Commonwealth v. HancharikCommonwealth v. Hancharik
- Reporters:
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- Before:
- Cirillo
Lead Opinion
On this appeal, we are asked to determine whether spousal incompetency to testify to confidential communications under
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 counsel- or; 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 *340ineffectiveness 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 mar*341riage 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 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 COURT: I don’t know that the content came out. MR. SAUNDERS:
Q ....
A ....
Q ....
A ....
THE COURT: I will instruct the jury anything that the counsellor 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.
*342We 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 ¿hat 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
§ 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 custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also *343that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other.
(emphasis added).
Hancharik argues that the competency exception contained in
In Commonwealth v. Rough, supra, the defendant-stepfather was convicted of rape and corrupting the morals of a minor. On appeal, he argued that the trial court erred in permitting the victim’s mother, his wife, to testify concerning a telephone conversation between the two of them. A third person had placed the telephone call, handed the telephone to the defendant, and remained in the vicinity during the phone conversation. Judge Gwilym A. Price, Jr., speaking for the three-judge panel of this court, found that the communication was not confidential inasmuch as the defendant evinced no concern about the presence of a third party and took no precautions against the reception of the contents of the conversation by the third party. 275 Pa.Super. at 64-65, 418 A.2d at 613. Judge Price went on to find that, even if the conversation should not have been admitted, it could not have contributed to the verdict and therefore must be classed as harmless error. Id.
The Rough case, therefore, cannot be viewed as holding that the privilege set forth in
*3446. There is no dispute that the absolute prohibition preventing one spouse from testifying against the other during coverture, codified in the Act of May 23, 1887.... [substantially re-enacted as42 Pa.C.S. § 5913 ] is inapplicable due to an exception within the statute permitting testimony in proceedings involving violence against the minor child of either. Competency under this exception does not abrogate the general privilege concerning confidential communications made during marriage.
275 Pa.Super. at 64, n. 6, 418 A.2d at 612, n. 6.
We understand the footnote as indicating nothing more than this: when the exception is not applicable, the general privilege continues to be in effect.
The section upon which Hancharik relies, in seeking to exclude his wife’s testimony,
We find Commonwealth v. Nadolny, 163 Pa.Super. 517, 63 A.2d 129 (1949) to be strikingly similar to the case we now review. In Nadolny, the defendant had raped his sixteen-year old stepdaughter. At trial, the defendant sought to bar the testimony of his wife that the defendant had admitted commission of the offense to her. This admission was clearly a confidential communication between spouses. The trial court overruled the objection and permitted the testimony of the wife. The statute in effect at that time was the predecessor of
The Nadolny en banc court properly assumed that the only issue to be decided was whether a consensual rape fit within the term “violence attempted, done or threatened.” The court stated:
*345We have no doubt that the mother of the victim is a competent witness against her husband in a criminal prosecution for statutory rape. If the offense were a common law rape, no question could arise.
163 Pa.Super. at 519, 63 A.2d at 130. (emphasis added). On this appeal, we shall follow Nadolny.
More recently, our court has held that not only is the spouse competent to testify in domestic violence cases, she or he may be compelled to testify. Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982).
The purpose of the exception found in
Even more recently, our supreme court has had occasion to construe the language found in
The court stated that, the legislature having spoken on the subject, the exceptions provided could not be supplemented by judicial fiat. 516 Pa. at 351, 532 A.2d at 429. The obverse is equally true. Where the exception is spelled out in clear and unmistakable terms, that language cannot be ignored or disregarded under the pretext of pursuing the statute’s spirit. Id.,
*346We conclude that defense counsel cannot be found ineffective for failing to object to the wife’s testimony as to confidential communications, since
Under Section 2 of Act 16, the act shall apply to all criminal cases pending on the effective date of the act which, under Section 3, took effect immediately upon passage. Although Act 16 converts spousal incompetency to testify into a waivable spousal privilege, the Act makes mandatory the testimony of a spouse where the defendant spouse is charged with murder, rape or involuntary deviate sexual intercourse, while continuing the lack of any privilege in matters involving bodily injury or violence to family members or minors.
