Matter of Smith

assistance of to effective equated right with the counsel is Id. counsel. here examine contrast, right to counsel we

By way mini 42 Pa.C.S. 6337. Without is creature of statute. § of a in the outcome parent of a mizing the interest natural any property it can not be said proceeding, dependency or “fundamental” either parent interest of the liberty depend fair within the context to a trial” “essential Social Department v. proceeding. Lassiter ency Cf. 2159-2161, at 27-29, 101 S.Ct. Services, 452 U.S. at 649-651; U.S. Eldridge, L.Ed.2d at Mathews our 893, 903, L.Ed.2d While 335, 96 S.Ct. proceeding to a any party has decreed that legislature to representation Act entitled under Juvenile elevate that counsel, attempted not legislature has dimension. Nor one of constitutional statutory our cases that through I solid trail found a clear and have an permit would such elevation. concept of ineffective assistance I conclude that the

Since proceeding civil place dependency no of counsel has I paramount, do needs of the child are where the might be raised. how and such an issue consider when into principle attempt introduce reject I, therefore, dissent. proceedings. dependency 573 A.2d 1077 SMITH. Matter of Brandon SMITH, Appeal Appellant. of Brandon Superior Pennsylvania. Court

Argued June 1989. April

Filed 1990. Abrams, appellant. Bala for Cynwyd, Dennis M. Com., Sacks, for Atty., Philadelphia, Asst. Dist. Alan appellee. CAVANAUGH, CIRILLO, Judge, and

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

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

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

At adjudicatory proceeding appellant represented was Public Defender’s Testimony and, Office. was taken at the hearing, appellant conclusion of the was found to be delinquent. Post-trial motions were filed which counsel alia, inter alleged, her own ineffectiveness. New counsel appointed, denied, was relief post-trial and appellant was was ordered to be committed Glen Mills School. relief, After the denial of post-trial appointed counsel with- his present appearance drew counsel entered on behalf appellant. appeal This direct followed. presented representa- issues all concern caliber appellant tion received from trial allegation counsel—the being appellant’s attorney, respects, various was Appellant’s ability derelict in her of the case. stewardship predicated upon these assertions is present to receive effective assistance of counsel once the juveniles It is of to counsel has attached. the existence right any to appellant argues.1 appears now This be an right Pennsylvania. of first in impression issue In re concluded Supreme The Court United States Gault, 18 L.Ed.2d 387 U.S. S.Ct. including right the to guarantees, constitutional

certain counsel, to In juveniles. of to extended were be assistance below, 1. Although presented the trial court declined to this-issue was address it. determination Court made clear its holding, Supreme the so provided of to be was quality representation the question: is the child will the issue whether be proceeding

A where of to the loss his subjected to and “delinquent” found felony to a comparable for is seriousness liberty years The needs assistance of counsel the prosecution. juvenile to make skilled law, into inquiry of cope problems to with facts, upon regularity proceedings, insist to prepare he has a defense and to ascertain whether hand of coun- guiding it. The child “requires submit him.” step proceedings against sel in the every at (footnotes omitted, emphasis at 1448 387 U.S. at 87 S.Ct. added). appointment

In of the for exploration necessity a further counsel, Report by the President’s Commission on Justice, “The and Administration of Chal- Law Enforcement (1967), quoted length in a at lenge Society” of Crime Free us the follow- Gault. question Pertinent before ing statement: holds single that no action

The Commission believes for achieving procedural justice for potential more The provision in the court than counsel. juvenile child independent legal representative of an presence of the whole child, keystone or of his is the parent, proce- minimum system that a guarantees structure rights to confront one’s ac- requires. justice dural witnesses, cusers, evidence present to cross-examine own, to by preju- of one’s be unaffected testimony evidence, meaningfully to participate dicial and unreliable decision, dispositional appeal an have take sub- meaning overwhelming majority per- thé stantial they are only brought court sons before if who can invoke those provided competent lawyers rights effectively. added). (emphasis at n. at 1449 n. 65

387 U.S. 87 S.Ct. of a to assistance of Pennsylvania, Act, has in the Juvenile 42 Pa.C.S.A. been codified 44 6337. To assume that what is meant

§ assistance of counsel does not able, include the concept effective representation is to ascribe to the statute a ludicrous result, is, that that such counsel need not be perform able to appropriately, all, indeed at to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule Statu- Construction, tory 1 1922(1), Pa.C.S.A. specifies § that:

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

(1) That the General Assembly does not intend result absurd, impossible is of execution or unreasonable. also, Gruver, See Gruver 194, v. 372 Pa.Super. 539 A.2d (1988). In Commonwealth ex rel. Washington v. Maroney, 427 599, Pa. 235 A.2d 349 and in progeny, its our Supreme Court has right reiterated that to counsel’s right assistance must also include the to effective assist- ance. Clearly, it is a fundamental tenet system of our jurisprudence that, any right representation once has established, representation been must be constitutional- ly Id., adequate. 427 at 235 A.2d at 351. That this is true seen from examination of the effective assist- ance in other right contexts. of a right effective assistance counsel

has in dicta court in re been addressed this In DelSig- nore, 375 A.2d 803 Speaking court, Judge an Spaeth en banc stated: case, [sjince purely not a criminal the doctrine of is not automatically ineffectiveness available. A criminal defendant’s to effective counsel based on the Amendment of the United States Constitu- Sixth tion, Fourteenth Amend- applicable through the made S.Ct. ment. 372 U.S. Wainwright, Gideon (1963); Alabama, 45, 53 Powell v. 287 U.S. L.Ed.2d (1932). A child’s S.Ct. 77 L.Ed. 158 constitutional entirely on the are based proceeding in a rights Amendment. Re Fourteenth Due Process Clause of the (1967). 1428, 527 Gault, 387 1, 18 L.Ed.2d 87 S.Ct. U.S. to right Thus, determining for whether the standard depending on denied be different counsel has been juve- or a is a criminal defendant the defendant whether nile. 154-155, 375 A.2d at 806.

Id. 249 at Pa.Super. relating However, of the law light development in of the counsel, representation to effective right to the right divergent sources effect of the possible a distinction DelSignore in has become mentioned a difference. without right has found in this court

Those cases which of paternity questions of counsel where effective assistance too are civil they as apt parallel, involved offer an are of physical loss possible involve the proceedings Coll, 179, A.2d 480 451 Pa.Super. 305 Corra liberty. compelled process that due (1982), court concluded in civil defendants indigent of counsel appointment “the determined holding, In so we suits. paternity wheth determining unavailing is distinction civil/criminal Id., Pa.Superi 305 required.” constitutionally er counsel the due 185, deciding 483. In whether 451 A.2d at or Ct. at included matters paternity to counsel process right counsel, this court to effective assistance right (1984), 197, 974 Randle, 486 A.2d Pa.Super. 337 Banks v. Gault, dichotomy noted, that the civil/criminal referring to on the nature emphasis of an favor “has been abandoned Id., at Ct. Pa.Superior deprivation.” of the threatened liberty implicat the loss 486 A.2d at 976. Where otherwise, effective with ed, competent; counsel must be equation, process/representation ness left out of the due meaningless. See also to counsel would become right Dakota, A.2d 301 Kitrell v. right to effective analogue, apt In an even more in the to exist has also been found assistance of counsel In In re Hutch- proceedings. context of civil commitment inson, Pa. 454 A.2d 1008 our Supreme Court reasoned that “the involuntary civil commitment of ill mentally persons constitutes deprivation liberty may be accomplished only accordance due process protections.” Id., (citations 500 Pa. at 454 A.2d at 1010 omitted). The legislature provided, in the Mental Health Act, for counsel to made alleged available to the incom- therefore, petent; the legislatively-created right to representation

