Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 80-10-2565.
Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, 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. Brosky, J. files a concurring statement. Popovich, J. files a dissenting statement.
[ 345 Pa. Super. Page 326]
This appeal is undertaken from judgment of sentence imposed after appellant was convicted by a jury and sentenced to serve a term of imprisonment of not less than four nor more than ten years for aggravated assault. At issue in this appeal is whether trial counsel was ineffective for introducing appellant's prior incarceration into testimony and for failing to object to the trial court's charge defining circumstantial evidence. Appellate counsel initially filed a Petition for Remission of the Record, but this court denied the petition and ordered counsel to submit a brief on the merits. On October 14, 1983, a panel of this court filed an opinion reversing and remanding for a new trial, based upon its finding that trial counsel was ineffective for introducing appellant's prior incarceration into testimony. On December 16, 1983, this court granted the Commonwealth's petition for en banc reargument limited to the issue of whether use of a harmless error standard is appropriate in the context of appellant's ineffectiveness of counsel claims.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court discussed the appropriate standard for analyzing ineffectiveness of counsel claims. In that case, the Court
[ 345 Pa. Super. Page 327]
separated the analysis of such a claim into two distinct components: the performance component and the prejudice component. The Court explained that
[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at , 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
In dealing with ineffectiveness claims, Pennsylvania courts have historically applied a performance component similar to that espoused in Strickland. The standard for analyzing ineffectiveness of counsel claims in this Commonwealth was enunciated by our supreme court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny. The analysis consists of the application of a two-pronged test. First, the reviewing court must determine whether the issue underlying a defendant's ineffectiveness claim is of arguable merit. Second, if the court finds that the claim has merit, the inquiry shifts to whether the course chosen by counsel had some reasonable basis aimed at promoting the defendant's interests. Commonwealth v. Cooper, 333 Pa. Super. 559, 482 A.2d 1014 (1984). See also, e.g., 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).
This two-pronged test relates solely to the performance component set forth in Strickland. Prior to Strickland,
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the courts of Pennsylvania had never explicitly articulated a prejudice component in analyzing ineffectiveness claims. That is, our courts had not specifically required that, beyond proving that his counsel was ineffective, a defendant must also prove that counsel's errors so prejudiced his defense that he was denied a fair trial. As noted in the plurality opinion in Commonwealth v. Garvin, 335 Pa. Super. 560, 485 A.2d 36 (1984), however, while our courts have not elucidated a prejudice component, such a requirement has been intimated in a number of cases. Id., Opinion by Cirillo, J., 335 Pa. Superior Ct. at 563-564 n. 2, 485 A.2d at 37-38 n. 2.
It is with this common background of legal thought that Commonwealth v. Garvin, supra, and the instant case reached this en banc panel. In both cases we were asked to decide whether we will adopt a standard similar to that applied in Strickland by including a prejudice component in our analysis of ineffectiveness of counsel claims. While Strickland is, of course, binding as to the meaning to be given the sixth amendment's guarantee of the assistance of counsel, it does not control our interpretation of article 1, section 9 of the Pennsylvania Constitution. Garvin, supra, Concurring Opinion by Spaeth, P.J., 335 Pa. Superior Ct. at 568, 485 A.2d at 40. It is, however, instructive in analyzing the issue before us.
In Commonwealth v. Garvin, supra, a majority of this court agreed that it is proper to infuse a prejudice component or a "harmless error standard" into our analysis of "ineffectiveness claims."*fn1 Garvin, supra (Opinion by Cirillo, J., joined by Wickersham, J. and Hester, J.; and Concurring Opinion by Spaeth, P.J.). This majority was divided,
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however, concerning where the burden of establishing the prejudice element lies. The plurality would require that the defendant bear the burden of proving that counsel's ineffective representation so prejudiced his case that he was deprived of a fair trial. That is, "[a] finding that [the defendant] 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." Garvin, supra, Opinion by Cirillo, J., 335 Pa. Superior Ct. at 566, 485 A.2d 36, 39. President Judge Spaeth, however, believes that
we should interpret article 1, section 9, of the Pennsylvania Constitution so that once the defendant in a criminal case shows that his counsel was not reasonably competent, he has established a denial of his right to the effective assistance of counsel, and the burden then shifts to the Commonwealth to prove beyond a reasonable doubt that counsel's incompetence was harmless because it had no effect on the outcome of the case.
Garvin, supra, Concurring Opinion by Spaeth, P.J., 335 Pa. Superior Ct. at 592, 485 A.2d 36, 52 (emphasis added).
In the instant case, we will follow the rule espoused in Strickland and adopted by Judge Cirillo. That is, after proving that his counsel was ineffective, the defendant must go on to establish that counsel's ineffectiveness so prejudiced his case that he was deprived of a fair trial.
[ 345 Pa. Super. Page 330]
With this two component standard in mind, we now turn to the allegations of ineffectiveness as set forth by appellant in the instant case. Appellant first avers that he was denied the effective assistance of counsel when his trial attorney introduced evidence of his prior criminal record.
The Commonwealth produced evidence at trial which revealed that on September 21, 1980, appellant, Charles Pierce, entered the hospital room of his former common law wife, Carmen Myers, who was recovering from a hysterectomy, and stabbed her in the chest. Saundra Dawson, a clerk at the hospital, testified that on the night in question, she heard yelling and turned to phone the security guards, and that a man whom she identified at trial as the appellant, walked past her in the hallway. Dawson's station was located in the middle of the hallway on the floor where the stabbing occurred. Subsequent to the stabbing, appellant was found on the roof of the hospital. He stated, "you got me," when discovered. Only the complainant, Mrs. Myers, testified to witnessing the actual stabbing.
Upon cross-examination of Mrs. Myers, appellant's trial counsel elicited the following testimony:
Q. Mrs. Myers, how long did Fred Myers live in your home with you and your husband?*fn2