Commonwealth v. Strutt

624 A.2d 162, 425 Pa. Super. 95, 1993 Pa. Super. LEXIS 1352
CourtSuperior Court of Pennsylvania
DecidedApril 29, 1993
DocketNo. 01993 PGH 91
StatusPublished
Cited by12 cases

This text of 624 A.2d 162 (Commonwealth v. Strutt) 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
Commonwealth v. Strutt, 624 A.2d 162, 425 Pa. Super. 95, 1993 Pa. Super. LEXIS 1352 (Pa. Ct. App. 1993).

Opinion

HOFFMAN, Judge:

This is an appeal from an October 4, 1991 judgment of sentence for rape,1 involuntary deviate sexual intercourse,2 incest3 and indecent assault.4 Appellant, Harry Strutt Sr., contends that the verdict was against the weight of the evidence and that his trial counsel was ineffective. For the reasons that follow, we reverse and remand for a new trial.

On December 5, 1989, appellant was charged with rape, involuntary deviate sexual intercourse, indecent assault and incest. On February 7, 1991, after a non-jury trial, appellant was found guilty on all charges. Sentencing was deferred to [98]*98permit the preparation of a pre-sentence report. On March 28, 1991, newly appointed counsel filed a motion for leave to file post-trial motions nunc pro tunc, which was granted. Post-verdict motions were filed and denied after a hearing on October 4, 1991. Appellant was sentenced on the rape conviction to a term of imprisonment of fifty-four to one hundred and eight months, and to an identical concurrent term of imprisonment on the conviction for involuntary deviate sexual intercourse. No sentence was imposed on the other convictions. On October 15, 1991, appellant filed a motion to reconsider sentence which was denied. This timely appeal followed.

The relevant facts of the case are as follows. On November 9, 1989, two of appellant’s children, Joseph Strutt, then sixteen years old, and Harry Strutt Jr., who is mentally handicapped and was nineteen years old at the time, visited appellant at his work place to celebrate Joseph’s birthday. After finishing work, appellant took his sons to two neighborhood bars where he consumed three beers and his sons had soft drinks. The three then went to a restaurant for dinner. After dinner, they went to appellant’s apartment. Once at appellant’s apartment, Joseph went to use the bathroom which was located eight to ten feet down the hall from the apartment. N.T. 2/7/91 at 62. While Joseph was in the bathroom, for approximately fifteen to twenty minutes, the Commonwealth asserts that appellant disrobed from the waist down, removed Harry Jr.’s pant’s and inserted his penis in Harry Jr’s rectum while berating him for being retarded. N.T. 2/7/91 at 21-23.

Appellant first argues that the verdict is against the weight of the evidence. The trial court believed the victim’s testimony to be creditworthy and discounted appellant’s testimony. Appellant argues, however, that in the instant case the victim’s testimony is extremely suspect. Appellant points out that the victim is mentally retarded and had been subject to psychiatric hospitalization in the recent past. Appellant also contends that the totality of the circumstances in the case indicate that appellant’s' version of the events in question was more believable. We disagree.

[99]*99The testimony of a sexual assault victim standing alone is sufficient weight to support a conviction. Commonwealth v. Cody, 401 Pa.Super. 85, 89, 584 A.2d 992, 993 (1991); appeal denied, 527 Pa. 622, 592 A.2d 42 (1991). Furthermore, in reviewing a weight of the evidence claim we look to see if the “verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth v. Jenkins, 396 Pa.Super. 395, 391, 578 A.2d 960, 962 (quoting, Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989)). The decision whether to grant a new trial is within the trial court’s discretion, and we review that decision under an abuse of discretion standard. Id. Furthermore, since issues of credibility are left to the trier of fact, the trial court, sitting as fact finder, was free to accept all, part, or none of a witness’s testimony. See Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). After carefully reviewing the notes of testimony and the record, we do not find that the verdict is so contrary to the evidence as to shock this court’s sense of justice. Accordingly, we find that the verdict was not against the weight of the evidence.

Appellant next contends that trial counsel was ineffective. Specifically, appellant argues that trial counsel was ineffective because he failed to elicit critical testimony and/or conduct effective cross-examination of Commonwealth witness Joseph Strutt.5 We agree, and accordingly reverse the judgment of sentence and remand for a new trial.6

To prevail on a claim of ineffectiveness, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. Commonwealth v. Davis, 518 Pa. 77, 83, 541 [100]*100A.2d 315, 318 (1988). Additionally, when as here, appellant’s claim of ineffectiveness encompasses counsel’s failure to elicit favorable testimony, he must demonstrate that the absent evidence would have been beneficial to the defense. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

At a post trial proceeding newly appointed counsel for appellant elicited testimony from Joseph Strutt that, upon his return from the bathroom, the door to appellant’s apartment was open, that both appellant and the victim had their pants up and that neither of them appeared disheveled in any way, and that the victim was not crying. N.T. 10/4/91 at 22-24. Additionally, at the post-trial proceeding Joseph Strutt testified that appellant accompanied the boys home that evening, that the victim sat next to the appellant on the bus, and that both appellant and the victim acted “normally” toward each other. N.T. 10/4/91 at 24-25.

At trial the only questions counsel asked Joseph Strutt concerning what he observed when he came back from the bathroom shortly after the alleged incident took place were as follows:

Q. And you came back. Were they still in the same
bedroom?
A Yes.
Q. Did your brother say anything to you?
.A. No, he did not.

N.T. 2/7/91 at 58.

It seems clear the the testimony of Joseph Strutt at the post-trial proceedings would have been favorable to appellant. Joseph Strutt was the only person other than the victim and appellant to be at the scene shortly after the alleged sexual assault. He also accompanied appellant and the victim on the bus ride home after the alleged incident. Therefore, his testimony concerning the circumstances upon his return from the bathroom which indicated that the apartment door was open, that appellant and the victim were fully clothed, that the victim was not crying, and that both appellant and the victim sat together on the bus and acted normally, would seem to [101]*101support appellant’s contention that no sexual assault took place. Accordingly, we find that appellant’s underlying contention possesses arguable merit.

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Bluebook (online)
624 A.2d 162, 425 Pa. Super. 95, 1993 Pa. Super. LEXIS 1352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-strutt-pasuperct-1993.