source: Caselaw Access Project

author: WICKERSHAM, Judge: SPAETH, President Judge, BROSKY, Judge, POPOVICH, Judge,

license: Public Domain

text:
    498 A.2d 423
    COMMONWEALTH of Pennsylvania v. Charles W. PIERCE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1984.
    Filed Sept. 6, 1985.

      Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO, BECK, POPOVICH and HESTER, JJ.
   WICKERSHAM, Judge:

This appeal is undertaken from judgment of sentence imposed after appellant was convicted by a jury and sentenced to serve a term of imprisonment of not less than four nor more than ten years for aggravated assault. At issue in this appeal is whether trial counsel was ineffective for introducing appellant’s prior incarceration into testimony and for failing to object to the trial court’s charge defining circumstantial evidence. Appellate counsel initially filed a Petition for Remission of the Record, but this court denied the petition and ordered counsel to submit a brief on the merits. On October 14, 1983, a panel of this court filed an opinion reversing and remanding for a new trial, based upon its finding that trial counsel was ineffective for introducing appellant’s prior incarceration into testimony. On December 16, 1983, this court granted the Commonwealth’s petition for en banc reargument limited to the issue of whether use of a harmless error standard is appropriate in the context of appellant’s ineffectiveness of counsel claims.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court discussed the appropriate standard for analyzing ineffectiveness of counsel claims. In that case, the Court separated the analysis of such a claim into two distinct components: the performance component and the prejudice component. The Court explained that

[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In dealing with ineffectiveness claims, Pennsylvania courts have historically applied a performance component similar to that espoused in Strickland. The standard for analyzing ineffectiveness of counsel claims in this Commonwealth was enunciated by our supreme court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny. The analysis consists of the application of a two-pronged test. First, the reviewing court must determine whether the issue underlying a defendant’s ineffectiveness claim is of arguable merit. Second, if the court finds that the claim has merit, the inquiry shifts to whether the course chosen by counsel had some reasonable basis aimed at promoting the defendant’s interests. Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). See also, e.g., Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983).

This two-pronged test relates solely to the performance component set forth in Strickland. Prior to Strickland, the courts of Pennsylvania had never explicitly articulated a prejudice component in analyzing ineffectiveness claims. That is, our courts had not specifically required that, beyond proving that his counsel was ineffective, a defendant must also prove that counsel’s errors so prejudiced his defense that he was denied a fair trial. As noted in the plurality opinion in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984), however, while our courts have not elucidated a prejudice component, such a requirement has been intimated in a number of cases. Id., Opinion by Cirillo, J., 335 Pa.Superior Ct. at 563-564 n. 2, 485 A.2d at 37-38 n. 2.

It is with this common background of legal thought that Commonwealth v. Garvin, supra, and the instant case reached this en banc panel. In both cases we were asked to decide whether we will adopt a standard similar to that applied in Strickland by including a prejudice component in our analysis of ineffectiveness of counsel claims. While Strickland is, of course, binding as to the meaning to be given the sixth amendment’s guarantee of the assistance of counsel, it does not control our interpretation of article 1, section 9 of the Pennsylvania Constitution. Garvin, supra, Concurring Opinion by Spaeth, P.J., 335 Pa.Superior Ct. at 568, 485 A.2d at 40. It is, however, instructive in analyzing the issue before us.

In Commonwealth v. Garvin, supra, a majority of this court agreed that it is proper to infuse a prejudice component or a “harmless error standard” into our analysis of “ineffectiveness claims.” Garvin, supra (Opinion by Cirillo, J., joined by Wickersham, J. and Hester, J.; and Concurring Opinion by Spaeth, P.J.). This majority was divided, however, concerning where the burden of establishing the prejudice element lies. The plurality would require that the defendant bear the burden of proving that counsel’s ineffective representation so prejudiced his case that he was deprived of a fair trial. That is, “[a] finding that [the defendant] is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Garvin, supra, Opinion by Cirillo, J., 335 Pa.Superior Ct. at 566, 485 A.2d 36, 39. President Judge Spaeth, however, believes that

we should interpret article 1, section 9, of the Pennsylvania Constitution so that once the defendant in a criminal case shows that his counsel was not reasonably competent, he has established a denial of his right to the effective assistance of counsel, and the burden then shifts to the Commonwealth to prove beyond a reasonable doubt that counsel’s incompetence was harmless because it had no effect on the outcome of the case.

Garvin, supra, Concurring Opinion by Spaeth, P.J., 335 Pa.Superior Ct. at 592, 485 A.2d 36, 52 (emphasis added).

In the instant case, we will follow the rule espoused in Strickland and adopted by Judge Cirillo. That is, after proving that his counsel was ineffective, the defendant must go on to establish that counsel’s ineffectiveness so prejudiced his case that he was deprived of a fair trial.

With this two component standard in mind, we now turn to the allegations of ineffectiveness as set forth by appellant in the instant case. Appellant first avers that he was denied the effective assistance of counsel when his trial attorney introduced evidence of his prior criminal record.

The Commonwealth produced evidence at trial which revealed that on September 21, 1980, appellant, Charles Pierce, entered the hospital room of his former common law wife, Carmen Myers, who was recovering from a hysterectomy, and stabbed her in the chest. Saundra Dawson, a clerk at the hospital, testified that on the night in question, she heard yelling and turned to phone the security guards, and that a man whom she identified at trial as the appellant, walked past her in the hallway. Dawson’s station was located in the middle of the hallway on the floor where the stabbing occurred. Subsequent to the stabbing, appellant was found on the roof of the hospital. He stated, “you got me,” when discovered. Only the complainant, Mrs. Myers, testified to witnessing the actual stabbing.

Upon cross-examination of Mrs. Myers, appellant’s trial counsel elicited the following testimony:

Q. Mrs. Myers, how long did Fred Myers live in your home with you and your husband? []
A. I don’t recall.
Q. Approximately?
A. About four months. Three months.
Q. During that three or four months, during a portion of that time the defendant was incarcerated, is that correct?
A. Yes.

N.T. at 44-45.

Because trial counsel introduced testimony showing that appellant previously had been incarcerated, appellant argues that counsel was ineffective.

We begin our analysis with the performance component. As already stated, we apply the now familiar two-pronged test in order to evaluate the effectiveness of counsel’s representation. First, the court must determine whether the issue underlying the charge is of arguable merit, and second, if the charge is of arguable merit, inquiry shifts to whether the course chosen by counsel had some reasonable basis aimed at promoting the client’s interests. Commonwealth v. Golson, supra. In making this assessment, however, the court will not employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, but will look to whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979).

In the instant case, appellant’s contention that trial counsel was ineffective is of arguable merit. “[T]he operative question [as to whether admission of evidence was error as a showing of prior criminal activity] is whether the jury could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Groce, 452 Pa. 15, 19-20, 303 A.2d 917, 919 (1973) (quotations omitted). From trial counsel’s question, “... during a portion of that time the defendant was incarcerated, is that correct?,” and complainant’s answer, “yes,” the jury could reasonably infer that the accused had engaged in prior criminal activity. Thus, our analysis shifts to whether trial counsel had a reasonable basis for his actions.

There are, of course, instances in which introduction of appellant’s prior record or prior incarceration may be an appropriate trial strategy. In Commonwealth v. McNeil, 497 Pa. 187, 439 A.2d 664 (1981), defense counsel sought to justify the defendant’s flight from the state of Pennsylvania by noting mistreatment during prior incarceration in the state. Introduction of evidence of the defendant’s prior conviction was necessary in order to rationalize his compulsion to flee. Similarly, in Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983), this court found that it was reasonable to allow the defendant to discuss his prior incarceration where the defendant testified that while in prison he had earned a graduate equivalency diploma, which gave him a motive not to risk his freedom for unprofitable robberies such as the one with which he was charged. See also Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977), in which our supreme court found that the defendant had made a tactical choice to reveal his incarceration.

