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COMMONWEALTH PENNSYLVANIA v. DAVID GARVIN (11/23/84)

filed: November 23, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID GARVIN, APPELLANT



No. 1332 Philadelphia 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF MAY 6, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NOS. 54 AND 57 APRIL TERM, 1980

COUNSEL

David McGlaughlin and George H. Newman, Philadelphia, for appellant.

Eric B. Henson, Deputy District Attorney, and Maxine Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Spaeth, President Judge, files a concurring opinion. Beck and Popovich, JJ., concur in the result. Brosky, J., files a dissenting opinion.

Author: Cirillo

[ 335 Pa. Super. Page 562]

On September 4, 1980 the appellant, David Garvin, and two co-defendants were tried before the Honorable Levan Gordon and a jury on charges arising from an incident which occurred in March of the same year. The appellant was found guilty of rape and simple assault. Post-verdict motions were filed and denied. The appellant was sentenced to a term of imprisonment of not less than 5 nor more than 10 years. An appeal to this Court followed and on October 14, 1983, 321 Pa. Super. 170, 467 A.2d 1307, the judgment of sentence was affirmed. On December 16, 1983, this Court granted the appellant's petition for en banc reargument.

The sole issue before the Court en banc is "whether use of a harmless error standard is appropriate in the context of appellant's ineffective assistance of counsel claim."

In Strickland v. Washington, U.S. , 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court distinguished between the performance component*fn1 of the analysis of ineffective assistance of counsel claims and the prejudice component of the analysis of such claims.

[ 335 Pa. Super. Page 563]

A convicted defendant's claim that counsel's assistance was so defective as to require reversal for a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . . The minor differences in the lower court's precise formulations of the performance standard are insignificant: the different formulations are mere variations of the overarching reasonableness standard.

Strickland, supra, at , 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

This distinction will clarify the issue which is the subject of review at this time. Our courts have addressed only the performance component of the analysis in reviewing claims of ineffective assistance of counsel; thus confusion has arisen. We need not reject the prior analysis in our clarification today which will incorporate the heretofore intimated but not elucidated prejudice component. The articulation of the prejudice component by our Court is an affirmation of the analysis which our courts have employed sub silentio in deciding ineffective assistance of counsel.*fn2 The guiding

[ 335 Pa. Super. Page 564]

    inquiry has until this time focused largely on the principles by which counsel's strategy in a given case can be scrutinized.

In reviewing a claim of ineffectiveness of counsel, with regard to the performance component, a two pronged test has been employed. First our courts have determined whether the claim that counsel failed to assert was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); see also Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Golson, 310 Pa. Super. 532, 456 A.2d 1063 (1983). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Hubbard, supra; see also Commonwealth v. Schreiber, 319 Pa. Super. 367, 466 A.2d 203 (1983).

If the underlying issue is found to be of arguable merit then our inquiry shifts to the second prong of the test. The court must determine whether the particular course of action chosen had some reasonable basis which

[ 335 Pa. Super. Page 565]

    would effectuate the best interest of the client. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Parker, supra; Commonwealth v. Simler, 320 Pa. Super. 342, 467 A.2d 355 (1983). This determination is not based on a hindsight evaluation of the record. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981); Commonwealth v. Bailey, 322 Pa. Super. 249, 469 A.2d 604 (1983).

The Pennsylvania Supreme Court in Commonwealth v. Badger, supra, employed both prongs of the Maroney test and in the second prong of the performance test, rejected the use of a harmless error/prejudice standard at that stage of the analysis.

[I]n examining the alternatives, a court may not utilize a harmless error analysis, and the alternatives must be examined only as a means of determining whether the course chosen had some reasonable basis.*fn3

482 Pa. at 244, 393 A.2d at 644.

The alternatives not chosen by counsel are evaluated within the context of his trial strategy. If the harmless error standard were used to evaluate counsel's actions, then his effectiveness would be evaluated in terms of the weight of the evidence against the appellant. This would contravene the well established precedent of Commonwealth ex rel. Washington v. Maroney, supra, and its progeny. The Court in Badger addresses the distinction between the question of the strength of the prosecution's evidence against an appellant and the issue of the reasonable basis of

[ 335 Pa. Super. Page 566]

    the strategy chosen by counsel to effectuate his client's best interest.

