*1 Ciрriani, who filed also of Fact Findings and Conclusions of Law. Based foregoing on the this discussion court agreed with Judge Cipriani’s conclusion that the delay and, was justified accordingly, denied post defendant’s relating trial motion thereto.
No other issues were raised post defendant on trial motions.
In summary, this court is satisfied combined weight volume of the Commonwealth’s evidence in fully case bar supports the defendant’s conviction. Likewise, court, upon careful review the entire harmful, record finds no prejudicial, or reversible error nothing to justify the granting defendant’s post trial motions. The sentence should stand accordingly. op. Lower ct. at 4.
Judgment sentence affirmed.
SPAETH, J., concurs the result. Pennsylvania
COMMONWEALTH of TALIAFERRO, Appellant. Robert Superior Pennsylvania. Court of
Argued May 21, 1982. Filed Jan. 1983. *2 George Jr., Bills, W. Pittsburgh, for аppellant. Mericli, Kemal Alexander Assistant District Attorney, Pittsburgh, Commonwealth, for appellee. CERCONE,
Before Judge, HESTER, President and BRO- SKY, ROWLEY, McEWEN, JOHNSON POPOVICH, JJ.
BROSKY, Judge: 30, 1978,
Commencing January appellant was tried on charges of rape1 statutory rape.2 A mistrial was *3 declared when the jury could not reach a unanimous verdict and a new trial was held 1978. April, At the conclusion trial, appellant the second was convicted rape and a appeal direct Subsequently, appellant followed. pro filed a petition se raising P.C.H.A.3 claim that he had received ineffective assistance from his trial The petition counsel. following was denied at which hearing appellant was represented by appointed court counsel. Before us are the consolidated from the judgment of sentence and appeals petition. denial P.C.H.A. Because we find counsel to ineffective, been have we reverse and for remand a new trial. black,
Appellant, who is was tried on charges stemming the rape from of a young girl. black Under such circum- stances, where defendant and viсtim are members of the race, same racial not prejudice would be at normally issue. contends, Appellant however, prosecution that made 6, 1972, 1482, 1; 334, 1. Act of December P.L. No. 18 § Pa.C.S.A. § 3121. 3122. § Id. 2. Act, 25, Hearing 1580, 9; January
3. Post Conviction Act of P.L. § seq. 19 P.S. 1180-1 et by feelings point- in the attempts prejudicial to arouse wife, who is white. appellant’s out them ing us is that at the first trial argumеnt before Appellant’s to his drew attention wife and prosecutor improperly notice he put attorney have his on should Armed with this point her out at the second trial. might either knowledge, he contends that counsel should have identification, limine an prohibit a motion in filed jurors’ questions probe the voir dire requested that when it prejudices, objected identification for a mistrial. made at the second trial moved Trial counsel took no action. claim, are
In the merits of we assessing following principles. guided claim first determine whether the aban We must is of merit. arguable doned counsel Hubbard, Even if Pa. A.2d 687 found merit, counsel will not be ineffec arguable claim is alternatives not chosen unless conclude that tive we substantially greater for than potential offered success Id., tactics 472 Pa. at actually utilized. A.2d 695-6. counsel will be found have been effective
Finally, that his decision some as soon as it is determined client’s designed to effectuate his inter reasonable basis Washington v. Maroney, ests. Commonwealth ex rel. *4 Pa. mind, in turn to claim principles these we
With following the facts. which stems from cross-exam- Mr. Taliaferro testified at both trials and was by prosecuting attorney ined each time. prosecutor the trial, first During at the trials. same appellant: questions prosecutor following asked Q. you, tall are sir? How
I’mA. 6'7". approximately
Q. You heard police officer indicate the descrip- tion he received from Lisa Simms it was that was a black 6'7", male, approximately medium Afro? Yes,
A. did hear that. Q. You’re married one with child. How old is your child?
A. be three in February. She’ll Q. Where were you married? Well,
A. basically agreement it’s common law until thing gets then, know, over with and you we’ll have go court as as goes. far Q. there’s really So never been any formal ceremony, of that anything nature? no,