Instantly, the Commonwealth avers that, similar to the above-mentioned cases, counsel’s introduction of appellant’s prior incarceration was based upon a reasonable trial strategy. The Commonwealth argues that defense counsel was faced with overwhelming evidence against his client and that counsel therefore attempted to create sympathy for appellant by showing that the complainant had grievously wronged him. During cross-examination of the complainant, counsel elicited that she and appellant had one child together, and that prior to the incident, appellant’s friend Fred Myers was a house guest in the Pierce home for three or four months. During Myers’ visit, defendant was incarcerated. Counsel therefore confronted the complainant with the fact that while appellant, against his will, was briefly away from home, the complainant allowed Fred Myers to remain in the house. It appears that counsel was attempting to establish the existence of an illicit relationship between the complainant and Fred Myers. (Counsel later elicited testimony that the complainant had since married Myers). The Commonwealth alleges that “[o]nly by admitting the actual reason for [appellant’s] absence could trial counsel effectively discredit Mrs. Myers and impress the jury with the terrible wrong done to [appellant], a man unfortunately separated from his wife against his will.” Brief for the Commonwealth on En Banc Reargument at 9. The Commonwealth would have us find that this was a reasonable tactic designed to create some sympathy for appellant and bias against the complainant.

While we agree that the foregoing explanation may indeed have been the purpose for counsel’s actions, we do not believe that this tactic was reasonable. Apparently, trial counsel was attempting to establish that a sexual relationship existed between complainant and Fred Myers at the time of appellant’s prior incarceration. This relationship, however, even if established, would not have justified appellant’s assault on Mrs. Myers. Moreover, if established, this relationship would have given appellant a motive for assault which could only have worked in opposition to his interests.

In order to find that counsel was not ineffective, we must decide not only that counsel’s actions were motivated by a particular trial strategy, but that the strategy chosen had some reasonable basis aimed at his client’s interests. For example, in Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), this court held that questioning by trial counsel on direct examination as to defendant’s previous crimes, for the purpose of causing the defendant to demonstrate his honest recollections of past criminal acts, and therefore to prove himself credible, constituted ineffective assistance of counsel. Although defense counsel had a purpose for his actions, the court found counsel’s strategy “grossly inappropriate for the purposes he sought to achieve.” Id., 286 Pa.Superior Ct. at 288, 428 A.2d at 996. Similarly, in the instant case, we find counsel’s strategy grossly inappropriate. Even assuming, as the Commonwealth suggests, that trial counsel was attempting to demonstrate appellant’s absence from home, he could have done so without indicating that appellant was incarcerated at the time. Counsel had no reasonable basis for introducing appellant’s prior record into testimony. Thus, we find that counsel was ineffective when he informed the jury that appellant had been incarcerated.

In keeping with Judge Cirillo’s plurality opinion in Garvin, however, appellant is not entitled to a new trial unless he can establish that counsel’s ineffectiveness prejudiced his case. We do not believe that appellant has met this burden of proof.

The Strickland court discussed the standard to be used in assessing the prejudice caused by counsel’s ineffective misrepresentation.

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. at 2069, 80 L.Ed.2d at 698-99.

The Pennsylvania Supreme Court enunciated a similar approach to evaluating the prejudicial effect of error on a defendant’s case in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

This Court has stated that an error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 719 (1973); accord, Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). Under this approach, a reviewing court first determines whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt. If “ ‘honest, fair minded jurors might very well have brought in not guilty verdicts,’ ” an error cannot be harmless on the basis of overwhelming evidence. Commonwealth v. Davis, 452 Pa. at 181, 305 A.2d at 721, quoting Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705 (1967). Once the court determines that the evidence of guilt is overwhelming, it then decides if the error was so insignificant by comparison that it could not have contributed to the verdict.

Id., 476 Pa. at 412-13, 383 A.2d at 166 (footnote omitted).

After making a comprehensive examination of the entire record, we conclude that the error in this case was harmless beyond a reasonable doubt. The uncontradicted, properly admitted evidence of appellant’s guilt was overwhelming. As already stated, the Commonwealth produced evidence that appellant entered his former common law wife’s hospital room and stabbed her in the chest. Saundra Dawson, a clerk at the hospital, testified that on the night in question, she heard yelling and turned to phone the security guards. At that time, a man, whom she identified at trial as appellant, walked past her in the hallway. She gave a brief description of appellant to the security personnel. Subsequent to the stabbing, appellant was found lying on the roof of the hospital. Two officers testified that when he was apprehended, appellant stated, “you got me.” The complainant identified appellant as the person who stabbed her.

We are of the opinion that this evidence overwhelmingly established appellant’s guilt. Further, counsel’s error in putting appellant’s prior incarceration before the jury was so insignificant by comparison that the decision reached would not have been different absent the error. Thus we find that appellant has not met his burden of proving that counsel’s ineffectiveness prejudiced his case. Counsel’s error was harmless beyond a reasonable doubt.

Appellant’s second issue is that he was denied the effective assistance of counsel because his trial counsel failed to object to the trial court’s erroneous charge defining circumstantial evidence. Again, we begin our analysis of the performance component by applying the two-pronged test first enumerated in Maroney. Since we find that this allegation has no arguable merit, we need go no further in our analysis.

Appellant avers that when instructing the jury on the law of circumstantial evidence, the trial judge failed to include the requirement that circumstantial evidence be sufficient to prove the offense charged “beyond a reasonable doubt.” Appellant pointed to the following portions of the charge as being error:

Having one set of circumstances, you see, does your experience and common sense lead you to the conclusion that another fact which is at issue is also present?
When circumstantial evidence is proof of another fact depends on the application of your common sense and experience. In deciding whether circumstantial evidence proves another fact at issue you must first be satisfied that the testimony constituting the basis for your inference is true and that the inference naturally and logically follows.

N.T. at 187-88.

When you come to determine whether or not the actor or defendant in this case intentionally attempted, or did inflict injury upon another, you must arrive at intent by the application of my instruction to you on circumstantial evidence. Having one set of circumstances can you reasonably conclude that the intent to do the act was with the actor?

N.T. at 196-97.

Appellant, however, fails to highlight other portions of the court’s charge which clearly inform the jury of the requirement that the evidence prove the defendant’s guilt beyond a reasonable doubt. For example, immediately after discussing circumstantial evidence and identification testimony, the trial judge stated:

After you have put together this entire picture, first assessing the credibility of witnesses and then putting the witnesses’ testimony and single pieces of evidence of the entire case together and you have this picture, remember to look upon that picture in the prospective [sic] of these principles. A person who is accused of a crime is presumed to be innocent____ The presumption of innocence stays with the defendant throughout the course of the trial and remains unless and until each of you become convinced of his guilt beyond a reasonable doubt.

N.T. at 192-93.

The judge then went on to define “reasonable doubt” in some detail. Later in his instructions, the judge further explained:

Now, if upon review of the evidence in the light which I instructed you, you determine that these elements are present, that the defendant attempted, or did do injury to another with the intent of doing so, you are convinced of that beyond a reasonable doubt, then you may find the defendant guilty. If you have a reasonable doubt that those elements exist, or that this was the person who committed those acts, then you shall acquit.

N.T. at 197.

We believe that the trial court’s charge was not deficient. The court properly informed the jury that they should consider the totality of the evidence, whether direct or circumstantial, in determining whether it was sufficient to establish guilt beyond a reasonable doubt. See Commonwealth v. Cooper, 270 Pa.Super. 365, 411 A.2d 762 (1979). Also see Commonwealth v. Suggs, 289 Pa.Super. 44, 432 A.2d 1042 (1981). “A jury charge must be read as a whole and considered in its entirety. It is the general effect of the charge that controls.” Commonwealth v. Ignatavich, 333 Pa.Super. 617, 624, 482 A.2d 1044, 1047 (1984). Instantly, the judge’s instructions, read as a whole, present a clear and accurate statement of the law. Thus, appellant’s allegation that the court erred in its charge is without merit, and counsel was not ineffective in failing to object to the instructions.

