COMMONWEALTH of Pennsylvania v. James Allen GARDNER, Appellant
Supreme Court of Pennsylvania
Submitted May 22, 1978. Decided July 14, 1978.
389 A.2d 58
I fail to see the importance of appellant‘s failure to offer reasons why he was unprepared. The reason might have beеn a personal one, one which the appellant did not wish to make public. What if an attorney offers a reason why he or she is not prepared and the trial court is not satisfied with the reason? Can the trial court proceеd to order an unprepared lawyer to represent someone and hold that lawyer in contempt if the lawyer, in good conscience, refuses to do so? I would hope not.
Whatever the true reason for appellаnt‘s unpreparedness, he disobeyed a court directive only because he thought it would unjustly jeopardize his client‘s interests. I cannot join in any court decision which would penalize an attorney for such a course of action.
Mоreover, the majority cites no authority for the proposition that a trial judge has the discretion to deny a motion to withdraw. There is no evidence of previous delay in this case. It may be, although the record is silent on the matter, thаt thousands of prosecution witnesses were standing by waiting to testify in this earth-shaking case involving not merely murder or rape-but prostitution. Trial courts, of course, must grind out speedy justice in these momentous cases.
Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
A jury convictеd appellant, James Gardner, of murder of the first degree. Appellant was represented at trial by retained counsel. The trial court denied appellant‘s post-verdict motions. Appellant, represented again by trial сounsel, contends that (1) the verdict is not supported by sufficient evidence; (2) an incriminating statement he gave police should have been suppressed; (3) the system of selecting jurors at his trial unconstitutionally excluded blacks; and (4) trial counsel was ineffective for failing to object to the court‘s jury charge. We remand to afford appellant an opportunity to select new counsel or, if eligible, for appointment of counsel. We therefore do not reach the merits of the issues raised.*
Appellant did not raise ineffectiveness of trial counsel on post-verdict motions. He has not waived that issue, however, because he was represented on post-verdict motions by his trial counsel. Failure to raise a claim of ineffectiveness of trial counsel does not constitute a waiver
When an appellant raising ineffectiveness of аppointed trial counsel is represented on appeal by the same counsel, he is entitled to a remand for appointment of new counsel not associated with trial counsel unless ineffective assistance of counsel is clear on the face of the record. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, supra; Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). “In such circumstances, it cannot ‘be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.‘” Commonwealth v. Patrick, 477 Pa. at 287, 383 A.2d at 936, quoting Commonwealth v. Fox, 476 Pa. at 479, 383 A.2d at 200.
No less is an accused entitled to this “zealous advocacy” when he has obtained private counsel. The accused enjoys the same right to effective representation whether his counsel is appointed or privately retained. Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 227 A.2d 845 (1967); Commonwealth ex rel. Stevens v. Myers, 424 Pa. 377, 227 A.2d 649 (1967); accord, Moore v. United States, 432 F.2d 730 (3rd Cir. 1970); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976), reh. denied, 534 F.2d 1407 (1976); People v. Virgil, 54 Ill.App.3d 682, 12 Ill.Dec. 451, 370 N.E.2d 74 (1977); Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975); State v. Moss, 185 Neb. 536, 177 N.W.2d 284 (1970); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); Newton v. State, 456 S.W.2d 939 (Tex.Ct.Cr.App. 1970); In re King, 133 Vt. 245, 336 A.2d 195 (1975); State v. Hess, 12 Wash.App. 787, 532 P.2d 1173 (1975), aff‘d, 86 Wash.2d 51, 541 P.2d 1222 (1975); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution and the Defense Function, The Defense Function § 3.9 (Approved Draft, 1971). Thus, if appointed counsel on appeal is deemed unlikely to provide effective rеpre-
Accordingly, when an appellant raising ineffectiveness of retained triаl counsel is represented on appeal by the same counsel, the proper procedure is to remand to permit him an opportunity to select new counsel not associated with trial counsel. The appellant, of course, need not acquire new counsel, for every person has a right to retain counsel of his choice. Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976); Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976). But before an appellant decides to retain his counsel, he should be made aware of the dangers and possible disadvantages of proceeding with counsel he asserts is ineffective. Therefore, on remand, the court should inform the appellant of the facts necessary to ensure that his decision is knowing and intelligent. Cf. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (defendаnt desiring to represent himself must be aware of dangers involved in foregoing counsel); Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976) (same); see also Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978) (court must inform defendant of appellate rights); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978) (waiver of right to trial invalid unless court probes defendant‘s knowledge and understanding of right to trial).
Because ineffective assistance of appellаnt‘s trial counsel is not apparent from the record, we remand to the trial court to permit appellant, if he desires, to select new counsel, not associated with trial counsel, to represent him on the issue of ineffeсtiveness of trial counsel and any other issue properly preserved for appellate review. Commonwealth v. Patrick, supra; Commonwealth v. Fox, supra. If eligible, appellant may instead request the court to appoint new counsel for this purpose.
Remanded for proceedings consistent with this opinion.
LARSEN, J., concurs in the result.
POMEROY, J., files a dissenting opinion.
Several practical and conceptual problems raised by today‘s decision lead me to dissent from the Court‘s disposition of this case.
I have no quarrel with the majority‘s conclusion that retained counsel, like appointed counsel, should nоt be expected to argue his own ineffectiveness as trial counsel while he continues to represent his client on direct appeal. Indeed, it is clear in this case that the ineffectiveness issue, if raised by other, new, counsel (whether appointed or retained) at the first available later opportunity, would not be deemed waived under the rationale of Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435 (1975), and its progeny. Rather than permit the issue to be raised in the normal course, however, the Court sua sponte remands to the trial court to permit appellant to decide whether he wishes the issue to be presented on appeal by the same lawyer who now asserts that he did not render effective assistance at trial. Presumably this сhoice is to be given appellant because the majority believes that, in exercising his right to be represented by the counsel of his choice, appellant may choose to accept “the dangers and possiblе disadvantages of proceeding with counsel he asserts is [sic] ineffective.” Opinion of the Court, ante at 11.
It may be assumed that one of the dangers referred to is that “it is unrealistic to expect trial counsel on direct appeal to аrgue his own ineffectiveness,” Commonwealth v. Dancer, supra. It is this concern which has caused this Court to require in several recent decisions that new counsel be selected. Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978). Apart from the presumption that allegedly ineffective counsel cannot providе his appellant-client-and, one might add, the appellate court-with “zealous advocacy,” Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200, on the issue of ineffectiveness, the Court does not
Two other aspects of today‘s disposition are, in my view, at varianсe with the concept of fairness to the defendant and with the goal of judicial economy that should mark criminal appellate jurisprudence. The first is the Court‘s
The remaining troublesome aspect of today‘s decision is the majority‘s unstated premise that the issue of appellate counsel‘s own ineffectiveness at trial should be entertained at this stage although it was not raised in the court below on pоst-trial motions. In a case presenting exactly the same circumstances as those present here, the Superior Court has held that counsel would not be permitted to raise his own ineffectiveness on direct appeal whеn he had not presented that issue at the first opportunity available to him, viz., in the trial court on post-verdict motions. Commonwealth v. Matt, 249 Pa.Super. 98, 375 A.2d 777 (1977). This holding serves an appellate court‘s important interest in having issues resolved first by the trial court. See, e. g., Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Blair, 460 Pa. 31, 33 n.1, 331 A.2d 213, 214 n.1 (1975);