Commonwealth v. Gardner

OPINION OF THE COURT

ROBERTS, Justice.

A jury convicted 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 counsel, 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 of the issue where an appellant is represented by trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978).

When an appellant raising ineffectiveness of appointed 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.3rd 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 representation in advocating his own ineffectiveness at trial, retained counsel in the same circumstances should be regarded as equally unsatisfactory.

Accordingly, when an appellant raising ineffectiveness of retained trial 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) (defendant 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 appellant’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 ineffectiveness 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.

* We hear this appeal pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp.1978).