Judgment of sentence affirmed.

SPAETH, President Judge, files a concurring opinion.

BROSKY, J. files a concurring statement.

POPOVICH, J. files a dissenting statement.

SPAETH, President Judge,

concurring:

I remain of the view that I expressed in concurring in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984). I nevertheless concur in the order affirming the judgment of sentence. Given the overwhelming evidence of appellant’s guilt, I am satisfied that the Commonwealth met its burden of proving beyond a reasonable doubt that counsel’s incompetence was harmless because it had no effect on the outcome of the case.

BROSKY, Judge,

concurring:

I join in the opinion of the majority, but I believe the issue of which party should bear the burden of proof on the question of harmless error merits further discussion. That question was left unsettled in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984) (en banc). The majority holds that “the defendant must establish that counsel’s ineffectiveness so prejudiced his case that he was deprived of a fair trial.” I agree with this holding.

I believe, however, that the placement of the burden of proof, in fact, makes no difference where the claim of ineffectiveness arises from trial proceedings. In that situation, there is no need for any further proceeding at which one of the parties must be assigned the burden of proof; this Court simply reviews the evidence already adduced at trial and determines whether the error (trial counsel’s ineffective assistance) is harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). We determine, for example, whether, from the record before us, it is established beyond a reasonable doubt that the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error so insignificant by comparison that the error could not have contributed to the verdict; or that the prejudice was so minimal (de minimus) that it did not influence the jury. Id. I do not believe that such an analysis itself or the result of such an analysis could differ depending upon to whom the burden of proof is assigned.

However, I do believe that the assignment of the burden of proof could make a difference where the claim of ineffective assistance of trial counsel does not arise from trial proceedings. Perhaps, the clearest example of such a claim is where trial counsel is alleged to have been ineffective for failing to interview witnesses. Case law has established that in order for a defendant to prove counsel’s performance was deficient in that regard, he must prove at an appropriate hearing that counsel was aware of the witnesses and had some indication that their testimony would develop more than was already known to counsel. See e.g., Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). However, in order to be entitled to any relief, the defendant must also show that counsel’s deficient performance prejudiced him by proving that the testimony would have been helpful to his case, i.e., that counsel’s deficient performance was not harmless error. See Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982).

In this situation, it makes a difference to whom the burden of proof is assigned. If we were to assign to the Commonwealth the burden of proving beyond a reasonable doubt that counsel’s ineffectiveness did not contribute to the verdict, the Commonwealth, in the situation described above, would have to demonstrate that the witnesses’ testimony would not have been helpful to the defense. I think that, in many instances, such a burden would be unfairly difficult for the Commonwealth to meet. Moreover, to place the burden of proof on the Commonwealth would be to impermissibly mandate that the Commonwealth prove that which our Supreme Court has already stated the defendant must prove. Therefore, although I believe it makes no difference in the instant case, I agree with the majority’s holding that a defendant, after proving that his counsel was ineffective, must go on to establish that counsel’s error was not harmless beyond a reasonable doubt.

POPOVICH, Judge,

dissenting:

This represents an unwarranted intrusion into the Supreme Court’s test for ineffectiveness as set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Accord Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). The majority concedes that counsel’s action in introducing appellant’s prior record was not reasonable. At 333. However, the majority justifies counsel’s error because the “evidence overwhelmingly established appellant’s guilt.” At 335. Moreover, the concept that overwhelming guilt excuses counsel’s ineffectiveness is not embraced in any United States or Pennsylvania Supreme Court opinion. Hence, it is not the function of this Court to erode established precedent of our Supreme Court.

      . As explained by Judge Cirillo’s plurality opinion, the Pennsylvania Supreme Court’s decision in Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978), does not mandate a different result. In Badger, our supreme court rejected the use of a harmless error/prejudice standard at the performance stage of the analysis. The court held that it would be improper to employ a harmless error standard in analyzing whether the strategy chosen had some reasonable basis aimed at promoting the client's interest.
      We agree with Badger that a reviewing court should not employ a prejudice standard when evaluating the effectiveness of counsel’s performance. Clearly, counsel who ineffectively represents his client should not be clothed with a mantle of "effectiveness" simply because the Commonwealth’s evidence was so overwhelming that his client could not possibly have been prejudiced by his deficient performance. We agree that such a decision would be improper and we do not, by this opinion, permit that type of analysis. Rather, we find that if counsel has been found to be ineffective, then the court will apply a harmless error standard in order to determine the relief that should be granted to the client. Thus, the harmless error/prejudice component is applied independently of the analysis of counsel’s performance. See Commonwealth v. Garvin, supra, Opinion by Cirillo, J., 335 Pa.Super. 560, 564-567, 485 A.2d at 38-39. The performance component supplies the standard to be applied in determining whether counsel’s representation was effective; “[t]he prejudice component supplies the standard to be applied to the determination of the remedy to be afforded the [defendant] in a criminal case.” Id., 335 Pa.Superior Ct. at 565-566, 485 A.2d at 38-39.

      . At that time, Mrs. Carmen Myers was the common law wife of Charles Pierce, appellant. Mr. Fred Myers was their house guest. Subsequent to this action, Mrs. Myers and Mr. Myers were married.

      . See also, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), where the court held “testimonial reference indicating to the jury that the accused has been engaged in other criminal activity, denies the accused a fair trial and requires a retrial, except under well-defined and limited circumstances ..." Id., 488 Pa. at 138, 411 A.2d at 492.

      . Shortly after the introduction of appellant's prior incarceration into testimony by trial counsel, the trial judge sustained an objection to defense counsel’s question asking Mrs. Myers if she had engaged in an illicit relationship with Fred Myers during the time when Charles Pierce was incarcerated. The trial judge ruled that the question was irrelevant.

      . This description of what Leonard and similar cases required a defendant to prove in order to prevail on a claim that counsel was ineffective for failing to interview witnesses is put in terms of the analytical framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Garvin, supra. As held by the majority in Garvin, Strickland’s articulation of a separate prejudice component reflects an analysis which our courts have employed only sub silentio in deciding ineffective assistance of counsel claims. In other words, Leonard, and similar cases, did not expressly use a harmless error analysis, but simply stated that counsel could not, be held to be ineffective unless the defendant proved that the witnesses’ testimony would have been helpful to his case. The Garvin majority holding is that, in the light of Strickland, the question of whether the testimony of the witnesses would have been helpful is asked not to determine whether counsel was ineffective, but to determine whether counsel's proved ineffectiveness was harmless.


author: CIRILLO, Judge:

text:
    498 A.2d 482
    COMMONWEALTH of Pennsylvania v. Bruce PERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Sept. 6, 1985.

      Seymore H. Johnson, Jr., Philadelphia, for appellant.
    Anna Horn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

Following a jury trial, appellant Bruce Person was convicted of first-degree murder, aggravated assault, and possessing an instrument of crime. The conviction stemmed from the death of his wife, Beatrice Person. After denial of post-verdict motions, appellant was sentenced to life imprisonment for murder and to concurrent prison terms of two and a half to five years for aggravated assault and one to two years for the weapons offense. This appeal followed.

The testimony presented at trial indicated that on May 5, 1982, at approximately 2:50 p.m., Person went to the coffee shop where his wife worked to speak with her. Their conversation ended in argument soon thereafter and the decedent walked back into the rear of the shop. Person quickly followed her and, as he entered the kitchen, he picked up a utensil and began stabbing her repeatedly.

Dorothy Garland, the decedent’s grandmother, was sitting in the apartment over the shop when she heard someone yelling for help. Mrs. Garland ran downstairs to the shop where she found Person kneeling over the decedent, stabbing her. Person then proceeded to slash Mrs. Garland across the arm with a knife.

