witness with cerebral palsy testified “by spelling out words letter by letter” using “speak and spell” device
How later courts described this case
- witness with cerebral palsy testified “by spelling out words letter by letter” using “speak and spell” device
- wherein we held that to establish a claim of ineffectiveness of counsel a showing must be made of, inter alia, how counsel’s choice of action prejudiced the client
- witness with cerebral palsy testified “by spelling out words letter by letter” using “speak *528 and spell” device
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
dissenting statement:
I dissent from the disposition of the Majority in this case and would remand the matter to the trial court for the purposes of filing an opinion relative to the issues raised on appeal.
Unfortunately, the trial judge in this case saw fit not to file an opinion but to send to this court, in compliance with Pa.R.A.P. 1925 a letter dated January 25, 1988 directed to the Prothonotary referring to a case of Commonwealth v. *329 Commenger wherein the trial judge pointed out that in that case, since the defendant’s post-verdict motions were not part of the record that she was not required to write an opinion. There is a post script to that letter which states “In the case of Joseph Tavares, Docket No. 01312 Phil. 87 , Defendant also failed to file post-verdict motions.” The record does not contain post-verdict motions, and the trial court has said that none were filed. However, the trial judge appears to be inconsistent in her statements on this matter. While the post script indicates no post-verdict motions, the transcript of the proceedings held before the court on April 10, 1987 indicate otherwise. Specifically, defense counsel set forth that while the primary argument on the legal issues had occurred prior to the entering of the verdict, that in order to preserve the record, post-verdict motions were filed. (N.T. April 10, 1987, pg. 4)
The court on the same page stated as follows:
The Court: Having had the opportunity to read both briefs or memoranda, the issue is a fascinating one, but I think my decision originally made was correct when I entered the verdict and I am going to stay with it. ... I am going to formally deny the post-verdict motions and move on to sentencing.
Also, the record reveals that an order was entered on April 10, 1987 by the trial judge wherein she denied post-verdict motions.
Therefore, I would remand this matter to the trial court for the purposes of determining whether or not post-verdict motions were in fact filed, since the trial judge in two places has indicated that they were, and, if they had been properly filed for the purposes of obtaining a trial court opinion on the issues raised by post-verdict motions. I am not in agreement with the Majority’s decision to assume that such motions were never formally made. It may be that they had not been correctly included in the record and the record should be corrected.