A. really, Not sir. Q. your Is that wife there the back court room in the second row? Yes, sir, guess
A. with the—I it’s a purple sweater she’s got on.
Q. her What’s name?
A. Jeannie.
Q. she go Does her name your name? name, goes A. She her basically.
Q. your daughter? How about A. still She’s her carrying mother’s name. after this
Shortly exchange, the prosecutor asked appel- lant he living where was at the time the crime was commit- ted. Appellant named the he locality which resided and the prosecutor queried: then you living “Were with your woman in the room, back of the court your or with moth- er?” trial,
At the second prosecutor cross-examined appel- lant as to his account his at the whereabouts time the crime was committed. Appellant testified that he was in Buffalo, York, New he where had driven in a car owned by his mother.
The cross-examination cоntinued: Q. you living Where were at the time? *5 mother. living my
A. I with the back of the courtroom the Q. your Is this wife orange sweater? green pants Yes, sir, it is. A. common
Q. your And that’s law wife? You never had a anything her or like that? ceremony with Well, planning having being on one A. we were now but very as I’m here can’t well have that. But we were— we are common law.
Q. long you living How have been with her beforе 28th? February Well,
A. off on I’d say years. for the last five Q. you And have a child? Yes,
A. sir. The argues any objection Commonwealth that (which only cross-examination at the second trial is the trial consideration) under our would have been frivolous and that therefore to his counsel cannot be found ineffective due inaction. It is the contention that Commonwealth’s prosecutor pointed suggest out to the wife relationship. that and his wife had a close appellant relationship such an inference as to their Presumably, would weaken the who had testified credibility crime, he immediately subsequent that to the date of the seek left gone employment to Buffalo to and had town his that notifying argues without wife. sought departurе it on cross-examination to show that the end, constituted and to that wanted to flight explore closeness of the between and his relationship wife.4 trial took 11 months after the
Appellant’s place first committed; the held after crime was second was months question appearance appel- the incident. We whether 4. We note the lower court’s observation on page opinion 9 of its flight very compelling evidence of was not “the Commonwealth’s hearing undisputed on there was a when it was the defendant arrest, voluntarily warrant out for his surrendered himself police.” *6 at probative
lant’s wife trial in is of the nature of their relationship 1977. February, Her presence mere itself says nothing about relationship trial; the even at time of certainly provides it no clue as to how and his wife a getting along year were over earlier.
Furthermore, the purpose Commonwealth’s stated in elic iting subject cross-examination testimony was to cast appellant’s doubt on claim that he gone had to Buffalo search for work telling However, without his wife. prosecutor also inquired of as terms of his is, that marriage, whether it was common law or had been now, formalized a Even ceremony. argument
makes no information was in any way their relevant to case.5 however, important,
More than the irrelevance of the subject cross-examination, is the prejudicial impact it which may have on the In jury. Long, Pa.Super. (1978), 392 A.2d this court wrоte:
The for comment, test for type as all improper remarks, is whether prose- the unavoidable effect cutor’s language forming would be to in their minds fixed bias toward the hostility defend- ant, they so that could not weigh the evidence and render a true verdict.
Id.,
Pa.Super.
The prosecutor fact that the ques- twice delved into the tion common law marriage and twiсe had appellant identify his indicates unmistakeably wife that his course was chosen. consciously There can be no doubt that in our society are in whom today there those interracial relationships arouse extreme prejudicial feelings. pros- ecutor a has “not to responsibility attempt be vindictive fact, 5. In it seeking seems to us if the Commonwealth was casual, appellant’s relationship show that with his wife was more than emphasize marriage it would want to not that the was a common law one. arousing their jury by to influence manner any supra. Long, prejudices.” Responsibility, adopted of Professional
The ABA Code 27, 1974, lawyer February forbids Court on Supreme our for a reasonable basis which asking any questions from Code states: grounds. The relevancy on not exist does DR 7-106. Trial Conduct
(A) ...
