Commonwealth v. Garvin

• Decision Date: 23 November 1984
• Citation: 335 Pa.Super. 560,485 A.2d 36
• Parties: COMMONWEALTH of Pennsylvania v. David GARVIN, Appellant.
• Court: Pennsylvania Superior Court

485 A.2d 36

335 Pa.Super. 560

COMMONWEALTH of Pennsylvania v. David GARVIN, Appellant.

Superior Court of Pennsylvania.

November 23, 1984

Argued Feb. 3, 1984.

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

Eric B. Henson, Deputy Dist. Atty., and Maxine Stotland, Asst Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO BECK, POPOVICH and HESTER, JJ.

CIRILLO, Judge:

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, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court distinguished between the performance component ^[1] of the analysis of ineffective assistance of counsel claims and the prejudice component of the analysis of such claims.

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. ^[2] The guiding 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 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. ^[3]

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 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). 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, files a concurring opinion.

BECK and POPOVICH, JJ., concur in the result.

BROSKY, J files a dissenting opinion.

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, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (filed May 14, 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 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...