[f]or meaning, have Indeed, counsel must be effective. with- out the hand guiding competent counsel, appellee’s representation would be rendered worthless. Id., 500 Pa. at 454 A.2d at [Emphasis supplied.] echoing Further Gault, sentiments of Supreme our emphasizes Court counsel, that without adequate other rights process, involved due e.g., to cross-examine and witnesses, confront go unexercised.2 It important is to emphasize the nature procedural posture of this case. question There is no that at issue is appellant’s interest maintaining physical his liberty. an instance of a juvenile’s commitment to Mills Diag- Glen noted, nostic Center this court has “A juvenile has the same substantial interest in retaining liberty his as an adult.” In Davis, 46, 377 Pa.Super. Interest 546 A.2d 1149 of This case is appeal before us on a direct from the adjudica- tion and disposition delinquency. of It is the sole means juvenile challenge available to a legality proprie- ty proceedings juvenile of and outcome of the court. liberty process 2. Concern for the and due interests of children has led application principles normally to the er. reserved for the adult offend- See, Davis, Pa.Super. In Interest 377 546 A.2d 1149 (an panel right en banc of this court extended the of confrontation to juvenile probationary a whose status was revoked on the basis of Becker, hearsay testimony); Pa.Super. In re 370 536 A.2d 1370 (1988) (analysis juvenile petition same as that of amendment under Saladin, cases); relating Pa.R.Crim.P. per. to criminal In re 359 Pa.Su- (1986) (in determining existence of conflict of 518 A.2d 1258 juvenile adjudicatory hearing representation stan- interest in dard 476 A.2d 11 at same Mellott, adults.); Pa.Super. applies In Interest as to (1984) hearing (suppression adjudicatory of statement at rights prior juvenile of Miranda to custodial inter- where rogation). not warned brought a collateral attack after are not faced with We Rather the issue of appeal. on a direct appellate review for the first is an tribunal appellate effectiveness before time. are regarded juvenile dispositions with which gravity they by be considered may

is the fact evidenced crimi- subsequent in a adult determining court in sentence Krum, nal case. Commonwealth 6354(b)(1). The effect a (1987); 42 Pa.C.S.A. A.2d § in the upon one’s later treatment record have juvenile be substantial. justice criminal can of a is the juvenile subject We conclude that a who to effective assistance petition entitled delinquency dispositional phases adjudicatory counsel at proceedings. has the Having determined that counsel, the next issue determina assistance effective is to be mea competency tion of the standard that, of interests of given near-identity find sured. We in delinquency in a case and a juvenile criminal defendant of matters the same standard both sorts proceedings, applied. should be criminal cases has been applicable

The standard adult articulated as follows: is whether the inquiry

The threshold such claims has foregone which counsel issue/argument/tactic for the assertion ineffectiveness which forms basis merit; for cannot be considered arguable is of counsel a meritless claim. Com- failing ineffective to assert (1985). Pursell, v. 508 Pa. A.2d 183 monwealth met, it If this threshold is must next be established had no particular course chosen counsel reasonable designed to effectuate his client’s interest. Com- basis Washington ex rel. 427 Pa. Maroney, monwealth (1967). require 235 A.2d 349 we that the defen- Finally, counsel’s commission or omission prej- dant establish how udiced him. Pierce, Commonwealth v. 515 Pa. (1987). A.2d 973

In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial have, counsel may fact, been ineffective. This is so because we upon frown considering claims of ineffective- ness of counsel in a vacuum. Pettus, Commonwealth v. 492 Pa. (1981). A.2d 1332 Durst, Commonwealth v. 2, 3, 522 Pa. 559 A.2d The constitutionally-mandated similarities between crimi- nal and delinquency proceedings make application of a uniform standard desirable. The liberty interest of a juve- nile which is at stake in a delinquency matter requires application of the same advocacy skills as those employed by counsel in criminal cases. Delinquency proceedings, terms of procedure both and potential outcome, are closer in nature to criminal cases than they are to cases involving issues of dependency and termination of parental rights. The substantive issues of law involved delinquency adju- dications and dispositions originate from the criminal law.3 Therefore, find that analysis we of the effectiveness of matters requires application of the same standard as that employed review of adult criminal cases. error,

The next issue before us is whether claims of specifically challenge the effectiveness of counsel’s representation, pertaining juvenile proceedings must be preserved through filing post-trial motions in the lower court. The Act does provide Juvenile for the “delinquent A3. act" is defined as follows: (1) designated The term means an act a crime under the law of Commonwealth, or of another state if the act occurred in that state, law, or under local or under Federal ordinances. (2) The term shall not include: murder; (i) the crime of offenses, (ii) summary pay unless the child fails to a fine levied thereunder, of such fact shall be certified to in which event notice the court. 42 Pa.C.S.A. 6302. § provide does the Act itself motions. Nor filing post-trial of of right appeal generates appeal. of Rather right for a Constitution, V, Article section Pennsylvania from from a court of record appeal of guarantees has established that the court. Case law appellate to an and not order dispositional lies from the appeal properly McDonough, Interest order. In the adjudicatory from of (1981). The question 430 A.2d 308 Pa.Super. motions post-decision of requirement whether the remains proceedings. imposed juvenile should be is to allow a trial court post-trial motions purpose upon allegations rule to consider and opportunity integrity judicial it. The interest error committed court whose actions are are served where the economy to address the concerns of is afforded the chance challenged losing party. motions filing post-verdict In criminal matters the is mandated Pa.R.Crim.P. appeal issues for preserve apply Procedure do not 1123. The Rules of Criminal Becker, Pa.Super. 536 A.2d matters. In re juvenile however, find, that the (1988); Pa.Rule 1. We Crim.P. requirement motion application post-adjudication of a economy the same interest of cases would serve juvenile Post-adjudication as it does in criminal cases. and review appears filed in this case and it motions were cases is not uncommon. practice juvenile mo- requiring post-adjudication Additional reasons for are the of the waiver doctrine4 and the applicability tions matters. appeal process juvenile of the direct finality reviewed on direct may presented issues not be Since below, the properly preserved unless have been appeal they and the motion affords both post-adjudication all issues which be the opportunity court the to address there exists no possible appeal. The fact that subject matters militates statutory appeal collateral from assistance of counsel questions favor of ineffective See, DelSignore, In re 375 A.2d 803 4. being fully considered at both the trial and direct appeal levels.

The absence of a post-adjudication motion procedure would result in and, in delay cases, some complete preclu- sion of appellate review issues in juvenile matters. With- out application of post-adjudication motions, the direct ap- peal procedure would not resolve effectiveness pos- issues tured similarly to the one here under scrutiny. Without them, counsel, trial who was replaced after arguing her own in post motions, ineffectiveness trial would not have been present able to this claim court, to the trial hence no new counsel would have been appointed for the appeal. Instead, we would hear the issue of alleged ineffectiveness, and would be required to return the case to the trial court for appointment of new counsel and a hearing. Conversely, were counsel unprepared, reason, for whatever to proclaim her ineffectiveness, own no such allegation would ever appear before us. Since the waiver rule does in fact exist applied and is in juvenile dispositions, the badly represented child would have no avenue redress unless the broad scope review already afforded this in juvenile court matters were further extended to include the power to raise of,counsel’s all questions sponte. sua stewardship mechanism of post-adjudication motions at the trial court timely ensures both and thorough review of claims of ineffectiveness of counsel. conclude, therefore,

We that the procedure used in the proper, instant case was and that post-adjudication motions are appropriate by allegations means which of ineffec- counsel are brought tiveness of before trial court and are for preserved appellate review.5 turn to of his appellant’s specific allegations

We now appel- It is first contended that attorney’s incompetence. waiving lant’s trial counsel was ineffective viable court, panel Clay, 5. A decision of this Commonwealth v. post-verdict stated that motions were not 546 A.2d by preserve appeal issues for in a correct means holding Clay is with the matter. To the extent that inconsistent disapproved. instant case it is trial had filed a counsel suppression Appellant’s motion. his arrest and/or identification. suppress motion to pre-trial 23, 1987, it However, March hearing at the on became was arresting testify, officer unavailable known that the Commonwealth, in- due his despite subpoena Thus a a continu- request in another trial. for volvement necessitated, and in re- was ance the Commonwealth sup- motion to thereto, defense counsel waived the sponse the motion basis for her waiver of was press. Counsel’s continued, the defense that, fear if the case were her date. fail to at the future When appear witnesses would behalf, motions on trial post-trial appellant’s she later filed motion as one of the pursue her failure to cited grounds alleging her own ineffectiveness. that, appeal, pur- claims had his appellant attorney

