468 A.2d 485 | Pa. Super. Ct. | 1983
The trial court, following a jury verdict which found appellee Joseph Lee guilty of rape, burglary and criminal trespass, granted Lee a new trial. The court found that trial counsel failed to adequately advise appellee of his constitutional and statutory rights to remain silent. We disagree with the conclusion reached by the trial court and reverse the grant of a new trial.
We have reviewed the Commonwealth’s evidence, not because the sufficiency of the evidence is attacked, but to summarize the evidence that Lee was met with at trial. In his defense Lee testified that after seeing Capitol at the bar he- walked her home, left later on, and in the early morning hours returned to her house. He stated that they had consensual intercourse; that they had done so “numerous” times previously, and that he had paid her.
It is beyond the need of citation to state that a defendant in a criminal case is under no compulsion to testify and that he is entitled to an instruction that no inference may be drawn against him by the factfinder as the result of his failure to testify.
The measure of counsel’s duty to his client is effective assistance. As often restated:
We cannot emphasize strongly enough, however that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).
Thus we examine counsel’s stewardship. Unquestionably there is no reasonable basis for not advising a client that he has a constitutional right not to testify and is entitled to a charge that no adverse inference may be drawn from the exercise of this right.
Initially, we note that counsel recommended to Lee that he testify. Faced with the Commonwealth’s evidence, counsel’s stewardship in recommending to Lee that he testify cannot be said to be against his client’s interest. He knew there would be a positive identification and independent evidence that Lee had been in Capitol’s company on the night in question. There was physical evidence that intercourse had taken place and the victim would testify to a rape. Since Lee ultimately testified under oath that the intercourse had taken place consensually we must assume that counsel was so told. Under the circumstances the recommendation to Lee that he testify surely was designed to effectuate the client’s interest.
Moreover, it is clear that counsel did not impose his will on Lee concerning his testifying. Rather the facts as found by the trial judge following the post-trial hearing on counsel’s stewardship included the following:
(26) The attorney told the defendant that if he did testify that he had a chance of winning and perhaps a good chance. He informed the defendant that he wished to make an early opening; that he had to know what the facts were.
(27) The trial attorney, Rodgers, did not insist on the defendant testifying but always asked the defendant what he wanted to do. The sessions always ended up by the defendant saying he wanted to testify.
(28) Attorney Rodgers informed the defendant that the credibility of the persons testifying would be very important. He informed the defendant, ‘It’s up to you. You have to make the decision.’
Thus it is clear that the decision was Lee’s. Since Lee was aware of his option to testify or not, it cannot be seriously argued that Lee felt compelled to testify. Had there been compulsion the conversation concerning his decision to testify would have been meaningless. Therefore,
Several compelling facts emerge: (1) counsel’s advice to testify was prudent; (2) Lee wanted to testify and made his own decision to do so; (3) Lee did testify in detail that the intercourse was consensual. As stated it would be a perversion of the record in this case to conclude that Lee felt compelled to testify. The court’s finding is that at all times he wanted to testify. The advice to him by experienced counsel was given with counsel’s full knowledge that he would receive the “no inference” charge if he did not testify. Under the facts of this case we see no reason to grant a new trial because counsel admittedly failed to impart to his client, a nuance of the privilege against self-incrimination especially as weighed against Lee’s continuing desire to testify.
Appellant after having sought and received a jury trial; after having willingly testified under oath before that jury in detail that the act of intercourse took place with Capitol’s consent, would now have us agree to the grant of a new trial presumably to give him an opportunity to submit the case to the jury without his testimony.
In cases where a defendant waives the right to counsel, waives a jury, or pleads guilty our courts have required an on-the-record colloquy to insure that the defendant is aware of his rights and makes a knowing, understanding and intelligent waiver of these rights. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Pa.R.Crim.P. 1101; 318; 319. There is no such on the record colloquy for defendants who elect to be tried before a judge and jury. This is so because such defendants exercise rather than surrender their basic constitutional rights, and to the extent
So here, the trial court, in consideration of its findings, erred by concluding that the conceded absence of the advice merited the grant of a new trial. As noted above, the court found that Lee at all times wanted to testify and it is clear that his decision was in fact (based upon Lee’s version of
We conclude that under the facts of this case the failure of counsel to advise his client of the implications of his fifth amendment rights does not entitle him to a new trial and we reverse the grant of a new trial. The trial court did not reach other points raised by counsel in the post-trial motions and we therefore remand so that they may be considered.
Reversed and remanded with instructions. We do not retain jurisdiction.
. See, for example, Commonwealth v. Lincoln, 270 Pa.Super. 489, 411 A.2d 824 (1979).