(B) ... capacity before professional in his
(C) In appearing not: tribunal, a shall lawyer *7 no reason- that he has any matter
(1) or allude to State or that will to the case is relevant to believe able basis evidence. admissible supported by not be to no reasonable basis he has (2) any question Ask to is intended case and that to the is relevant believe person. or other a witness degrade Justice, for Criminal vein, ABA Standards In like Func- 3, Prosecution Edition, The 1980, Chapter Second tion, sets forth: witnesses 3-5.7. Examination
Standard of con- be should of all witnesses (a) interrogation for the regard due and with fairly, objectively, ducted witness, and without of legitimate privacy and dignity unnecessar- the witness or humiliate seeking to intimidate conducted without can be cross-examination Proper ily. decorum. violating rules of to objected should have counsel trial
Appellant’s he which of irrelevant evidence introduction prosecutor’s embarrassing prejudicial known could be must have from away attention jury’s and would divert Long, See impartially. the evidence weighing duty their supra. Tirado, v. said Commonwealth Court Supreme
As our 336, (1977), 338 468, 472, 473, 375 A.2d 473 Pa. that the a fair trial concept to our
It is central presented properly the basis the case on must decide 454 issues, that extraneous and irrelevant matters
factual
Louisiana,
v.
466,
avoided. Turner
379
should
U.S.
be
Dowd,
Irvin v.
(1965);
546, 13 L.Ed.2d
85 S.Ct.
1639,
(1961);
Common-
If the came after objection wife, mistrial and identified his a motion for questions in order. would have been if objection, at least raised such an
Counsel should have a motiоn in limine to urges, counsel made appellate not as on notice cross-examination. Counsel was prohibit such appealed the first trial that the following prosecutor and he could have jurors racial possible at the second trial. prevent tried to such tactics however, counsel should willing say, are not We special explоre prejudice. voir dire to sought have *8 wife, to improper appellant’s for the reference Except need not have includ- neutral case. Voir dire racially States, v. Rosales-Lopez United See questions. ed 1629, L.Ed.2d 22 101 S.Ct. 451 U.S. in not at that counsel was ineffective
Having concluded tactics, to the we having objection prosecutor’s least made trial. reverse and remand for a new ROWLEY, J., concurs in result.
POPOVICH, J., dissenting opinion. files POPOVICH, HESTER, by J. J., joins dissenting opinion McEWEN, J., by POPO- dissenting opinion concurs VICH, J.
POPOVICH, Judge, dissenting: attorneys notice on defense serves all Today, majority least, an to very objection at the interpose, that failure to associating a defendant prosecutor merely remark any by being race is tantamount of a different with someone that because majority In states particular, ineffective. possible to the prosecutor appealed “the appel- making “improper reference” jurors” by in not race, counsel was ineffective at lant’s wife’s “[trial] prosecutor’s having objection made least tactics[.]” 698) I to such a at сannot subscribe Opinion (Majority with a Here, “association” disclosure view. (in of a common law race the context of a different member commission of a e.g., so as the marriage) prejudicial, is not of an crime, entry mention at trial warrants that its mere renders counsel counsel, the absence of which objection Truitt, 369 Pa. See, v. e.g., ineffective. Concurring Opinion). (1951) (Justice Stern’s A.2d 425 however, majori- take issue with importantly, More prosecution’s statement that because conclusionary ty’s (who white) of the is of the common law wife identification of the trial leads (who black) during the course is ... atmosphere of an “which to the creation inexorably prejudicial embarrassing could be duty from their аway attention jury’s would divert trial is neces- impartially[,]” a new weighing the evidence 698) sary. (Majority Opinion to an irrelevant fails to object
The fact that counsel source, does not trial, regardless of the made at remark in the this writer considers the enunciation of what justify granting a majority rule case to be a se per instant “racially sensitive” it considers tо be new trial what that such being, agree I do not The reason circumstances. Swinehart, 617 F.2d the case here. United States is Cf. defendant shows Cir.1980)(new (3d trial awarded if *9 comments). As prosecutor’s the prejudiced by that he was Court: Supreme our own was stated 456 language
