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decided: October 15, 1987.


Appeal from Order of Superior Court entered July 19, 1985, at No. 590 Philadelphia 1982, affirming Judgments of Sentence of Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, entered May 7, 1981, at Nos. 763 and 765 October Term, 1980. Pa. Super , A.2d (1985)


Albert J. Cepparulo, New Hope, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Harriett Brumberg, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion. Larsen, McDermott and Hutchinson, JJ., concur in the result.

Author: Nix

[ 516 Pa. Page 198]


The appellant, Kenneth Saxton, urges us to reverse the order of the Superior Court, 348 Pa. Super. 634, 501 A.2d 293, affirming the judgments of sentence entered against him for first degree murder and possessing an instrument of crime, and to grant him a new trial. We granted review limited to a single issue: the effectiveness of trial counsel's assistance regarding the admission at trial of evidence of the appellant's prior criminal conduct.

In the evening of August 6, 1980, McKinley Avery and a companion were working on their cars in the parking lot of a Philadelphia public housing project, where Avery resided. With the onset of darkness, the men resorted to flashlights to augment the illumination in the parking lot. At approximately 10:00 p.m., a man approached Avery, put a gun to his neck, and demanded $45. Mr. Avery pleaded with his companion to give the gunman $15. That sum was unsatisfactory to the robber, but he would not let Avery's companion

[ 516 Pa. Page 199]

    go to his apartment for more money. In the meanwhile, the disturbance had been heard by Mr. Avery's wife, Theodorsha Johnson. From the window of their kitchen, about fifteen feet from the men, she inquired as to what was transpiring. Her sister, Sandra Terrell, also viewed the events from the same window. The armed man told Ms. Johnson that if she moved or spoke he would hurt her. The gunman then shot Mr. Avery in the neck, killing him.

Two days after the murder of Avery, a police detective showed Ms. Johnson a dozen photographs, from which she identified Kenneth Saxton as the man who shot her husband. Based solely on that identification, Saxton was arrested and charged with murder, involuntary manslaughter and possession of an instrument of crime. The case was subsequently tried in the Court of Common Pleas of Philadelphia County, before a judge sitting without a jury. Saxton was adjudged guilty of murder in the first degree and possessing an instrument of crime. Following the denial of post-trial motions, he was sentenced to life imprisonment for the murder and to a concurrent prison term of two-to-five years for the additional offense.

Newly assigned counsel filed an appeal to the Superior Court, asserting that trial counsel's assistance was ineffective in a constitutional sense. The Superior Court, by an order dated June 29, 1984, remanded the matter to the trial court to supplement the record so that the assertions of ineffectiveness could be addressed. Upon complying with the mandate, the trial court determined that the claims of ineffective assistance were meritless. When the Superior Court reviewed the case, it agreed with the appellant's contention that he had been ineffectively represented in certain instances during the trial. Specifically, the Superior Court concluded that trial counsel had failed to provide effective assistance at two points: First, after the completion of the defense's case-in-chief, defense counsel entered into a stipulation that the appellant had a prior conviction for violating the Uniform Firearms Act ("UFA"). Second, counsel failed to object when a police witness, during the

[ 516 Pa. Page 200]

Commonwealth's case in rebuttal, referred to Saxton's "fingerprint number" and testified to the fact that the police had a previous photograph of the appellant in their files, thus allowing the prosecution to indicate that the appellant had a prior police record. Notwithstanding the conclusion that those actions constituted ineffective assistance, the Superior Court affirmed the judgments of sentence, theorizing that the instances of ineffective assistance by trial counsel were harmless error. As noted, we allowed further review by this Court for the narrow purpose mentioned.

In view of our recent clarification in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), a finding of ineffective assistance of counsel can be made only after there has been a determination that the client has, in fact, been prejudiced by the alleged error or omission of counsel. Therefore, it is obvious that the Superior Court's analysis was internally inconsistent. A fortiori, a finding of ineffective assistance precludes a further determination that the deficiency was harmless.

It is beyond question that an accused in this Commonwealth is entitled to competent counsel at trial. Pa. Const. art. 1, ยง 9; Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976); Commonwealth v. Wideman, 460 Pa. 699, 334 A.2d 594 (1975); Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973); Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964); Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964); Commonwealth ex rel. Carey v. Keeper of Montgomery County Prison, 370 Pa. 604, 88 A.2d 904, cert. denied, 344 U.S. 845, 73 S.Ct. 61, 97 L.Ed. 657 (1952). In this connection, it is recognized that counsel must fulfill myriad duties on behalf of his accused client to assure him of a fair trial. American Bar Association, Standards for Criminal Justice ("ABA Standards"), Standard 4-1.1, Commentary, "The Role of Defense Counsel" (1982). For example, counsel must assure procedural fairness, ABA Standards, Standard 4-3.6(a). He must keep the accused fully informed of all options throughout the proceedings, ABA Standards, Standards

[ 516 Pa. Page 2014]

-3.1(a), 4-3.1(b), 4-3.8, 4-6.2(a). An additional duty of counsel is to assure that his client's cause is presented in the most favorable light. ABA ...

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