Commonwealth v. Garvin

CIRILLO, Judge:

On September 4, 1980 the appellant, David Garvin, and two co-defendants were tried before the Honorable Levan Gordon and a jury on charges arising from an incident which occurred in March of the same year. The appellant was found guilty of rape and simple assault. Post-verdict motions were filed and denied. The appellant was sentenced to a term of imprisonment of not less than 5 nor more than 10 years. An appeal to this Court followed and on October 14, 1983, 321 Pa.Super. 170, 467 A.2d 1307, the judgment of sentence was affirmed. On December 16, 1983, this Court granted the appellant’s petition for en banc reargument.

The sole issue before the Court en banc is “whether use of a harmless error standard is appropriate in the context of appellant’s ineffective assistance of counsel claim.”

In Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court distinguished between the performance component¹ of the analysis of ineffective assistance of counsel claims and the prejudice component of the analysis of such claims.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal for a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient____ Second, the defendant must show that the deficient performance prejudiced the defense____ The minor differences in the lower court’s precise formulations of the performance standard are insignificant: the different formulations are mere variations of the overarching reasonableness standard.

Strickland, supra, at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

This distinction will clarify the issue which is the subject of review at this time. Our courts have addressed only the performance component of the analysis in reviewing claims of ineffective assistance of counsel; thus confusion has arisen. We need not reject the prior analysis in our clarification today which will incorporate the heretofore intimated but not elucidated prejudice component. The articulation of the prejudice component by our Court is an affirmation of the analysis which our courts have employed sub silentio in deciding ineffective assistance of counsel.² The guiding inquiry has until this time focused largely on the principles by which counsel’s strategy in a given case can be scrutinized.

In reviewing a claim of ineffectiveness of counsel, with regard to the performance component, a two pronged test has been employed. First our courts have determined whether the claim that counsel failed to assert was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); see also Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Hubbard, supra; see also Commonwealth v. Schreiber, 319 Pa.Super. 367, 466 A.2d 203 (1983).

If the underlying issue is found to be of arguable merit then our inquiry shifts to the second prong of the test. The court must determine whether the particular course of action chosen had some reasonable basis which would effectuate the best interest of the client. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Parker, supra; Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983). This determination is not based on a hindsight evaluation of the record. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981); Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983).

The Pennsylvania Supreme Court in Commonwealth v. Badger, supra, employed both prongs of the Maroney test and in the second prong of the performance test, rejected the use of a harmless error/prejudice standard at that stage of the analysis.

[I]n examining the alternatives, a court may not utilize a harmless error analysis, and the alternatives must be examined only as a means of determining whether the course chosen had some reasonable basis.³

482 Pa. at 244, 393 A.2d at 644.

The alternatives not chosen by counsel are evaluated within the context of his trial strategy. If the harmless error standard were used to evaluate counsel’s actions, then his effectiveness would be evaluated in terms of the weight of the evidence against the appellant. This would contravene the well established precedent of Commonwealth ex rel. Washington v. Maroney, supra, and its progeny. The Court in Badger addresses the distinction between the question of the strength of the prosecution's evidence against an appellant and the issue of the reasonable basis of the strategy chosen by counsel to effectuate his client’s best interest.

The United States Supreme Court in Strickland v. Washington, supra, formulates the explanation for the constitutional right of effective assistance of counsel within the right to a fair trial, which is the basis of the second component of the analysis. A finding of ineffective assistance of counsel can result in the granting of a new trial precisely because the counsel’s conduct has deprived the appellant of a fair trial thus rendering the result of the proceeding itself unreliable.

The prejudice component supplies the standard to be applied to the determination of the remedy to be afforded the appellant in a criminal case. A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant. Government of Virgin Islands v. Henry Bradshaw, 726 F.2d 115 (3rd Cir.1984). See also, Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Taliaferro, 309 Pa.Super. 446, 455 A.2d 694 (1983).

The appellant contends that trial counsel was ineffective during voir dire in failing to ask for and use the full number of peremptory challenges to which he was entitled under Pa.R.Crim.P. 1126. Appellant has not shown that his counsel’s unfamiliarity with a recent change in this rule caused him actual prejudice. Appellant offered no proof that a biased jury was selected. Where appellant makes only a general assertion of ineffectiveness of counsel for failing to exercise the full number of peremptory challenges,

Our Court has held that “[t]he mere fact that no jurors were challenged without more cannot be determinative of one’s efficacy as trial counsel.” Commonwealth v. Kitt-rell, 285 Pa.Super. 464, 469, 427 A.2d 1380, 1382 (1981). Counsel cannot be deemed ineffective for not exercising these challenges just for the sake of exercising them.

Commonwealth v. Courts, 317 Pa.Super. 271, 280, 463 A.2d 1190, 1195 (1983).

Therefore, counsel’s action was not shown to have any effect on the outcome of the case, his misunderstanding of the rule was not prejudicial to the appellant, and we find it to be harmless error.

Judgment of sentence affirmed.

SPAETH, President Judge, files a concurring opinion. BECK and POPOVICH, JJ., concur in the result. BROSKY, J., files a dissenting opinion.

1 . This component was enunciated in the seminal case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny, and reiterated by our Supreme Court in Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978).

2 . The following cases are illustrative of the analysis which has been given to such claims employing the two components without articulating them. There is no conflict between the use of the harmless error, prejudice standard, and ineffective assistance of counsel claims.

Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 93 (1982):

Although a prosecutor’s language may be improper, a new trial is not required unless the “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict”. Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976). The nature of the questions objected to by appellant's trial counsel were certainly not of the prejudicial nature which would destroy the jury’s ability to render a true verdict. Furthermore, since all objections were sustained, every attempt by trial counsel to prevent the prosecutor from pursuing an improper question was successful.

Since appellant’s contention that the prosecutor’s cross-examination of appellant requires that a new trial be granted is without merit, trial counsel was not ineffective for failing to request a mistrial.

Commonwealth v. Johnson, 490 Pa. 312, 317, 416 A.2d 485, 488 (1980):

Appellant's sixth claim of ineffectiveness is that counsel failed to object when the judge, and not the jury as required by statute, imposed the penalty. While it is true that the judge here dismissed the jury before imposing sentence, such error is harmless beyond a reasonable doubt because appellant received the minimum sentence for first degree murder, life imprisonment.

Commonwealth v. Wade, 480 Pa. 160, 172, 389 A.2d 560, 566 (1978):

Wade's final argument, advanced through new appellate counsel, alleges a series of omissions by trial counsel which are said to establish that Wade was denied his right to effective representation. As we stated in Commonwealth v. Hubbard, supra, before a defendant on direct appeal is entitled to relief under a theory of ineffective assistance of trial counsel, it must appear that the lawyer's act of omission or commission was arguably ineffective representation, and that it is likely that such ineffectiveness was prejudicial to the defendant. (Footnote omitted)

Commonwealth v. Courts, 317 Pa.Super. 271, 279, 463 A.2d 1190, 1195 (1983):

The test for ascertaining whether a defendant has been denied effective assistance of counsel is well established. "... [Cjounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular counsel chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Moreover, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gordon, 254 Pa.Super. 267, 385 A.2d 1013 (1978).

3 . In defining the term "harmless error/' our Supreme Court has stated:

[A]n error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.

Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 164 (1978).