OPINION BY MR. JUSTICE ROBERTS, November 14, 1967:
The seminal decision of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932), in which a trial judge's appointment of the entire county bar to defend the Scottboro boys was found to constitute a denial of the "effective assistance of counsel," has produced what is today an axiomatic judicial assumption that any right to representation includes the right to "effective" or "adequate" representation. But a statement of principle rarely solves concrete cases; the difficult questions, requiring that content be given to this right, remain.
Appellant William F. Washington was convicted in 1959 by a judge sitting without a jury of four counts of armed robbery and one count of burglary. He received four concurrent sentences of ten to twenty years for the robberies and one consecutive sentence of two and one-half to five years for the burglary. Defense counsel, a member of the Legal Aid Society of Pittsburgh, prepared but did not file new trial motions and consequently no appeal was taken.
A pro se habeas corpus petition was filed on September 22, 1964 alleging in substance that Washington was denied effective assistance of counsel and that a confession introduced to support the burglary conviction
Courts have employed a variety of formulae — "a mockery of justice,"
Implicit in each of our ineffectiveness cases has been the necessary process of judicial resolution of any claimed denial of the right to effective assistance of counsel. That process must entail a comparison of the trial (and pretrial) course adopted by counsel with the alternatives available. An example of this process is Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967). Sprangle insisted that trial counsel was incompetent for he (1) failed to produce a witness who allegedly observed the offense; (2) failed to elucidate for the jury the type of gun employed in the crime; and (3) introduced into evidence appellant's prior criminal record. Rejecting each of these claims, we found that there existed a reasonable basis to support counsel's chosen course — (1) no purpose would have been served by attempting to uncover the missing witness for there was no showing that he would have been helpful to the defense, (2) discussion of the gun was unnecessary for appellant admitted the shooting and relied upon his claim of self-defense, and (3) introduction of the prior record was explained by the fact that, since Sprangle was testifying (and the record thus admissible to attack credibility), counsel hoped
A similar methodology was utilized in Commonwealth ex rel. LaRue v. Rundle, 417 Pa. 383, 207 A.2d 829 (1965) where the alleged claim of ineffectiveness concerned counsel's failure to stress prior suicide attempts by the murder victim. We concluded that it was well within counsel's discretion to decide the emphasis which should be placed on this element of the defense since this fact had been placed before the jury by appellant's own testimony.
Our task in cases of this nature therefore encompasses both an independent review of the record, see Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967), and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives. Perhaps Brubaker v. Dickson, 310 F.2d 30, 38 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110 (1963),
It thus becomes necessary to examine in some detail the events of trial as amplified by the testimony given at the habeas corpus hearing. Washington, in company with Alvin Dixon and William Balser, allegedly participated in a series of gas station robberies. The first was allegedly perpetrated in the early morning hours of October 6, 1959. The station attendant, badly beaten by the robbers, was unable to identify his assailants. However, Dixon testified that Washington participated in this armed robbery.
Two of the remaining three offenses took place on the night of October 21 and the third on the night of the 22nd. In each of these events the station attendant positively identified Washington at trial as one of the participants and both Dixon and Balser
Norman Sadja, owner of Firearms Unlimited, stated at trial that his establishment was burglarized on two separate occasions, once on August 28 and once on August 30. No inventory was taken until after the second burglary and no attempt was made at trial to show that either of the two guns in Washington's possession were stolen during either offense. However, a Pittsburgh police officer did testify that Washington signed a statement admitting that he had taken "two guns" from Firearms Unlimited but that Washington did not specify on which date. Portions of this statement were read by the officer without objection from Washington's court appointed counsel.
Washington's version of the above events constituted his sole defense. He contended that he had purchased the revolvers from an unknown source as an "investment." While shooting pool, he was allegedly approached by Balser who wished to purchase the weapons. Balser then drove Washington to Washington's home, obtained the guns and then, allegedly without Washington's acquiescence, drove to a gas station and committed the first armed robbery. Washington insisted that his companions forced him to participate in the other robberies by threatening to reveal his role in the first robbery if he did not participate. Washington testified at trial that his statement confessing the burglary was obtained after he had been deprived of sleep, food and bathing facilities for eleven days and after his repeated requests for an attorney were denied. The trial judge then questioned the police officer who
The habeas corpus hearing disclosed that from the time of his arrest to the date of trial Washington had at most three contacts with individuals who were unconnected with the police or prosecutor. His mother visited him once; he had at most two visits from a social worker representing Pittsburgh Legal Aid. The social worker concluded that Washington could afford counsel and so informed Washington's mother (by letter). Washington testified that he saw his attorney for approximately one minute in open court prior to trial. His attorney, having tried over 1,000 cases during his career (as of 1959), had no independent recollection of Washington's trial although he assumed that he must have conversed with appellant for five to ten minutes.
