Commonwealth v. Stiefel
Commonwealth v. Stiefel
Opinion of the Court
This appeal is from judgments of sentence for rape, indecent assault, burglary, simple assault, recklessly endangering another person, and terroristic threats. Appellant argues that he is entitled to a new trial because his trial counsel was ineffective. This argument is made by the same office—the Allegheny County Public Defender—as represented appellant at trial. Nothing in the record indicates that appellant made a knowing choice to continue to be represented by the office he claims was ineffective. Cf. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Roach, 268 Pa.Super. 340, 408 A.2d 495 (1979). At minimum, therefore, appellant is entitled to a remand for appointment of appellate counsel not associated with the defender’s office. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Boyer, 277 Pa.Super. 82, 419 A.2d 671 (1980).
At trial, the victim testified as follows. Appellant was a friend of her younger brothers’ and had stayed with them in her house while she had been out of town a few weeks before the night in question. On that night, at about 11 p. m., she was asleep in her living room when appellant appeared in the room. He no longer had a key to the house and she assumed he had entered through an unlocked upstairs window, which was accessible from the ground. Appellant told her he was looking for something he had left in
Appellant gave conflicting testimony, as follows. He had been at a wedding reception until 3 a. m. On his way home from the reception he realized that a chrome strip he needed for a car he was working on was at the victim’s house. He went to the house, knocked on the door, and was admitted. After looking unsuccessfully for the chrome strip he sat on the living room couch with the victim and she started making advances to him. He responded to these advances and they engaged in consensual intercourse, which, according to appellant, they had done on two prior occasions.
At the beginning of the trial, appellant’s counsel had requested a two-day postponement in order to locate two witnesses who, it was said, could corroborate appellant’s account of the early part of the evening. This would provide a partial alibi and also impeach the victim by contradicting her version of appellant’s whereabouts on the night in question. Counsel explained that although appellant had been represented from the beginning by the public defender’s office, he personally had been assigned the case only the previous Friday, had had another trial in the interim, and had learned only that morning of the two witnesses. The Commonwealth objected to any further delay, and also argued that any alibi witnesses would be subject to exclusion because of failure to comply with Pa.R.Cr.P. 305 C(l), which required the details of an alibi defense and the names of prospective alibi witnesses to be disclosed at the time the omnibus pretrial motion was due to be filed. After a colloquy, during which the lower court acknowledged the staffing problems of the public defender’s office and also expressed concern about the cost and inconvenience to the Commonwealth of further delay, the court denied the request for postponement but said that it would try to accom
In its opinion in support of its denial of appellant’s post-trial motions the lower court wrote:
It appears to the Court that there was sufficient time and opportunity in spite of a late start, for the defendant to have the presence of Mrs. Byrizinski as a witness to testify on his behalf, but that the means of securing the witness’s attendance were half-hearted and ineffectual. Instead of asking the witness to come to the process server, why did not the process server go to the witness? It is to be noted that there was no direct request made for the Court to intercede and lend the assistance of means available to the Court to compel the attendance of this witness—or of any other witness. . . .
The Court is of the opinion that there was no prejudice to the defendant in refusing his request for postponement on the grounds of needing time to get witnesses. As it turned out, with the shortened daily sessions and the intervening weekend recess, there was adequate opportunity for defendant to contact his witnesses, even as the trial was in progress. The time required for trial of this case would have been less than two Court days if it had been moved along steadily. Instead, it was spread out and dragged on over a period of six days, with only a few hours of actual Courtroom time being spent in trial in each of those six days.
Slip op., reprinted in appellant’s brief at 15a.
A fair paraphrase of these two paragraphs is that the lower court found that its denial of appellant’s trial counsel’s motion for postponement was not an abuse of discretion because effective counsel would have easily been able to secure the attendance of the witnesses in the time available.
This case is very similar to Commonwealth v. Fallings, 251 Pa.Super. 365, 380 A.2d 822 (1977). Fallings was convicted by a jury of burglary. On appeal he argued that his trial counsel had been ineffective in not securing the presence at trial of one Nathaniel Sutton. Sutton had already pleaded guilty to the same charge. Fallings argued on appeal that Sutton had testified at the preliminary hearing that Fallings was not criminally involved in the burglary, and that if present at trial, Sutton would have repeated that testimony. However, although Fallings’ trial counsel sent Sutton a registered letter requesting his presence at trial and made a motion to have Sutton admitted to bail as a material witness—a motion that was unsuccessful because it could be made only by the Commonwealth, Pa.R.Crim.P. 4017(a)—counsel never caused' a subpoena to be issued or served. When Sutton failed to appear at trial, counsel requested a continuance, which was denied. We found that Fallings’ counsel had been ineffective in his efforts to secure Sutton’s presence at trial.
Judgments of sentence vacated and case remanded for new trial.
