Com. v. Saxton

• Decision Date: 15 October 1987
• Citation: 516 Pa. 196,532 A.2d 352
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth SAXTON, Appellant.
• Court: Pennsylvania Supreme Court

Page 352

532 A.2d 352

516 Pa. 196

COMMONWEALTH of Pennsylvania, Appellee, v. Kenneth SAXTON, Appellant.

Supreme Court of Pennsylvania.

Submitted April 10, 1987.

Decided Oct. 15, 1987.

Albert J. Cepparulo, New Hope, for appellant.

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

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NIX, Chief Justice.

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 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 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, --- Pa. ----, 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, § 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 4-3.1(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 Standards, Standard 4-1.1, Commentary, supra.

It would be shocking to the sense of fairness to allow one who has requested the assistance of counsel to receive ineffective representation merely because his indigency prevented him from obtaining competent counsel through his own means. ABA Standards, Chapter 5, "Providing Defense Services; see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Quite frequently, it is that very state of poverty which puts a person in a situation requiring the assistance of competent counsel. Recognizing as we have that the assistance of competent counsel is a critical element in the panoply of rights encompassed by the concept of fair trial, we have also held that a "harmless error" analysis is improper in determining a claim of ineffective assistance of counsel. Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978).

Nevertheless, for reasons which will follow, it is our conclusion that the Superior Court's threshold error in the instant case was its finding of ineffective assistance.

In this Commonwealth we have long used, to gauge the ineffectiveness of counsel's stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Commonwealth v. Pierce, supra; Commonwealth v. Bolden, 512 Pa. 468, 517 A.2d 935 (1986) (Nix, C.J., and McDermott, J., dissenting); Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985); Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Jones, 499 Pa. 522, 454 A.2d 8 (1982); Commonwealth v. Perkins, 496 Pa. 482, 437 A.2d 1143 (1981); Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148 (1981); Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976); Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. Pride 450 Pa. 557, 301 A.2d 582 (1973); Commonwealth v. Norman, 447 Pa. 515, 291 A.2d 112 (1972); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth v. Couch, 442 Pa. 402, 275 A.2d 112 (1971); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); Commonwealth v. Taylor, 439 Pa. 321, 266 A.2d 676 (1970); Commonwealth v. Studenroth, 430 Pa. 425, 243 A.2d 352 (1968); Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968); Commonwealth ex rel. Johnson v. Russell, 428 Pa. 440, 239 A.2d 399 (1968); Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968).

In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the effectiveness of counsel was described by this Court as follows:

Our task ... encompasses both an independent review of the record,.... and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives.... We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. (emphasis in original). The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. (emphasis in original) Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis. (emphasis added).

427 Pa. at 604-605, 235 A.2d at 352-53.

The Washington Court also made clear that, for relief to be granted, the accused must demonstrate that counsel's...