No. 110 January Term, 1979, Appeal from Dismissal of Petition filed under Post-Conviction Hearing Act, in the Court of Common Pleas, Criminal, of Delaware County, at Nos. 388, 389, 391, 394, 395 September, 1974
Roy Davis, Asst. Public Defender, for appellant.
David E. Fritchey, Chief, Appeals Unit, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the result. Roberts, J., files a dissenting opinion.
Appellant, Richard P. Brightwell, was convicted of, inter alia, both murder of the third degree and voluntary manslaughter for the June 24, 1974 shooting killing of Nanny Brown. Before the trial court accepted these obviously inconsistent verdicts, he called opposing counsel to sidebar and stated that "It is my understanding that the verdict in this case would be recorded as guilty of murder of the third degree . . . . Do you agree to that?" When both counsel agreed, the trial court announced that appellant had been found guilty of murder of the third degree. No objection was taken by appellant. New counsel represented appellant at post-verdict motions, which were denied. Appellant was sentenced to ten-to-twenty years imprisonment. On direct appeal, while represented by the same counsel as on post-verdict motions, appellant argued the inconsistent verdict issue, but we held the issue had been waived because of appellant's failure to either object at trial or to assert the ineffectiveness of trial counsel. Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978).
Appellant subsequently filed a petition pursuant to the Post Conviction Hearing Act, alleging, inter alia, that both trial and appellate counsel had been ineffective for failing to preserve the claim concerning the inconsistent verdicts. Following an evidentiary hearing, the court denied appellant's requested relief and this appeal followed.
Appellant argues instantly that trial counsel was ineffective for failing to object to the trial court's actions in ordering the verdict be recorded as guilty of murder of the third degree. Appellant further argues that appellate counsel was ineffective for failing to challenge the effectiveness
of trial counsel at both post-verdict motions and on direct appeal. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Our standard of review involving claims of ineffective assistance of counsel is by this time well-settled. As this Court unanimously stated:
"In order to determine whether counsel's assistance was effective, we must be 'able to conclude the particular course chosen by counsel 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). [Emphasis in original.] However, counsel cannot be found ineffective for failing to assert a meritless claim. Only when an abandoned claim is of arguable merit must we inquire into counsel's basis for not ...