A 13-year old boy who had been working in the coffee shop approached a Mr. James Long, located across the street, for assistance. Long ran to the coffee shop where he found Mrs. Garland holding her arm and a man leaning over a young woman striking at her. The man physically engaged Long, striking him repeatedly about the face and chest with his fists. Long retaliated, but the man escaped. Although Long was unable to identify the man who struck him, he did state that they were the only people present in the shop at the time.

The police arrived at the scene at approximately 3:40 p.m. where they found the decedent lying on the floor unconscious. An ambulance was summoned to transport the victim to the hospital. She was pronounced dead on arrival as a result of multiple stab wounds. Person was arrested that same evening.

Appellant’s first contention is that the crime of murder was not properly explained to the jury. Specifically, appellant argues that the definition of malice given by the trial court was grossly in error in that the court defined malice and intent as one and the same. Thus, appellant submits, the court told the jury that intent is the only element necessary to be proven beyond a reasonable doubt, thereby relieving the Commonwealth of its burden to prove the existence of malice to sustain a first-degree murder conviction.

The trial court defined malice as follows:
A killing is with malice and therefore murder if the killer acted with one of the following states of mind: An intent to kill or an intent to inflict serious bodily harm or injury or a wickedness of disposition, a hardness of heart, cruelty, recklessness of consequences, and a mind without regard to social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life.

Our standard of review in determining whether a jury instruction is proper is well documented. A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations. Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984); Commonwealth v. Newman, 323 Pa.Super. 394, 470 A.2d 976 (1984); Commonwealth v. Stauffer, 309 Pa.Super. 176, 454 A.2d 1140 (1982); Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982); Commonwealth v. Peterson, 271 Pa.Super. 92, 412 A.2d 590 (1979). The instructions to the jury in the instant case complied fully with these requirements. In fact, the instruction given by the trial court is identical to the instruction formulated by the Committee on Proposed Standard Jury Instructions. See Pa. Standard Jury Instructions § 15.2501A (Crim.) (1981).

A comparison of the court’s charge in the case at bar with the definition of malice as applied to first-degree murder in our previous decisions indicates that the charge was proper as a matter of law inasmuch as it furnished the jury with an accurate statement of the elements comprising first-degree murder. This Court has recently promulgated the following definition of malice:

The Pennsylvania Supreme Court has established that malice may be inferred from attending circumstances. It consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm. Commonwealth v. Matthews, 480 Pa. 33, 389 A.2d 71 (1978); Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968).

Commonwealth v. Kersten, 333 Pa.Super. 343, 352, 482 A.2d 600, 604 (1984). An identical definition of malice was enunciated by the Supreme Court in Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980). In Gardner, the Court further stated:

[T]o support a finding of first degree murder, we must find that the killing was a malicious one accompanied by a specific intent to kill. If the act of the defendant under all the circumstances properly gives rise to an inference that the appellant knew or should have known that the consequence of his act would be death or serious bodily harm, malice is present.

Id., 490 Pa. at 425, 416 A.2d at 1008.

We find the trial court’s instructions in the instant case to be in complete harmony with accepted definitions of malice. Accordingly, we reject the appellant’s claim and hold that the trial court’s instructions were entirely proper.

Appellant’s second claim is that trial counsel should have been allowed to withdraw from the case when he informed the calender judge that the attorney-client relationship between Mr. Person and himself had deteriorated. At a pre-trial hearing held on June 13, 1983, trial counsel stated that appellant told him that he did not want him to be his lawyer. Counsel further stated that they almost got into a fistfight and expressed concern for his own personal safety at trial. Appellant alleges that under such circumstances, it was an abuse of the court’s discretion not to appoint new counsel.

We note initially that there is some confusion as to whether trial counsel made a proper motion to withdraw from the case. Several days prior to commencement of appellant’s trial, trial counsel appeared before the court to present appellant’s omnibus pre-trial motions. He also stated the following:

[Trial counsel]: I really have two problems. One problem developed yesterday. I went to see Bruce Persons. Bruce Persons said he didn’t want me to represent him, that I was from Buford Tatum’s office, I was out of the same office that Buford Tatum is from. Buford Tatum had had the case initially. When he resigned, the case was—I was then appointed counsel for Bruce Persons. As it went, we almost got into a fist fight at the prison and I wanted the court to know that. I also want the Court to know that the man did stab his wife thirty-four times. I would hope that if I am forced into remaining in the case, that this guy be searched and—
The Court: Sure, he would be searched.
[Trial Counsel]: I mean, since I have to sit right by him, pencils and all that kind of stuff, I don’t really want to have my attention totally on him and not what Pm doing. As I said, I don’t know how it’s going to develop, but it was not very pleasant yesterday and I was upset by it all, but I intend on defending myself. I don’t intend to let this man hurt me.
The Court: Sure.
[Trial Counsel]: Now, the other thing I want the court to be aware of is that he is not at all cooperating with me. I do need, however, in order to defend the man, a psychiatric examination. If the court could order a forthwith psychiatric examination, it would be most helpful to me. The Court: Well, that should have been done long ago.

Contrary to appellant’s assertions, we find no evidence from this colloquy of any request by trial counsel to withdraw from the case. Nor does present counsel in his brief to this Court direct us to any place in the record where a written petition was filed or the issue of withdrawal was otherwise raised. See Pa.R.A.P. 2117(c) (statement of place of raising or preservation of issues); see also Pa.R.Crim.P. 306, 309(a), 42 Pa.C.S.A. Appendix (1983). From our reading of the record, it appears counsel told the court only that appellant was dissatisfied with counsel and that he wanted appellant to be routinely searched. Consequently, and under ordinary circumstances, this issue would not be reviewable on appeal since it was not raised by the appellant at the trial court level. See Neshaminy Water Resources Authority v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 481 A.2d 879 (1984); Daset Mining Corporation v. Indus trial Fuels Corporation, 326 Pa.Super. 14, 473 A.2d 584 (1984). However, the opinion of the post-trial motions court interpreted the brief exchange between trial counsel and the court as a proper motion to withdraw from the case. Therefore, for our purposes of analysis, we too shall assume that trial counsel took the proper steps for requesting withdrawal.

Upon appellate review, we are mindful that the decision whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court, Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975); Commonwealth v. Tuck, 322 Pa.Super. 328, 469 A.2d 644 (1983); Commonwealth v. Johnson, 309 Pa.Super. 117, 454 A.2d 1111 (1983); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979), and as such, should not be overturned unless we find an abuse of that discretion. The issue presented for our review, therefore, is whether the lower court’s denial of trial counsel’s petition to withdraw from the case amounted to an abuse of discretion.

In Commonwealth v. Pittman, 320 Pa.Super. 166, 174, 466 A.2d 1370, 1373 (1983), we defined the test for an abuse of discretion as being:

[I]n determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that the “law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused.” Commonwealth v. Niemetz, 282 Pa.Super. at 445 n. 12, 422 A.2d at 1376 n. 12, quoting, Man O’War Racing Association Inc. v. State Horse Racing Commission, 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969), quoting, Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

Under the circumstances of the instant case, we find no abuse of discretion by the court in denying appellant’s request for replacement of counsel. It is well settled that an indigent is entitled to free counsel, but not to free counsel of his choice. Commonwealth v. Johnson, supra; Commonwealth v. Olivencia, supra. Although the right to counsel is absolute, there is no absolute right to a particular counsel. Johnson; Olivencia. A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons. Pa.R.Crim.P. 316(c)(ii).

The appellant argues here that the trial court’s refusal to appoint new counsel is inconsistent with the Supreme Court’s holding in Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). Unlike the case in Tyler, in which appellant’s dissatisfaction with his court-appointed attorney resulted from irreconcilable differences between them as to the manner in which the trial should be conducted, Person’s dissatisfaction with his lawyer apparently stemmed from his general unhappiness with court-appointed attorneys. In fact, trial counsel was already appellant’s second court-appointed attorney. The record does indicate that there was a measurable degree of hostility between trial counsel and appellant. However, the Sixth Amendment right to counsel does not guarantee a meaningful rapport between an attorney and his client. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The trial court noted in its opinion that trial counsel had, despite his personal differences with the defendant, performed commendably and professionally in a difficult case. The trial court’s denial of counsel’s petition to withdraw from the case was, therefore, clearly not a manifestly unreasonable exercise of judgment. Consequently, we cannot conclude that the trial court committed a palpable abuse of discretion and we will not disturb appellant’s conviction.

