Commonwealth v. Dinicola

Dissenting Opinion by

STEVENS, J.

¶ 1 I conclude that trial counsel had a reasonable basis for questioning Trooper Fetzner about his investigation and for failing to object to the Commonwealth’s cross-examination of Trooper Fetzner with regard thereto, which elicited comments about DiNicola’s pre-arrest silence. As such, I respectfully dissent.

¶ 2 During the evidentiary hearing, trial counsel indicated that he asked Trooper Fetzner about his investigation because he wanted to expose the fact that Trooper *973Fetzner believed the victim’s testimony without any further investigation. N.T. 10/23/00 at 14-15, 23. That is, trial counsel wanted to expose that Trooper Fetzner talked to the victim, but to no other witnesses in deciding to charge DiNicola. N.T. 10/23/00 at 11, 15, 23. Trial counsel testified that, even after the sidebar, he was unsure as to what Trooper Fetzner would say and inferred that he believed the importance of exposing Trooper Fetz-ner’s incomplete, biased investigation outweighed any potential prejudice relating to DiNicola’s pre-arrest silence. N.T. 10/23/00 at 12. As such, I conclude that trial counsel had a reasonable basis for asking Trooper Fetzner about his investigation. See Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000) (holding that it is a reasonable trial strategy for counsel to attempt to discredit witness).

¶ 3 As for trial counsel’s failure to object to the Commonwealth’s questioning of Trooper Fetzner about the investigation, I conclude that trial counsel had a reasonable basis. Trial counsel indicated that he did not object because he had opened the door and did not want to look like he was hiding facts from the jury. N.T. 10/23/00 at 21.

¶ 4 Moreover, based on the trial transcript, it appears that trial counsel used DiNicola’s pre-arrest silence in DiNicola’s favor. Specifically, trial counsel sought to show that Trooper Fetzner arrested DiNi-cola solely upon the victim’s statements and DiNicola’s exercise of his right to remain silent. That is, Trooper Fetzner suspected DiNicola because he chose to remain silent. The following exchange occurred during trial:

TRIAL COUNSEL: Trooper, you were going to file these charges whether or not you believed the girl or not, wasn’t that the whole thing?
TROOPER: That’s not true.
TRIAL COUNSEL: Well, you didn’t learn anything above and beyond what the girl had to say; right?
TROOPER: I attempted and there was corroborating evidence.
TRIAL COUNSEL: But this guy expressed his right to remain silent, that’s why you went ahead and filed the charges, is that what I’m hearing?
TROOPER: That’s not true.

N.T. 11/18/98 at 37-38. Based on this exchange, I conclude that trial counsel wished to use DiNicola’s pre-arrest silence to provide the jury with a reason why Trooper Fetzner focused on DiNicola as the perpetrator and failed to gather any corroborating evidence.

¶ 5 Based on all of the aforementioned, I would find that trial counsel had a reasonable basis for his action and, therefore, he was not ineffective. See Commonwealth v. Bess, 789 A.2d 757 (Pa.Super.2002) (holding that a reasonable strategy is one designed to effectuate the client’s interest). As such, I would affirm the judgment of sentence and respectfully dissent.