The United States Supreme Court in Strickland v. Washington, supra, formulates the explanation for the constitutional right of effective assistance of counsel within the right to a fair trial, which is the basis of the second component of the analysis. A finding of ineffective assistance of counsel can result in the granting of a new trial precisely because the counsel's conduct has deprived the appellant of a fair trial thus rendering the result of the proceeding itself unreliable.

The prejudice component supplies the standard to be applied to the determination of the remedy to be afforded the appellant in a criminal case. A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant. Government of Virgin Islands v. Henry Bradshaw, 726 F.2d 115 (3rd Cir. 1984). See also, Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Taliaferro, 309 Pa. Super. 446, 455 A.2d 694 (1983).

The appellant contends that trial counsel was ineffective during voir dire in failing to ask for and use the full number of peremptory challenges to which he was entitled under Pa.R.Crim.P. 1126. Appellant has not shown that his counsel's unfamiliarity with a recent change in this rule caused him actual prejudice. Appellant offered no proof that a biased jury was selected. Where appellant makes only a general assertion of ineffectiveness of counsel for failing to exercise the full number of peremptory challenges,

Our Court has held that "[t]he mere fact that no jurors were challenged without more cannot be determinative of one's efficacy as trial counsel." Commonwealth v. Kittrell, 285 Pa. Super. 464, 469, 427 A.2d 1380, 1382 (1981).

[ 335 Pa. Super. Page 567]

Counsel cannot be deemed ineffective for not exercising these challenges just for the sake of exercising them.

Commonwealth v. Courts, 317 Pa. Super. 271, 280, 463 A.2d 1190, 1195 (1983).

Therefore, counsel's action was not shown to have any effect on the outcome of the case, his misunderstanding of the rule was not prejudicial to the appellant, and we find it to be harmless error.

Judgment of sentence affirmed.

SPAETH, President Judge, concurring:

The question raised by this appeal is, What rule should a court apply in deciding whether the defendant in a criminal case has been denied the assistance of counsel?

In Strickland v. Washington, U.S. , 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court answered this question by announcing a two-part rule. First: The defendant must show that counsel failed to conduct the case in a reasonably competent manner. In deciding whether the defendant has made this showing, the Court will be "highly deferential" to counsel, and will "strongly presume[]" that counsel "rendered adequate assistance." Id. at , 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95. And second: Even if inadequate assistance appears, the defendant must further show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at , 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

The plurality would adopt Strickland. I agree with Judge BROSKY that this is precipitous, and that we should await the decision of our Supreme Court. But putting that aside, I am unwilling to follow in Strickland 's wake. For the rule Strickland announces is inconsistent with settled

[ 335 Pa. Super. Page 568]

    principle, and the burden it imposes on the defendant is so heavy that instead of affording, it denies the protection guaranteed by the sixth amendment. By remitting the poor to the representation of incompetent counsel, Strickland abandons our proudest aspiration -- to achieve equal justice for all. It is an unfortunate decision, which I hope the Court will some day repudiate.

Meanwhile, Strickland is of course binding as to the meaning to be given the sixth amendment. But it is of no force as to the meaning to be given article 1, section 9, of the Pennsylvania Constitution, which also guarantees the assistance of counsel. After considering what effect should be given article 1, section 9, I have concluded that under it, the rule in Pennsylvania courts should be that if the defendant shows that counsel did not conduct the case in a reasonably competent manner, relief must be granted, unless the prosecution shows beyond a reasonable doubt that counsel's conduct had no effect on the outcome of the case. While I acknowledge that the authorities are not consistent, I submit that the better reasoned ones support this rule.

Applying this rule to the facts of this case, I conclude that appellant did show that counsel was not reasonably competent, but that the Commonwealth showed beyond a reasonable doubt that counsel's incompetence had no effect on the outcome of the case. I therefore concur in the order affirming the judgment of sentence.