“... the is attorney district [W]here uncalled a intemperate, improper, for new trial is not necessarily required. The be language must such that its ‘unavoidable would be to the prejudice jury, effect in their forming minds bias and hostility toward fixed so could defendant, they weigh not the evidence a of and render true verdict.’ effect such remarks trial, upon the of depends atmosphere and the proper action to be taken is within discretion the trial added) (Citations (Emphasis omitted) court.” Common- 598, Jarvis, 605, 482 Pa. 483, wealth v. 394 A.2d 487 (1978), 43, quoting Stolzfus, Commonwealth v. 462 Pa. 873, 337 A.2d 882 Accord Olivencia, (1979) 402 A.2d Pa.Super. (SPAETH, J., on other dissenting grounds). case,
In
the instant
no such
existed. To so find
would
an
of a
acknowledgement
deep-seated
be
tendency on
part
punish,
“to
not
appellant]
because [the
time,
is
he is
man
guilty
having
but because
a bad
[for
an
(marriage) relationship]
may
interracial
as
well be
now that
caught____”
condemned
he is
Truitt,
supra,
Pa. at
Although series of questions prosecu- initiated tor appellant’s attendant identification of the wife value, may probative in-court have had agree no cannot with majority that “in our there are society today those relationships whom interracial arouse extreme prejudicial feelings,” improper such “the reference to racially wife neutral ... into one [converted] case[ ]” racially Opinion which was (Majority sensitive. 697 & 698); States, 182, 190, see United Rosales-Lopez v. U.S. 1629, 1635, (1981) (“There 101 S.Ct. 68 L.Ed.2d nois constitutional presumption juror against bias for or mem- particular bers of any ethnic If groups.”). such case, werе not the carrying reasoning logical to its end, we would have to that in find those situations which was produced information at trial the accused linking with religious, political group or ethnic would se per transpose
457 neutrali- political or [religious, “from one ethnic] the case ethnically] or politically [religiously, one which was ty an interject objeсtion failed to if counsel Ergo, sensitive.” ineffective, and to he would be labelled information to such occurred, trial misfeasance, if a new conviction the remedy result, I cannot granted. With have to be would Ross, 589, 8, 96 596 n. S.Ct. v. U.S. agree. See Ristaino (“In 258, (1976) our 264 n. 8 1017, 8, 47 L.Ed.2d 1021 n. con- as constitutional policy as well society heterogeneous assumption—as against the divisive militate siderations upon turn may in a court of law justice per se rule—that birth, or the choice skin, the accident of pigmentation States, 158 U.S. v. United See Connors religion. (1895).”). 951, 953, 39 L.Ed. 415, 15 S.Ct. instantly, factual circumstances examining the
When
cases have been
sui
example,
For
generis.
is
truly
case
1)
at-
the remark
where:
racially sensitive
categorized as
popula-
tо a sector of the
characteristic
general
tributed
present-
individual circumstances
regard
without
tion
Tirado, 473 Pa.
v.
Commonwealth
case,
in a
given
ed
impact
2)
prejudicial
(1977);
potentially
or
i.e.,
episode,
criminal
central to the
was
of the affiliation
races and
were of different
and the victim
the accused
both
have
involved would
bеen
of the crime
sexual nature
this fact at trial. See
high-lighting
unduly by
emphasized
Christian, 480 Pa.
131,
1) prosecution’s ethnic, a certain peculiar characteristic any general raciаl, background; religious race, the same were of 2) and the victim Both matters which concerned differences any surrounding the evidence germane to were not episode. criminal
This jurist finds that
the prosecutor’s probing accused on his marital status was not so egregious that its
“ ‘unavoidable effect
to ...
form-
jury,
[was]
ing in their minds fixed bias and hostility toward the
[appellant], so that they
weigh
could not
the evidence and
”
render a true verdict.’
Jarvis,
supra,
482 Pa. at
Thus,
HESTER, J., joins dissenting opinion.
McEWEN, J., concurs in dissenting opinion. Pennsylvania
COMMONWEALTH of RUTH, Appellant. Johnnie Lee Superior Pennsylvania. Court of Sept.
Submitted 1982. Filed Jan. 1983. Petition for Appeal Allowance of April
Denied 1983.