*1
Argued June 1989.
Filed Oct. *2 Friedman, Bradford, for appellant. Phillip B. Bradford, Saunders, appellee. L. Robert CAVANAUGH, CIRILLO, Judge, President Before TAMILIA, MONTEMURO, BECK, ROWLEY, BROSKY, JOHNSON, JJ. POPOVICH JOHNSON, Judge. spous- are asked to determine whether appeal, this we
On communications to confidential incompetency al excep- of the removed virtue 5914 is under Pa.C.S. § tions to such in 42 incompetency set forth Pa.C.S. hold that it is. We Since this case involved violence done a minor child the care or temporary custody of the defendant/husband, an enumerated exception found 5913, the wife was a competent witness her merit, There being therefore, husband. no in the defen- dant/husband’s assertion on appeal that defense trial coun- sel was ineffective in failing portions object wife’s testimony, we affirm the judgment sentence.
A jury convicted Andrew Hancharik of involuntary devi- intercourse, ate assault, sexual indecent corruption minor. The Cleland, Honorable John M. President Judge, entertained Hancharik’s amended motions for new trial and in arrest of judgment, same, denied the and sentenced Hancharik to an term aggregate of six to fifteen years’ imprisonment. On this direct appeal, Hancharik advances *3 three issues:
1. Alleged trial counsel in failing ineffectiveness to call readily witnesses; available character 2. Alleged court concerning error declaration of mistrial or cautionary instruction relating to testimony about con- versations spouses between both marriage and a counsel- or; and
3. Alleged trial counsel ineffectiveness with respect to wife’s testimony to confidential communications.
At issue Hancharik contends that the key issue the case one was of credibility. Trial counsel had been provided with a list possible witnesses, character but did not call all of them. Hancharik contends that where credi issue, is the bility key counsel’s failure to call all readily available character witnesses constitutes ineffective assist ance of counsel. We do not agree. court, supreme
Our speaking through Mr. Papada- Justice kos, recently has restated the standard to applied be reviewing ineffectiveness claims: great
We have taken pains to set forth the criteria that must be established when one attempts to assert in such inquiry The threshold ineffectiveness counsel. coun issue/argument/tactic which claims is whether the for the which forms the foregone sel has basis merit; arguable is of of ineffectiveness assertion failing ineffective for considered counsel cannot be met, it If this threshold a meritless claim.... assert cho course particular next established that must to effec designed had no reasonable basis sen counsel by Finally, require we his client’s interests.... tuate how counsel’s commission the defendant establish him.... prejudiced omission ineffectiveness, require also In we making assertions facts alleging be made sufficient proof an offer of can conclude that trial reviewing court upon which have, fact, This is so ineffective. been may counsel considering claims of ineffective- we frown because of counsel a vacuum. ness Durst, 522 Pa. 2, —, A.2d v. Commonwealth omitted). (1989), (citations witnesses, the to call character As failure alleged discussed thoroughly counsel record is clear that defense fact, and, in did with Hancharik character evidence possible only on list counsel. Not call one individual reviewed only made not call all of witnesses the decision with Hancharik and consultation after careful deliberation of the witnesses establish that the record does not but their would available or that would have been fact-finding process. Commonwealth have advanced the *4 denied, Peterkin, cert. (1986), 373 299, 513 A.2d 511 Pa. 1070, 962, 93 107 Pennsylvania, Peterkin v. 479 U.S. S.Ct. v. Flanagan, 375 Commonwealth 1010, (1987); L.Ed.2d (1988). A.2d 1 is without merit. We conclude that issue that mistrial was contends At issue Hancharik testimony regard wife’s following Hancharik’s mandatory herself, mar- Hancharik and a between ing a conversation riage case-in-chief, counselor. During Commonwealth’s Mrs. Hancharik testified:
A got After I out of the I hospital. refused to leave hospital agreed unless he to see a counselor with me and the doctor set it up and we seen her I briefly before was discharged on that afternoon Friday and she more or less home, told both of us all go we needed to do was have sex, everything going was to be fine in marriage. our He should forget about his relationship with minor vic- [the tim], he get could a lot He point trouble. at that told the counselor that minor liked to kiss him [the victim] and she informed him he could go jail for that. MR. LANGELLA: I object.
