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filed: November 18, 1983.


No. 182 Pittsburgh 1981, Appeal from the PCHA Order of the Court of Common Pleas, Criminal Division, of Clearfield County at No. 77-610-CRA.


William C. Kriner, Clearfield, for appellant.

F. Cortez Bell, III, Assistant District Attorney, Clearfield, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ. Johnson, J., concurs in the result. Hester, J., files a concurring and dissenting opinion.

Author: Popovich

[ 322 Pa. Super. Page 272]

This is an appeal from the Order of the Court of Common Pleas of Clearfield County (per President Judge Reilly) denying, in part, appellant's, George A. Corbin's, ineffectiveness of counsel claim. See note 2, infra. We reverse and remand.

We have reviewed all of appellant's claims and find that the only one meriting discussion concerns trial counsel's failure to file pre-trial motions. For the reasons that are

[ 322 Pa. Super. Page 273]

    discussed infra, we maintain that trial counsel was ineffective for failing to file a motion to suppress the evidence obtained during the course of the police's examination of the glove compartment and trunk of a vehicle linked to the appellant if no warrant existed to sanction the search and seizure.

Moreover, we find the cases of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) to be distinguishable from the case at bar. There, the United States Supreme Court authorized the search of impounded vehicles by police, days after their seizure, for purposes of making an inventory of the contents so as to protect themselves and avoid the consequences of owner claims against the police over lost or stolen property. Instantly, unlike in Opperman and Cooper, the police were utilizing a national handbook to assist them in locating the vehicle's registration number when the incriminating evidence was discovered. The purpose of the police's conduct was not to inventory the vehicle as a precaution against possible claims by the true owner for loss of contents. Rather, the search conducted was for the specific purpose of locating potentially incriminating evidence against the driver-appellant, and, thus, "was a pretext concealing an investigatory police motive." South Dakota v. Opperman, supra, 428 U.S. at 376, 96 S.Ct. at 3100. This is supported by the facts, i.e., after the appellant presented the police with a driver's license inconsistent with the name of the vehicle's owner, as told to them by the appellant, the police observed through the windshield that the vehicle's identification number was "gone." Thereafter, the vehicle was impounded and the following day the vehicle was searched and the evidence complained of (check-writing equipment, checks and a corporate seal) was seized from the glove compartment and trunk.

[ 322 Pa. Super. Page 274]

To adhere to any other position would be to sanction an illegal search for incriminating evidence under the guise of an inventory search, especially given the facts available to Page 274} the police prior to the search which rendered the ownership of the vehicle suspect. In other words, the legal owner of the impounded vehicle was brought into question and the police's "protective procedures [were but] a subterfuge for criminal investigations." South Dakota v. Opperman, supra, 428 U.S. at 370 n. 5, 96 S.Ct. at 3097 n. 5. If we were to approve of such an activity by the authorities, henceforth the police could eschew the requirements of a warrant to search an impounded vehicle regardless of the object of their search. This goes far beyond what Opperman and Cooper envisioned.

In light of the fact that the search conducted by the police was not for inventory purposes, appellant's trial counsel's action in failing to file a motion to suppress the evidence seized raises a question as to his stewardship, which was dealt with by the court below and raised by appellant on appeal. In evaluating this claim, we observe that we must make an independent review of the record and decide if the course of action counsel is charged with not pursuing had some reasonable basis. Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977). Only if the claim is ruled to be of arguable merit must we inquire into counsel's reasons for not pursuing it. Commonwealth v. Strader, 262 Pa. Super. 166, 396 A.2d 697 (1978).

We find that the subject of the existence or non-existence of a warrant, which is pivotal to a determination of counsel's stewardship, is not ascertainable from the documents provided to this Court, and, thus, another remand is necessary.

For example, at the evidentiary hearing conducted at this Court's direction, see Commonwealth v. Corbin, 268 Pa. Super. 526, 408 A.2d 1128 (1979), to evaluate appellant's various allegations of ineffectiveness attendant to his trials, one of which occurred on November 14-15, 1977 and is of concern to us here, counsel for appellant testified that he filed no pre-trial suppression motion or post-trial motions

[ 322 Pa. Super. Page 275]

    regarding the evidence seized by the Warren police. On this subject, the following exchange took place:

[By Mr. Kresner -- appellant's new counsel:]

Q Now, Mr. Corbin alleges, Mr. Blakley, that you were ineffective in failing to file Pre-Trial Motions prior to the November Trial. Did you consider filing any Pre-Trial Motions prior to the Trial?

[Benjamin S. Blakley, III -- appellant's trial counsel:]

A No, I didn't.

Q He also alleges that you were ineffective in failing to object to certain evidence seized in the November Trial.

A I did object to it . . . [when appellant] leaned over to me and asked me to object to it [at defense table] because he felt that there was not sufficient identification. And at that time, on the record, I did object to it.

Q And I don't believe you filed Post-Verdict Motions on that basis. What was the reason there?

A Based on the testimony raised at Trial, it was my opinion that the automobile had been sufficiently identified and that my Post-Trial Motions would have been frivolous. So I did not file them.

Q Now, Mr. Corbin has alleged in testimony that you gave him a copy of your Motion for New Trial and/or Verdict in Arrest of Judgment and told him that it had been filed when ultimately no such Motion was filed. You would agree that no such Motion was filed?

A I'll agree to that.

Q Would you agree that you gave such to Mr. Corbin and indicated to him that such was filed?

A I will assume that I gave a copy to Mr. Corbin --

THE WITNESS: Mr. Corbin has a copy of the Motion that I had prepared. I do not recall telling him that I had definitely filed it. I -- I believe that I discussed the

[ 322 Pa. Super. Page 276]

    situation with Mr. Corbin. I cannot be sure, two years later, exactly what words were stated to Mr. Corbin.

Q . . . Appellant, Mr. Corbin, . . . indicat[es] basically that there were Pre-Trial Motions which you could have filed which you did not file because of a lack of experience?

A I -- it [-- a letter written by Attorney Blakley to the appellant dated March 28, 1978 ____ doesn't specify Pre-Trial Motions, Post-Trial Motions, it just says certain things. There are certain tactical moves which I, had I been aware of them, and which I may become aware of ten years from now, I probably could have filed. I'm not aware of any. I suppose if I would have chosen to employ some delaying tactics or so forth, I might have been able to do it. I know of none now. Undoubtedly a more experienced attorney could -- could have done it. I was explaining to Mr. Corbin, at the time of this Trial, I had been sworn in at the Supreme Court about a week and a half, a week before.

Q Before what, Mr. Blakley?

A Before this Trial.

Q Before the November Trial?

A Before the November Trial. I was sworn in the first week of November of '77. This was my first Trial. I was explaining to Mr. Corbin why certain -- why I was not acting as an F. Lee Bailey.

Q . . . Would you read the exact sentence which is underlined [in the letter sent by you to the appellant and dated March 28, 1978.]

A I realized at the November Trial there were certain things that I could have filed that I did not file and I told you this in January, the reason being that I was fresh out of law school and ...

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