. This conflict in representation is not acknowledged in appellant’s brief although it is by the Commonwealth in its brief. This failure is itself an illustration of the importance of having appellate counsel not associated with trial counsel when ineffectiveness of trial counsel is being argued. The issue of a conflict in representation is, however, an issue that we may raise sua sponte. Commonwealth v. Lennox, 270 Pa.Super. 254, 411 A.2d 514 (1979).
. Having reached this conclusion, we find it unnecessary to consider the other issues raised by appellant on this appeal. The dissent discusses the lower court’s refusal to allow impeachment of the victim by introducing evidence of her reputation in the community for truth and veracity. Because this issue was not preserved in post-trial motions, it is not properly before us. However, since it is
. Appellant’s brief, at 8 n. 1 and 9, misstates the chronology of events as related at trial by the victim by stating that the first rape was alleged to have been committed during the first entry into the house. This misstatement greatly limited appellate counsel’s ability to argue that testimony of the absent witnesses would have been admissible as impeachment testimony without being subject to exclusion as alibi testimony offered in violation of Rule 305 C(l). It is clear from the notes of testimony that trial counsel understood that appellant was not charged with anything alleged to have happened on the 11 p. m. entry, and that strictly speaking he would be presenting these witnesses for impeachment rather than alibi. N.T. 21. Trial counsel’s understanding of the importance of these witnesses makes his ineffectiveness in failing to secure their presence at trial all the more obvious.
. Although we stated that the issue of trial counsel’s ineffectiveness was properly before us because appellate counsel was different counsel, 251 Pa.Super. at 367 n. 2, 380 A.2d at 823 n. 2, that statement is potentially misleading. Even if an appellant is represented on appeal by trial counsel, relief may be granted if ineffectiveness is apparent on the face of the record, as it was in Fallings, and as it is in this case. Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980).
Dissenting Opinion
dissenting:
We are presently faced with what I consider a novel situation. Under the holdings of Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); and Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), if the ineffectiveness of counsel is apparent on the face of the record, and appellant is represented by the same counsel on appeal whose ineffectiveness he is alleging on appeal, we need not remand to determine if appellant freely chose to have counsel represent him. On this point I am in agreement with the majority. I also agree that the present claim of ineffectiveness is clear on the record. The point where I disagree is when ineffectiveness while clear does not surpass harmless error.
In both Fox and Commonwealth v. Roach, 268 Pa.Super. 340,408 A.2d 495, ineffectiveness was not clear on the record and the court remanded for the appointment of new counsel. Both cases contain a statement that if “reversible error” is apparent on the record, then the reviewing court should consider the appeal. In those cases, the requirement of
Since, for the following reasons, I believe the error was harmless beyond a reasonable doubt I would affirm.
Appellant claims trial counsel was ineffective for failing to subpoena certain witnesses.
The majority holds that such testimony would have been admissible to impeach the credibility of the victim. I disagree, I believe it is wholly collateral. It is a well established legal principle that witnesses cannot be contradicted on
The pivotal issues in a trial cannot be “side-tracked” for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. [A witness can be contradicted only on matters germane to the issue trying.]
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This collateral (or immaterial) matter cannot be contradicted whether it was brought out on cross-examination or whether it was “volunteered” by the witness either on direct or cross-examination: Wigmore on Evidence, 3rd ed., Vol. 3, page 672, sec. 1007.
Wigmore (supra) says in section 1003. “The only true test [of ‘collateralness’] is that laid down in Attorney-General v. Hitchcock, 1 Exch. 99 Pellock, C.B. ‘Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?’ ”
Commonwealth v. Petrillo, 341 Pa. 209, 223-24, 19 A.2d 288 (1941).
In my opinion appellant’s whereabouts at 11:00 P.M. is collateral to the issue of whether he was guilty of rape, burglary and the other related charges. There can be no doubt that he was in the victim’s house at 3:00 A.M.; he admits that. I will concede that a victim’s credibility is normally at issue, however, here appellant would have us go too far astray. The only issue in contention was whether the victim had consented to appellant’s conduct. Such issue had no relation to where appellant may have been at 11:00 P.M. on the night in question.
Since I believe the value of the missing witnesses was of collateral value, this present appeal is dissimilar to both
I would affirm the judgment of sentence.
. Appellant also argues that the court erred in denying him the use of reputation evidence of the victim. While this issue need not be decided by the majority, since they award a new trial on other grounds, I find no merit in it. Appellant attempted to elicit a neighbor’s personal opinion of the victim’s reputation for truthful- • ness; this is clearly improper. Only evidence of a general reputation in the community is admissible. See: Commonwealth v. Payne, 205 Pa. 101, 54 A. 489 (1903); Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976); and Henry, Pennsylvania Evidence, § 804 at 206 (4th ed. 1953). Appellant’s further claim of ineffectiveness in failing to raise this claim in post-verdict motions is accordingly without merit.
Reference
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- COMMONWEALTH of Pennsylvania v. Edward S. STIEFEL
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