THE COURT: Sustained.
MR. LANGELLA: I’d ask the court to instruct the jury to disregard any statement as to what the counselor apparently said.
THE I COURT: don’t know that the content came out. MR. SAUNDERS:
Q ....
A ....
Q ....
A ....
THE I COURT: will instruct the jury anything that the
counsellor told Mr. Hancharik as part the counseling session, that’s hearsay and not competent evidence and should not be considered by you.
Notes of 25, 1986, Testimony, June pages 49-50.
The trial court’s cautionary instruction, to the effect that the jury should not consider anything the counselor told Hancharik, immediate, was clear and adequate. Hanchar- ik’s counsel did not move for mistrial when the testimony presented. Nor does our review the record disclose reason of manifest necessity for declaration of a mis- trial. We find no trial court error regard with to issue 2. Pa.R.Crim.P. Reardon, Commonwealth v. 374 Pa.Su- 212, 217, per. (1988). A.2d *5 turn issue ineffectiveness alleged
We now to as to testimony to wife’s respect counsel with of trial to his Hancharik made Hancharik wife. by statements failing in to trial was ineffective counsel contends ¿hat to privilege, upon spousal founded interpose objections, (a) informed her that Hancharik had wife’s (b) an older Hanchar adopting girl, he desirous of that was minor much and very that loved the victim ik had stated he (c) Hancharik daughter complete family, a to needed minor victim was he could relax when the only stated that around, (d) poor marital and a disharmony and there existed Han herself and Hancharik. relationship between sexual provides: upon relies Pa.C.S. which charik spouses Confidential communications between 5914. in a subchapter, as this Except provided otherwise husband wife shall be neither nor proceeding criminal to commu- testify or confidential competent permitted other, privilege this by nications made one to unless upon waived trial. that, circumstances, under
Hancharik concedes limited his or her testify against will be permitted violence wherein an act of proceeding, mate in a criminal minor child in that defendant’s the defendant by against 29, 1989, the section when alleged. care is Prior June 16 of amended Act No. Pa.C.S. provided: against Spouses each other as witnesses in a provided subchapter, this
Except otherwise and shall not be husband proceeding criminal wife other, each competent permitted against or maintenance, for desertion and proceedings except bodi- proceeding against either any criminal threatened attempted, or done or ly injury violence other, said the minor children of upon or them, wife, minor children of either of or the husband or in the custody, their care or minor child in them, shall be a either each custody care or also other, except competent witness competent either of them shall be merely prove *6 the in marriage, support fact of criminal charge bigamy alleged to have been committed by with the other. added).
(emphasis
argues
Hancharik
the
exception con-
competency
tained in 42
permits
Pa.C.S.
Mrs. Hancharik to take
§
stand,
permitted
but she is not
testify
confidential
communications during marriage,
virtue of
by
5914. He
seemingly relies on dicta contained in a
in
footnote
Com-
monwealth v.
Rough,
(1980)
In Commonwealth
Rough, supra,
the defendant-step-
father was convicted of rape
corrupting
the morals of a
minor. On
he
appeal,
argued that the trial
court erred
mother,
permitting
wife,
victim’s
his
concern-
ing
telephone
conversation between the two of them. A
person
call,
third
had placed
telephone
handed the
defendant,
telephone to the
remained
the vicinity
during the phone
Price, Jr.,
conversation. Judge Gwilym A.
speaking for the three-judge panel
court,
of this
found that
the communication was not confidential inasmuch as the
defendant evinced no concern about the
of a
presence
third
party and took no precautions against the reception of the
contents of the
conversation
party.
third
275 Pa.Su-
64-65,
at
per.