§ 5913 . Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(1) ....
(2) in any criminal proceeding against either for . . . violence attempted, done or threatened upon . . . any minor child in their care or custody, or in the care or custody of either of them;
(3) ....
(4) in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape, [emphasis added].
The legislature, by enacting the amendments to
We have found no error in the manner in which Judge Cleland handled the wife’s testimony regarding conversations with the marriage counselor and defense trial counsel’s objection thereto. We conclude that trial counsel was not ineffective in his management of character witness testimony and that any objection to 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, President Judge, joins. TAMILIA, J., files a concurring opinion.
Concurrence Opinion
concurring.
I concur in the majority’s analysis of Issues 1 and 2. I also concur in the majority’s ultimate finding that appellant is not entitled to relief pursuant to Issue 3. I write separately, however, to express my vehement disagreement with the majority’s analysis of Issue 3.
The charges against appellant stem from allegations made by a ten year old girl, Kathy Youmans, who was a frequent visitor to appellant’s household. According to Kathy, appellant forced her to perform oral sex upon him during a visit on Christmas, December 25, 1985, while appellant’s wife was sleeping in another room. As part of the Commonwealth’s case-in-chief, appellant’s wife testified that appellant had told her, prior to the alleged incident, that he was desirous of adopting an older girl to complete their family, that he loved Kathy very much, and that he could only relax when Kathy was around. She further testified that her sexual relationship with appellant had been poor for several years, and that appellant had threat*348ened her in the past to leave his relationship with Kathy-alone and “let him do things his way”.
Appellant’s trial counsel did not object to these portions of the testimony of appellant’s wife. New counsel was appointed at the post-verdict stage, and trial counsel’s ineffectiveness in failing to object to this testimony was raised in post-trial motions. In its opinion, the trial court stated that the communications in question had not been of a confidential nature, and, even if confidential, fell within an exception to the usual ban against disclosure of such communications, thereby depriving appellant’s ineffectiveness claim of any underlying merit.
It is well settled that a convicted defendant may not prevail upon a claim of ineffective assistance of counsel unless he is able to demonstrate: (1) that the issue underlying the ineffectiveness claim is of arguable merit; and (2) that the course of action chosen by counsel had no reasonable basis, independent of hindsight, in the promotion of defendant’s interests. Commonwealth v. Brandt, 353 Pa. Super. 250, 253, 509 A.2d 872, 874 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, assuming the defendant is able to meet this two-pronged test, he must then be able to demonstrate that the claimed ineffectiveness so prejudiced his defense that he did not receive a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), aff’d 515 Pa. 153, 527 A.2d 973 (1987).
With respect to the underlying merit of appellant’s claim, the relevant statutory authority pertaining to the competency of spouses to testify is found at
§ 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 *349other, 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 custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage in support of a criminal charge of bigamy alleged to have been committed by or with the other.
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§ 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.
(Emphasis supplied.)
In its opinion denying appellant’s ineffectiveness claim, the trial court held that: (1) the communications involved had not been confidential within the meaning of
In Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980), the defendant was charged with rape and corruption of the morals of his minor stepdaughter. At trial, the defendant’s wife testified to the contents of a telephone conversation in which the defendant had blamed his wife for his sexual assault of the minor victim. In its analysis of the nature of the applicable privilege, our Court stated the following:
The applicable privilege6 governing testimony by one spouse against another concerns confidential communications made during a marriage----
*350inapplicable due to an exception within the statute permitting testimony in proceedings involving violence against the minor child of either. Competency under this exception does not abrogate the general privilege concerning confidential communications made during marriage.
Rough, supra, at p. 612. (Emphasis supplied.)
While I do not dispute the finding that the “violence” exception to
The majority finds any reliance upon the above language from Rough to be misplaced, and rejects the above analysis based upon the following beliefs: 1) the Rough footnote is both dicta, and a mere commentary that, when the “violence” exception is not involved, the general confidentiality privilege remains undisturbed; 2) such a reading of
With respect to the precedential effect of the Rough footnote, the majority maintains, as a starting point, that, as the applicability of
On the contrary, I find the reference to have been part of a logical progression in the Superior Court’s competency analysis, as well as completely contradictory to the majority’s reading of the interplay between these two statutes.