On motion, challenged sued the she could have suppression on the basis that his arrest was not procedure identification cause and the identification was supported by probable inherently suggestive.6 He now contends that his attor- of the motion allowed both his ney’s suppression waiver go unchallenged arrest the out-of-court identification to prejudiced thereby. and that he was However, not appellant sup has shown that the successful. Even if it pression motion would have been not supported by probable true the arrest was were cause, not, itself, by provide an arrest does a basis illegal evidence, we identification since cannot suppressing illegal it not arrest the defendant assume that were for the See, his required to face accusers. Com would never be Garvin, (1972); Pa. A.2d 33 monwealth v. Accord, Voss, Pa.Super. 331, 482 v. Commonwealth The judge appellant’s A.2d 593 trial found conten meritless, concluding although hospital tion to be suggestive, have the victim never- identification been seized, physical appellant could 6. Since no evidence was not have arrest, suppressed person product illegal an see his as the Common- Verdekal, sought wealth v. 506 A.2d 415 he only allegedly suppress evidence fruit of his the identification as the illegal arrest. theless had an independent basis for his making in-court identification, having appellant viewed for at least five seconds during the commission of assault. agree. the. We Thus, we find that appellant’s claims regard to the underlying issues concerning the legality his arrest and suppression of his identification victim lack arguable such, merit. As we cannot find trial counsel to have been ineffective in waiving the suppression motion.

Moreover, even were we to find the arrest and identification to have questions merit, contained of arguable counsel’s forego decision to suppression issue' is a matter of supportable tactics appellant’s reference to out, best interests. As appellee points the arresting officer was for the testify prosecution, unavailable and his could have perceived absence been as an having adverse effect on its case. Counsel was faced with a dilemma in which she was forced to weigh the of her possibility own witnesses’ failure to at a later appear against date definite absence certain Commonwealth evidence. She chose the latter. As this court stated in Commonwealth ex rel. 427 Pa. at Washington Maroney, supra A.2d at 352-53: other test whether alternatives were more

reasonable, hindsight employing evaluation must, Although weight record. the alternatives we of a assistance tips finding balance favor effective that trial counsel’s decision as soon as it is determined had reasonable basis. any argument, appellant alleges

In his next ineffective present supposedly failure to ness in his trial counsel’s Specifically, appellant testimony. exculpatory eyewitness to presented eyewitness should have an alleges that counsel who, report, to a told the according police shooting the assailant. was not the appellant at the scene that officers to establish ineffectiveness defendant seeks When a witnesses, he must investigate call or counsel for failure to (1) indicating identity the a factual basis supply

53 the the (2) existence of witnesses; that counsel knew the witnesses witnesses; (3) the material that evidence the (4) the manner procided; would have to his cause. Common- helpful been witnesses would have (1984). Torres, 58, 477 1350 Pa.Super. A.2d 329 wealth v. to three the necessary the meet information Instantly, on which we the test relies material prongs four Torres in question Although police report consider. may not argued record and appellant’s reproduced appears brief, official record it is not contained appellant’s our on which determi- only which is the source we base Inc., Steel, Pa.Super. Stanhope v. nations. Dorn Williams, (1987). v. 534 A.2d 798 See also Commonwealth (1986). not A.2d It is therefore Pa.Super. However, assuming thoretically even that persuasive. review, exculpatory appellate material were available witness, not allege does that he interviewed appellant information, he he or that would actually had useful Durst, v. on have testified his behalf. See Commonwealth (1989) (no showing allegedly 522 Pa. 559 A.2d 504 defense); aided witnesses would have Com- exculpatory Hentosh, (1989) A.2d 20 v. 520 Pa. monwealth presented by of absent witness must be witness (testimony Moreover, on himself.) another testified behalf eyewitness it not he had seen the shooter and was of the defense that Therefore, testimony presented appellant. cumulative, and counsel cannot found merely have been See, present cumulative evidence. failing ineffective for Smillie, 462 A.2d 804 Commonwealth attorney’s his incom Finally, appellant asserts failing witness Ber petence impeach Commonwealth He prior nard Johnson with his inconsistent statement. having that since denied at trial made contends Johnson arresting officer that was not appellant statement credibility impeached could have perpetrator, his been officer, arresting the waiver of the but that with motion, present the officer’s suppression opportunity lost. testimony was Since appellant provide failed to court below an opportunity to rule on this matter when first presented by counsel, current he has failed to preserve See, it for our review. In re Del Signore, (1977). A.2d However, waived, if even this issue lacks merit. At trial, Johnson testified that appellant shooter, was not the and thus was a favorable defense witness. As the Com- states, any monwealth reasonable attorney would have been satisfied with Johnson’s trial testimony, considering it far more important than the given issue whether he had police account, a similar and would not have wanted to destroy credibility of a witness. favorable defense See Smallwood, Commonwealth v. 497 Pa. 442 A.2d 222 (1982)(counsel properly present did not someone who would important witness). undermined credibility have defense we find that Accordingly, appellant adequately repre- was trial, such, sented at and as his claims to the must contrary be defeated.

Order affirmed.

BECK, J., opinion, files and concurring dissenting ROWLEY, joined J.

TAMILIA, J., concurring dissenting opinion, files GRILLO, Judge. Presiding joined by POPOVICH, J., concurring statement. files J., concurring dissenting opinion. JOHNSON, files BECK, concurring dissenting: Judge, insofar as Cavanaugh’s plurality opinion I join Judge effective assistance recognizes plurality agree I also proceedings. delinquency in juvenile perform- of counsel’s that effectiveness plurality with the to the according measured should ance in this context Pierce, 515 Pa. standard. See Commonwealth Pierce 527 A.2d proceedings implicate Juvenile do not the delinquency of the Pierce stan require special adjustment concerns that the of evaluating parental dard when effectiveness counsel for in proceedings parental rights the termination and Adoption of T.M.F., See No. dependency proceedings. 2602 1035, Phila.1988, 598, - - -, A.2d Pa.Super. 392 573 30, 1990) slip op. (Pa.Super. 1054-1055 at 14-16 filed Mar. J.P., In re (Beck, 355 (en banc) J., Pgh. No. concurring); 1988, 1057, (1990) 1, 32- -, 573 A.2d J., concurring). (en banc) (Beck, In parental termination cases, right parent of the to the dependency cases and the the against assistance of counsel must be balanced effective ensuring a third child— party state’s interest that —the In of a home environment. enjoys the benefits stable proceedings, party asserting the who juvenile delinquency is the child. to the effective assistance Moreover, delinquent be adjudicated a child who parents and custody caring responsible from the removed in a for offenders. placed state institution of an child with services able Every provided should be potential subjected stigma to the being before attorney a being juve associated with labeled deprivation liberty view, assessing for relaxing nile test delinquent. my the child in the performance hope of counsel for a interest the child would be mistake. furthering the best In re a from represent retreat approach Such an would Gault, 387 U.S. 18 L.Ed.2d 527 87 S.Ct. role importance the central of counsel’s emphasized hearing. receives a fair ensuring that Furthermore, not of the application do believe of juvenile Pierce standard will lead a recriminalization Although Pierce was case, a criminal proceedings. appellant one. An must standard it embodies is flexible 1) forming issue basis asser- establish: merit; 2) of arguable ineffective is tion that counsel was counsel had no that the course chosen reason- particular interest; designed to effectuate the client’s able basis 3) that the client was prejudiced by counsel’s error. Com- Durst, 2, 3, monwealth v. 522 Pa. (1989). A.2d This test three-part should applied regard with full the features that distinguish juvenile proceedings from adult criminal trials.

