author: CERCONE, Judge:

text:
    544 A.2d 1030
    COMMONWEALTH of Pennsylvania v. William J. FLANAGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 25, 1988.
    Filed July 26, 1988.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.

    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before MELINSON, HOFFMAN and CERCONE, JJ.

      . U.S. Const. amend. VI; Pa. Const. art. I, § 9.

   CERCONE, Judge:

This case is a direct appeal from judgment of sentence entered following appellant William Flanagan’s conviction, by jury, of rape, kidnapping, and involuntary deviate sexual intercourse (IDSI). Following the denial of post-trial motions, the court imposed consecutive sentences for incarceration of ten (10) to twenty (20) years for rape and five (5) to ten (10) years for kidnapping. A concurrent sentence of five (5) to ten (10) years was imposed on the IDSI charge.

Appellant’s trial counsel filed the instant appeal from the judgments of sentence and, subsequently, filed a Petition to Withdraw as Counsel. Following a hearing, the lower court granted the petition. Present counsel was appointed to represent appellant in this appeal. After reviewing the entire record, on January 13, 1988, present counsel filed a “Petition for Remission of the Record for Evidentiary Hearing On Ineffective Assistance of Trial Counsel”, with the Superior Court. This court deferred decision of the petition pending the filing of briefs for appeal.

The petition alleges, with substantial specificity, that trial counsel was ineffective in failing to call witnesses who would have testified that during the time of the alleged assault, appellant was with them watching a fire near the vicinity in which the assault occurred. The record is clear that trial counsel was aware of these potential witnesses prior to trial. In the remand petition, present counsel asserted that the witnesses had been interviewed by himself and that they had remembered seeing appellant at the scene of the fire. Attached to the petition was a report from the Philadelphia Fire Department which confirmed that there had been a fire at the alleged location, that the alarm for the fire had been entered at 3:59 a.m. and that the fire trucks, arriving shortly thereafter, left the scene at 6:16 a.m. (the assault allegedly occurred between 4:00 a.m. and 6:00 a.m. the same morning).

To find a deprivation of the constitutional right to effective assistance of counsel, this court must make an independent examination of the record. See Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352-53 (1967), the Pennsylvania Supreme Court set forth the test to be used when the issue is whether counsel was effective. In Maroney, the Court stated:

[B]oth counsel and the courts must recognize that the main issue is whether the accused’s rights have been adequately protected. ...
[O] ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

427 Pa. at 604-05, 235 A.2d at 352-53 (emphasis in original) (footnote omitted). Appellant must show that the act of omission or commission by counsel was arguably ineffective and that he was prejudiced thereby. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). That is, whether counsel’s conduct had an adverse effect on the outcome of the proceedings. 515 Pa. at 162, 527 A.2d at 977.

Failure of trial counsel to interview and present all prospective witnesses is not per se ineffective. “Trial counsel’s failure to interview potential witnesses will not be equated with ineffective assistance in the absence of a showing that his or her testimony would have advanced the fact finding process.” Commonwealth v. Barren, 273 Pa. Super. 492, 498-99, 417 A.2d 1156, 1159 (1979).

The record in this case reveals that trial counsel did have knowledge of these two potential witnesses, but decided not to call them due to some misapprehension about the actual time of the fire. Prior to the presentation of the defense, the Commonwealth attorney requested an offer of proof for the witnesses the defense intended to present. At that sidebar, defense counsel indicated that he might call two witnesses who would testify that they had seen appellant near the fire scene at 3:30 a.m. to 3:45 a.m. It appears that trial counsel thought the fire had started sometime prior to 4:00 a.m. and that the witnesses could not account for appellant’s whereabouts between 4:00 a.m. and 6:00 a.m. It is not clear from the record that trial counsel had actually interviewed either proposed alibi witness. Counsel never provided the Commonwealth with notice of alibi nor called any alibi witnesses to testify.

In furtherance of a defense of misidentification, the defense did call appellant’s father, Mr. Flanagan, to the stand to testify about the events surrounding his son’s arrest two days following the assault. On direct examination, the father did mention that the alleged assault had occurred at the same time there had been a neighborhood fire. He did not testify as to his knowledge of appellant’s whereabouts at the time of the alleged assault. On cross-examination, the Commonwealth’s attorney, over defense objection, questioned appellant’s father whether he could account for appellant’s presence at the time of the fire. When the court overruled the defense objection, the cross-examination proceeded:

Q. Are you telling this jury that your son was at that fire at 4:00 in the morning on that Thursday morning?
A. Yes, ma’am.
Q. And how long was your son at this fire at 4:00 in the morning on May the 9th?
A. He was there about an hour.
Q. 4:00 to 5:00?
A. No, around — around quarter to 3:00 to about 4:00.
Q. So 4:00 he left?
A. I don’t know what he was doing after that.

This questioning clearly went beyond the scope of direct examination and, therefore, the lower court erred in overruling defense counsel’s contemporaneous objections. The testimony improperly extracted from Mr. Flanagan on cross-examination renders the trial counsel’s failure to investigate the other alibi witnesses even more harmful to appellant’s case.