*351If the majority’s position is correct, and the
Moreover, Rough’s interpretation of the interplay between
The key to the meaning of this statement is to be found in the first sentence of the footnote: “(T)here is no dispute that the absolute prohibition preventing one’s spouse from testifying against the other during coverture, . . ., is inapplicable due to an exception . . . ”. (Emphasis supplied.)
The privilege of spousal immunity involves two separate, but related, forms of immunity. There is the “absolute *352privilege” which bars any testimony whatsoever on the part of the defendant’s spouse, now codified at
Where I believe the majority has gone astray is in giving an overly narrow reading to what it means, for purposes of
The majority fails to recognize what is implicitly recognized in Rough: the content of a spouse’s testimony needn’t consist purely of the disclosure of words and actions revealed only in the confidence of the marital relationship. It is entirely conceivable that a defendant’s spouse would be in a position to testify to purely objective observations, or statements openly made in the presence of third parties, as would any other witness. The “absolute privilege” of
Under
*353
It has been held that, while the general bar of spousal incompetency set forth in
If the total removal of
Moving, then, to the second of the majority’s concerns, it could be said that the above discussion alone demonstrates why it neither contravenes legislative intent, nor yields an “absurd” result, to read
This view, however, ignores the significance of the legislature’s inclusion of § 5915 in the relevant subchapter, which provides as follows:
§ 5915. Testimony by spouse in rebuttal
In any criminal proceeding brought against the husband or wife, if the defendant makes defense at the trial upon any ground which attacks the character or conduct of his or her spouse, the spouse attacked shall be a competent witness in rebuttal for the Commonwealth.
This provision, apparently, removes the bar of incompetency under either
Finally, I would dispute the majority’s conclusion that the above analysis, in effect, contravenes Nadolny. While it is likely that Nadolny’s admission of guilt to his wife was made in a confidential setting (although the facts as given do not give the circumstances of their conversation), there is no indication that Nadolny ever raised the bar of confidentiality in his arguments either in the lower court or on appeal. While an appellate court is free to affirm the trial court on a correct rationale sua sponte, Butler, supra., it may not reverse upon an issue not raised by appellant, and *355therefore is precluded from considering potential grounds for reversal sua sponte.
In light of the foregoing, I cannot and do not concur in the majority’s laudable but misguided attempt to secure what may be desirable testimony in criminal cases involving violence-ridden domestic situations, through a patent misreading of the interrelationship between
I would thus proceed in my analysis to a determination as to whether the involved communications were confidential.
Upon review of the content and circumstances of the communications, I do not agree 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 was not a secret, it cannot be averred that statements pertaining to his inability to relax in Kathy’s absence, and his threats to his wife warning her not to interfere in his relationship with Kathy, were not made in the confidence of the marriage. Such statements permit an inference that appellant’s relationship with Kathy had abnormal overtones, 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 at pp. 612-13.
Furthermore, I do not find confidential intent lacking on the basis of appellant’s willingness to testify to these statements at trial, as did the trial court. Following the testimony of appellant’s wife, appellant was placed in the position of having to negate the inferences created by her testimony, and naturally wished to put the statements in a more favorable light. Had appellant’s trial counsel raised objection to the wife’s testimony, appellant would not have been compelled to address the divulged statements.
Hence, I find arguable merit to appellant’s ineffectiveness claim.
*356However, as stated above, we may affirm the trial court if correct on any ground. Butler, supra. I would do so, as I cannot say that trial counsel could not have had a reasonable basis for his failure to object.
