decided: November 18, 1978.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
NORVELL LEE SHERARD, APPELLANT
No. 2 May Term 1978, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 286 1973
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
[ 483 Pa. Page 186]
OPINION OF THE COURT
On June 27, 1973, Norvell Lee Sherard was convicted by a jury in the Court of Common Pleas of Dauphin County of murder of the second degree. Post-verdict motions filed by trial counsel seeking arrest of judgment or a new trial were denied, and judgment of sentence of not less than ten years nor more than twenty years imprisonment was imposed. A direct appeal was taken to this Court, and we affirmed the judgment of sentence. Commonwealth v. Sherard, 456 Pa. 505, 321 A.2d 372 (1974).
Subsequently, Sherard filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The District Court dismissed the petition because Sherard failed to exhaust state remedies.
[ 483 Pa. Page 187]
On May 10, 1976, Sherard filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79) [Hereinafter: PCHA]. Counsel from the office of the public defender of Dauphin County was appointed to assist him. The PCHA petition was denied and Sherard appealed to this Court from that order. Since the PCHA claim of ineffective assistance of counsel involved another public defender, we remanded the matter for the appointment of other counsel. Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977). In accordance with our opinion, the PCHA court appointed new counsel to aid Sherard in advancing his claims.
A counseled PCHA petition was filed. The petition was denied without conducting an evidentiary hearing. This appeal is from that order.
Sherard alleges the lower court erred in dismissing his petition without an evidentiary hearing. The right to a hearing is not absolute. Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 300, 339 A.2d 95, 96 (1975); Commonwealth v. Hayden, 224 Pa. Super. 354, 356, 307 A.2d 389, 390 (1973). Section 9 of the PCHA, 19 P.S. § 1180-9 (Supp.1978-79), provides:
"If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner."
A PCHA petition may not be summarily dismissed as "patently frivolous" when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968).
[ 483 Pa. Page 188]
Sherard's PCHA petition avers his conviction resulted from:
"(1) The introduction into evidence of a statement obtained in the absence of counsel at a time when representation was constitutionally required;
"(2) the denial of his constitutional right to representation by competent counsel;
"(3) the abridgment of a right guaranteed by the constitution or laws of this Commonwealth or the United States; and
"(4) the unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced."
Initially, Sherard asserts his constitutional right against self-incrimination was abridged when an oral statement obtained by police officers in the absence of counsel was admitted into evidence.*fn1 To be eligible for relief under the PCHA, a petitioner must prove, inter alia:
"That the error resulting in his conviction and sentence has not been . . . waived."
[ 483 Pa. Page 189]
Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1978-79).
Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1978-79), provides:
"For the purposes of this act, an issue is waived if:
"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
"(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue."
Finally, Section 4(c) of the PCHA, 19 P.S. § 1180-4(c) (Supp.1978-79) provides:
"There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
Since the alleged unconstitutionality of Sherard's statement was cognizable prior to trial, the issue was waived and could not have been considered in the post conviction proceeding*fn2 unless Sherard either rebutted the presumption that the failure to raise the issue prior to trial was knowing and understanding, or alleged and proved the existence of an extraordinary circumstance justifying the failure to raise the issue. Commonwealth v. LaSane, 479 Pa. 632-633, 389 A.2d 48, 49 (1978). Sherard did not allege any facts which, if proven, would rebut the presumption that the failure to raise the issue was knowing and understanding. Sherard argues the issue of the unconstitutionality of his statement is not waived because an extraordinary circumstance exists to excuse his failure to raise the issue prior to trial, namely,
[ 483 Pa. Page 190]
ineffective assistance of counsel.*fn3 See Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). We must determine if ineffective assistance of counsel is established as required by Section 4(b)(2) of the PCHA, 19 P.S. § 1180-4(b)(2) (Supp.1978-79), to determine if the constitutionality of the statement should be considered. See Commonwealth v. LaSane, supra.
Furthermore, since Sherard was represented in the post conviction proceedings for the first time by counsel other than his trial counsel, and since he advanced the issue as an independent basis for relief, we will also consider the issue of ineffective counsel as a separate basis for relief.*fn4 Section 3(c)(6) of the PCHA, 19 P.S. § 1180-3(c)(6) (Supp.1978-79); Commonwealth v. LaSane, supra; Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). Sherard also has the burden of proving ineffectiveness of counsel as an independent basis for relief. Section 3 of the PCHA, 19 P.S. § 1180-3 (Supp.1978-79).
In evaluating the effectiveness of counsel, we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
"We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although
[ 483 Pa. Page 191]
weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." [Emphasis in original.]