Not omission every by counsel that require grant of a new criminal trial would necessarily require the grant of a new adjudicatory hearing. cases, In some claim may arguable have merit the criminal context but the juvenile Rights context. of a juvenile defendant are not coextensive of an rights adult criminal defen- dant. See McKeiver v. Pennsylvania, 403 U.S. S.Ct. Moreover, 29 L.Ed.2d 647 a review of the of the reasonableness course chosen and by counsel of the prejudicial impact of counsel’s actions take must into account such factors as the of informality delinquency the of proceedings and active role the family judge court ensuring an accurate determination. a By conducting sensi- tive inquiry, we afford of juveniles benefits Pierce standard without compromising impor- the uniquely tant of the juvenile system. features justice

I part company plurality question with on the of post-trial motions. As we observed Commonwealth v. 425, 429, Clay, Pa.Super. A.2d neither the Juvenile Act nor the of Pennsylvania Rules Civil Procedure nor the Rules of Pennsylvania Criminal Proce- dure of filing post-trial following authorize motions an The reach adjudication delinquency. plurality of would out a disapprove Clay impose post-trial new motions requirement agree basis in rule statute. without Cirillo, my colleagues Judge Judges Rowley, President Superior inappropriate Tamilia and that it is for the Johnson Concurring Dissenting Court such action. to take See Johnson, J., 76-77; Concurring and Dis- at Opinion by op. J., Tamilia, (joined at 61-63 op. senting Opinion Cirillo). Judge President instance, attempting engage plurality

In the first jurisdiction in rule a function within exclusive making, Supreme Court. See Commonwealth Pennsylvania 396, 400-03, (1985) 423-24 490 A.2d Mason, 507 Pa. v. 1, 5, Walls, (quoting Commonwealth (1978)). A.2d 106-07

Next, in the context of post-trial practice if require we no for not counsel, of there is rationale ineffectiveness all errors. challenging for trial requisite it as imposing giving post-trial practice Weighing mandatory the value to correct its trial errors opportunity trial court the on practice post-trial the burden against court, post-trial practice unwise. It imposition I find the a matter the trial court reconsiders the rare case which practice. The post-trial itself as result and reverses under trial error purported court can be advised trial 1925. This Rule Rule of Procedure Pennsylvania Appellate purported an to address opportunity the trial court affords opinion appellate to the court. errors its Moreover, practical fails to consider the plurality post-trial practice on consequences imposing mandatory proposed post-trial mo- delinquency plurality’s cases. trap unwary would create a waiver requirement tions fail file time- would Inevitably, many attorneys counsel. forth all of the claims for relief setting motions ly post-trial neglect to attorneys Some of their clients. person to sheer inadvertence. The file such motions due the will these omissions pay price who claims are An adult defendant whose waived juvenile. at under the Post post-trial motions least seek redress Act, 42 9543-46 Relief Pa.Cons.Stat.Ann. Conviction §§ Act (Purdon The Post Relief af- Supp.1989). Conviction have remedy adjudicated no who been juveniles fords a common habeas delinquent availability and the law re DelSignore, is uncertain. See In corpus remedy n. n. 375 A.2d applicability of the Contrary suggestion plurality, to the of a statutory of the doctrine and the absence waiver from matters militate appeal juvenile against collateral in delinquency motions cases. requiring post-trial Mandatory post-trial practice would also have the nega- tive effect of increasing the work load of the family court and delaying the dispositional stage of the delinquency proceedings without adding to the integrity or correctness of the proceeding the juvenile court. In cases involving children, time is of the essence; period between adjudi- cation of delinquency and disposition should kept short in order to maximize juvenile’s chances for successful rehabilitation. A post-trial motions requirement would tend to delay final disposition and thereby juve- undermine the nile justice system’s goals. rehabilitative

Finally, the timing of the plurality’s decision is curious. Significant segments of the legal community have come to believe that even within the criminal and civil spheres the disadvantages of mandatory post-trial practice far outweigh advantages. Supreme Court advisory committees have published proposals that would substantially restrict scope of post-trial in this Commonwealth. See practice Criminal Procedural Rules Committee Proposed Amend- ments to 9, 1988); Rules of Criminal Procedure (August Civil 91; Procedural Rules Committee Recommendation No. Domestic Relations Committee Recommendation No. 6.

In summary, join plurality recognizing an alleged delinquent’s to .the effective assistance of Cirillo, I join Judge counsel. President and Judges Rowley, Tamilia, reaffirming and Johnson in that post-trial motions practice apply delinquency does not cases.

ROWLEY, J., joins. TAMILIA, Judge, concurring dissenting: of a appeal adjudication disposition from the assault, of an charged aggravated possession Firearms instrument of crime and violation Uniform Act, single on the issue of counsel appellant focuses of the trial argues adjudication ineffectiveness the case remanded for a new court should be vacated and this case as a seminal case majority trial. The treats concept of the of ineffective- determining applicability the such, I proceedings. As believe ness of counsel on canvas paint direction must a broader our review raising by post-trial the propriety the issue and consider and the be- motions, suggested by appellant, disparity as including the juvenile procedures generally tween adult to adults proceedings Relief Act available Post Conviction but not juveniles. this Court should review agree

I the majority with counsel, I disagree majori- but with the effectiveness of to a crimi- adopting applied standards ty’s approach difficulty ap- proceeding nal this review. by no vehicle is that there is proach by majority used or objectively can review test appellate which the court as proceeding is the of counsel effectiveness Pennsylva- Rule proceeding. case a criminal provides: nia of Criminal Procedures Rules Scope rules. criminal in all

(a) govern proceedings These rules shall including not of record. Unless otherwise courts courts apply juve- these rules shall not specifically provided, nile proceedings. or domestic relations the criminal rules apparent At the outset it is do very post-tri- trial or pretrial, during either govern procedure since the Post Additionally, al to juveniles. relation in the Rules of incorporated Relief Act is Crimi- Conviction Procedure, proceeding no under that nal there is basis for has Act to not a fundamental determine whether proceed- as to a juvenile been violated which is nonwaivable would, therefore, concept that the of ineffec- ing. appear It provid- according to the standard tiveness of counsel tested proceedings adaptable criminal is not to the ed the adult is correct in its majority believe the juvenile proceeding.1 of counsel should be as- determination that effectiveness pro- majority acknowledges 1. The these deficiencies but create post-trial proceedings specifically rights to been cedural have rejected legislature promulgation in its of the Juvenile Act of Code, (No. 333) Dec. in the Pa.C.S.A. as codified Judicial Supreme rejected by seq., Court Criminal et likewise Rules Committee. 60

sured to juveniles just as it is assured adults, to but since juvenile the proceeding quasi criminal and the United States Supreme Court has viewed on balance that all of the procedures available to the adult are not in necessary the juvenile proceeding, to bring into play technical applica- tion of the ineffectiveness doctrine in these cases would be unnecessary and perhaps undesirable.

The seminal.decision of Gault, In re: 387 U.S. 87 S.Ct. (1967), 18 L.Ed.2d 527 established that juveniles are entitled to the assistance of counsel they before can be properly adjudged delinquent. However, the Supreme Court did not extend to juveniles all rights constitution- ally guaranteed to adults. It created a juve- standard for niles in which the benefits accorded to a in the delinquency proceedings were balanced against the need for certain protections constitutional and the court made a clear in statement McKeiver v. Pennsylvania, 403 U.S. (1971), S.Ct. 29 L.Ed.2d 647 that the standard to be applied in determining protection what a juvenile should have is one of fundamental fairness. The McKeiver case is critical in that it determined the full panoply protections accorded adults in the criminal proceeding including right to a trial not jury improve quality justice for a and might impede well the rehabilitative process by encouraging procrastination, delays and technical diversions in the employed justice system. criminal concept applied believe same should be to our ap- proach to the effectiveness issue as related to juveniles.