Part of appellant’s theory of defense was that the charges had resulted from his wife’s jealousy of his relationship with Kathy, and from her bitterness in connection with their impending divorce. Hence, it is possible that trial counsel had merely wished to discredit the charges by permitting the challenged testimony, and then by introducing appellant’s own testimony pertaining to these statements, in which appellant spoke at length about his wife’s irrational jealousy and mischaracterization of what was, in appellant’s eyes, a normal father-daughter relationship. While this trial strategy was a gamble, the test is not whether more reasonable trial strategies were available, but rather, whether trial counsel had some reasonable basis for the strategy chosen. Maroney, supra, 235 A.2d at p. 352.
Trial counsel offered no explanation for his chosen strategy at the post-verdict evidentiary hearing. However, post-verdict (now appellate) counsel deliberately chose not to interrogate trial counsel upon this point, and elected to present the testimony of appellant only, pertaining to trial counsel’s failure to call various character witnesses. With respect to the strategy behind trial counsel’s failure to object to Mrs. Hancharik’s testimony, post-verdict counsel agreed to “waive any argument other than what’s in the memorandum” in support of post-verdict motions. (Post-Verdict Hearing Transcript, p. 2.) As such, appellant has chosen to rely upon the record to support his current ineffectiveness claim.
Moreover, it is well settled that this Court may find counsel’s actions effective if any reasonable basis for those actions exists. Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 630 (1987). Hence, where the record before us is sufficient to determine that there exists a plausible basis for counsel’s strategy, and that basis is not *357inherently unreasonable, there is no requirement that the actual reason for counsel’s actions be determined at an evidentiary hearing. Commonwealth v. Marsh, 460 Pa. 253, 333 A.2d 181, 183 (1975). I believe the record below is sufficient for this Court to make such a determination.
As I cannot deem the apparent chosen strategy inherently unreasonable, I would find that appellant has failed to satisfy the second prong for demonstrating ineffectiveness.
It is for this reason that I concur in the majority’s ultimate refusal to grant appellant relief pursuant to Issue 3, and would affirm the judgment of sentence.
Notes
There is no dispute that the absolute prohibition preventing one spouse from testifying against the other during coverture, . . ., is
. If any portion of the Rough opinion could be classed as dicta, it is that portion which the majority herein finds to be the holding of Rough: the discussion on whether admission of the conversation, even if erroneous, would have been harmless error. Once the Court had found the conversation admissible, it should not have proceeded to consider the question of harmless error.
Concurrence Opinion
concurring:
I agree with the majority that the testimonial privilege announced by the legislature at
The thrust of
From the above, it is clear that there is a steady and determined response to interspousal and interfamilial violence which was previously condoned at common law under the rubric of the privacy and sanctity of the family in which the state has no power to intervene.
The trend through state and federal rules and case law is toward divesting the accused of the privilege to bar adverse spousal testimony. In 1958, thirty-one jurisdictions including Alaska and Hawaii then allowed an accused a privilege to prevent adverse spousal testimony. By 1980, the number had declined to 24. The federal courts, like Pennsylvania to some degree, have determined that the basis for the rule should be modified so that the witness spouse alone has a *360privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The note at 93 ALR 3d 1005-1018, Competency of Spouse to Testify Against Other in Prosecution for Offense Against Child or Both or Either, covers the multitude of positions taken on this issue.
Under the strict common-law rule of incompetency, one spouse could not testify against the other, regardless of the offense charged, including a sex offense against the defendant’s stepdaughter. But an exception to the common-law rule was developed for prosecutions involving a crime against the person of the witness spouse, and it has been held that the exception would extend to prosecutions involving violent crimes and sex offenses against the child of either spouse____ Similarly, under statutes providing an express exception for prosecutions involving an offense against the child, the courts have held that the defendant’s spouse would be competent to testify.
Id. at 1024, note 2(a) (footnotes omitted) (emphasis added).
It is, therefore, clearly evident that the only sensible and consistent position for this Court to take in resolving a possible conflict between
The testimony presented by wife was admissible and I agree with the majority that the judgment of sentence must be affirmed.
. 1 Hale P.C. 629. Hale was Chief Justice of the Court of Kings Bench from 1671 until 1675. Cited in Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985).
. Griffin, In 44 States, It‘s Legal to Rape Your Wife, 21 Student Lawyer.