The Rough cannot as holding be viewed that the privilege set forth in 5914 overrides the exception set forth in judgment of sentence rape having that case been affirmed. In addressing the testimo- privilege, nial the following footnote is set forth in Rough: prohibition pre dispute There is no absolute 6. the other testifying against from venting one coverture, May in the Act of 1887.... during codified inappli as Pa.C.S. re-enacted [substantially § 5913] exception permitting within the statute due to an cable involving violence proceedings exception under this Competency either. minor child of concerning confi general privilege abrogate does not during marriage. made dential communications 612, n. 6,n. 418 A.2d at Pa.Super. at indicating nothing more the footnote understand We general is not applicable, exception than this: when the in effect. continues to be privilege *7 relies, seeking Hancharik in The section which 5914, begins by pronounc- testimony, his wife’s exclude § ...” subchapter in this “Except provided as otherwise ing: is clear reference to the that this Common sense dictates 5915, dealing with following and the preceding 5913 § § legislature Had the intended to testimony. rebuttal spousal concerning confidential general spousal privilege the make foregone it would have overarching, simply communications in 5913 and 5915. exceptions prefatory the §§ 517, v. Nadolny, 163 Commonwealth find We case we (1949) strikingly 129 to be similar 63 A.2d his raped In defendant had Nadolny, review. now trial, defendant At sixteen-year stepdaughter. old his defendant wife sought testimony bar the to her. This of the offense admis had admitted commission a confidential communication between clearly sion was permit objection The court overruled spouses. trial in at The effect wife. statute ted the 4913, namely 19 Pa.C.S. predecessor time was § 683. P.S. § banc court assumed that the en properly Nadolny
The
whether a consensual
rape fit
decided
issue
only
done or
attempted,
the term “violence
threatened.”
within
court stated:
We have no doubt that the mother of the victim is a
competent witness against her husband in a criminal
prosecution for statutory rape.
were a
If
offense
common law rape, no question could arise.
163 Pa.Super.
at
More recently, our court has held that not
only
spouse competent to
cases,
domestic violence
she
or he may be compelled to testify. Commonwealth v.
Hess,
270 Pa.Super.
(1979),
A.2d 830
appeal dis-
missed,
499 Pa.
(1982).
The purpose of the exception found in 42 Pa.C.S. § protect is to spouses and minors from domestic violence. protective This policy clearly outweighs the marital harmo- ny policy which general underlies the language found in this section 5914. Poulin, Packel & Pennsylvania Evidence, 601.2, pages (West 370-71. Publ., 1987).
Even more recently, our supreme court has had occasion to construe the language found In Common- Scott, wealth v. 516 Pa. (1987), A.2d 426 supreme court reversed this court’s attempt to broaden the meaning 5913 to include violence to a non-family victim where, in the same episode, criminal a spouse or minor child had also threatened, been harmed or but no pro- criminal had ceeding been brought on that spousal/child attempted violence. The appeal involved the husband’s conviction for *8 taking the life of a non-family member. supreme The court held that the statutory exception does not apply where the criminal proceeding is for solely violence against a victim who is neither the spouse nor within the class of protected minors.
The court
that,
stated
legislature
the
having spoken on
the subject, the exceptions provided could not be supple-
mented by judicial
351,
fiat.
Except otherwise privilege person shall have proceeding criminal waive, his or testify against not to may he or she which such that there shall no spouse except her then lawful privilege:
(1) .... ... against either proceeding any criminal (2) any done or threatened attempted, violence ... or in the care or custody, care or minor child their them; either custody of (3) .... in which one proceeding criminal
(4) includes mur- pending against charges defendant sexual intercourse rape, deviate der, involuntary [emphasis added]. enacting amendments legislature, by that a abundantly spousal it clear has made
Pa.C.S. proceedings not exist criminal simply does privilege upon a minor done or threatened has been where violence *9 child in the care or of the custody spouse/defendant charge where the against is involuntary deviate sexual analysis, therefore, intercourse. Under no could it said an objection that to the testimony of the wife based spousal upon privilege would have had merit. have We found no error in the manner Judge which Cleland handled wife’s testimony regarding conversa- marriage tions with the counselor trial coun- defense objection sel’s thereto. We conclude that counsel trial was not ineffective in his management of character witness and that objection the wife’s testimony concerning the communications of the husband/defendant would have been meritless.