The problem by approaching encountered this issue in the same manner as that used the adult criminal procedure out pointed by appellant insisting only that manner in this issue should raised is initially in post- similar to that of adults post-adjudication hearing case, trial motions. In this the trial court had such a required was not and should not have been hearing which the Rules of Criminal Procedure granted. Since Rule the rules do not unequivocally apply juveniles stated (with the exception proceedings Magistrate’s to those DelSignore, the Interest

Court) Hearing A.2d held the Post Conviction seq.,2 9541 et juveniles, Act, apply 42 Pa.C.S. does § in a similar fashion treating ineffectiveness the approach simply possible. is not in the criminal court that utilized as if this appellant made effectiveness argument hearing, there post-trial at a motion presented issue is not child obtaining review and the delay adequate will be rehabilitation “rehabilitation” when subject would be This fails there argument not be needed. might no between claim ineffectiveness should be distinction support an which would any of counsel and other claim Act, present Prior enactment of the Juvenile to the appeal. a seq., 6301 et provision a 42 there was Pa.C.S. § juvenile in a rehearing granted upon request would be appeal.3 to subject before case would be proceeding post-trial in that such legislature its wisdom determined review, that direct as were not essential and hearings in support, families relating cases to children and other cases, assuring is the way and termination custody correcting juvenile for errors most resolution expeditious and reconsid- permit post-trial If we motions proceedings. relating to effectiveness eration of cases matters demands, on counsel, based prevent we can not similar for as to reasoning, sufficiency claims appellant’s error, evidence, evidence, weight prosecutorial of the trial misconduct, myriad of the other improper any sentence founded.4 appeal an could be upon claims which getting as means of to post-trial motions provide not 13, 1988, repealed Pennsylvania Legislature April 2. Effective Hearing substantially part Conviction part Act, modified in the Post 1988, 13, April renaming Act of the Post Conviction Relief Act. it 3, 227, Pa.Legis.Serv. §§ 42 Pa.C.S. 9541-9546. No. 47 1988 § 1433, 15, (repealed) Act 11 P.S. 257 § Act June P.L. § 3. 1978, April, P.L. (repealed) 1464 Act 28 202. Dec. P.L. Bulletin, Pennsylvania Pa.B. 1111 et reports filed in 18 4. From to seq., appears are to be amended the Rules of Criminal Procedure it motions, rigid post-trial consideration impose restraints on time delay eliminating entirely serious in the future because them procedures 1123. POST in Pa.R.Crim.P. occasioned embodied MOTIONS. VERDICT this issue before the appeal Superior Court under any circumstance. The impact judicial on time and efficiency would be immeasurable.

Since ineffectiveness of counsel cannot be raised in the trial court trial counsel it cannot be construed to be an issue which must preserved for review or it would be! waived, appellate counsel may raise the issue of effective- ness of trial counsel on direct appeal if the basis for appears in ineffectiveness the record of the juvenile pro- ceeding. law Case dictates that the ineffectiveness issue be raised at first when opportunity different counsel than trial do available to so. Commonwealth v. Hubbard, Pa. 687 (1977). A.2d In a juvenile case, only that can be on appeal. direct Were it for the waiver, doctrine of the need to examine of a conduct trial which to the innured of the prejudice juvenile would not require us to call into play “extraordinary circum- stances” justify the juvenile’s failure to raise the issue timely in a fashion. Waiver was to apply held juveniles Cowell, re Pa.Super. 177, A.2d recognized by DelSignore, supra. Repudiation doctrine waiver and return the doctrine of funda- mental error in could problem. cases eliminate this This by panel, could be means this en adopted banc however, I analysis, would so recommend. On closer it is not to the doctrine necessary reintroduce of fundamental error by Co., renounced Trust Dilliplaine Lehigh Valley 457 Pa. A.2d 114 since juvenile proceedings require scope a which in fact limits the broad review the doctrine fundamental error. Lest it application of appear .juvenile that I am novel into introducing concept by the Su- proceedings, I believe earlier determinations cases preme juvenile have held that in proceedings, Court child, in state has a welfare of the which the involving the exercise its interest, Superior Court paramount require that the entire after consideration of independent judgment telling applica- A direct record. statement that have Salemno, re 369 Pa. 85 A.2d In here was made tion (1952): minor, it of a would be custody the issue [W]here arises limit the issue incongruous to the review when review require full Court Law but under the Juvenile It has corpus proceedings. it habeas when arises under involving the held in cases corpus habeas repeatedly been court’s appellate duty a minor that it is the custody of independent reach an all the evidence and to examine (Citations omitted.) determination.

Id., no 282, 85 A.2d 408.5 know of case 369 Pa. at at holding comports and believe it repudiates this Act and our of the Juvenile underlying philosophy regardless Thus general. to matters approach counsel, could appellate of the effectiveness proceeding possibly defects which would point part on the of the' a new trial reconsideration warrant proce- more technical without going through ineffectiveness engrafted involving from adult cases dures of counsel. upon touched but supra, problem was DelSignore, 3 of that case the court which footnote resolved issue be the ineffectiveness presumably

stated that to the rule in criminal appeal by analogy on direct raised proceedings, Judge Spaeth, As PCHA author cases. post- recognized the fact that since Opinion, clearly juveniles, are not there is hearings available conviction corpus to raise remedy no other than habeas appropriate is not encumbered Since the Juvenile Court such an issue. proce- totally governed rules and is by procedural Act, supra, appears in the there dures contained Juvenile criminal techniques turn to trials employed no need to of the Post Conviction Relief proceedings or in the collateral review extraordinary upon Act an basis which to to find dependent child and this 5. While In re Salemno was concerned with a child, delinquent issue revolves around the case involves a since the principles implicated, custody corpus are the child and habeas scope of review is the same. issues, review of which would prevented be under the waiver doctrine. summation, if we retain the holdings Cowell and

DelSignore that the waiver doctrine applies juvenile cases, and thus prevents issues not preserved from being raised on appeal, while the Juvenile Act and Rules of prevent Criminal Procedure application of the Rules to juvenile proceedings, and PCHA/PCRA proceedings do not cases, apply appellate review ineffectiveness issues does not fit procedures adapted criminal cases. Since appears there way be no prob- circumvent this lem and since majority is correct that effective counsel is necessary adequate for an juvenile proceeding, it appears that least complicated approach would simply be for this Court to exercise a scope broad of review to determine hearing whether the comported with fundamental fairness in compliance with due process.

The line of from cases to the present, Gault by reviewed Court, the United Supreme States requiring fundamental rights provided to be for juveniles, but not necessarily by procedures employed court, same the criminal would Supreme indicate the Court in having believes there merit the trial courts appellate and courts the individual states make determinations as to on juveniles based fundamental and fairness due within the context of process proceedings. not criminal It seems to me due process requires juvenile proceeding errors correct- objection able or has made at trial whether not been corpus court under analogy proceédings. to habeas see want to this Court move toward a recrimi- Proceedings adopting nalization of the criminal Juvenile being or procedures revamped which are under a cloud and provisions in criminal The new proceedings. eliminated PCRA, Assembly for the Pa.C.S. enacted General on a 9543(a)(2)(ii) seeking that a relief provide petitioner § must plead claim of assistance ineffective “so the truth- prove stewardship that counsel’s undermined determining process guilt that no reliable adjudication

