Commonwealth v. Wojtczak , 342 Pa. Super. 306 ( 1985 )

SPAETH, President Judge,

dissenting:

I should find trial counsel ineffective, and should therefore affirm the order granting a new trial. Indeed, I believe we should affirm on the opinion of the trial court, LOWE, P.J., which correctly characterizes counsel’s “strategy [as] grossly inappropriate”. Slip op. of tr. ct. at 1136.

It was the Commonwealth’s burden to demonstrate “by clear and convincing evidence at a suppression hearing that the witness’s proposed trial identification will be reliably based on the witness’s observations at the scene of the crime____ Whether the prosecution has met its burden requires a consideration of the totality of the circumstances.” Commonwealth v. Fowler, 466 Pa. 198, 204, 352 A.2d 17, 20 (1976). “The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record.” Commonwealth v. Thompkins, 311 Pa.Super.Ct. 357, at 363, 457 A.2d 925, at 928 (1983) (emphasis in original). Here, the only evidence of reliability offered by the Commonwealth at the suppression hearing was the testimony of the officer who conducted the identification procedure. It would seem impossible to undermine the reliability of the identifications without calling the witnesses themselves. I find counsel’s explanation of why he didn’t call them — that he wanted to minimize the possibility of an accurate in-court identification — quite unpersuasive: Why bother to make a motion to suppress and then conduct its prosecution so weakly as to ensure its denial?

Be this as it may, counsel’s conduct of the motion to suppress is not the only issue: counsel also chose, on direct examination of appellant, to disclose that appellant had a prior record involving seventeen sexual offenses over the past fourteen years (at least two involving children). It is hard to imagine an attorney doing a greater disservice to his client’s case. While the majority is of course correct that Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974), and Commonwealth v. Candia, 286 Pa.Super.Ct. 282, 428 A.2d 993 (1981), do not establish a per se rule, those cases nevertheless should control our decision here, as the trial court noted. In Zapata, the Supreme Court cautioned that before defense counsel introduces evidence of prior crimes, “counsel should be convinced that such evidence is available to the prosecution____ In the absence of such certainty, counsel would be acting ‘ineffectively’ ...,” 455 Pa. at 208, 314 A.2d at 301. And in Candía this court equally decisively rejected the “strategy” of introducing evidence of a prior conviction to establish credibility when, as here, the conviction was not for a crimen falsi.

The majority’s suggestion that appellant placed his character as a non-violent person in issue through his wife’s testimony is not persuasive. Even if he did, since his prior convictions were for non-violent offenses, they would not have been available for impeachment. But in any case, counsel could have had no reasonable basis to suppose that he would serve appellant’s interest by introducing evidence of appellant’s character, whether through the wife’s testimony or through proving appellant’s prior criminal record.

The order granting a new trial should be affirmed.