Accordingly, we affirm the judgment of sentence. BROSKY, J., files a concurring opinion, in which CIRILLO, Judge, President joins. A, J.,
TAMILI files a concurring opinion.
BROSKY, Judge, concurring.
I concur the majority’s analysis Issues and 2. I also concur in the majority’s finding ultimate appellant is not entitled to pursuant relief to Issue 3. I write sepa- however, rately, to express my disagreement vehement with majority’s analysis Issue 3. charges appellant stem allegations from made a ten year girl, old Kathy Youmans, who was a frequent visitor appellant’s household. According to Kathy, appellant forced her perform oral sex him during visit Christmas, on 25, 1985, December while appellant’s wife sleeping in another room. As part of case-in-chief, appellant’s Commonwealth’s wife testified that appellant her, had told prior incident, the alleged that he was of adopting desirous older girl an to complete their family, that he loved Kathy very much, and that he only could relax when Kathy was around. She further testified her relationship sexual with appellant had poor been years, and that appellant had several threat- *10 348 relationship Kathy- in to leave his with past
ened her
things
“let
way”.
and
him do
his
alone
portions
counsel did not
to these
Appellant’s
object
trial
appellant’s
of
New counsel was
testimony
of the
wife.
at
and trial counsel’s inef-
appointed
post-verdict stage,
object
in
to
this
raised
failing
fectiveness
to
In its
the trial court stated
post-trial
opinion,
in
motions.
in
had not
of a
question
that
the communications
been
and,
confidential,
nature,
even
an
confidential
if
fell within
against disclosure of
com-
exception to the usual ban
such
munications,
depriving
ineffectiveness
thereby
appellant’s
any
claim of
merit.
underlying
It
that a
defendant
not
may
is well settled
convicted
of
assistance of counsel
upon a claim
ineffective
prevail
(1) that the
underly-
unless he is able to demonstrate:
issue
merit;
(2)
arguable
claim is of
and
ing
ineffectiveness
action chosen
counsel had no reason-
by
that
course of
basis,
promotion
of
in the
of
independent
hindsight,
able
Brandt,
v.
defendant’s interests. Commonwealth
353 Pa.
872,
Commonwealth
250, 253,
(1986);
Super.
509 A.2d
874
rel.
v.
Pa.
349
Washington Maroney,
ex
235 A.2d
(1967). Furthermore,
assuming the defendant
is able
test, he
then
demon-
two-pronged
meet this
must
be able to
so
his
prejudiced
strate that
the claimed ineffectiveness
Commonwealth
not receive
trial.
defense
he did
a fair
Pierce,
(1985),
A.2d 423
aff’d 515
(1987).
Pa.
Sjc jj{ sjc Sjc $ $ spouses. communications between 5914. Confidential in a subchapter, this Except provided as otherwise *11 nor shall be criminal neither husband wife proceeding com- to confidential competent permitted other, unless this one to the munications made upon is the trial. privilege waived (Emphasis supplied.) claim, ineffectiveness appellant’s
In its opinion denying (1) involved the communications trial court held that: the 5914, and meaning the had not been confidential within § confidential, communica- alternative, if the (2) in the even proceed- a criminal divulged testimony tions had been a minor his for “violence” to ing against appellant incompeten- exception spousal under the 5913 custody, § found, as trial court holding, of this the cy. On basis now, to appellant’s no merit underlying does the majority finding. I disagree claim. with ineffectiveness 50, 418 A.2d Pa.Super. 275 Rough, Commonwealth In and cor- rape with charged (1980), the defendant 605 trial, At stepdaughter. his minor of the morals of ruption telephone of a the contents testified to defendant’s wife his wife for had the defendant blamed in which conversation of the analysis In its minor victim. of the his sexual assault stated our Court privilege, applicable of the nature following: by one governing privilege6 applicable
The communica- confidential concerns against another spouse marriage---- during tions made 6 dispute prohibition There is no preventing that the absolute one coverture, spouse testifying ..., against during from the other 350 permitting testi- exception statute within the inapplicable due to an involving minor child of violence mony proceedings abrogate general exception not Competency this does either. under during mar- concerning made communications
privilege confidential riage. (Emphasis supplied.) 612. supra, p. at Rough, finding “violence” I not dispute do While incompetency appel- removed the 5913 exception § v. Nadol- see give testimony, Commonwealth lant’s wife (1949) (“violence” 517, A.2d ny, defilement”), I with take issue “physical includes exception the interrela- court’s, view of majority’s, and the the trial The footnote above tionship between that the removal clear patently makes it Rough from exception under the “violence” incompetency testimonial barring incompetency 5913, does not remove communications contents of confidential divulging the from on the witness stand. language reliance the above finds majority analysis rejects above misplaced, to be Rough