AFFIRMED.


author: TAMILIA, Judge:

text:
    498 A.2d 436
    COMMONWEALTH of Pennsylvania v. Robby Lee ZOLLER, Appellant. COMMONWEALTH of Pennsylvania v. Michael Eugene FAHNESTOCK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1985.
    Filed Sept. 6, 1985.

      Dale F. Shughart, Jr., Carlisle, for appellant Robby Lee Zoller.
    Carol Munson, Assistant Public Defender, for appellant Michael Eugene Fahnestock.
    Theodore B. Smith, Assistant District Attorney, for Commonwealth, appellee.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   TAMILIA, Judge:

These are consolidated appeals from judgments of sentence of 10-20 years to a state institution following appellants’ guilty pleas to third degree murder. Prior to tendering the plea, each appellant was charged with criminal homicide (18 Pa.C.S.A. § 2501), murder (18 Pa.C.S.A. § 2502(a) and (b)) and robbery (18 Pa.C.S.A. § 3701(a)(l)(i)). Following a hearing and denial on September 28, 1984 of a Petition for Transfer to Juvenile Court, both appellants chose to plead guilty to third degree murder rather than stand trial for first and second degree murder and robbery.

The plea agreements were tendered and accepted by the court on November 5, 1984. As part of the agreement, the court was asked to bind itself to a sentence of not less than ten (10) nor more than twenty (20) years of confinement but permitting the parties to argue the place of confinement at the sentencing hearing. Also, the Commonwealth requested that defendants agree to withdraw all then pending motions, pretrial or otherwise, including the Motion for Transfer to Juvenile Court, the Motions to Suppress and the motion filed under Rule 1100. It was, however, correctly determined during the colloquy that the Motion for Transfer was a jurisdictional issue and, therefore, not waivable. See Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). Hence, although the instant appeals are from judgments of sentence of 10-20 years, the order, which is the subject of the appeals and the sole issue before us, is whether the trial court erred in refusing appellants’ requests for transfer of the proceedings to juvenile court.

A review of the briefs and record reveals the following nondisputed facts: Ronald Harder was a borderline mentally retarded, 46 year old man who, on a number of occasions during the 2-3 years prior to the murder, had homosexual experiences with appellant, Robby Zoller. Harder was killed by appellants, Zoller (age 15, bom 9/3/68) and Fahnestock (age 15, born 6/6/68), on September 12, 1983.

After digging a shallow grave with a shovel obtained at the Fahnestock home, and with the intent of killing Harder, appellants lured the victim to the murder site. The two beat Harder over the head with the shovel and dragged him into the grave where appellant, Fahnestock, inflicted another wound. They took the victim’s wallet, buried him under dirt and tree limbs, threw the shovel into a creek and washed their hands in a nearby graveyard. Nearly two months later, on November 2, 1983, police received information concerning the murder from a school friend of Zoller’s in whom Zoller had confided. Both appellants gave statements to police admitting their participation in the scenario described above. The brutal, vile nature of the murder is but one of reasons we affirm the judgment of sentence as to both appellants.

The arguments of appellants and alleged errors of the trial court can be summarized as follows:

1. ) Failure to consider the youth’s personality and background and prior failure of the juvenile system in rehabilitating them.
2. ) Failure to evaluate the underlying circumstances for killing the victim.
3. ) The defendants established amenability to the Juvenile Court System.

It was the court’s finding that the need for legal restraint outweighed the need for treatment in the juvenile system.

As to Robby Zoller, appellant’s arguments are ones of social and cultural justification and are untenable. He alleges factors such as parental deprivation, maternal promiscuity, excessive mobility and school transfers, and lack of a positive male model, which resulted in an emotionally immature, socially underdeveloped child with aggressive tendencies. He also alleges the court ignored the fact that the victim sexually molested both he and his two brothers while they were younger and that Zoller was sexually involved with the victim until the time of the killing. Similarly, it is alleged the court ignored the fact that Zoller did well in the detention home under an intensive program prior to trial. Appellant contends he has established amenability to juvenile disposition, and despite the brutal and premeditated nature of the killing, he should have been transferred to the juvenile court.

The law applicable to this case is contained in Title 42, Judiciary and Judicial Procedures. Chapter 63, Juvenile Matters, § 6322, Transfer from criminal procedures, provides:

(a) General rule—... If it appears to the court in a criminal procedure charging murder, that the defendant is a child, the case may similarly be transfered and the provisions of this chapter applied, (emphasis added)

It is clear from the Juvenile Act that exclusive jurisdiction over juveniles charged with an offense, lies with the Juvenile Court, except in a case of murder, which may be transfered pursuant to the above section. Contrary to 42 Pa.C.S.A. § 6355, Transfer to criminal proceedings, which details at great length and precision the requirements which must be met by the Commonwealth in proving a need for transfer from the juvenile court to the criminal court, the legislature was silent as to the test for transfer from criminal court to the juvenile court.

From the language of the act, it is clear that transfer from the criminal court in murder cases is not a matter of right and the determination of whether the interests of the state and society require prosecution of murder on an indictment is left to the sound discretion of the common pleas court. Commonwealth v. Pyle, supra.

If appellant is to prevail he must show a gross abuse of the broad discretion of the hearing judge who refused the transfer application. Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will.

Commonwealth v. Brown, 332 Pa.Super. 35, 40, 480 A.2d 1171, 1174 (1984), quoting Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145, aff'd 504 Pa. 124, 470 A.2d 498 (1983). We can rule out partiality, prejudice, or ill will, as none appeared or was alleged, the sentence in this case being the result of a plea agreement. This leaves us primarily with a consideration as to whether the court committed a gross abuse of discretion in the nature of a misapplication of the law.

We find the trial judge exercised sound discretion and is chargeable with no misapplication of the law. Following the evaluation procedure detailed in Pyle, supra, the court found there was amenability and need for treatment provided by the juvenile court but that because of the premeditated, vicious nature of the crime, and lack of remorse for the victim, there was not sufficient time within the maximum available under juvenile court jurisdiction (five years until his twenty-first birthday) to assure rehabilitation and to protect society. As summarized above, appellant had a seriously deprived childhood, but harsh as it may sound, not significantly different from a substantial number of juveniles, who responded to the programs he ignored or was subject to. While the testimony was conflicting as to prognosis for treatment, it is evident that no assurance could be given that appellant’s anti-social and aggressive behavior could be abated with treatment by his twenty-first birthday. His lack of conscience and social concern manifested itself abruptly, no signs being identified, despite several contacts, official and otherwise, with juvenile court and child welfare services and despite special interest in him expressed by probation officers. Appellant would now have us believe the murder of Harder was a catharsis, and that he focused all of his pent up anger and frustration on his victim. He points to the good adjustment and progress while in detention as proof of his amenability to treatment. This does not carry the day. In a murder transfer proceeding, the youth must prove that he belongs in the juvenile treatment programs by showing his need and amenability to those programs he would receive as a juvenile. The proof has been of a deprived background and good adjustment while in detention, which is akin to a foxhole conversion. Like the lower court, we are not satisfied that this is sufficient to protect society. This case was a classic case of first degree murder which conceivably could have brought a death penalty. The lack of remorse for the victim, despite remorse for his family, shows a hardness of heart that bodes ominously for future persons with whom appellant comes into contact, who are “depersonalized”, the term used by appellant to explain his killing of Harder. This case is governed by the finding in Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), in which our Supreme Court held, in considering psychiatric testimony, that when rehabilitation could not be assured during the child’s minority, while subject to juvenile court jurisdiction, the youth failed to meet the required proof that he was amenable to juvenile rehabilitation. Also see Pyle, supra.

