386 A.2d 99 | Pa. Super. Ct. | 1978
Lead Opinion
Appellant, John C. Broomell, was charged with the, crimes of rape by forcible compulsion,
The lower court in its opinion filed pursuant to the Pa.R.App.P. Rule 1925(a) stated that the issue involving Rule 1100 was non meritorious because the case was brought to trial within the required time. Present appellate counsel agrees with the lower court since it is apparent that the trial started on the 269th day after the filing of the complaint and the 270 day rule was in effect. The other three issues were disposed of by the lower court by a statement that it was not possible to determine whether trial counsel’s failure to object concerning the testimony set forth in grounds 2-4 of the statement of matters complained of constituted ineffectiveness of counsel because such may have been a tactical decision. The lower court concluded that trial counsel was not ineffective and that appellant was not entitled to a new trial. It was also the lower court’s opinion that since those four were the only matters raised by appellant in his statement of matters complained of that all other possible issues were waived. Rule 1925, supra, footnote 4, states that failure to comply with the direction of the lower court to file
The facts present a somewhat anomalous situation in so far as present appellate counsel is alleging, in the same appeal, that the initial appellate counsel was ineffective. The additional issues raised by present counsel in support of his contention that first appellate counsel was ineffective are very similar in nature to those present in the statement of matters complained of. The issues essentially involve the failure of trial counsel to make objections to the introduction of certain evidence and the failure to emphasize certain points of the case in his closing. All of the additional issues as well as the issues raised in the statement of matters complained of were points that could have been the subject of trial counsel’s strategy. The standard established in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) has often been repeated.
Counsel’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 interest. The test is not whether some 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 some reasonable basis. 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).
Remanded for further proceedings in accordance with this Opinion.
. Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S. § 3121.
. Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S. § 3126.
. Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa. C.S. § 3125.
. (b) Direction to file statement of matters complained of.
If the lower court is uncertain as to the basis for the appeal, the lower court may direct the appellant forthwith to file of record in the*576 lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Concurrence Opinion
concurring:
I join in the majority opinion but suggest that on remand new counsel be appointed who is not a Public Defender, see Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1975), and who therefore can raise additional ineffectiveness contentions, if that proves warranted.