from 1) footnote is following Rough beliefs: upon the based that, the “vio- dicta, commentary when and a mere both involved, confidentiality the general not exception is lence” undisturbed; 2) reading such a remains privilege *12 statutory the rules of in the face of 5914 flies and § the meaning of construction, common sense the defying therein; 3) analysis the sub silentio and above language and point on squarely which is Nadolny, contravenes majori- the I shall address as the law. should be followed concerns seriatim. ty’s the Rough effect of precedential the to respect
With that, maintains, starting point, as a footnote, majority the the formed and not of applicability as the § § dicta, claim, reference to 5913 was the appellant’s of basis § analysis. the event, majority with consistent any and part reference to have been I find the contrary, theOn competency in the Court’s Superior logical progression to the contradictory majori- completely as well as analysis, these two statutes. interplay of the between reading ty’s
351 correct, If position the is and the 5913 “vio- majority’s § lence” exception automatically dissolves all incompetency spousal incompetency, including incompetency the communications, to confidential our Court would not have required applied been to resolve 5914 whether § in question. conversation An appellate court may, should, affirm the court ground, trial where correct on any DeLuca, see Butler v. A.2d. (1984). Thus, finding that excep- 5913 “violence” § tion had already made regardless admissible would have confidentiality, obviated the need for further It discussion. was finding because their that had not opened door all testimony, that our Court was required to scrutinize the content circumstances of conversation.1
Moreover, Rough’s interpretation of the be interplay tween 5914 is not consistent with the majori ty’s analysis herein. Rough could not have been clear er than in its statement “(C)ompetency under this exception abrogate general does not privilege concerning confi dential during communications made the marriage....”. To read this statement does the i.e. majority, that confidentiality privilege still exception exists where the does not apply, would appear rather facile: as 5914 remains on books, it is patently obvious that the confidentiality privilege remains viable some context.
The key meaning to the of this statement is be found the first “(T)here sentence of the footnote: is dispute no the absolute prohibition one’s preventing testifying against coverture, during ..., other is from inapplicable due to an exception ”. (Emphasis ... supplied.) privilege of spousal immunity involves two separate, related, but forms of immunity. There is the “absolute any portion Rough opinion dicta, If of the could be classed as it portion majority which the holding herein finds to *13 Rough: conversation, the discussion on whether admission of the erroneous, even if would have been harmless error. Once the Court admissible, had found the proceeded conversation it should not have question to consider of harmless error. part on the whatsoever any testimony bars privilege” which Apart at 5913. now codified spouse, of the defendant’s § is the related but there privilege”, this “absolute from by the stand disclosure on prohibition against independent communications, as of confidential spouse the defendant’s at codified giving is in majority gone astray has I
Where believe of means, for reading purposes to what it overly narrow an testify against spouse. one’s to recog- is recognize implicitly to what The fails majority needn’t testimony of a spouse’s nized in the content Rough: re- of words and actions purely consist the disclosure It relationship. marital in the of the vealed confidence only spouse that a defendant’s would entirely conceivable is observations, or purely objective to to position a parties, of third presence made in the openly statements The privilege” other witness. “absolute any would testimony from to such spouse giving 5913 would bar the statements, they the fact despite observations setting, or not confidential marital were discovered communication, legis- on the based through any confidential permit spouses it is undesirable assumption lative each other. give any whatsoever that, exception legislature’s recognition is the “violence” minor, policy a upon violence has been visited where should favoring preservation relationship marital minor, permitting testimo- give way protection objective defendant’s observations ny upon that spoken is but a minor intrusion openly words relationship. 5914, however, legislature recognized has
Under § degree of intrusion that desirable. limitation prohibition against an recognized independent have They qualified testify by by spouse, the disclosure otherwise 5913, of those words and actions removal of the bar of naturally imposes confidence and trust one revealed in one’s spouse.