65 dramatically This re- place.” taken innocence could have whole, as a the a review of record inquiry stricts the developed in analysis the eliminating layered process 427 Maroney, v. Pa. Washington ex rel. Commonwealth Pierce, (1967) v. 599, 235 A.2d 349 and Commonwealth Durst, (1987). In A.2d 973 Commonwealth Pa. (1989), Supreme Court reversed Pa. 559 A.2d a which vacated conviction because panel a Court exculpatory wit- potentially counsel failed to interview trial emphasizing that in that ineffectiveness appears nesses. It vacuum, in has Supreme a Court may alleged not be holding despite close to that claimed ineffective- very moved ness, supports if on the whole conviction the record doubt, appears the claim will fail. This beyond a reasonable legislature its recent the same taken position to be (PCRA) Additionally, cited above. Common- enactment Lawson, 519 Pa. 549 A.2d 107 Bobby wealth v. Joe door multi- closed the (1988), Supreme recently Court impatience with appeals indicating relief ple post conviction standard above approach. legislative hypertechnical a adaptable appellate is easily to be one which appears would, pursuant cases broad review review, required fairness the fundamental scope assure (which not be applicable) the formula following without majority. suggested never be raised ineffectiveness of counsel will

Since matters, appeal, of a direct except in the context are not avail- proceedings motions PCRA post-trial able, provide must for a broad review that one opportunity appeal if on trial of the record the issue raised so stewardship truth-determining undermined counsel’s no or innocence guilt reliable process adjudication appropriate This is time for place. taken could have delinquency and is similar in matters to that determination matters. scope provided custody the broad of review 644, 436 Leonardo, 291 A.2d 685 In Interest of purposes proce- held “[bjecause this Court systems important ways, differ dures two proceeding held pursuant to alleged violations of the Juve- nile Act cannot also serve the function of a proceeding held pursuant to alleged violations of the Crimes Id., Code.” Pa. Superior Ct. at 436 A.2d at 687. This is clearly evident when we look Act, at the Juvenile supra, which provides significant differences in the treatment of juve- niles as compared with adult criminal proceedings (§ 6336(a), informal hearings jury; 6336(b), without non- § adversarial in that the district attorney need not present except at the request court; 6336(c), no need to § record hearing unless ordered by the court or requested by the parties; 6336(d), exclusion of the public; § § counsel may by be waived parents; 6352(b),limitations on § placement; 6353, limitation on length commitment; of § adjudication not to be construed as a § conviction of a crime and does not impose civil disability). Court,

The Supreme Wilson, In re 438 Pa. A.2d 614 considered the issue of effectiveness of counsel, raised for the first time on appeal, indicating counsel was inadequate, and while recognizing issue, declined to rule on that basis and turned to the denial of rights guaranteed under Gault in resolving the case. The underlying failure of the trial court in a juvenile proceeding to meet the standards of imposed fairness by Juvenile Gault, Act and pursuant to whether counsel was effective not, or cannot ignored by be this Court on The appeal. parens patriae doctrine of is battered but not dead. This appears procedure to be the which is most easily adapted to juvenile procedure cases and indeed is that has which been followed so thus far to limit any well as serious concern as proceedings to the effectiveness issue. Juvenile have never purely practice been adversarial and theory attorney participate, judge district need not with trial assuming proceeding a much role in the than in a expanded informality hearings, criminal case. The of the fact that if held mas- many preponderance hearings by not a are Act, ters, as mean that permitted by Juvenile great cases would assailable if the juvenile numbers ap- to criminal actions was approach applicable

technical time, of the cases. At the same because plied which the ineffectiveness doctrine and the ease with waiver relief, required the fairness preclude recited to litany can be of converting Short easily can be circumvented. by Gault equivalent technical into the juvenile proceeding testing for trial, applied standard effectiveness criminal in criminal cannot work. developed proceedings of counsel developed gaug- for would, therefore, eschew those tests (under- by Maroney Pierce ing effectiveness announced merit, course action arguable whether issue lying designed to effect basis had a reasonable by chosen interest, he actually and whether was the client’s best ineffectiveness). necessary It counsel’s prejudiced by for criminal guidelines structured follow these court was competent whether counsel to determine proceedings juvenile proceeding. the context pursuant to Gault in the Juvenile Act as to clearly The differences mandated disposition, dealing after juveniles the manner adults, eliminate the need are not available to are time-limited dispositions inquiries. PCRA sentences; is ended placements jurisdiction short (sentences imposed before ma- attaining majority child longer no after 18 but completed until jority to continue 21) in review require the Juvenile Act provisions than and made; extension of commitment can be hearings any before disposition six and review hearings every months review required. least nine months are See hearings every at place in of com- change on and Limitation Pa.C.S. § proceedings Post Relief Act were mitment. Conviction to routinely a means review provide procedural enacted to which miscarriages of were former- justice claims of serious by corpus reviewable habeas actions. Juvenile only ly proceedings in unnec- making Act has built such procedures essary. will resolve the is- procedure a

Having proposed raised, of counsel or they be ineffectiveness sues whether of hearing a fair or failure counsel provide failure object fashion, á timely so as permit appellate review issues, of those I concur with the result proposed by the majority affirm the decision of the court below. A record, review of the the presented evidence and the conduct of counsel this case establishes there was no error in the of finding delinquency and the stewardship of counsel was not such as to undermine the truth determining process so that no reliable adjudication of delinquency could place. have taken There nowas evidence suppress under the circumstances of case and counsel’s failure to make timely the objections in fashion by appellate detailed coun- sel had no on the bearing hearing or its and, outcome therefore, the Order the trial court must be affirmed.

When, at the process, end addwe proce- review dure tailored to adult ineffectiveness proceed- ings, presuppose structured, which must a fully detailed and delineated of steps, processes series and rights, which cases, are enunciated in criminal rules and procedure to a essentially which is different and to which these standards not apply, worse, do we are inviting confusion or recriminal- ization of the I do juvenile law. not can apply believe we the adult concept counsel, of ineffectiveness of as delineat- indirection, ed without majority, incorporating, by requirements not presently cases mandated legislation so, doing case law. destroy we inher- flexibility, ent expediency juvenile philoso- and fairness phy, powers restrict broad incor- juvenile judge, full porate antagonisms adversary system from punishment turn more rehabilitation to certainly disposition.

I recognized Court Supreme believe United States on limiting juvenile proce- its strictures dangers these dures, less formal approach provid- acknowledging disadvantages, more rehabilitation advantages ed more than approach different society required punishment than willing to concede that juveniles. to adults than am approach appar- turn from this when it away we should techniques presently that most of the desirable avail- ent

69 from derived advances in adult corrections were able justice pro- superiority juvenile justice, and the continues because techniques ceedings dispositional application no has been across-the-board wisely there Court. believe process criminal to the Juvenile adult Dissenting Concurring Opin- in this approach suggested protecting required to maintain the balance ion continues society interest serving of the child rights pro- to this benign proceeding a assure maintaining while cess.

CXRILLO, joins. Judge, President POPOVICH, Judge, concurring: majority’s determination agree While I that, in counsel and to effective right has the deficient, I do so reluc- case, stewardship was not counsel’s tantly. sure, stages of a during adjudicatory juvenile,

To be pano nearly the full proceeding, entitled delinquency adult criminal de safeguards accorded ply process of due Gault, 1, 87 18 L.Ed.2d 387 U.S. S.Ct. fendants. re 265 A.2d 350 (1967); In re 438 Pa. Terry, 527 (1971); 528, 29 L.Ed.2d 647 aff 'd 403 U.S. S.Ct. 6338; 42 6337; 42 Pa.C.S.A. Pa.C.S.A. Pa.C.S.A. § § 6322(a). However, an absolute do not have juveniles § protect safeguards developed all constitutional Pennsylvania, crimes. McKeiver v. adults accused of (1971); L.Ed.2d 647 Common U.S. 91 S.Ct. (1978) Durham, 539, 389 A.2d 108 wealth trial). a jury defendant not entitled to (juvenile created system specifically was separate juvenile children and and rehabilitation of provide for treatment Pa.C.S.A. not for their confinement. punishment proceedings con- In the court were past, juvenile 6301. § need for to determine children’s inquiries sidered mere civil treatment, the Common- reformation and rehabilitation Carros, D. v. parens patriae. wealth which acted as Janet 291, 240 A.2d (1976). And, although the child’s procedural rights have been greatly expanded by the Supreme States, Court of the United the notions that the of purpose the juvenile system is to treat and rehabilitate the child and that the proceeds Commonwealth parens as patriae remain. Gault, 16, re 387 U.S. at 87 S.Ct. at 1437; Carros, Janet D. v. 240 Pa.Super. 291, 362 A.2d at 1072-1073. that,

My concern is the juvenile system as becomes essen- tially identical to the criminal it system, evolves into an system, adversarial the very qualities and for which it was “every fairness, of of aspect concern, sympa- created — thy, of paternal attention” —will be lost forever. McKeiver v. at Pennsylvania, U.S. 91 S.Ct. at 1989. The Commonwealth is no longer parens patriae, now, but through adoption of adult criminal procedures, it quickly only becoming prosecutor. Supreme As our Court stated McKeiver the formal- Pennsylvania, “[i]f ities of the criminal are to adjudicative process superim- court posed upon juvenile system, there is little need for its separate Perhaps existence. that ultimate disillusion- day, ment come one but for the moment are dis- will we give to it.” at at impetus inclined to 403 U.S. 91 S.Ct. Thus, express 1989. I separately my write “disillusion- increasing departure ment” and concern for our ever from of the meritorious reasons for creation original independent juvenile system.

