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decided: November 14, 1967.


Appeal from order of Superior Court, April T., 1966, No. 143, affirming denial of habeas corpus petition by Court of Common Pleas of Allegheny County, July T., 1965, No. 1052, in case of Commonwealth ex rel. William F. Washington v. James F. Maroney, Superintendent.


James M. Houston, with him James M. Carter, and Houston, Cooper, Speer & German, for appellant.

Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 427 Pa. Page 601]

The seminal decision of Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), in which a trial judge's appointment of the entire county bar to defend the Scottboro boys was found to constitute a denial of the "effective assistance of counsel," has produced what is today an axiomatic judicial assumption that any right to representation includes the right to "effective" or "adequate" representation. But a statement of principle rarely solves concrete cases; the difficult questions, requiring that content be given to this right, remain.

Appellant William F. Washington was convicted in 1959 by a judge sitting without a jury of four counts of armed robbery and one count of burglary. He received four concurrent sentences of ten to twenty years for the robberies and one consecutive sentence of two and one-half to five years for the burglary. Defense counsel, a member of the Legal Aid Society of Pittsburgh, prepared but did not file new trial motions and consequently no appeal was taken.

A pro se habeas corpus petition was filed on September 22, 1964 alleging in substance that Washington was denied effective assistance of counsel and that a confession introduced to support the burglary conviction

[ 427 Pa. Page 602]

    had been unconstitutionally obtained. Confronted with allegations not refuted of record and sufficiently substantiated by factual averments which would, if proven, entitle Washington to relief, Allegheny County Common Pleas President Judge Ellenbogen properly appointed counsel and ordered a hearing. Both the hearing judge and the Superior Court subsequently denied relief. We granted allocatur to explore a facet of the right to effective representation, i.e., the weight to be accorded the fact that counsel has had little time to confer with his client, with which we had not previously been directly confronted.

Courts have employed a variety of formulae -- "a mockery of justice,"*fn1 "the . . . absence of judicial character in the proceedings as a whole,"*fn2 "a travesty,"*fn3 "a sham,"*fn4 or "a farce"*fn5 -- to characterize the degree of degeneration of the proceedings necessary before a finding of ineffective representation should be made. We have stated: "[T]he concept of 'effective representation' must be strictly construed and no deprivation found to result unless appellant's representation was so lacking in competence as to make a mockery of justice." Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 66-67, 217 A.2d 730, 733 (1966); see Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 87, 202 A.2d 299, 303 (1964), cert. denied, 379 U.S. 976, 85 S. Ct. 677 (1965).*fn6 However, whatever the applicable characterization,

[ 427 Pa. Page 603]

    a court is compelled to test, at least in some minimal way, the effectiveness of counsel's efforts. We approach such a task always mindful of the presumption that counsel is competent and with the realization that no one, be they members of Bench or Bar, relishes an opportunity to evaluate the product of another attorney. Yet both counsel and the courts must recognize that the main issue is whether the accused's rights have been adequately protected; the defense counsel is not on trial but rather his aid is sought to further this inquiry.

Implicit in each of our ineffectiveness cases has been the necessary process of judicial resolution of any claimed denial of the right to effective assistance of counsel. That process must entail a comparison of the trial (and pretrial) course adopted by counsel with the alternatives available. An example of this process is Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967). Sprangle insisted that trial counsel was incompetent for he (1) failed to produce a witness who allegedly observed the offense; (2) failed to elucidate for the jury the type of gun employed in the crime; and (3) introduced into evidence appellant's prior criminal record. Rejecting each of these claims, we found that there existed a reasonable basis to support counsel's chosen course -- (1) no purpose would have been served by attempting to uncover the missing witness for there was no showing that he would have been helpful to the defense, (2) discussion of the gun was unnecessary for appellant admitted the shooting and relied upon his claim of self-defense, and (3) introduction of the prior record was explained by the fact that, since Sprangle was testifying (and the record thus admissible to attack credibility), counsel hoped

[ 427 Pa. Page 604]

    to mitigate its impact upon the jury by revealing appellant's history as part of his own case.

A similar methodology was utilized in Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 207 A.2d 829 (1965) where the alleged claim of ineffectiveness concerned counsel's failure to stress prior suicide attempts by the murder victim. We concluded that it was well within counsel's discretion to decide the emphasis which should be placed on this element ...

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