The Commonwealth argues that trial counsel had proceeded to trial with a defense theory of consent and since any evidence tending to establish an alibi defense would have been inconsistent with the theory of consent, it was properly disregarded by counsel. Upon our review of the trial record, we disagree with the Commonwealth’s explanation of the defense strategy. It appears that trial counsel attempted to employ several defense strategies during the course of trial and that he modified the approach depending on evidentiary rulings issued by the trial court. Trial counsel did indicate at one point during trial that consent was an intended defense theory, but when the court refused to allow trial counsel to cross-examine the Commonwealth’s complaining witness about arrests for prostitution, the defense of consent was apparently abandoned. Trial counsel also pursued a theory of misidentification by presenting evidence that the victim confused the appellant with his cousin who sometimes used the same name. Trial counsel never presented a defense of alibi.

The facts of this case are similar to those in Commonwealth v. Bolden, 517 Pa. 10, 534 A.2d 456 (1987). In Bolden, defense counsel failed to cross examine a Commonwealth witness on the basis of a police report which directly contradicted the testimony of a police officer whose testimony undercut the testimony of a critical defense alibi witness. Citing the standard announced in Commonwealth ex rel. Washington v. Maroney, supra, the Bolden court stated, “Here it is established that there was no strategy which dictated this action, but rather, this was an oversight due solely to inadvertence.” 517 Pa. at 17, 534 A.2d at 459.

It is clear that appellant has raised a claim of arguable merit. We, therefore, must decide whether there was any reasonable basis for defense counsel’s failure to investigate and raise the alibi defense. It appears that an alibi defense would have been consistent with the course of action actually chosen by defense counsel during the trial. Accord Commonwealth v. Bronson, 457 Pa. 66, 321 A.2d 645 (1974). Without a hearing on this issue, we are unable to determine whether trial counsel adequately explored the possibility of presenting a viable alibi defense on appellant’s behalf and reasonably determined that the witnesses were incredible or if counsel was unreasonable in his decision not to present an alibi defense. We conclude, therefore, that this case must be remanded for an evidentiary hearing on all of appellant’s claims of ineffective counsel. If, after the conduct of an evidentiary hearing, the lower court determines that there was sufficient evidence to present a viable alibi defense, the court must grant appellant a new trial as there can be no reasonable tactical basis for not presenting that which would have established the appellant had been elsewhere at the time the complained of offense was being committed and, concurrently, appellant was unnecessarily prejudiced by counsel’s lack of investigation.

Accordingly, this appeal is dismissed and the case is remanded for an evidentiary hearing on all of appellant’s claims of trial counsel’s ineffectiveness. Following the entry of an order by the lower court, appellant’s right to appeal any aspect of this case will again be tolled and he may again file a direct appeal from the judgment of sentence. At that time, appellant may seek review of any claims of trial error. Jurisdiction relinquished.

      . We recognize that the trial court later ruled the cross-examination inadmissible and instructed the jury to disregard it. By that point, however, the jury had been exposed to the innuendo that appellant’s father was with him between 3:00 and 4:00 a.m. but could not account for appellant's whereabouts thereafter, the crucial time in question.

      . On appeal, appellant has raised four allegations of ineffectiveness of trial counsel. In the interest of judicial economy, the lower court shall receive any evidence preferred on those claims as well.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    544 A.2d 1033
    Donna R. GOODMAN, Appellant, v. Alan W. GOODMAN.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1988.
    Filed July 25, 1988.

      Judith A. Huber, Assistant District Attorney, Lebanon, for appellant.
    Horace M. Ehrgood, Lebanon, for appellee.
    Before CHULLO, President Judge, and WATKINS and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Lebanon County sustaining Mr. Goodman’s exceptions to a master’s recommendation of spousal support and entering an order for $15.00 per week, plus $5.00 per week upon the accumulated arrearages. We affirm.

On January 23, 1987, following the parties’ separation, Mrs. Goodman filed a complaint for spousal support. The parties stipulated to Mrs. Goodman’s entitlement to support and, on March 26, 1987, a hearing was held before a Domestic Relations Hearing Officer [DRHO] to determine the appropriate amount. An award of $50.00 per week, plus $5.00 towards the arrearages, was recommended. Mr. Goodman’s exceptions were sustained by the trial court, which then applied the local guidelines to determine the order from which Mrs. Goodman now appeals.

In reviewing such an order, this court will reverse only where the record indicates a clear abuse of discretion and does not support the trial court’s order. Stredny v. Gray, 353 Pa.Super. 376, 510 A.2d 359 (1986). The trial court possesses wide discretion as to the proper amount of support payments and, unless the surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed. Biler v. Biler, 353 Pa.Super. 49, 508 A.2d 1261 (1986).

The record shows that a thorough inquiry into the parties’ situations was made. The Lebanon County support guidelines were applied and no challenge to their validity is raised. It is the trial court’s attribution of an income to Mrs. Goodman, based on her earning capacity rather than on her current income, which is central to this appeal. Mr. Goodman argues that there was substantial evidence on the record to support the trial court’s action in declining to accept the recommendation of the DRHO and, instead, setting a different amount after its own review of the evidence. Mrs. Goodman argues that, absent a clear abuse of discretion by the DRHO, and so long as the record contained sufficient evidence to support the recommendation, the trial court erred in sustaining the exceptions and entering an order in an amount other than that recommended.