Appellant asserts that counsel's lack of time to confer and prepare is inherently prejudicial and that, combined with three alleged trial errors, must result in a
We thus adopt the following statement of the Superior Court contained in Commonwealth ex rel. Dion v. Tees, 180 Pa. Superior at. 82, 88, 118 A.2d 756, 758 (1955) rejecting the contention that shortness of time per se constitutes ineffectiveness: "The mere allegation of short notice to a defendant and short conference with counsel is not alone self-sustaining. . . ." The length of counsel's conversation with his client is thus
Three tactical errors by trial counsel, here listed in ascending order of importance, are asserted as demonstrative of counsel ineffectiveness: (1) failure to investigate possible witnesses; (2) failure to impeach the testimony of Balser; and (3) failure to object to the introduction of an allegedly coerced burglary confession. The first two asserted errors, directed primarily at the armed robbery convictions, are not sufficient to support a conclusion that counsel's representation did not comport with constitutional mandates. At trial, Dixon testified that one Peter Jackson participated in the October 6 robbery and appellant mentioned that an unidentified girl was also present. Post-conviction counsel now insists that some attempt should have been made to ascertain the knowledge that these individuals might have possessed as to the particulars of the first robbery; however, no testimony was offered at the hearing and no facts were alleged tending to show that their testimony would have been helpful. Therefore, as we held in Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967), this alleged error, absent a demonstration that
Trial counsel stated at the habeas corpus hearing that he could have checked the "pink sheets" (apparently Federal Bureau of Investigation Identification Records) to ascertain if either of the two accomplices had a criminal record.
Trial counsel's failure to object to the confession stands upon a different footing. Since the store owner did not testify that any of the revolvers found in Washington's possession were stolen, the entire Commonwealth case rested upon Washington's confession. Counsel's failure to object to admission of this confession can be most easily explained by insufficient
We can find no reasonable legal basis to support counsel's failure to object. Without this confession the prosecution's case would have had no evidentiary basis. Nor is this a case such as Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967) where the confession was-exculpatory and formed an integral part of defense strategy. Even the Commonwealth offers no possible explanation for counsel's actions. We therefore are constrained to conclude that, as to the burglary conviction, appellant was deprived of effective assistance of counsel and: as to that conviction a new trial is granted.
Jones v. Cunningham, 313 F.2d 347 (4th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 42 (1963), is in all material particulars identical to the instant case. Jones' attorney was appointed on the eve of trial and made no attempt to investigate an allegedly coerced confession. The court there stressed that a span of three days between arrest and confession combined with a delay in the holding of a preliminary hearing should have alerted counsel that something might well have been amiss. Washington was arrested on October
. . .
"It was no more than a gesture to equip Jones for his day in court with a lawyer of excellent reputation who sought no more than the fleeting opportunity to consult with the accused and made no effort to map out possible defenses.
. . .
"Here the case was not shipwrecked by bad seamanship; it was never launched."
Both the trial judge and the Commonwealth apparently proceeded on the assumption that an allegation of ineffective assistance attacks trial counsel's general competence. The trial judge, in his opinion denying the habeas corpus petition, observed: "We know . . . [trial counsel] to be a competent and able counsel and find that relator was afforded effective and adequate counsel at his trial." The issue is not counsel's reputation or his ability, but his stewardship of the challenged trial.
Appellant offers as an independent basis for reversal that his confession was involuntary under the standards enunciated in Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761 (1966); the Commonwealth counters with an assertion that at best appellant is entitled to an evidentiary hearing pursuant to Jackson v. Den no, 378 U.S. 368, 84 S.Ct. 1774 (1964). Since we have vacated appellant's burglary conviction, the validity of his confession, if introduced at the new trial, can there be litigated. Furthermore, we find it unnecessary to treat appellant's contentions that his waiver of a jury trial was not voluntary and that he did not waive his right to appeal, for these matters were not raised in the habeas corpus petition and no motion to amend was tendered. See Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967); Commonwealth ex rel. Banks v. Myers, 423 Pa. 124, 128-29, 222 A.2d 880, 882 (1966).
The orders of the Court of Common Pleas of Allegheny County and the Superior Court are affirmed as to indictments Nos. 106, 107, 111 and 112, Oyer and Terminer November Sessions, 1959 (armed robbery indictments), and are reversed as to indictment No. 108 (burglary indictment); that judgment is vacated and a new trial granted.
Mr. Justice MUSMANNO took no part in the consideration or decision of this case.
CONCURRING AND DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
This appeal involves several 1959 convictions during which defendant was represented by an attorney who had tried over a thousand criminal cases. It is to the credit of the attorney that he could not remember
I would affirm all the convictions and judgments of sentences and the orders of the lower Court which were entered in this habeas corpus proceeding.