Accord Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Little, 468 Pa. 13, 359 A.2d 788 (1976); Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970). However, before inquiring into the basis for trial counsel's failure to raise the issue of the admissibility of Sherard's statement into evidence, we must determine whether the issue, which counsel is charged with failing to raise, is of arguable merit.*fn5 See Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, supra.
The record demonstrates the Commonwealth introduced Sherard's statement into rebuttal evidence to impeach his credibility.*fn6 On cross-examination by the deputy district attorney, Sherard denied making any statement to the Harrisburg police during the return trip to Dauphin County subsequent to his arrest. The Commonwealth rebutted Sherard's testimony by recalling as a witness, Detective Michael Jones. Detective Jones, one of the police officers who transported Sherard after his arrest, testified that, after first refusing to waive his constitutional rights,*fn7 Sherard volunteered the following statement:
[ 483 Pa. Page 192]
". . . he [Sherard] did not cut the man that he never had a knife, the man had a knife and pulled it on him, he pushed the man and that the man fell back on the car and cut himself."
Sherard alleged the above statement was made during interrogation in the absence of counsel after he had requested counsel. If this allegation were true, then the issue of the admissibility of the statement clearly has arguable merit. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Reiland, 241 Pa. Super. 109, 113, 359 A.2d 811, 813 (1976). Accord Michigan v. Mosley, 423 U.S. 96, 101 n.7, 96 S.Ct. 321, 325 n.7, 46 L.Ed.2d 313, 320 n.7 (1975). The PCHA court found the record showed that the arresting officer advised Sherard of his right to have counsel, but he responded he did not want one. However, after examining the record, we do not find
[ 483 Pa. Page 193]
any support for the conclusion that Sherard indicated he did not want an attorney. Moreover, Sherard should have been afforded an opportunity to present evidence to prove his allegation and thereby show the issue had arguable merit.
Furthermore, Sherard alleged his statement was inadmissible because it was taken during interrogation after he expressed a desire to remain silent. If this allegation were true, the issue of the admissibility of the statement would have arguable merit for this reason also. In denying relief under the PCHA, the court found the record shows that the statement was volunteered, i. e. was not made in response to questioning. We have previously recognized " volunteered statements of any kind are not barred by the Fifth Amendment and this admissibility is not affected by the [ Miranda decision]." [Emphasis supplied.] See Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d 242, 245 (1974); Commonwealth v. Hamilton, 445 Pa. 292, 295, 285 A.2d 172, 174 (1971), both quoting from Miranda v. Arizona, supra. However, we again fail to see how the PCHA court could have classified Sherard's statement as volunteered and dismissed the claim of ineffective assistance of counsel without a hearing on the merits. The testimony of the arresting officer at trial corroborates Sherard's allegation that, after having been informed of his rights, he indicated he did not wish to talk with the arresting officer. The PCHA court determined the statement was volunteered without affording Sherard an opportunity to prove his allegation and thereby show the issue had merit.
Thus, the PCHA petition alleges facts which, if proven, would establish the admissibility of Sherard's statement was an issue of arguable merit for two reasons.*fn8 However, to say the issue is of arguable merit if the facts alleged are
[ 483 Pa. Page 194]
proven is not to conclude counsel was per se ineffective for not raising the issue. Indeed, the failure to raise the issue could have been of a reasonable, calculated trial strategy designed to effectuate Sherard's interests. Commonwealth v. Hubbard, supra, 472 Pa. at 285, 372 A.2d at 699. On the state of the record, however, we cannot determine if such a reasonable basis existed because no evidence was presented with regard to counsel's strategy, and because Sherard's allegation that counsel was ineffective necessarily includes an allegation that no reasonable basis existed. Hence, Sherard should have been afforded an opportunity to show no reasonable basis existed because such a showing, when coupled with a showing that the admissibility of the statement was an issue of arguable merit would have established ineffective counsel.
Accordingly, since Sherard alleged facts which would establish the issue counsel failed to raise was of arguable merit and would also establish no reasonable basis existed for counsel's failure to raise the issue, his claim of ineffective counsel, as an independent basis for relief, would warrant granting relief if his allegations were proven. Thus, he should have been granted a hearing on this issue.
Furthermore, if he were to succeed in his claim of ineffective counsel, he would also be entitled to a hearing on his claim that the statement was obtained under circumstances constitutionally impermissible because such a showing would establish an extraordinary circumstance precluding a ruling that the issue was waived and because the merits of the admissibility of the statement cannot be determined without hearing evidence related thereto.
The order of the Court of Common Pleas of Dauphin County is vacated and the record remanded for further proceedings consistent with this opinion.