We first note that the findings of the DRHO were only advisory and not in any way binding on the trial court. See Pa.R.C.P. 1910.12, sections (d) (hearing officer shall file report containing recommendation with respect to entry of an order), (f) (absent exceptions, court shall review report and, if approved, enter a final order), and (g) (following argument on exceptions, court shall enter appropriate order) (emphasis added). Because the procedure followed under this rule involves, “in essence substantially a master’s hearing, akin to a master’s hearing in divorce”, explanatory comment to Rule 1910.12, the cases addressing the use of a divorce master’s report and recommendations are apposite to actions for support under this rule. See, e.g., McBride v. McBride, 335 Pa.Super. 296, 484 A.2d 141 (1984). While such a report is to be given the fullest consideration, especially with regard to the credibility of witnesses, a trial court is required to review the report to determine if the recommendations are appropriate. Reed v. Reed, 354 Pa.Super. 284, 511 A.2d 874 (1986). It is the sole province and the responsibility of the court to set an award of support, however much it may choose to utilize a master’s report. We, therefore, cannot accept appellant’s argument that it was an abuse of discretion for the trial court to alter the amount of support recommended by the DRHO if there was adequate evidence to support that recommendation.

Having dispensed with this argument, we now turn to a review of the substantive aspect of the order. When determining the support obligation of a spouse, the trial court must consider income, potential earning capacity and other property and financial resources. Machen v. Machen, 278 Pa.Super. 135, 420 A.2d 466 (1980). A person’s “earning capacity,” with respect to support proceedings, is defined not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training. Commonwealth ex rel. Simpson v. Simpson, 287 Pa.Super. 356, 430 A.2d 323 (1981). It has long been established that the court may look beyond the actual present earnings of a party. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); McMahon v. McMahon, 167 Pa.Super. 51, 74 A.2d 718 (1950).

It is on this last point that the parties in this case diverge. Mrs. Goodman points to her erratic employment history during the time between the filing of her petition and the hearing, at which she claimed a limitation of her employment prospects because of the splint on her arm. Mr. Goodman endorses the implicit rationale of the trial court that these factors were temporary in nature and that both Mrs. Goodman’s previous employment history and her realistic prospects for full-time employment in the immediate future did not warrant an award reflective of a very small window in time.

The court concluded, with regard to the income to be attributed to Mrs. Goodman, “upon our reflection, it appears that Mrs. Goodman would have the capacity to be earning slightly more than she presently enjoys.” In fact, the amount attributed to her, $200.00 per week net, is entirely consistent with her previous year’s earnings at the job which was, through no fault of Mrs. Goodman’s, eliminated early in 1987. This job had paid her an hourly rate of approximately $5.00 per hour. She was charging and receiving $5.00 per hour for her services at the time of the hearing, and the record shows that $5.00 per hour was at the low end of what she anticipated in future employment with any one of a number of specific entities where she either had recently applied, or intended to apply, for work. We find no abuse of discretion in fixing Mrs. Goodman’s earning capacity at a level which she had so very recently demonstrated, and was continuing to demonstrate, was attainable by her, and which, by her own testimony, was the minimum she could expect in her next full-time position. Her testimony also indicated that her opportunities for full-time employment in the immediate future were numerous and, it can be assumed, fairly open to a person with her experience and work history. The trial court’s conclusion as to Mrs. Goodman’s earning capacity, and the income it attributed to her income for support purposes, was realistic rather than theoretical. Commonwealth ex rel. Simpson, supra.

We hold that the findings and conclusion of the trial court to be amply supported by the record and hereby affirm its order.

JUDGMENT

ON CONSIDERATION WHEREOF, it is hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of Lebanon County is affirmed.

      . Mr. Goodman argues that the guidelines should not have been applied since the prerequisite to their application, proof that the dependant spouse needs support, was not met by Mrs. Goodman. His argument in this regard that the parties were on substantially equal footing in income-producing capacity and ability to cover their own expenses is, however, irrelevant since the parties stipulated to Mrs. Goodman’s entitlement.

      . We note, as did the trial court, that Mrs. Goodman’s arm had been in the splint since November of 1986 and that she testified that she had chosen to work rather than avail herself of Workman’s Compensation benefits. Indeed, the record shows that she was employed full-time throughout, until the job was discontinued in January of 1987. The fact that she had worked approximately half-time in the weeks between the end of her job and the date of the hearing appears to have more to do with her reliance on word-of-mouth advertising and the quite natural time period required to make the necessary inquiries and applications for other full-time employment.

      . The court also reviewed the expenses of the parties’ as it reflected their respective abilities to meet them, their prospects for increasing their income potential and the assets and liabilities each had assumed responsibility for after their separation and concluded that "the income and expense statements offered to the DRHO generally do not reflect extraordinary expenditures in light of the parties’ incomes.”