353 5913, 5914, does not a “violence” ex- unlike contain § § to read ception. Despite majority’s attempts the strained 5914, logical import 5913 into the of exception the § § the “violence” legislative this omission obvious. While 5913 the to take exception allows defendant’s § stand, is not open the door meant to be thrown allow testimony: against private and all the bar disclosure of and discussions is intended to remain. behavior that, general spousal It has been held while the bar of extinguished set forth in 5913 is death incompetency upon § divorce, spouse divulging the bar 5914 confi- § communications remains intact after death or di- dential Clark, vorce. See Commonwealth v. 128, 347 Pa.Super. v. 440, 441, (1985); 1 Commonwealth 500 A.2d 442 n. Peluso, 852, (1976), Pa.Super. 240 361 A.2d. 856 rev’d (1978); Hunter 481 Pa. A.2d 344 grounds on other 393 Hunter, (1951). This, 169 83 A.2d 403 is in of the limita- clearly, recognition legislature’s express tion the amount intrusion into marital relation- ship legislature recognized, that is to be tolerated: has disclosed, put, things some should never be simply exist, after marital has ceased to relationship even without the consent of the who has entrusted his party his husband or wife with or her secrets.
If incompetency by the total removal death or § open divorce does not door to the disclosure of § communications, confidential illogical it is and inconsistent interpret the removal of 5913 incompetency under § exception abrogating privi- “violence” as the confidentiality Rough lege. precisely why This is our Court obli- once it found that the gated, privilege” “absolute of 5913 § had exception, been removed “violence” to determine if the testimony permitted admitted had the defendant’s spouse to the trust inherent in betray setting. the marital then, concerns,
Moving, to the second of the it majority’s said could be above discussion alone demonstrates intent, it neither contravenes why legislative yields nor an result, “absurd” to read 5913 and the fashion I § however, reading this believes suggest. majority, now subchap- in this provided otherwise “(E)xcept ignores 5914, which, insists, it must refer clause to prefacing ter” listed incompetency exceptions to the legis- of the however, significance view, ignores This subchapter, the relevant inclusion of lature’s as follows: provides which *15 in spouse rebuttal Testimony by 5915.
§ against the husband brought proceeding In criminal any upon defense at the trial wife, if defendant makes or of his character or conduct attacks the ground which competent attacked shall be a spouse, or her in for the Commonwealth. rebuttal witness incompe- removes the bar apparently, This provision, (which the same contains under either tency § clause) subchapter” in this provided as otherwise “(E)xcept I fail to 5914, majority, Unlike the applicable. or where § referring read as 5914 must be preface see why § that the I it rather obvious 5913 and 5915. believe both § § 5914, intended in 5913 and was as stated both preface § § himself or spouse to defend the defendant’s permit defendant’s slurs. As with bal- herself in in formu- legislature ancing engaged of interests legislature is clear that and it lating favoring marital relations policies that the usual determined has seen fit waive when the defendant give way should the character marriage, impune protections spouse. of his or her conduct conclusion that the dispute majority’s I
Finally, would effect, While it is Nadolny. contravenes analysis, above to his wife guilt admission of Nadolny’s likely (although given the facts setting made in a confidential conversation), there the circumstances of their give do not raised the of confi- Nadolny indication that ever bar is no court or on either in the lower dentiality arguments his court is free to affirm the trial appellate an appeal. While Butler, supra., it sponte, a correct rationale sua court on by appellant, an issue not raised not reverse may therefore precluded from considering potential grounds for reversal sponte. sua 302, 2116(a). Pa.R.A.P. Only issues of appealability jurisdiction may be considered sua sponte. Trimbur, Richards v. See 374 543 A.2d. (1988).
