Commonwealth v. Sullivan

• Decision Date: 28 February 1977
• Citation: 371 A.2d 468,472 Pa. 129
• Parties: COMMONWEALTH of Pennsylvania v. John SULLIVAN, Appellant (two cases). COMMONWEALTH of Pennsylvania, Appellant, v. John SULLIVAN.
• Court: Pennsylvania Supreme Court

371 A.2d 468

472 Pa. 129

COMMONWEALTH of Pennsylvania v. John SULLIVAN, Appellant (two cases).

COMMONWEALTH of Pennsylvania, Appellant, v. John SULLIVAN.

Supreme Court of Pennsylvania.

February 28, 1977

Argued Jan. 16, 1975. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Marilyn J. Gelb, Philadelphia, for appellant at Nos. 121 and 122 and appellee at No. 127.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Philadelphia, for appellant at No. 127 and appellees at Nos. 121 and 122.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

On the evening of June 17, 1966, John Gorey, an officer of Teamsters Union Local 107, and his friend, Rita Janda, were fatally shot at the local union's Philadelphia office building. In November of that year, on the basis of evidence presented at a Medical Examiner's inquest, John Sullivan, also an officer of the local, was charged with both murders. ^[1]

Sullivan's jury trial began on June 7, 1967. On June 19, 1967, the jury found him guilty of two counts of murder in the first degree. The following day, the jury determined that Sullivan should be sentenced to serve two consecutive terms of life imprisonment. ^[2] Post-verdict motions were denied and judgments of sentence were entered. ^[3]

Sullivan appealed to this Court and, because the Court was equally divided, the judgments of sentence were upheld. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1970). This Court denied a petition for reargument and later denied a self-styled 'Petition for Leave to File a Petition for Re-consideration of the Petition for Reargument.'

In 1974, Sullivan filed a petition for relief pursuant to the Post Conviction Hearing Act ^[4] in the Court of Common Pleas of Philadelphia. In this petition he asserted that (1) his trial counsel had been ineffective; (2) his appellate counsel had been ineffective; (3) numerous prejudicial errors had been committed during his trial; (4) the evidence the Commonwealth adduced at trial was insufficient to support a conviction of murder in the first degree; and (5) after discovered evidence entitled him to a new trial. Sullivan requested that he be discharged, granted a new trial, or granted appropriate relief.

After a hearing, the court concluded that Sullivan had not received effective assistance of counsel on appeal. It therefore issued an order granting Sullivan leave to file a new appeal to this Court. The court denied Sullivan relief on his other claims finding that some were without merit and that others were available to him in his new direct appeal to this Court. ^[5]

Three appeals resulted from the PCHA court's order. Appeal number 127 is the Commonwealth's appeal from the order granting appellant a new appeal; appeal number 121 is Sullivan's direct appeal; appeal number 122 is Sullivan's appeal from the PCHA court's denial of relief on other grounds. We will consider first the Commonwealth's appeal.

I.

The Commonwealth argues that the PCHA court erred in granting Sullivan a new appeal because (1) the court was without authority to do so, and (2) the record fails to support the court's conclusion that Sullivan did not receive effective assistance of appellate counsel.

Initially, the Commonwealth argues that under the PCHA, 'a trial-level court' cannot find that a petitioner's appellate counsel was ineffective and grant him leave to file a new appeal. Although the Commonwealth concedes that a claim of ineffective assistance of appellate counsel is cognizable under the PCHA, it maintains that 'a rational system of judicial decision making demand(s) that (the court in which the direct appeal was initially filed) determine the effectiveness of representation by appellate counsel.' Apparently, the Commonwealth would have a PCHA petitioner file his petition directly with the appellate court.

We cannot agree that such a procedure is desirable. Certainly the PCHA and our rules governing post-conviction proceedings, Pa.R.Crim.P. 1501--06, mandate that the hearing court initially decide a petitioner's claim.

Section 5 of the PCHA grants jurisdiction initially to the court that imposed the judgment of sentence:

'(a) Any person who desires to obtain relief under this act may initiate a post conviction proceeding by filing a petition . . . with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same.'