JOHNSON, concurring dissenting. Judge, majority affirming I in the result reached join committing Brandon Smith August the order so of the dissent from much the Glen Mills School. stan- opinion as that the ineffectiveness declares majority applica- of adult cases is dard criminal employed review from so I also dissent much matters. ble motions opinion post-adjudication as declares majority may be allegations of ineffectiveness are a means court. hearing brought before Buckingham found seventeen The Honorable James J. on and delinquent guilty Brandon Smith year-old assault, assault, simple recklessly charges aggravated an instrument person, possessing another endangering Act. July Firearms On crime and violation of Uniform outside his residence stepped Stewart had Perry came group people As a investigate a disturbance. door, raised front Smith running towards Stewart’s running persons. Smith a towards one of gun aimed causing right leg, injury in calf of his an shot Stewart hospitalization, in of resulted two-and-one-half weeks that months and that left pins for five leg treatment with hearing held adjudication on at the Stewart still crutches delinquency adjudication, Following months later. eight Mills School. committed Glen Smith was support in of its upon premises The relies two majority of that of ineffective assistance concept conclusion First, proceedings. in interposed counsel can be adequately be re- right process to due cannot juvenile’s representation by juvenile’s quality viewed unless Second, right to counsel examined. attorney directly is coun- right to effective assistance of involves a necessarily turn, the same which, applying can reviewed sel developed proceedings. and utilized criminal standard premises. both disagree with applica- Due Process no that the Clause There is doubt lies ascertain- proceedings. problem ble in upon requirement due precise process ing impact Gault, 1, 13-14, 387 U.S. 87 S.Ct. proceedings. In re such 1436-1437, 527, (1967). The 1428, Supreme 18 L.Ed.2d certain basic constitutional clearly has stated Court apply adults accused crimes also protections enjoyed by 31-57, at at Gault, 387 U.S. S.Ct. juveniles. re (notice right 1445-1459, charges, 18 L.Ed.2d at 548-563 confrontation, self-incrimination, counsel, and cross-ex- 1068, 25 amination); In re 397 U.S. 90 S.Ct. Winship, doubt); (1970) a reasonable (proof beyond L.Ed.2d 368 Breed, Jones, U.S. 95 S.Ct. 44 L.Ed.2d 346 (1975) (double jeopardy).

The Constitution does not mandate elimination of all See, differences the treatment McKeiv- juveniles. e.g., er v. Pennsylvania, 403 U.S. 91 S.Ct. 29 L.Ed.2d (1971) (no right trial). to jury

It true certainly the Juvenile Act contains an express provision regarding to counsel: Right 6337. to counsel

§ Except provided as otherwise under chapter party is entitled to representation by legal counsel at all stages any proceeding under this and if he chapter [or is without financial or resources otherwise unable to she] counsel, employ provide to have the court counsel for him If the parties may ... interests two more [or her] conflict, separate counsel shall be for each of provided them. 6337. There is in the nothing statutory provi- Pa.C.S. §

sion which embraces the doctrine of effective assistance of support enlarge- counsel. I find no our caselaw for an statutory grant ment of the at this time. found the majority already

The asserts that we have questions to effective assistance of counsel where “right In I must respectfully disagree. are involved.” paternity Coll, (1982), v. 451 A.2d 480 we Corra Pa.Super. 305 that counsel was appointed more than hold nothing did future loss of in where paternity proceedings mandated no occasion to Corra panel result. The had might liberty review, of counsel. It is true consider, the effectiveness or Randle, Banks v. court, in 337 Pa.Su panel that a that “It is axiomatic A.2d 974 stated: 486 per. to the right means the of counsel right the to the assistance 202, 486 Pa.Super. at of counsel.” assistance effective However, support cases cited only the A.2d at 977. crimi involving the Banks were cases panel that axiom trial paternity the the context of nal defendants. Within the court it error for I was Banks panel, the believe facing proceedings equate to in criminal practice rely upon of counsel. with effective assistance of counsel assistance forth in ruling set Banks subsequent acceptance The Dakota, Pa.Super. v. Kitrell panel v. Randle (1988) strength- nothing establish 540 A.2d 301 did to believe that rule. continue reasoning behind the en re-examination. require progeny and its Banks Randle light “in agree majority Nor can I with the right to the effective relating of the law development counsel, effect of the diver- representation by possible has to counsel ... become right sources gent slip opinion, Majority a difference.” distinction without Ed- president judge, former Honorable 5. Our page he that a observed Spaeth mund B. was correct when on right to effective counsel based criminal defendant’s Constitution, Amendment of the United States the Sixth through the Fourteenth Amendment. In applicable made 149, 154-155, A.2d DelSignore, re (1977). Judge Spaeth went on to state: rights juvenile proceeding A in a are child’s constitutional of the Four- the Due Process Clause entirely based on Amendment____ Thus, the standard determin- teenth denied right to counsel has been ing whether the crimi- defendant is a on whether the depending different juvenile. nal defendant or Id. great weight on In re places majority seemingly (1982) concluding

Hutchinson, 152, 454 A.2d 1008 500 Pa. dichotomy no exists a criminal/civil longer there as I view that case an representation. matters effective to effective assistance proves that exception which applied rather automatically, does not follow but necessary to assure adherence only non-criminal cases as concept process. of due Hutchinson, required court to bal- supreme our was and of competing ance the interests Commonwealth context. The court the individual a civil commitment ill mentally civil commitment of recognized involuntary deprivation of be ac- persons liberty constitutes 74

complished only in accordance with process due protections. In re Hutchinson, 500 156, Pa. at 454 A.2d at 1010. Mr. McDermott, Justice speaking court, for the found that certain testimony examining psychiatrist was clearly hearsay, and such evidence was crucial establishing whether the respondent presented a clear and present dan- ger others under the Mental Health Procedures Act. Although the court used the failure of respondent’s coun- to object sel hearsay testimony as evidence of ineffectiveness, counsel’s the court could have reached the same result of remanding for a hearing by new applying a straight process due analysis. The involuntary commitment a respondent solely based on the hearsay testimony of a single witness prohibited constitutionally without any regard to counsel’s conduct. Hutchinson, In re 8, 1011-1012, Pa. at 8; n. 454 A.2d at Common- n. ex Roop, wealth rel. Finken v. Pa.Super. 155, 173-174, (1975). A.2d 773-774 The individual’s interest compels the conclusion that the exclusion testi- hearsay mony is to the respondent’s fundamental a fair receiving Id. trial.