We find no abuse of discretion and affirm the order of the court below in denying appellant, Zoller, transfer to the juvenile court.

As to Fahnestock, his background as a juvenile was similarly deviant, highlighted by the forcible robbery of a 91 year old woman. Despite supervision under an intensive treatment program, which was in effect at the time of the Harder killing, he was a full joint participant in the premeditated killing of Harder, and after the initial assault that put Harder into the pre-dug grave, he inflicted another wound on the victim before participating in the burial. Expert psychiatric testimony suggested that a structured program, out of the community for two years or longer, was needed to deal with Michael’s problems. As to amenability, the psychiatrist believed he would respond to the treatment within five years, but there was no guarantee. John S. Hargreaves, a consultant to the two secure juvenile institutions at Danville and Weaversville, testified that the programs are geared to nine month stays and five years would be disruptive. It is apparent that amenability to juvenile treatment is in and of itself an inadequate criteria for treatment in this class of case, when the juvenile resources are time limited, and seriousness of the crime and protection of the public warrant longer institutional placement followed by even longer probation supervision. See Pyle, Romeri, Brown, supra. Juvenile court jurisdiction terminates at 21, regardless of whether or not appellants continue to pose a threat to society. This appellant was involved in two separate episodes of violence, one which could have resulted in death, the other resulting in a premeditated killing. Every resource of the justice system must be brought to bear to prevent a third. The juvenile system is inadequate to the task. Thus a careful review of the personal factors, the available resources of the juvenile system in relation to the severity of the offense and the interest of the public, warrant affirmance of the Order of the trial court in denying Fahnestock transfer to juvenile court.

Judgment of sentence at No. 007 Harrisburg, 1985 is affirmed.

Judgment of sentence at No. 012 Harrisburg, 1985 is affirmed.

ROBERTS, J., concurs in result.


author: TAMILIA, Judge: ROBERTS, Judge,

text:
    498 A.2d 441
    Christina GRASSMYER, Appellant, v. Michael COLEMAN.
    Superior Court of Pennsylvania.
    Argued May 1, 1985.
    Filed Sept. 6, 1985.

      U. Horton Anniken, Lewistown, for appellant.
    John R. Bonner, Williamsport, for appellee.
   TAMILIA, Judge:

Before TAMILIA, MONTGOMERY and ROBERTS, JJ.

This appeal was taken from an Order by the lower court, affirming the Order of the hearing officer, which dismissed an action of support as having been brought more than two years after an acknowledgement of paternity and beyond the six year period for bringing such actions as provided in 42 Pa.C.S.A. § 6704(e). Section 6704(b), dealing with commencement of support actions or proceedings, states:

(b) All actions or proceedings to establish the paternity of a child born out of wedlock brought under this section must be commenced within six (6) years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action or proceeding may be commenced at any time within two (2) years of any such contribution or acknowledgement by the reputed father.

The undisputed facts of this case are that Shannon Grassmyer was born to appellant, Christina Grassmyer, on August 1, 1975. On September 19th of that year, appellee allegedly executed a document acknowledging paternity and agreeing to assume liability for support of the infant. The document was never incorporated into a Court Order for support, the parties were never married and there is no evidence that appellee has ever paid any support.

On July 27, 1983, just four days shy of the child’s eighth birthday, appellant commenced an action for support. Following a hearing on May 1, 1984, a family court hearing officer found, that since the action was not filed within six (6) years of the child’s birth, or within two (2) years of the alleged acknowledgement, and finding no evidence of any contribution or acknowledgement within the two (2) years preceding the hearing date, the complaint must be dismissed.

Exceptions were timely filed which alleged the acknowledgement operated as a waiver of the six year statute of limitations, therefore, estopping appellant from raising the statute of limitations because he acknowledged paternity. On August 28, 1984, the hearing judge overruled the exceptions, affirmed the hearing officer’s order and dismissed the complaint. It is from that Order that this appeal was taken. Since our research indicates that this issue has not previously been addressed by this Court, we seek to clarify it here.

A brief review of the statutory history of this section and companion sections in the Criminal Code will serve to clarify the legislative intent and the proper reading of the statute.

42 Pa.C.S.A. § 6704 became operative upon implementation of the Judicial Code, effective June 27, 1978, upon repeal of its predecessor, the Pennsylvania Civil Procedural Support Law, 62 P.S. 2043.31. Neither the Support Law nor the Judicial Code initially provided for a statute of limitations as to the institution of a support action for a child born out of wedlock. There was no necessity for such a limitation of action as these provisions initially applied only to children born of a marriage and such a duty was binding throughout the child’s minority as a duty of parenthood, including suspect births covered by the presumption of legitimacy applying to children born during coverture. When a child is born during coverture, while the parents may not testify to nonaccess, they may rebut the strong presumption of legitimacy by proving nonaccess, impotency, or impossibility from blood testing. The strong public policy would not permit the father to deny paternity of his wife’s child unless he moved immediately after the birth of the child or when he acquired knowledge and had reason to believe the child was not his, otherwise he would be es-topped from such denial after acceptance of the child by fulfilling the parental role. Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969); Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976).

Procedures to enforce the duty to support a child born out of wedlock were distinct from the civil procedures, unless the parties agreed on the issue of paternity. Out of wedlock actions were incorporated in the Criminal Code and were subject to all the requirements of criminal procedures (18 P.S. § 4506, 18 P.S. § 4732, repealed).

As a criminal procedure, in common with all other criminal proceedings, there existed a statute of limitations. The act of 1939, P.L. 872 § 732; 18 P.S. 4732, repealed, provided:

All prosecutions under this section must be brought within (2) years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case a prosecution may be brought within (2) years of such contribution or acknowledgement of the reputed father.

In Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968), our Supreme Court held that a paternity finding under civil support law was inappropriate as the amendment to the Civil Procedural Support Law, 62 P.S. §§ 2043.32, 2043.35, while including as a “duty of support”, a child born out of wedlock, did not permit a construction that eliminated a requirement that paternity be uncontested or that paternity had already been established in a bastardy proceeding, which included a right to trial by jury pursuant to the Penal Code 18 P.S. § 4506 and § 4732.

Subsequently, the legislature, heeding the call for more even treatment of children born out of wedlock, eliminated the fornication and bastardy procedures from the Criminal Code in its 1973 revision, and in 1978, repealed § 4323 of the Code, making it a crime to fail to support a child born out of wedlock, if the action was filed within two years of birth, acknowledgement or voluntary contribution of support. This subject was covered in general by 18 Pa.C.S.A. § 4324, Willful failure to support, and 42 Pa.C.S.A. § 6704, and Pa.R.C.P. 1910.15. Rule 1910.15 supersedes all of section 6704 except subsections (e), Limitation of actions, (which is the issue presented here), (f) and (g), which provide for civil jury or nonjury trial in paternity cases.