Post Conviction Hearing Act § 5(a), 19 P.S. § 1180--5(a) (Supp.1975). See Pa.R.Crim.P. 1502.

Section 10 of the PCHA grants to the hearing court the power to initially fashion the appropriate relief. Post Conviction Hearing Act, § 10, 19 P.S. § 1180--10 (Supp.1975). Only when one of the parties is aggrieved by the order of the hearing court may the case be taken to an appellate court and then only by the traditional avenues of appeal. Post Conviction Hearing Act, § 11, 19 P.S. § 1180--11 (Supp.1975).

The Act thus makes no provision for the hearing of claims for PCHA relief in any court other than the court in which the judgment was originally entered. We decline the Commonwealth's invitation to ignore the statute and existing practice and adopt a drastically new procedure.

We believe that the statutory allocation of judicial responsibility in the determination of claims raised under the PCHA necessarily reflects the institutional capabilities of trial and appellate courts. When deciding a claim of ineffective appellate counsel, the hearing court must determine if the course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); Cf. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Because this decision requires an examination of counsel's stewardship of the appeal in light of the available alternatives, it often will be necessary to call counsel whose assistance is challenged as ineffective so he may explain the decisions he made in the course of the appeal. Furthermore, both the petitioner and the Commonwealth may wish to call additional witnesses and present other evidence relevant to the petitioner's claim. Cf. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1974); ^[6] Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1974); Commonwealth v. Murray, 445 Pa. 546, 284 A.2d 778 (1971). For this reason, the statute wisely requires petitioner to present all claims for relief to a trial court which has the facilities to hear and make findings of fact. The structure and function of an appellate court precludes it from being an initial factfinder. ^[7] See e.g., Reed v. Universal C.I.T. Corp., 434 Pa. 212, 217, 253 A.2d 101, 104 (1969).

We do not view a PCHA court's finding of ineffective appellate counsel after an evidentiary hearing as a challenge to the integrity of appellate decisions. Such a determination merely finds that counsel's ineffective stewardship of the appeal failed to adequately present to the appellate court some claim or claims upon which petitioner may have been entitled to relief. In determining whether appellate counsel was effective, the PCHA court passes not on our decision, but only on the conduct of the counsel who presented the appeal. ^[8] This the PCHA court does on a new record established in an evidentiary hearing--a record not before the appellate court on direct appeal.

Moreover, the appellate court is not bound by the decision of the PCHA court. If the Commonwealth believes that the evidence is insufficient to support the court's findings of fact or its legal conclusion that counsel was ineffective, the Commonwealth may appeal to the appropriate appellate court as was done in the present case. Post Conviction Hearing Act, § 11, 19 P.S. § 1180--11 (Supp.1975).

In the instant case, Sullivan bases his claim of ineffective assistance of appellate counsel on two grounds: (1) the failure of counsel to file a brief in this Court and, (2) counsel's decision not to argue the case orally. The Commonwealth asserts that a brief, in fact, had been filed and that the decision to submit the case on briefs was reasonably made in Sullivan's best interests.

On the basis of the testimony adduced at the Post Conviction Hearing, the PCHA court reached the following conclusion:

'A careful consideration of all the testimony concerning defendant's appellate rights clearly indicates that oral argument was not waived by defendant and that there was considerable confusion between counsel concerning the appeal due to Judge Di Bona's appointment to the bench and Mr. Peruto's heavy trial schedule. ^[9] In a matter involving a conviction for first degree murder, it is our opinion that defendant's right should have been fully protected and every possible argument fully explored. We cannot say that this was done in this case.

'We are mindful of the fact that the Supreme Court divided evenly in its decision in this case. Oral argument might have persuaded a different decision. Furthermore, defendant was entitled to a carefully prepared brief by his counsel so that his argument could be fully presented and it does not appear that was done in this case. To this extent we find as a fact that there was ineffective assistance of counsel and that this requires granting defendant relief.'

The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d...