Commonwealth v. Serianni ( 1984 )

CAVANAUGH, Judge:

This appeal is from judgment of sentence entered against appellant, Dominic Serianni, in the Court of Common Pleas of Montgomery County. In a bifurcated proceeding pursuant to the provisions of the Mental Health Procedures Act,¹ appellant was determined by a jury first to be sane, and then to be guilty of murder in the third degree,² possession of instruments of crime,³ and violation of the Pennsylvania Uniform Firearms Act.⁴ Post-trial motions on both aspects of the trial were filed and denied, and appellant was sentenced to ten to twenty years confinement at Farview State Hospital. A direct appeal to this Court followed in which appellant continues to be represented by trial counsel. The issues raised were briefed and argued before a three judge panel, and, thereafter, both parties were ordered to submit supplementary briefs and further argument was heard by the court en banc.

Appellant contends that the lower court erred in denying his motions (1) to dismiss pursuant to Pa.R.Crim.P. 1100, relating to speedy trial; and (2) to suppress certain evidence.⁵ Neither of these issues were addressed on their merits by the lower court because appellant failed to include them in post-verdict motions, as required by Pa.R.Crim.P. 1123, and consequently the lower court correctly held them to be waived. See Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983). Appellant, however, still represented by trial counsel, seeks to pursue these issues now, arguing that they were waived through counsel’s own ineffectiveness.⁶ Appellant further argues that reversible error is apparent on the record and therefore we may reach the merits and reverse without the usual requirement of a remand for appointment of new counsel. Appel-lee likewise would have us reach the merits of these issues contending that it is apparent from the record that they are without merit and, therefore, may be immediately resolved in favor of the Commonwealth. We are thus confronted with the threshold question whether and to what extent we may immediately consider counsel’s self-proclaimed ineffectiveness without remand for appointment of new counsel.

In the leading case of Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), one of two co-counsel at trial also represented appellant in his PCHA⁷ application, wherein appellant alleged ineffectiveness of the other co-counsel at trial. Our Supreme Court remanded the matter to the lower court for appointment of new, independent counsel to assist appellant in his pursuit of post-conviction relief. In its unanimous opinion, the Supreme Court set forth the following exception and general rule:

While this Court will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before us, we will not reject such a claim without a remand for appointment of new counsel.

Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 201.

This rule, that a self-made claim of ineffectiveness will not be rejected without remand for appointment of new counsel, results from the application of settled principles of law to the situation. First, the court reasoned that it is unrealistic to expect trial counsel to argue his or her own ineffectiveness, and that to do so threatens a criminal defendant’s right to representation by effective counsel. Therefore, in the normal case, appointment of new, independent counsel is required. Second, as a matter of judicial economy, new counsel should be appointed before any consideration of the merits, so that all possible claims may be presented at once and in the first instance to the lower court. The Supreme Court’s concern was not only that the particular claim raised be zealously argued, but also that any other potential claims, which might have been overlooked by self-serving counsel, would be raised and decided at the same time. Commonwealth v. Fox, supra, 476 Pa. at 479 & n. 4, 383 A.2d at 200 & n. 4.

The limited exception to the general rule requiring appointment of independent counsel occurs where reversible error is apparent from the record. In such a case the reviewing court may reach the merits of the claim and reverse. This limited exception is allowed because it is consistent with the principles underlying the general rule. First, appellant’s right to effective counsel is not' impaired because regardless of how many additional reasons for reversal a more zealous advocate might bring out the result would be the same: reversal. Second, judicial economy is promoted since the appeal may be disposed of without the further procedural steps required for appointment of new counsel.

It is sufficient for our purposes here simply to note that we have thoroughly reviewed the record and arguments of counsel, and conclude that reversible error is not apparent from this record. Therefore, following the above-stated general rule of Fox, remand for appointment of new counsel would be required. However, it is argued by appellee that notwithstanding Fox’s general statement, where it is apparent from the record that a self-made claim of ineffectiveness is without merit, we should immediately reach and dispose of that claim. In support of that position, appellee cites the recent case of Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982).

