Commonwealth v. Taliaferro

455 A.2d 694, 309 Pa. Super. 446, 1983 Pa. Super. LEXIS 2401
CourtSuperior Court of Pennsylvania
DecidedJanuary 21, 1983
Docket1232
StatusPublished
Cited by6 cases

This text of 455 A.2d 694 (Commonwealth v. Taliaferro) 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. Taliaferro, 455 A.2d 694, 309 Pa. Super. 446, 1983 Pa. Super. LEXIS 2401 (Pa. Ct. App. 1983).

Opinions

BROSKY, Judge:

Commencing January 30, 1978, appellant was tried on charges of rape1 and statutory rape.2 A mistrial was declared when the jury could not reach a unanimous verdict and a new trial was held in April, 1978. At the conclusion of the second trial, appellant was convicted of rape and a direct appeal followed. Subsequently, appellant filed a pro se P.C.H.A.3 petition raising the claim that he had received ineffective assistance from his trial counsel. The petition was denied following a hearing at which appellant was represented by court appointed counsel. Before us are the consolidated appeals from the judgment of sentence and denial of the P.C.H.A. petition. Because we find counsel to have been ineffective, we reverse and remand for a new trial.

Appellant, who is black, was tried on charges stemming from the rape of a young black girl. Under such circumstances, where defendant and victim are members of the same race, racial prejudice would not normally be at issue. Appellant contends, however, that the prosecution made [449]*449attempts to arouse prejudicial feelings in the jury by pointing out to them appellant’s wife, who is white.

Appellant’s argument before us is that at the first trial the prosecutor improperly drew attention to his wife and that this should have put his attorney on notice that he might point her out at the second trial. Armed with this knowledge, he contends that counsel should either have filed a motion in limine to prohibit such an identification, requested that the voir dire questions probe the jurors’ racial prejudices, or objected to the identification when it was made at the second trial and moved for a mistrial. Trial counsel took no action.

In assessing the merits of appellant’s claim, we are guided by the following principles.

We must first determine whether the claim abandoned by counsel is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Even if the claim is of arguable merit, counsel will not be found ineffective unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Id., 472 Pa. at 277, 278, 372 A.2d at 695-6.

Finally, counsel will be found to have been effective as soon as it is determined that his decision had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

With these principles in mind, we turn to appellant’s claim which stems from the following facts.

Mr. Taliaferro testified at both trials and was cross-examined by the prosecutor each time. The prosecuting attorney was the same at the trials. During the first trial, the prosecutor asked the following questions of appellant:

Q. How tall are you, sir?
A. I’m approximately 6'7".
[450]*450Q. You heard the police officer indicate that the description he received from Lisa Simms was that it was a black male, approximately 6'7", medium Afro?
A. Yes, I did hear that.
Q. You’re married with one child. How old is your child?
A. She’ll be three in February.
Q. Where were you married?
A. Well, basically it’s a common law agreement until this thing gets over with and then, you know, we’ll have to go to the court as far as that goes.
Q. So there’s never really been any formal ceremony, anything of that nature?
A. Not really, no, sir.
Q. Is that your wife there in the back of the court room in the second row?
A. Yes, sir, with the—I guess it’s a purple sweater she’s got on.
Q. What’s her name?
A. Jeannie.
Q. Does she go by her name or your name?
A. She goes by her name, basically.
Q. How about your daughter?
A. She’s still carrying her mother’s name.

Shortly after this exchange, the prosecutor asked appellant where he was living at the time the crime was committed. Appellant named the locality in which he resided and the prosecutor then queried: “Were you living with your woman in the back of the court room, or with your mother?”

At the second trial, the prosecutor cross-examined appellant as to his account of his whereabouts at the time the crime was committed. Appellant testified that he was in Buffalo, New York, where he had driven in a car owned by his mother.

The cross-examination continued:

Q. Where were you living at the time?
[451]*451A. I was living with my mother.
Q. Is this your wife in the back of the courtroom in the green pants and orange sweater?
A. Yes, sir, it is.
Q. And that’s your common law wife? You never had a ceremony with her or anything like that?
A. Well, we were planning on having one now but being as I’m here I can’t very well have that. But we were— we are common law.
Q. How long have you been living with her before February 28th?
A. Well, off and on I’d say for the last five years.
Q. And you have a child?
A. Yes, sir.

The Commonwealth argues that any objection to the cross-examination at the second trial (which is the only trial under our consideration) would have been frivolous and that counsel therefore cannot be found ineffective due to his inaction. It is the Commonwealth’s contention that the prosecutor pointed out appellant’s wife to suggest to the jury that appellant and his wife had a close relationship. Presumably, such an inference as to their relationship would weaken the credibility of appellant who had testified that immediately subsequent to the date of the crime, he had gone to Buffalo to seek employment and had left town without notifying his wife. The Commonwealth argues that it sought on cross-examination to show that the departure constituted flight and to that end, wanted to explore the closeness of the relationship between appellant and his wife.4

Appellant’s first trial took place 11 months after the crime was committed; the second was held 14 months after the incident. We question whether the appearance of appel[452]*452lant’s wife at trial in 1978 is probative of the nature of their relationship in February, 1977. Her mere presence itself says nothing about the relationship even at the time of trial; it certainly provides no clue as to how appellant and his wife were getting along over a year earlier.

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Commonwealth v. Taliaferro
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Bluebook (online)
455 A.2d 694, 309 Pa. Super. 446, 1983 Pa. Super. LEXIS 2401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-taliaferro-pasuperct-1983.