Moreover, deprivation the seriousness of liberty consequences adjudication and the which follow an of men- illness imperative tal make strict adherence the rules of evidence to other in which generally applicable proceedings Schmidt, Lessard v. liberty is at jeopardy. an individual’s 1972), (E.D.Wis., vacated and F.Supp re- Schmidt v. sub.nom., injunction manded for more specific Lessard, 94 S.Ct. 38 L.Ed.2d 661 U.S. I therefore view In re Hutchinson as case direct- dealing although due process unfortunately with the denial of ly assistance of so-called ineffective couched terms counsel. addition, Mr. Justice dissenting opinion

In I view Nix on the difficulties Justice) as instructive (now Chief overlay one a criminal can arise seeks when such as the court proceeding a civil standard on process the clear differ- In re Hutchinson. recognizing faced

75 com- involuntary and an civil a criminal case ence between “the Mr. Nix observed that Justice proceeding, mitment commitment mental of the client best interest [civil striving to seek necessarily is not served cases health] 159, 454 Hutchinson, Pa. at release.” In 500 the client’s re concern is addressed to the at 1012. Mr. Justice Nix’s A.2d test, name- ineffectiveness prong three-prong second any chosen counsel had particular whether the course ly, interest. designed to effectuate client’s reasonable basis 2, 3, 504, 505 Durst, Pa. 559 A.2d v. 522 Commonwealth (1989); Bruner, Pa.Super. Commonwealth v. very might A.2d same concern considering prong, namely, the third whether well arise prejudice. to the client’s Id. the course of conduct worked Hutchinson, any can we with assurance that say always in the incompetent of an mental is alleged release interest, be even where counsel incompetent’s best clear poses that the client demonstrating to facts privy to himself or of harm to others or present danger and us, that say can we presently In the case before herself? in his Smith would discharge of Brandon the release reasonably or interest, if counsel knows especially best did, fact, discharge juvenile that could know the would weapon which wounded Stewart Mills School? residency from at Glen benefit weigh not I does consider uneasy majority am stan- I the counsel effectiveness these issues. believe that rel. Washington ex espoused dard Commonwealth (1967) progeny, its Pa. A.2d 349 Maroney, 427 to the contrary is whole applied juvenile proceedings, if attempt in an were created concept of courts which as treatment of children depart from the traditional I nothing find in In re defendants. ordinary criminal Accord, Gault, compels contrary conclusion. supra, that 539, 543, 389 Durham, Commonwealth v. J.). Price, (1978) (dissenting opinion, 110-111 A.2d so, expressly say does Although majority Judge they agreement Spaeth’s are assume conclusion in In re DelSignore, supra, that the juvenile’s constitutional rights are based entirely on the Due Process Clause of the Fourteenth If so, Amendment. I would prefer that the analysis go beyond finding that a ludicrous statutory result if reached to representation by legal counsel found in the Juvenile Act is not meant to able, include the concept of effective representation. Ma- opinion, jority I page 43-45. agree that the purpose of providing representation is that such representation would be helpful effective and to the juvenile both the However, court. this does not me in assist understanding how the absence of representation effective deprives the of juvenile process due the context of juvenile proceed- ing the where interests of all parties directed towards the best of interests the juvenile.

It is not clear to me whether the majority relies upon statutory construction, Amendment, both, the Fourteenth or in order to reach its conclusion that the effective assistance of counsel implicit standard is in the right to counsel However, conferred 42 by Pa.C.S. 6337. I do not believe § mere statutory construction, pursuit of legislative or intent, should suffice when to seeking establish and impose important so a concept as ineffective assistance of counsel juvenile proceedings. into Nor do I principle believe a born in the Sixth Amendment may Fourteenth Amend- become.a stepchild doing ment without violence to jurispru- sound dence.

I agree completely my distinguished colleague, Tamilia, concept that the of Judge ineffectiveness coun- the according provided sel measured the standard by the adaptable adult criminal proceedings Judge Tamilia proceeding points reasons out. Procedure do not Pennsylvania apply Rules of Criminal 1(a). Rule I share proceedings. Pa.R.Crim.P. majority concern that would create Judge Tamilia’s post-trial proceedings which have been procedural rights legislature Supreme Court Crimi- rejected by an the extent that such effort nal Rules Committee. To and ad- impinges upon general supervisory court Pennsylva- Supreme ministrative Court authority 5, Pennsylvania Section nia as found Article Constitution, from such an at- myself must disassociate Simmons, 271, v. tempt. Commonwealth 277-278, 481, 565 A.2d 484-485 Roberts, for the speaking J.

The Honorable Samuel ex rel. Commonwealth Pennsylvania. Supreme Court declared, princi- Washington Maroney, statement “[A] at 235 A.2d rarely concrete cases.” Pa. ple solves followed his that an “axio- at 351. His caution observation developed year judicial matic had between assumption” Alabama, when Powell v. State of U.S. decided, (1932) when 77 L.Ed. 158 was S.Ct. Washington’s F. trial stewardship William axiomat- supreme under before our court. That was review representation ic assumption any right was that to “effective” “ade- criminal case includes rel. ex Washing- Commonwealth representation. quate” at at 351. And the Maroney, ton v. Pa. A.2d Washington allocatur in the case granted court supreme representation.” right a facet of the to effective explore “to Thus, representation of effective Id. inception even upon axiom rather premised criminal context was not an but such consideration of whether constructed after careful process. of the criminal objectives standard furthered the us, agree now all would that a the case before hearing which the right any a due that process has must implicated comport with funda- juvenile’s liberty giving content to fairness. The difficult task that mental in that I majority I differ from process right. due to fundamental fairness for earnestly believe that readily guaranteed, applying can Brandon Smith Tamilia, scope suggested by Judge broad of review process criminal standards. any without resort only presented appeal-— issues on this substantive procedure from an apart attempt create effectiveness (1) of the non-suppression allegedly for juveniles —involve improper in-hospital identification following an allegedly (2) illegal arrest the non-introduction of allegedly exculpato- ry eyewitness (3) testimony, the non-impeachment certain Commonwealth witnesses with in- supposedly prior consistent statements. I conclude that none of these issues give rise to a claim of fundamental unfairness.

At issue I agree with the majority that Smith’s arrest could not have been suppressed, Commonwealth v. Verde- kal, 351 Pa.Super. (1986) A.2d 415 and that the trial judge’s finding that an independent basis existed for an making in-court precludes identification our having to further hospital review the identification. The claims re- garding legality arrest and the suppression of Smith’s identification by Stewart are without merit.

At issue I agree with the Commonwealth that testimony Brinson-Glover, David helpful juve- to the if nile, would have been cumulative and that its non-admission in no way prejudiced appeal, Smith. On Smith upon relies the contents police report of a to suggest that he was not the shooter. The Appellant Brief for converts written police statements of the officer in the report into “testimo- ny” suggestion Brinson-Glover. There is no in the Brief would, fact, specific Brinson-Glover have testified in Smith, witness, if support of called as a or that he inwas any way prevented testifying by from the state. Smith did testify, shooting.Stewart denied and said he was elsewhere of the crime. confirmed at time Alibi witnesses Smith’s account. Bernard testified that he had seen the Johnson shooting at the scene but that the shooting, Smith was entire person. My done some other review of the was issue, 2 rise to a give record satisfies me that does viable process due claim. majority and the

At issue both Commonwealth Bernard was favor- testimony that the Johnson recognize it makes agree I with them that to Brandon Smith. able as does on this argue, appeal, no sense to Smith absolutely attempted impeach that trial counsel should have fundamental implicating This falls short clearly witness. fairness. This said, broke, fix it!” “If it don’t

It ain’t has been with Brandon determined consistent readily can appeal precepts. law resort criminal rights without Smith’s equate intended to legislature our refuse to believe that proceed- in civil representation statutory right assistance to effective constitutional ings with the juris- our criminal through many years over counsel erected I therefor dissent. prudence.

573 A.2d 1096 CUNNINGHAM, a Minor. In the Interest of Jason Appeal of Jason CUNNINGHAM.

Superior Pennsylvania. Court

Argued 1989. June April Filed 1990.

Case Details

Case Name: Matter of Smith

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 20, 1990

Citation: 573 A.2d 1077

Docket Number: 02696

Court Abbreviation: Pa.