When the Support Law was expanded in 1980 to include subsections (e), (f) and (g), providing for the paternity proceeding to be a civil action with a jury trial on demand, it fulfilled the objection voiced in Dillworth, supra, as to the lack of a jury trial provision under the prior law. It heeded the suggestions of Justice Samuel Roberts, to provide a civil proceeding which among other measures, could incorporate a jury trial provision. It would appear that the legislature also deemed it necessary to continue a limitation of actions provision, although enlarged, similar to those previously contained in the criminal law. This anticipated the decision of the United States Supreme Court in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), which declared that a two year statute of limitations period does not provide illegitimate children with an adequate opportunity to obtain support and was a denial of equal protection. That decision did not decide what an appropriate period would be. Quoting from Justice Sandra O'Connor’s Concurring Opinion in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), which held a Texas one year statute of limitations was unconstitutional, it was suggested that “longer periods of limitation might be unconstitutional.” In Astemborski v. Susmarski (I), 499 Pa. 99, 451 A.2d 1012 (1982), it was held by the Pennsylvania Supreme Court, in reversing a common pleas court decision, that 42 Pa.C.S.A. § 6704(e) (the statute in question here) was constitutional and that following Mills, supra, the statute should be sufficiently long to present reasonable opportunity for those with an interest in the child, to assert the claim on its behalf, which is the first concern, but second, the time limitation must be substantially related to the state’s interest in avoiding the litigation of stale or fraudulent claims. The unanimous court held the six year statute of limitations fulfilled those tests. Certiorari was granted by the United States Supreme Court, 103 S.Ct. 3105, vacated and remanded for reconsideration in light of Pickett, supra. In Astemborski v. Susmarski (II), 502 Pa. 409, 466 A.2d 1018 (1983), upon reconsideration in light of Pickett, the Pennsylvania Supreme Court, by Justice Flaherty, again held section 6704(e) to be constitutional and the state interest in preventing stale and fraudulent claims justified a six year statute of limitations, and that the decision is consistent with Pickett. Thus, the history and evolution of the civil provisions relating to paternity cases clearly appears to be to bring the actions for establishing paternity into conformity with modern concepts and practices, which seeks to eliminate stigmatization by those proceedings and to protect the right of the child to support. At the same time, the additional safeguards provided by the jury trial and limitations of actions, gives greater assurance that stale, fraudulent, spurious and frivolous actions would not prevail.

Since the derivation of section 6704(e), as seen above, is from earlier, almost identically worded sections of the repealed criminal acts, 18 P.S. § 4506, § 4732, a similar intent should be ascribed to it.

As noted above, section 6704(e) provides:
Limitation of actions—All actions to establish paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

As compared to the earlier criminal statutes, the only change was to increase the basic time to commence the action from two years to six years from the date of the birth of the child.

The only reasonable interpretation of this statute is that a parent to prevail must proceed to file an action within six years from the date of the birth of the child. The only exception is that granted to a parent when support or acknowledgement has occurred, which carries the filing date beyond the six year period but limited to a period within two years of such support or acknowledgement in writing. Contrary to the appellant’s position, support, or as here, acknowledgement within the six year period, does not fix the right to pursue an action, but only fixes the time frame during which such action can be pursued should it carry beyond the basic six year limitation.

There is sound social policy for this reasoning in addition to that espoused in Pickett and Astemborski, supra. While the child born out of wedlock and his custodial parent are entitled to reasonable support from the natural father, the reputed father should also be assessed with this obligation within a reasonable time so that he can plan for his life and future family obligations. Support obligations are heavy and continuous, and parties having such obligations cannot lightly increase their families, expend on investments, consider career changes, or even prepare for retirement, without factoring those considerations into their life equation. To suddenly find a duty to support after six, eight or ten years, when no prior formal acknowledgement or commitment was made could be unfair if not devastating. Under the facts of this case, an acknowledgement in writing more than seven years before filing of an action is not by law or in fairness to the appellee, a reasonable basis for instituting a paternity proceeding. Neither the protection of the child’s rights nor the advancement of a state interest would be furthered by such an interpretation. See Mills, Pickett, Astemborski, supra.

Appellant would have us construe the acknowledgement as an estoppel to pleading the statute of limitations. The law of estoppel relied on by appellant applies only in the cases arising from marriage and birth during coverture, or when the parties, who are parents of a child born out of wedlock, marry, thus legitimizing that child. See Hall and Gonzalez, supra. It has no application in this case. Such an estoppel is directed to protecting the sanctity of the family and to avoid unreasonably involving children in vituperative disputes when the parents separate. It is founded on one of the strongest presumptions in law, the presumption of legitimacy. As Justice Rehnquist stated in Mills, supra, quoted by Justice Flaherty in Astemborski (II), supra:

The fact that [the State] must provide illegitimate children with a bona fide opportunity to obtain paternal support does not mean, however, that it must adopt procedures for illegitimate children that are coterminous with those accorded legitimate children. Paternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain proof of paternity.

Id., 502 Pa. at 413, 466 A.2d at 1020. No such public policy issue is present here, nor is there public expectation as in Hall and Gonzalez, that children born of a married couple are legitimate and, therefore, entitled to all of the rights of a child arising from the marital and family status. The acknowledgement of paternity cannot be equated with a finding of paternity, otherwise there would be no need for a hearing on that issue. Since it is not conclusive, and a hearing is required, the statute of limitations applies.

For the foregoing reasons, we affirm the Order of the court below.

Order affirmed.

ROBERTS, J., dissents.

ROBERTS, Judge,

dissenting:

Because I am unable to agree with the majority that appellee’s assertion of the statute of limitations in these circumstances should relieve him of his obligation to support Shannon Michelle Grassmyer, I dissent.

By written agreement dated September 19, 1975, appellee “acknowledge^] and admitted] paternity of said child born to [appellant] ... and acknowledge^] all liability and responsibilities connected with parenthood, birth, maintenance, education and bring up [sic] of said child.” This agreement is not only an acknowledgement of paternity, but also an affirmative undertaking to support the child, upon which appellant could and did rely. It is a promise which appellee is legally bound to perform.

In light of this specific agreement, all that remains is for the court to fix the amount of support to be paid, and I would remand the case for that purpose.

      . This acknowledgement is not, however, to be confused with the formal acknowledgement pursuant to 23 Pa.C.S.A. § 8302, Acknowledgement of paternity, which provides that after such acknowledgement the father shall have the right and duties as to the child which he would have, had he been married to the child’s mother at the time of the child’s birth. We are not called upon to decide the implications of that statute and in no way imply that this acknowledgement is controlled by the limitation imposed by section 6704(e), particularly since it was enacted during the same legislative session, but fifteen days later (1980 October 15, P.L. 934, No. 163, § 1, effective January 1, 1981).


author: POPOVICH, Judge:

text:
    498 A.2d 445
    Ruth WOOLARD and Jerry Woolard v. Furman BURTON. Appeal of Allen FEINGOLD.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Sept. 6, 1985.

      Allen L. Feingold, Philadelphia, for appellant.
    B. Fincourt Shelton, Philadelphia, for appellee.

      Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County directing the appellant, Allen L. Feingold, Esquire, to withdraw his appearance as counsel for Ruth and Jerry Woolard in the case of Woolard v. Burton, docketed at Court of Common Pleas, October Term, 1982, No. 4269. The order appealed also required that Feingold be paid a referral fee totalling no more than one-third (Vs) of any amount recovered in the Woolard v. Burton case, plus reimbursement for costs. We reverse.

The record reveals that on or about November 17, 1980, Jerry Woolard was involved in a vehicular accident with one Furman Burton in the City of Philadelphia.

Mr. Woolard retained the services of Attorney Feingold on a 50% contingency fee basis plus costs. A complaint in trespass was filed on October 27, 1982 on behalf of Jerry and Ruth Woolard demanding judgment in excess of $40,-000.

The case produced a procession of interrogatories, requests for the production of records and motions for sanctions by each side for the opposing parties’ alleged failure to act timely in supplying the requested information. This exchange lasted for one year before counsel for Burton filed a praecipe demanding a trial by jury.

The turn-about in the case came on November 16, 1983. This is the date that Fincourt B. Shelton, Esquire entered his appearance on behalf of the Woolards in their lawsuit against Burton.

It appears that by letter dated August 1, 1983, Attorney Shelton wrote to Attorney Feingold to inform him that the Woolards had retained his office “regarding all of their legal matters.” He also wrote:

I am requesting that you enter your Withdraw of Appearance for Woolard v. Maloney, Court of Common Pleas of Delaware County, Civil Action Number 83-906. Also please enter your Withdraw of Appearance for Woolard v. Burton, Court of Common Pleas of Philadelphia County, October Term, 1982, Number 4269.