-1-

I have found it impossible to reconcile the Pennsylvania cases on the rule to be applied in deciding whether the defendant in a criminal case has been denied the assistance of counsel. To state such a rule, one must answer two questions: By what standard should counsel's assistance be measured? And if counsel's assistance failed to satisfy that standard, must the defendant prove that the failure had an effect on the outcome of the case? The cases provide no clear or consistent answers to these questions. Many cases measure counsel's assistance by asking whether counsel had some reasonable basis for believing that the

[ 335 Pa. Super. Page 569]

    course he chose would assist his client. However, it has proved difficult, if not impossible, to give content to this standard because of the uncertainty regarding the defendant's burden of proof. The question whether counsel had a reasonable basis for the course he chose has tended to be confused with, or telescoped into, the question whether the course counsel chose had an effect on the outcome of the case.

This tendency has resulted in two lines of cases. In one line, the cases seem to hold that if the defendant shows that counsel did not have a reasonable basis for the course he chose, then the defendant has proved that he was denied the assistance of counsel, and relief must be granted. See, e.g., Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978) (court may not use harmless error analysis and alternatives must be examined only to determine whether course chosen by counsel had some reasonable basis); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) (finding of ineffectiveness cannot be made unless alternatives not chosen offer potential for success substantially greater than tactics used; therefore, if there was no reasonable basis for counsel's decision, his decisions were prejudicial to client); Commonwealth v. Williams, 273 Pa. Super. 147, 416 A.2d 1132 (1979) (counsel found ineffective for failing to interview witnesses; Commonwealth's argument rejected that defendant had to show that counsel's conduct prejudiced him). In the other line, the cases either expressly or implicitly apply a prejudice or harmless error analysis. See, e.g., Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) (to establish ineffectiveness defendant must show counsel's action arguably ineffective and likelihood of prejudice); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, U.S. , 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984) (even if counsel's reasons for failure to pursue motion for change of venue were inadequate, final judgment will not be disturbed absent further showing that failure deprived defendant of fair trial); Commonwealth v. Johnson, 490 Pa. 312,

[ 335 Pa. Super. Page 570416]

A.2d 485 (1980) (rejecting claim that counsel was ineffective in failing to object when judge and not jury imposed penalty; since minimum sentence was imposed, any error was harmless); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979) (although counsel testified that failure to introduce testimony was an oversight, counsel not deemed ineffective because failure did not prejudice defendant; record discloses that testimony would not have been sufficient to negate specific intent); Commonwealth v. Green, 315 Pa. Super. 564, 462 A.2d 736 (1983) (rejecting claim that counsel was ineffective in failing to object to references to defendant's prior criminal activity; court convinced beyond reasonable doubt that references did not contribute to verdict).

Given this uncertain state of the law, I believe that we should re-examine the issues raised by a defendant's claim that he was denied the assistance of counsel -- that we should put aside the decided cases, and start afresh.

-2-

The sixth amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the United States Supreme Court held that this guarantee was violated when an indigent defendant charged with a felony in a federal court was convicted and imprisoned without having had counsel appointed to assist him, unless the defendant had waived the assistance of counsel. However, the sixth amendment guarantee to the assistance of counsel did not extend to the states. The only Federal Constitutional right that a defendant in a state court had was the right to a fair trial under the due process clause of the fourteenth amendment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Consequently, an indigent defendant in a state court could not complain of not having had the assistance of counsel unless the absence of counsel resulted in a conviction lacking in fundamental fairness. Betts v. Brady, 316 U.S. 455,

[ 335 Pa. Super. Page 57162]

S.Ct. 1252, 86 L.Ed. 1595 (1942). This inequity was eliminated by the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in which the Court held the sixth amendment guarantee to the assistance of counsel applicable to the states through the due process clause of the fourteenth amendment. Under Gideon, therefore, an indigent defendant must be provided with counsel in all felony prosecutions, whether in federal or state court. This requirement has been extended to include all misdemeanor prosecutions in which a sentence of imprisonment is actually imposed, Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

This steady expansion of the sixth amendment guarantee to the assistance of counsel, first to all courts, and next to almost all criminal prosecutions, is critical to our inquiry in this case. For it illustrates the most persistent and powerful tendency of our modern Constitutional law: the aspiration that ...


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