In light of foregoing, I cannot and do not concur in the majority’s laudable misguided but attempt to secure what may be desirable testimony in involving criminal cases situations, violence-ridden domestic through patent mis- reading the interrelationship between 5913 and I would proceed thus my analysis a determination as to whether the involved communications were confidential.
Upon review of the content and circumstances of the communications, I agree do not with the trial court finding that the statements pertaining to Kathy were not intended to be confidential. While appellant’s desire to adopt an older child secret, was not a it cannot be averred that statements pertaining to his inability to relax Kathy’s absence, and his threats to his warning wife her not to *16 interfere in his relationship with Kathy, were not made in the confidence of the marriage. Such permit statements an inference that appellant’s relationship with Kathy had ab- overtones, normal and in all likelihood would not have been made but for the trust and confidence that the marital relationship inspires. Rough, supra, 418 A.2d pp. at 612-13.
Furthermore, I do not find confidential intent lacking on the basis of appellant’s willingness to these state- trial, ments at as did the trial court. Following the testimo- ny wife, of appellant’s appellant was placed in the position of having to negate the inferences created by her testimo- ny, and naturally wished put the statements in a more light. favorable Had appellant’s trial counsel raised objec- tion to the wife’s testimony, appellant would not have been compelled to address the divulged statements.
Hence, I find arguable merit to appellant’s ineffective- ness claim. above, court
However, affirm trial may as stated we so, as Butler, I would do ground. supra. if correct on not had a reason- that trial counsel could have say I cannot object. for his failure to able basis of defense theory appellant’s Part rela- from his of his charges jealousy had resulted wife’s from her connection Kathy, with bitterness tionship Hence, possible it is that trial impending their divorce. with the charges by wished to discredit merely counsel had and then introduc- challenged testimony, permitting to these state- testimony pertaining own ing appellant’s his ments, spoke length at about wife’s appellant which was, and mischaracterization what jealousy irrational father-daughter relationship. a normal appellant’s eyes, gamble, was a the test is not strategy While this trial available, strategies trial were whether more reasonable rather, trial counsel had some reasonable basis but whether supra, p. chosen. 235 A.2d at strategy Maroney, for the no for his chosen strate- explanation Trial counsel offered However, hearing. post- at the gy post-verdict evidentiary (now chose not to appellate) deliberately verdict counsel counsel this and elected to interrogate point, trial appellant only, pertaining to trial present failure to call character witnesses. With counsel’s various trial to the behind counsel’s failure to respect strategy testimony, post-verdict to Mrs. Hancharik’s counsel object other than what’s in the agreed any argument to “waive (Post- support post-verdict memorandum” in motions. 2.) such, p. As has Hearing Transcript, appellant Verdict the record to his current rely upon support chosen to ineffectiveness claim.
Moreover, may it is well settled that this Court find if basis for those counsel’s actions effective reasonable Osborn, 364 Pa.Super. actions exists. Commonwealth v. Hence, 505, 520, (1987). record 528 A.2d where the us is sufficient to determine that there exists a before for counsel’s and that is not plausible strategy, basis basis unreasonable, that the requirement there is no inherently at for counsel’s determined an actual reason actions be Marsh, 460 Pa. Commonwealth hearing. evidentiary (1975). I the record below is 333 A.2d believe a determination. for this Court to make such sufficient apparent strategy inherently As I cannot deem the chosen unreasonable, appellant I find that has failed to would ineffectiveness. prong demonstrating the second satisfy reason that I concur in the majority’s It is for this pursuant refusal to relief to Issue grant appellant ultimate 3, and affirm the of sentence. judgment would
TAMILIA, Judge, concurring: I agree privilege with the that the testimonial majority 5914, providing announced at 42 Pa.C.S. by legislature spouse competent testify against that a is not his/her husband, qualified wife or section 5913 which by abolish- privileges including es the matters situations family involving violence or a attempted spouse violence or in the custody children care or of either of them. To hold otherwise would be to shift the intent of section 5913 and to section, create an in-road in that which was never intended by legislature.
