Charles M. Golden, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., filed a concurring opinion. O'Brien and Pomeroy, JJ., concur in the result. Nix, J., would grant a counseled appeal with the appointment of new counsel.
The significant issue in this case is whether there was ineffective appellate advocacy in that appellant's counsel on the direct appeal did not brief or argue that the manifestly prejudicial summation by the assistant district attorney warranted a new trial. Such disregard, even as an alleged tactic, is attackable if it had no reasonable basis. The rule is well established that a course chosen by counsel must have had " some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). The reason for the rule is applicable not only to trial advocacy but also to appellate advocacy.
This is an appeal from an order of the Court of Common Pleas of Philadelphia denying post-conviction relief. On January 20, 1971, Michael Townsell, appellant, was convicted by a jury of murder of the first degree and aggravated robbery. Post-verdict motions were denied and a sentence of life imprisonment was imposed on the murder conviction as the jury's verdict directed. An additional twenty years' probation was ordered on the robbery conviction. A direct appeal was filed in this Court nunc pro tunc and the judgment of sentence and order of probation were affirmed by an equally divided court. A petition was filed for relief under the Post Conviction Hearing Act (PCHA), Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1977-78). Following a post-conviction hearing, relief was denied and this appeal followed.*fn1
Townsell contends his court-appointed co-counsel, who represented him at both the trial and the appeal, were ineffective, inter alia, in dealing with the summation to the
jury by the assistant district attorney. Parts of the remarks were as follows:
"He's twenty-two years old. There are a lot of young men younger than him doing a lot more worthwhile things than robbing and stealing and killing. For the benefit of all of us, I think you know who I'm talking about. He's old enough to know what he's doing. He's old enough and sensible enough to know that it's wrong to rob and to kill, and if he's in trouble today it's because of his own doing. It's because unlike most of us, he's unwilling to go out and do an honest day's work to make some money to get by on, so he's going to join in a common enterprise to try to steal something, to rob, to threaten somebody, and if it comes about to be necessary in his own mind, to kill.
"You are sitting here in the quiet dignity of the court, again, looking at a wretched defendant. The defendant always looks pitiful in a trial. The murderer at his trial looks pitiful. But you don't see the murderer at his murdering, and he doesn't look so pitiful then.
". . . I'm sure it hasn't been easy for [defense counsel], which [sic] are gentlemen of high stability of the Bar, which [sic] a careful Commonwealth, a state appoints to represent the interests of this defendant and fight even so hopeless a case as this one every step of the way. "Now it's going to be your responsibility, and I suggest to you ladies and gentlemen that there can be only one just answer, and that is, if you believe these facts which I think are undeniable, and according to some of the arguments that have been advanced to you, admitted, and then you apply the law that you hear from the Court, you will come up with ...