Michael S. Lipschutz, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion.
Appellant was convicted of voluntary manslaughter on May 5, 1972. After post-trial motions were filed and denied, he was sentenced to not less than three nor more than six years' imprisonment. A direct appeal followed, and we affirmed the conviction in Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
Although a statement of the appellant, which was both incriminatory and exculpatory, was necessarily accepted into evidence at trial because of the determination of the suppression court,*fn1 no objection was made in post-trial motions. Consequently, the issue of the admissibility of the confession was waived for purposes of appellate review. Commonwealth v. Clair, Pa. , 326 A.2d 272 (1974); Commonwealth v. Bittner, 441 Pa. 216, 272 A.2d 484 (1971). It is that waiver which is the subject of this appeal of the denial of PCHA relief.*fn2
In his PCHA petition, appellant maintains that the waiver of the issue of the admissibility of the confession constituted ineffective assistance of counsel on appeal. However, trial counsel (who also served as counsel on direct appeal) did not waive the issue by neglecting to raise it on appeal; he waived it by failing to object to the introduction of the statement at trial. The waiver at trial precluded the assertion of the issue on appeal. Thus, in this case, counsel's effectiveness on appeal can only be measured by a consideration of his effectiveness at trial. If counsel had some reasonable basis for his failure to preserve the issue at trial, appellant cannot now complain that the resultant unavailability of the waived issue denied him the effective assistance of appellate counsel. See Commonwealth v. Nash, 436 Pa. 519, 521, 261 A.2d 314, 315 (1970), and Commonwealth v. Snyder, 427 Pa. 83, 93, 233 A.2d 530, 535 (1967).
In the evidentiary hearing on the issue, trial counsel stated he did not object to the confession because he intended to use the confession affirmatively.*fn3 Curiously, we note that appellant concedes that this conduct was reasonable.
At trial the Commonwealth had presented two eye-witnesses to the events surrounding the crime. The testimony of those witnesses placed the appellant at the scene and unequivocally inculpated appellant as the perpetrator of the homicide. Although appellant's statement to the police contained an admission that he had shot the victim, it also indicated that he had acted in self-defense or at least in the heat of passion. By acquiescing to the admission
of the statement and by using the exculpatory portions of it to rebut or weaken the prosecution's very strong case, counsel had an eminently " reasonable basis designed to effectuate [appellant's] interest." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Although other reasonable courses might have been chosen, counsel's particular election of strategy does not lead to the conclusion that his choice constituted ineffective assistance at trial. Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604-05 and 605 n. 8, 235 A.2d 352-53 and 353 n. 8. On the contrary, his strategy was very effective. Appellant was convicted of voluntary manslaughter rather ...