Bohn v. Lunger

490 A.2d 465, 340 Pa. Super. 369, 1985 Pa. Super. LEXIS 5785
CourtSuperior Court of Pennsylvania
DecidedFebruary 15, 1985
DocketNo. 237
StatusPublished
Cited by3 cases

This text of 490 A.2d 465 (Bohn v. Lunger) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bohn v. Lunger, 490 A.2d 465, 340 Pa. Super. 369, 1985 Pa. Super. LEXIS 5785 (Pa. Ct. App. 1985).

Opinion

OPINION OF THE COURT

ROWLEY, Judge:

Thomas Lunger appeals from the trial court’s Order dismissing exceptions to the recommendation of the hearing officer and directing that he pay child support for his minor daughter, Christy Bohn. Appellant argues that he is entitled to a new trial on the issue of paternity. We affirm the trial court’s Order.

This action commenced when Lois Bohn, appellee, filed a complaint against appellant on July 23, 1981 seeking support for her minor child. Blood tests were administered shortly thereafter and they indicated a 97.4% probability that appellant was the father of appellee’s child. Nonetheless, appellant continued to deny paternity and the case [372]*372was listed for a trial by jury. The jury returned a verdict in favor of appellee on June 1, 1982. Appellant’s trial counsel did not file post-trial motions and appellant retained new counsel.

On June 24, 1982, appellant’s new counsel filed a Petition for Leave to File Post-Trial Motions Nunc Pro Tunc. The petition was granted. On July 6, 1982, appellant’s counsel filed a motion for new trial alleging numerous errors by the trial court and on November 11, 1982, a supplemental motion was filed alleging ineffectiveness of appellant’s trial counsel. On November 22, 1982, upon consideration of the briefs of counsel and oral argument, the court en banc denied appellant’s motion for a new trial and ordered that a hearing regarding support be held.

Following the support hearing, the hearing officer recommended: 1) that appellant pay $130.00 per month for the support of Christy Bohn; 2) that arrears be set at $2,210.00 to be paid at a rate of $25.00 per month; and 3) that appellant pay expert witness fees and blood test costs totaling $1,100.00. Appellant’s timely exceptions were dismissed and the hearing officer’s recommendation was entered as an Order of court on January 28, 1983. This appeal followed. Appellant does not challenge the support award, but rather claims that the trial court erred in refusing to grant him a new trial.

Appellant first argues that the trial court erred in refusing to allow appellant’s witness, Dr. Perer, to testify regarding an examination of appellant performed four months after the birth of Christy Bohn, which indicated that appellant was aspermatic. We have considered appellant’s claim and find that the trial court’s opinion thoroughly and properly resolves this issue and we need add nothing further.

Appellant next argues that the trial court erred in refusing to grant him a new trial on the ground of ineffectiveness of his trial counsel. It is now clear that an appellant may raise the issue of ineffective assistance of [373]*373counsel in a proceeding involving an adjudication of paternity.

Our court has determined that due process entitles an indigent defendant to appointment of counsel in a paternity action despite the civil nature of such proceedings. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982). We have also stated that a non-indigent defendant in a paternity action must be granted a reasonable opportunity to secure counsel. White v. Gordon, 314 Pa.Super. 185, 460 A.2d 828 (1983).

In a recent opinion regarding the right to counsel in paternity actions, this court held that a defendant’s due process right to counsel entitles the defendant to effective assistance of counsel. Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984). In Banks, a jury trial was held on the issue of paternity at which defendant’s counsel was present but defendant was not. The jury’s verdict was in favor of the mother and defendant’s trial counsel did not file post-trial motions. Defendant then obtained new counsel, who filed a petition for leave to file a motion for new trial nunc pro tunc on the ground of trial counsel’s ineffectiveness. The petition was dismissed without hearing. A support hearing was subsequently held resulting in a support order against the defendant.

On appeal in Banks, the defendant argued that the trial court erred in refusing to grant his motion for a new trial nunc pro tunc. After reviewing the principles and decisional law governing the right to counsel in paternity actions, our court concluded:

Given the recognition of the right to counsel for paternity defendants in Corra v. Coll, supra and White v. Gordon, supra, we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Commonwealth v. Kale, [374]*374[331] Pa.Super. [155], 480 A.2d 291 (1984). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970). Indeed, without the guidance of competent counsel, appellant’s right to representation would be rendered worthless. In re Hutchinson, [279 Pa.Super. 401, 421 A.2d 261 (1980) ], supra. Thus, were we to hold that a paternity defendant’s right to counsel does not require the effective assistance of counsel, we would be exalting form over content.

Id., 337 Pa.Superior Ct. at 202, 486 A.2d at 977. The court in Banks further stated that ineffectiveness claims in paternity cases must be reviewed in accordance with the familiar two-prong analysis employed in criminal cases:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel has some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Id., 337 Pa.Superior Ct., at 203, 486 A.2d at 977 citing Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983).

In applying this test, the court in Banks determined that several of defendant’s allegations regarding ineffectiveness of his trial counsel, if proved, had arguable merit. However, the court observed that it was impossible to tell from the record why defendant’s trial counsel acted as he did.

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Bluebook (online)
490 A.2d 465, 340 Pa. Super. 369, 1985 Pa. Super. LEXIS 5785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohn-v-lunger-pasuperct-1985.