the wife was a competent witness against her husband. There being no merit, therefore, in the defendant/husband's assertion on appeal that defense trial counsel was ineffective in failing to object to portions of the wife's testimony, we affirm the judgment of sentence.
A jury convicted Andrew Hancharik of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. The Honorable John M. Cleland, President Judge, entertained Hancharik's amended motions for new trial and in arrest of judgment, denied the same, and sentenced Hancharik to an aggregate term of six to fifteen years' imprisonment. On this direct appeal, Hancharik advances three issues:
1. Alleged trial counsel ineffectiveness in failing to call readily available character witnesses;
2. Alleged court error concerning declaration of mistrial or cautionary instruction relating to testimony about conversations between both spouses and a marriage counselor; and
3. Alleged trial counsel ineffectiveness with respect to wife's testimony as to confidential communications.
At issue 1, Hancharik contends that the key issue in the case was one of credibility. Trial counsel had been provided with a list of possible character witnesses, but did not call all of them. Hancharik contends that where credibility is the key issue, counsel's failure to call all readily available character witnesses constitutes ineffective assistance of counsel. We do not agree.
Our supreme court, speaking through Mr. Justice Papadakos, has recently restated the standard to be applied in reviewing ineffectiveness claims:
We have taken great pains to set forth the criteria that must be established when one attempts to assert the
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ineffectiveness of counsel. The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim . . . . If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interests . . . . Finally, we require that the defendant establish how counsel's commission or omission prejudiced him . . . .
In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum.
Commonwealth v. Durst, 522 Pa. 2, , 559 A.2d 504, 505 (1989), (citations omitted).
As to the alleged failure to call character witnesses, the record is clear that defense counsel thoroughly discussed possible character evidence with Hancharik and, in fact, did call one individual on a list reviewed by counsel. Not only was the decision not to call all of the witnesses made only after careful deliberation and consultation with Hancharik but the record does not establish that any of the witnesses would have been available or that their testimony would have advanced the fact-finding process. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, Peterkin v. Pennsylvania, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010, (1987); Commonwealth v. Flanagan, 375 Pa. Super. 497, 544 A.2d 1030 (1988).
We conclude that issue 1 is without merit.
At issue 2, Hancharik contends that a mistrial was mandatory following Hancharik's wife's testimony regarding a conversation between herself, Hancharik and a marriage
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counselor. During the Commonwealth's case-in-chief, Mrs. Hancharik testified:
A After I got out of the hospital. I refused to leave the hospital unless he agreed to see a counselor with me and the doctor set it up and we seen her briefly before I was discharged on that Friday afternoon and she more or less told both of us all we needed to do was go home, have sex, everything was going to be fine in our marriage. He should forget about his relationship with [the minor victim], he could get in a lot of trouble. He at that point told the counselor that [the minor victim] liked to kiss him and she informed him he could go to jail for that.
MR. LANGELLA: I'd ask the court to instruct the jury to disregard any statement as to what the counselor apparently said.
THE COURT: I don't know that the content came out.
THE COURT: I will instruct the jury anything that the counselor told Mr. Hancharik as part of the counseling session, that's hearsay and not competent evidence and should not be considered by you.
Notes of Testimony, June 25, 1986, pages 49-50.
The trial court's cautionary instruction, to the effect that the jury should not consider anything the counselor told Hancharik, was immediate, clear and adequate. Hancharik's counsel did not move for mistrial when the testimony was presented. Nor does our review of the record disclose any reason of manifest necessity for declaration of a mistrial. We find no trial court error with regard to issue 2. Pa.R.Crim.P. 1118, Commonwealth v. Reardon, 374 Pa. Super. 212, 217, 542 A.2d 572, 574 (1988).
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We turn now to issue 3, the alleged ineffectiveness of trial counsel with respect to wife's testimony as to statements made by Hancharik to his wife. Hancharik contends that trial counsel was ineffective in failing to interpose objections, founded upon the spousal privilege, to the wife's testimony that (a) Hancharik had informed her that he was desirous of adopting an older girl, (b) Hancharik had stated that he loved the minor victim very much and needed a daughter to complete the family, (c) Hancharik stated that he could only relax when the minor victim was around, and (d) there existed marital disharmony and a poor sexual relationship between herself and Hancharik. Hancharik relies upon 42 Pa.C.S. § 5914, which provides:
§ 5914. Confidential communications between spouses
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.
Hancharik concedes that, under limited circumstances, a spouse will be permitted to testify against his or her mate in a criminal proceeding, wherein an act of violence by the defendant against a minor child in that defendant's care is alleged. Prior to June 29, 1989, when the section was amended by Act No. 16 of 1989, 42 Pa.C.S. § 5913 provided:
§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or ...