Appellee is correct in citing Commonwealth v. Bossick, supra, because in that case a panel of our Court did indeed expand the exception in Fox so as to allow us to dispose of a self made claim of ineffectiveness where it is apparent from the record that the claim is meritless. However, in our view, this expansion of the exception in Fox is in error because it conflicts with the principles underlying both the rule and the exception in Fox. First, Bossick appears to assume that self-proclaimed ineffectiveness arises from overzealous advocacy which, consequently, insures that at least the particular issue raised has been more-than-adequately argued.⁸ Experience, however, shows that to the contrary we cannot rely on counsel to be a zealous proponent of his or her own ineffectiveness. This principle has found expression in a long line of controlling cases in this jurisdiction. See, e.g., Commonwealth v. Lutz, 483 Pa. 518, 397 A.2d 787 (1979); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Hughes, 311 Pa.Super. 155, 457 A.2d 541 (1983); Commonwealth v. Delker, 306 Pa.Super. 361, 452 A.2d 766 (1982). Second, judicial economy is not served. As the Bossick panel itself pointed out, disposing of the particular claim raised “does not preclude appellant from the initiation through new counsel of proceedings under the Post-Conviction Hearing Act____” Commonwealth v. Bossick, supra, 305 Pa.Super. at 204, 451 A.2d at 493. The Bossick panel, however, concluded that at least the particular claim raised would be eliminated. Yet this conclusion must be founded on the above-stated assumption that the self-made claim has been zealously argued, an assumption which in our view cannot be made.⁹

For the foregoing reasons we reaffirm the rule of Fox and hold that where counsel argues his own ineffectiveness, unless reversible error is apparent from the record, the case must be remanded for the appointment of new, independent counsel. We, therefore, specifically overrule the contrary holding of Commonwealth v. Bossick, supra.

The record is remanded for appointment of new counsel to represent appellant. Jurisdiction is relinquished.

ROWLEY, J. filed dissenting opinion in which McEWEN and TAMILIA, JJ., joined. McEWEN, J., filed dissenting opinion in which ROWLEY and TAMILIA, JJ., joined. TAMILIA, J., filed dissenting opinion in which ROWLEY and McEWEN, JJ., joined.

1 . Act of July 9, 1976, P.L. 817, No. 143, § 404, 50 P.S. § 7404 (Supp. 1984).

2 . 18 Pa.C.S. § 2502(c).

3 . 18 Pa.C.S. § 907.

4 . 18 Pa.C.S. § 6106.

5 . We have thoroughly reviewed the record, briefs and arguments, and find that other issues raised by appellant have been thoroughly addressed and correctly decided in the opinion of the lower court.

6 . Counsel for appellant states that these issues were omitted from post-verdict motions through simple neglect.

7 . Post Conviction Hearing Act, 42 Pa.C.S. § 9541, et seq.

8 . In its discussion of self-proclaimed ineffectiveness, the Bossick panel stated:

Surely, however, sound practice does not require a remand to the Common Pleas Court for an appointment of counsel and further hearing in those cases where the most intense display of zeal and fervor by the most persuasive of counsel cannot project ineffectiveness of arguable merit; ...

Commonwealth v. Bossick, supra, 305 Pa.Super. at 202, 451 A.2d at 492 (emphasis added).

9 . The dissent seeks support from Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), where a bare majority appears to have reached and found meritless a self-made claim of ineffectiveness. However, Silver also emphasizes the rule of Fox by stating that:

when an appellant raising the ineffective assistance of trial counsel is represented on appeal by the same counsel, the case must be remanded for the appointment of new counsel not associated with trial counsel except where ineffective assistance is clear on the face of the record. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); 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 the appellant is entitled. Commonwealth v. Gardner, supra; Commonwealth v. Patrick, supra; Commonwealth v. Fox, supra.

Commonwealth v. Silver, supra, 499 Pa. at 240-241, 452 A.2d at 1334. Since the majority in Silver did not articulate its reasons for reaching the ineffectiveness question, but rather cited Fox as controlling we should not assume that it was intended to abandon Fox’s clearly stated rule.