Com. v. McBee

Decision Date10 December 1986
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Darryl McBEE, Appellee.
CourtPennsylvania Supreme Court

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, for appellant.

William T. Cannon, Philadelphia, for appellee.



LARSEN, Justice.

The issue presented in this case is whether remand for the appointment of new counsel is required when a claim of ineffective assistance of counsel is made on direct appeal and it is clear from the record that the claim is meritless.

On July 1, 1976, John Meehan was killed during the course of a robbery in Philadelphia, Pennsylvania. On August 18, 1976, Darryl McBee (appellee) was arrested in Virginia while visiting his brother and sister-in-law. Subsequent to his arrest, appellee had the benefit of advice from his brother, sister-in-law and Attorney John Garland, a friend of the family. All "essentially advised [appellee] to make no statement to the police concerning the charges." Appellee's brief at 2. At the extradition hearing on August 19, 1976, appellee was again advised by his brother, Garland and a court-appointed attorney to remain silent. Court of Common Pleas Slip op. at 29-30. On August 23, 1976, appellee was transported from Virginia to Philadelphia. During that trip, after being advised of his Miranda rights, appellee gave an inculpatory statement to the police.

Prior to appellee's trial in Philadelphia, appellee's then-counsel filed a motion to suppress the inculpatory statement given by appellee, alleging, inter alia, that the statement was given by appellee involuntarily. Prior to the suppression hearing, appellee was appointed new counsel. 1 Appellee's suppression motion was denied. In January, 1977, appellee was found guilty of murder in the second degree, robbery and criminal conspiracy. On appellee's first appeal to the Superior Court, that Court, en banc, reversed appellee's judgment of sentence and remanded the case for a new trial. 2 Commonwealth v. McBee, 267 Pa.Super. 49, 405 A.2d 1297 (1979). The Superior Court at that time held that an erroneous voir dire ruling required appellee to receive a new trial. In that same appeal, appellee also raised the issue of the admissibility of his inculpatory statement, which Superior Court disposed of as follows:

Appellant [appellee] contends that the lower court erred in admitting his confession to police because it was involuntary. Specifically, he claims that this confession resulted from physical abuse, threats, and cajolery by the police. However, testimony of the interrogating officers refuted this claim and was credited by the suppression court. Because the evidence supports the suppression court's findings, we conclude that this claim is without merit. See Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977); Commonwealth v. Washington, 259 Pa.Super. 407, 393 A.2d 891 (1978).

Appellant [appellee], a 17 year old juvenile at the time of arrest, also contends that the lower court should not have admitted his confession because it was taken (a) in the absence of a consultation with an interested and informed adult, Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), and (b) contrary to an agreement that appellant's [appellee's] counsel be present, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976). Because appellant [appellee] failed to raise the McCutchen issue pre-trial and the Brewer issue in post-verdict motions, we hold that he has waived those issues. See Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

267 Pa.Super. at 51-52, 405 A.2d at 1298.

On June 14, 1980, appellee's third and final trial, at which his inculpatory statement was introduced as evidence resulted in a verdict of guilty of murder in the second degree and robbery. Appellee filed post-trial motions in which he alleged, among other claims, ineffective assistance of his prior counsel and ineffective assistance of his present counsel, in their failure to raise the issue, in the 1976 suppression motion, that appellee was a minor at the time he gave the inculpatory statement, and that he did not have access to an "interested adult" during the time he gave his inculpatory statement; thus his inculpatory statement was per se not knowing and intelligent. This per se rule was established by the case Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). In September, 1981, appellee's post-trial motions were denied and appellee was sentenced to life imprisonment on the murder in the second degree charge and 6 to 20 years imprisonment on the robbery charge, with both sentences running concurrently.

On appeal to Superior Court from appellee's final trial, appellee's counsel raised various claims, including his own ineffectiveness as trial counsel at the first trial in failing to raise and preserve a McCutchen issue. The Superior Court, by per curiam order filed January 4, 1985, remanded appellee's case for appointment of new counsel. Commonwealth v. McBee, 341 Pa.Super. 617, 491 A.2d 919 (1985). In its memorandum opinion, the Superior Court disposed of the ineffective assistance of counsel claim as follows:

This appeal is from a judgment of sentence for second degree murder and robbery. We are unable to address appellant's [appellee's] arguments on appeal because, through appellate counsel, who also represented appellant [appellee] at trial, appellant [appellee] claims, among other things, that trial counsel was ineffective. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Serianni, Pa.Super. , A.2d [1349], (1984) (filed December 19, 1984). Appellant [appellee] argues, however, that we may entertain this appeal since trial counsel's ineffectiveness is clear on the face of the record. See Commonwealth v. Fox, supra. We cannot agree. See Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984) (no rebuttable presumption that juvenile is incompetent to waive Miranda rights without first having opportunity to consult with interested adult); overruling Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983) (interested adult rule of Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), replaced with presumption that juvenile is incompetent to waive Miranda rights).

We therefore remand for the appointment of new counsel to represent appellant [appellee]. Jurisdiction is relinquished.

Mem.Op. at 1-2. We granted the Commonwealth's petition for allowance of appeal and now reverse.

In Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984), the Superior Court held, "that where counsel argues his own ineffectiveness, unless reversible error is apparent from the record, the case must be remanded for the appointment of new, independent counsel." 337 Pa.Super. at 315, 486 A.2d at 1352. However, in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) this Court held "that where it is clear that allegations of ineffectiveness of counsel are baseless or meritless then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed." 505 Pa. at 361, 479 A.2d at 957. The Serianni decision of the Superior Court departed from the controlling law and is now disapproved. When appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless. Thus, appellee's assertion that "a remand for the appointment of counsel is necessary in all cases in which counsel argues his or her own ineffectiveness" is without merit. Appellee's brief at 8.

Our standard of review of the claim of ineffective assistance of counsel remains as follows:

This Court recently reiterated the appellate standards for reviewing claims of ineffective assistance of counsel; in Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983) we stated:

We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605-06, 235 A.2d 349, 352-53 (1967):

[C]ounsel'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.

The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. 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.

Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498 (1980). It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel's decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 696 (1977).

Commonwealth v. McNeil, 506 Pa. 607, 614-15, 487 A.2d 802, 805-06 (1985) (emphasis in original).

Moreover, implicit in these standards is the requirement that the defendant must demonstrate that he was harmed by his attorney's alleged ineffective assistance. As we first observed in Commonwealth ex rel. Washington v. Maroney, supra:

Cases such as Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966) and Commonwealth ex rel. Jones v....

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