Smith, Matter of

• Decision Date: 20 April 1990
• Parties: In the Matter of Brandon SMITH. Appeal of Brandon SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 1077

573 A.2d 1077

393 Pa.Super. 39

In the Matter of Brandon SMITH.

Appeal of Brandon SMITH, Appellant.

Superior Court of Pennsylvania.

Argued June 19, 1989.

Filed April 20, 1990.

Dennis M. Abrams, Bala Cynwyd, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

CAVANAUGH, Judge:

This appeal arises from a dispositional order of the Court of Common Pleas of Philadelphia County, entered after appellant had been adjudicated delinquent on charges of aggravated assault, possession of an instrument of crime, and violation of the Uniform Firearms Act.

The charges arose from an incident during which Perry Stewart was shot in the leg while attempting to intervene in a disturbance between several individuals outside his home. Stewart was taken to the hospital where, some hours later, the police brought appellant for identification. Stewart recognized appellant as his assailant, and subsequently identified him at an adjudicatory hearing.

At the adjudicatory proceeding appellant was represented by the Public Defender's Office. Testimony was taken and, at the conclusion of the hearing, appellant was found to be delinquent. Post-trial motions were filed in which counsel alleged, inter alia, her own ineffectiveness. New counsel was appointed, post-trial relief was denied, and appellant was ordered to be committed to the Glen Mills School. After the denial of relief, post-trial appointed counsel withdrew and present counsel entered his appearance on behalf of appellant. This direct appeal followed.

The issues presented all concern the caliber of representation appellant received from trial counsel--the allegation being that appellant's attorney, in various respects, was derelict in her stewardship of the case. Appellant's ability to present these assertions is predicated upon the right of juveniles to receive effective assistance of counsel once the right to any counsel has attached. It is the existence of this right which appellant now argues. ¹ This appears to be an issue of first impression in Pennsylvania.

The United States Supreme Court concluded in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that certain constitutional guarantees, including the right to assistance of counsel, were to be extended to juveniles. In so holding, the Supreme Court made clear its determination that the quality of representation to be provided was not in question:

A proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him."

387 U.S. at 36, 87 S.Ct. at 1448 (footnotes omitted, emphasis added).

In a further exploration of the necessity for appointment of counsel, the Report by the President's Commission on Law Enforcement and Administration of Justice, "The Challenge of Crime in a Free Society" (1967), is quoted at length in Gault. Pertinent to the question before us is the following statement:

The Commission believes that no single action holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel. The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires. The rights to confront one's accusers, to cross-examine witnesses, to present evidence and testimony of one's own, to be unaffected by prejudicial and unreliable evidence, to participate meaningfully in the dispositional decision, to take an appeal have substantial meaning for the overwhelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively.

387 U.S. at 38 n. 65, 87 S.Ct. at 1449 n. 65 (emphasis added).

In Pennsylvania, the right of a juvenile to assistance of counsel has been codified in the Juvenile Act, 42 Pa.C.S.A. § 6337. To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule of Statutory Construction, 1 Pa.C.S.A. § 1922(1), which specifies that:

In ascertaining the intent of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used.

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

See also, Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and in its progeny, our Supreme Court has reiterated that the right to counsel's assistance must also include the right to effective assistance. Clearly, it is a fundamental tenet of our system of jurisprudence that, once any right to representation has been established, that representation must be constitutionally adequate. Id. at 601, 235 A.2d at 351. That this is true may be seen from examination of the effective assistance right in other contexts.

The right of a juvenile to effective assistance of counsel has been addressed in dicta by this court in In re DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977). Speaking for an en banc court, Judge Spaeth stated:

[s]ince this is not a purely criminal case, the doctrine of ineffectiveness of counsel is not automatically available. A criminal defendant's right to effective counsel is based on the Sixth Amendment of the United States Constitution, made applicable through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A child's constitutional rights in a juvenile proceeding are based entirely on the Due Process Clause of the Fourteenth Amendment. Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, the standard for determining whether the right to counsel has been denied may be different depending on whether the defendant is a criminal defendant or a juvenile.

Id. 249 Pa.Super. at 154-155, 375 A.2d at 806.

However, in light of the development of the law relating to the right to effective representation by counsel, the possible effect of the divergent sources of the right to counsel mentioned in DelSignore has become a distinction without a difference.

Those cases in which this court has found the right to effective assistance of counsel where questions of paternity are involved offer an apt parallel, as they too are civil proceedings which involve the possible loss of physical liberty. In Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), this court concluded that due process compelled the appointment of counsel for indigent defendants in civil paternity suits. In so holding, we determined that "the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required." Id. at 185, 451 A.2d at 483. In deciding whether the due process right to counsel in paternity matters included the right to effective assistance by that counsel, this court in Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984), noted, referring to Gault, that the civil/criminal dichotomy "has been abandoned in favor of an emphasis on the nature of the threatened deprivation." Id. at 200, 486 A.2d at 976. Where the loss of liberty is implicated, counsel must be competent; otherwise, with effectiveness left out of the due process/representation equation, the right to counsel would become meaningless. See also Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988).

In an even more apt analogue, the right to effective assistance of counsel has also been found to exist in the context of civil commitment proceedings. In In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982), our Supreme Court reasoned that "the involuntary civil commitment of mentally ill persons constitutes deprivation of liberty and may be accomplished only in accordance with due process protections." Id. at 156, 454 A.2d at 1010 (citations omitted). The legislature provided, in the Mental Health Act, for counsel to be made available to the alleged incompetent; therefore,

[f]or the legislatively-created right to representation to have meaning, counsel must be effective. Indeed, without the guiding hand of competent counsel, appellee's right to representation would be rendered worthless.

Id. at 157, 454 A.2d at 1011 [Emphasis supplied.] Further echoing the sentiments of Gault, our Supreme Court emphasizes that without adequate counsel, other rights involved in due process, e.g., to cross-examine and confront witnesses, go unexercised. ²

It is important to emphasize the nature and procedural posture of this case. There is no question that at issue is appellant's interest in maintaining his physical liberty. In an instance of a juvenile's commitment to Glen Mills Diagnostic Center this court has noted, "A juvenile has the same substantial interest in retaining his liberty as an adult." In Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988). This case is before us on a direct appeal from the adjudication and disposition of delinquency. It is the sole means available to a juvenile to challenge the legality and propriety of the proceedings and outcome of the juvenile...