The thrust of section 5913 must measured against concerning interspousal evolution the law and interfamili- immunities, al testimonial in regard both and to confidential communications, within the particularly past twenty-five years. immunity privilege derived from the common “oneness”, concept law sanctity marriage and the preservation private relationships. of confidential and Stat- has utory jurisdictions law been codified most to deal recognition with modern realities and the that the common privileges protect law immunities become shield to wrong legally doers and to coerce the (usually wife) children by tyrannical, into submission abusive dangerous spouses. examples granted of relief Early legislature action; are Right juris- 48 P.S. § diction; spouses competent (Act 23, 1907, of May witnesses *18 358 1) (deserted shall to be a competent
P.L. 227
wife
be
and mainte-
support
her husband to obtain
witness
nance);
91,
same
and
power
48 P.S.
mother
have
father;
of action for
right
control over minor child as
26, 1895,
1) (each
(Act of
P.L. 316
to child
June
injuries
claiming
equal
action
child is on
corpus
habeas
party
Commonwealth ex rel.
heard).
footing
right
and
be
Horisk,
(1927). In
Horisk v.
400
more recent
90
Act,
seq.,
Abuse
35 P.S. 10181 et
Protection from
times,
family
regarding physical
action
members
permits
between
abuse,
an adult household
by
or sexual
and
member
the Child Protective
child;
Service
on
of a
parent
behalf
Law,
seq., provides
P.S. 2201 et
Hearings
11
at section 2222
Evidence, “(2)
confidential commu-
any privilege
and
...
of
...,
and wife
shall not constitute
nication between husband
excluding
any proceeding regard-
for
evidence at
ground
neutering
or the cause thereof. The
of
ing child abuse
has also
into the tort
privileges
spread
these immunities and
field,
law exceptions,
from domestic relations
criminal
immunity
for tort actions be-
provide
interspousal
Hack,
Hack v.
be abolished.” See
495 Pa.
spouses
tween
child,
(1981),
parent
From the it is clear interfamilial vio- interspousal to response determined common law under previously which was condoned at lence in which sanctity family the privacy the rubric of the to power the state has no intervene. law is through federal rules case
The trend state and to divesting privilege accused of the bar adverse toward includ- thirty-one In testimony. jurisdictions spousal an a privilege then allowed accused ing Alaska and Hawaii testimony. the number spousal By adverse prevent to courts, 24. like to Pennsylvania The federal had declined the rule the basis for degree, some have determined has a be modified so that the witness alone should Griffin, Wife, States, Legal Rape 21 Student In 44 It's Your Lawyer. privilege to refuse testify adversely; may witness neither compelled nor foreclosed from testifying. States, Trammel United U.S. 100 S.Ct. (1980). L.Ed.2d 186 1005-1018, The note at 93 ALR 3d Spouse Competency Testify Against Other Prosecu- Against tion for Either, Offense or Both Child covers the multitude positions taken on this issue.
Under the strict common-law rule of incompetency, one spouse could not testify against the other, regardless of charged, including offense a sex against offense stepdaughter. defendant’s But an exception to the com- mon-law rule was for developed prosecutions involving a crime against person witness spouse, and it has been held that would exception prosecutions extend to involving violent crimes and sex against offenses child of spouse____ either Similarly, under statutes providing express an exception prosecutions involv- ing child, an have courts held offense *20 spouse would be competent defendant’s testify. 2(a) (footnotes
Id. at note omitted) (emphasis added). is, therefore, It clearly evident the only sensible and consistent position for this Court to take in resolving a possible conflict between section 5913 and section 5914 is to hold that exception regarding made spousal testimony against offenses child in home is not limited by section having to do with confidential communications between spouses. is clear Finally, it the legislature could not have intended the absurd result that it is permissible for parent against the other spouse in a case under P.F.A., Law, or the Child Protection where issue had to do with abuse sexual assault the child but not in a case rape or sexual assault charged against father. Commonwealth v. Nadolny, Pa.Super. 517, (1949). A.2d 129
The testimony presented wife was admissible I agree with majority judgment that the of sentence must be affirmed.