Thereafter, on February 17, 1984, Attorney Shelton filed a “Petition To Withdraw Appearance” of Attorney Feingold in the Court of Common Pleas of Philadelphia County. Therein it was represented that the Woolards “verbally dismissed]” Attorney Feingold from their case on or about July 25, 1983, and also requested the return of their file. Neither came to pass despite the petitioners’ “agree[ment] to pay Mr. Feingold any costs which he may have incurred in this matter.” (Paragraphs 5 & 9)

On February 22, 1984 a rule was issued upon Attorney Feingold, made returnable March 27, to show cause why he should not enter his withdrawal of appearance on behalf of the Woolards.

Of relevancy here is the fact that attached to the Woo-lards’ petition is a copy of a similar rule to show cause issued by the Court of Common Pleas of Delaware County on October 31, 1983, with regard to the case captioned Ruth & Jerry Woolard v. Martin D. Maloney, Civil Action 83-906.

The Delaware case arose out of Ruth Woolard’s involvement in two automobile accidents. She, like her husband, hired Attorney Feingold to handle the matter. However, relations between the Woolards and Attorney Feingold became strained. For example, each of the Woolards lodged formal complaints with the Disciplinary Board attributing Feingold with unprofessional behavior. Also, each alleged that they had dismissed Feingold as their attorney and were denied the return of their files unless a purported fee of $12,000 and $11,000 was paid by Jerry and Ruth Woolard, respectively, for services rendered.

Although there is no formal record of the manner in which the Delaware petition to withdraw counsel was disposed of, Attorney Feingold has attached to his brief to us a copy of the proceedings conducted before the Honorable Rita E. Prescott, A.J., of the Court of Common Pleas of Delaware County on November 28, 1983.

The Woolards, as in the Philadelphia case, had retained Attorney Shelton to pursue their legal rights in Delaware County.

During the course of the November 28th hearing, Judge Prescott pointed out that the matter at issue related to the petition to have Feingold withdraw his appearance as counsel for the Woolards in the Delaware case. Also, Feingold’s request for a draft in settlement of the Delaware suit of 50% plus costs be distributed to him was duly noted.

Judge Prescott, before announcing her decision, stated that a settlement had been reached that “seem[ed] reasonable and which both counsel ha[d] indicated [was] acceptable.” (Feingold’s Brief at 28)

After listing the monetary terms of the Delaware matter, Judge Prescott observed that Feingold would relinquish his interest and withdraw his appearance in “any other case” involving the Woolards. Further, as a condition of the settlement, Judge Prescott made mention of the then pending Philadelphia suit. In particular, the Judge stated that Attorney Shelton agreed to pay Feingold a referral fee of one-third of any recovery secured on behalf of the Woolards and, in addition, to reimburse Feingold for his costs in that case.

In closing, Judge Prescott remarked that at Feingold’s request the Woolards would have to sign an acknowledgement of this agreement.

After the disposition of the Delaware matter, as already touched upon earlier, Attorney Shelton sought to have his name entered as counsel of record for the Woolards, and, correspondingly, have Feingold withdraw as legal representative.

Attorney Feingold’s response to the petition to withdraw came on March 12 and October 12 of 1984.

In the March 12th answer, Feingold denied ever receiving a withdrawal request to sign from Attorney Shelton. (Paragraph 3) Further, although Feingold admitted that Attorney Shelton asked for the Woolards’ file, he alleged that “neither Mr. Shelton nor the [Woolards] ha[s] ever once stated that they would pay [his] fee for the work he had performed.” (Paragraph 3)

Attorney Feingold went on to demand reimbursement for his costs as well as his attorney’s fees, and he expected to receive both “prior to turning over his file so that he will not have to worry about whether Mr. Shelton will lose this case at some future date or whether [he] will ever be paid the monies that are due and owing to him____” (Paragraph 9) Thus, Feingold conditioned his withdrawal, to which he had no objection, on payment of his fees and costs. (Paragraph 10)

Feingold’s October 12th answer, filed in response to Attorney Shelton’s re-submission of the withdrawal petition before the court, was similar to his earlier answer, save for the request for a “guarantee ... on any offer he ha[d] already obtained in the case” from Burton’s insurance carrier.

Thereafter, the following order was entered:

AND NOW, this 14th day of DECEMBER, 1984, upon consideration of plaintiffs’ Petition to Withdraw Appearance of Counsel, it is hereby ORDERED AND DECREED that plaintiff’s [sic] petition is granted and, pursuant to the hearing conducted before the Hon. Rita E. Prescott of the Court of Common Pleas of Delaware County on November 28, 1983, it is further ORDERED that Allen L. Feingold shall be paid a referral fee of one-third of any fee recovered in this case and will be reimbursed for his costs to the date of that hearing.

BY THE COURT:

/s/ A.J. DiBona J ALFRED J. DI BONA, Jr. J.

This appeal followed.

Initially, as always, we must decide if the appeal is taken from a final order. In doing so, we look to “a practical rather than a technical construction” of the order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Such a determination is a judicial conclusion which necessitates “an examination of the order’s ramifications.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). For example, we look to see if the order put Feingold “out of court”, Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968), or prevented him from presenting the merits of his claim to the court below. Marino Estate, 440 Pa. 492, 269 A.2d 645 (1970).

With the Philadelphia court’s grant of the Woolards’ petition to have Feingold withdraw as their counsel, the phrase “out of court” is quite apropos in describing Attorney Feingold’s status in the case.

The December 14th order not only directed that Feingold cease his representation of the Woolards, but it fixed the rate at which he was to be compensated for his services. Thus, there being no other issues proffered to the court below for resolution prior to the entry of its order of withdrawal, the litigation, for all “practical purposes”, had come to an end and, therefore, was ripe for review.

The appellant Feingold raises two issues for our review, both of which were presented in his concise statement of matters complained of on appeal, filed pursuant to Pa.R. App.P. 1925(b). First, he contends that the court below erred at law or abused its discretion in basing the order appealed upon the disposition of the Delaware County case since “that other case was not properly before th[e] Court below and where the record of th[e instant] case does not establish the terms and conditions of the other case____”

(Appellant’s Brief at 8)

We agree and find that the controlling issue on this appeal to be one of procedure.

As our Supreme Court has stated on the subject of judicial notice:

It is well established that a court may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own, even though the contents of those records may be known to the court. Steel v. Levy, supra; R.K.O. Dist. Corp. v. Shook, 108 Pa.Super. 383, 387, 164 A. 855; Walter v. Baldwin, 126 Pa.Super. 589, 596, 193 A. 146.

Naffah v. City Deposit Bank et al., 339 Pa. 157, 160, 13 A.2d 63, 64 (1940). This is especially so “when the facts are not admitted”. Steel v. Levy, 282 Pa. 338, 342, 127 A. 766 (1925). Thus, a court is admonished not to take judicial notice of the record of another case, if not pleaded. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36 (1982). Accord Coccia v. Coccia, 285 Pa.Super. 259, 427 A.2d 212 (1981).

At bar, we have scoured the record and have been unable to uncover one instance, whether it be in the Woo-lards’ petitions seeking Feingold’s withdrawal as counsel (plus the accompanying documents contained therein) or in Feingold’s answers of March 12 and October 12 of 1984 thereto, admitting the facts raising, by our interpretation of the argument made, the question of res judicata.

Therefore, the statement of the court below that it was “merely confirm[ing] the agreement reached during a hearing conducted before the Hon. Rita E. Prescott of the Court of Common Pleas of Delaware County, on November 28, 1983” is not supported by the record before this Court.

To the extent that we made mention of a copy of the Delaware County proceeding in Feingold’s brief to us, we did so solely to complete the picture of what transpired below. However, we in no way intended such information to substitute for record evidence. In this jurisdiction, such information, contained in an appellate brief of either counsel, is not equated with evidence of record sufficient to render an opinion either reversing or affirming the actions of the court below. See, e.g., McFarlane v. Hickman, 342 Pa.Super. 240, 248 n. 4, 492 A.2d 740, 744 n. 4 (1985).

Our determination that the order of the court below is to be reversed, and a procedendo awarded, dispenses with the need to address the second of Feingold’s complaints. Jurisdiction is relinquished.