Matter of Smith

CAVANAUGH, Judge:

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

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

At the adjudicatory proceeding appellant was represented by the Public Defender’s Office. Testimony was taken and, at the conclusion of the hearing, appellant was found to be delinquent. Post-trial motions were filed in which counsel alleged, inter alia, her own ineffectiveness. New counsel was appointed, post-trial relief was denied, and appellant was ordered to be committed to the Glen Mills School. After the denial of relief, post-trial appointed counsel withdrew and present counsel entered his appearance on behalf of appellant. This direct appeal followed.

The issues presented all concern the caliber of representation appellant received from trial counsel — the allegation being that appellant’s attorney, in various respects, was derelict in her stewardship of the case. Appellant’s ability to present these assertions is predicated upon the right of juveniles to receive effective assistance of counsel once the right to any counsel has attached. It is the existence of this right which appellant now argues.¹ This appears to be an issue of first impression in Pennsylvania.

The United States Supreme Court concluded in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that certain constitutional guarantees, including the right to assistance of counsel, were to be extended to juveniles. In so holding, the Supreme Court made clear its determination that the quality of representation to be provided was not in question:

A proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child “requires the guiding hand of counsel at every step in the proceedings against him.”

387 U.S. at 36, 87 S.Ct. at 1448 (footnotes omitted, emphasis added).

In a further exploration of the necessity for appointment of counsel, the Report by the President’s Commission on Law Enforcement and Administration of Justice, “The Challenge of Crime in a Free Society” (1967), is quoted at length in Gault. Pertinent to the question before us is the following statement:

The Commission believes that no single action holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel. The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires. The rights to confront one’s accusers, to cross-examine witnesses, to present evidence and testimony of one’s own, to be unaffected by prejudicial and unreliable evidence, to participate meaningfully in the dispositional decision, to take an appeal have substantial meaning for thé overwhelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively.

387 U.S. at 38 n. 65, 87 S.Ct. at 1449 n. 65 (emphasis added).

In Pennsylvania, the right of a juvenile to assistance of counsel has been codified in the Juvenile Act, 42 Pa.C.S.A. § 6337. To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule of Statutory Construction, 1 Pa.C.S.A. § 1922(1), which specifies that:

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

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

See also, Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), and in its progeny, our Supreme Court has reiterated that the right to counsel’s assistance must also include the right to effective assistance. Clearly, it is a fundamental tenet of our system of jurisprudence that, once any right to representation has been established, that representation must be constitutionally adequate. Id., 427 at 601, 235 A.2d at 351. That this is true may be seen from examination of the effective assistance right in other contexts.

The right of a juvenile to effective assistance of counsel has been addressed in dicta by this court in In re DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977). Speaking for an en banc court, Judge Spaeth stated:

[sjince this is not a purely criminal case, the doctrine of ineffectiveness of counsel is not automatically available. A criminal defendant’s right to effective counsel is based on the Sixth Amendment of the United States Constitution, made applicable through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A child’s constitutional rights in a juvenile proceeding are based entirely on the Due Process Clause of the Fourteenth Amendment. Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, the standard for determining whether the right to counsel has been denied may be different depending on whether the defendant is a criminal defendant or a juvenile.

Id. 249 Pa.Super. at 154-155, 375 A.2d at 806.

However, in light of the development of the law relating to the right to effective representation by counsel, the possible effect of the divergent sources of the right to counsel mentioned in DelSignore has become a distinction without a difference.

Those cases in which this court has found the right to effective assistance of counsel where questions of paternity are involved offer an apt parallel, as they too are civil proceedings which involve the possible loss of physical liberty. In Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982), this court concluded that due process compelled the appointment of counsel for indigent defendants in civil paternity suits. In so holding, we determined that “the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required.” Id., 305 Pa.Superior Ct. at 185, 451 A.2d at 483. In deciding whether the due process right to counsel in paternity matters included the right to effective assistance by that counsel, this court in Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984), noted, referring to Gault, that the civil/criminal dichotomy “has been abandoned in favor of an emphasis on the nature of the threatened deprivation.” Id., 337 Pa.Superior Ct. at 200, 486 A.2d at 976. Where the loss of liberty is implicated, counsel must be competent; otherwise, with effectiveness left out of the due process/representation equation, the right to counsel would become meaningless. See also Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988).

In an even more apt analogue, the right to effective assistance of counsel has also been found to exist in the context of civil commitment proceedings. In In re Hutchinson, 500 Pa. 152, 454 A.2d 1008 (1982), our Supreme Court reasoned that “the involuntary civil commitment of mentally ill persons constitutes deprivation of liberty and may be accomplished only in accordance with due process protections.” Id., 500 Pa. at 156, 454 A.2d at 1010 (citations omitted). The legislature provided, in the Mental Health Act, for counsel to be made available to the alleged incompetent; therefore,

[f]or the legislatively-created right to representation to have meaning, counsel must be effective. Indeed, without the guiding hand of competent counsel, appellee’s right to representation would be rendered worthless.

Id., 500 Pa. at 157, 454 A.2d at 1011 [Emphasis supplied.] Further echoing the sentiments of Gault, our Supreme Court emphasizes that without adequate counsel, other rights involved in due process, e.g., to cross-examine and confront witnesses, go unexercised.²

It is important to emphasize the nature and procedural posture of this case. There is no question that at issue is appellant’s interest in maintaining his physical liberty. In an instance of a juvenile’s commitment to Glen Mills Diagnostic Center this court has noted, “A juvenile has the same substantial interest in retaining his liberty as an adult.” In Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988). This case is before us on a direct appeal from the adjudication and disposition of delinquency. It is the sole means available to a juvenile to challenge the legality and propriety of the proceedings and outcome of the juvenile court. We are not faced with a collateral attack brought after appellate review on a direct appeal. Rather the issue of effectiveness is before an appellate tribunal for the first time.

The gravity with which juvenile dispositions are regarded is evidenced by the fact that they may be considered by a court in determining sentence in a subsequent adult criminal case. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987); 42 Pa.C.S.A. § 6354(b)(1). The effect a juvenile record may have upon one’s later treatment in the criminal justice can be substantial.

We conclude that a juvenile who is the subject of a delinquency petition is entitled to effective assistance of counsel at the adjudicatory and dispositional phases of juvenile proceedings.

Having determined that the juvenile has the right to effective assistance of counsel, the next issue is determination of the standard by which competency is to be measured. We find that, given the near-identity of interests of a defendant in a criminal case and a juvenile in delinquency proceedings, the same standard for both sorts of matters should be applied.

The standard applicable to adult criminal cases has been articulated as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

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 counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Commonwealth v. Durst, 522 Pa. 2, 3, 559 A.2d 504, 505 (1989).

The constitutionally-mandated similarities between criminal and delinquency proceedings make application of a uniform standard desirable. The liberty interest of a juvenile 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, in terms of both procedure 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 in delinquency adjudications and dispositions originate from the criminal law.³ Therefore, we find that analysis of the effectiveness of counsel in juvenile matters requires application of the same standard as that employed in review of adult criminal cases.

The next issue before us is whether claims of error, specifically a challenge to the effectiveness of counsel’s representation, pertaining to juvenile proceedings must be preserved through the filing of post-trial motions in the lower court. The Juvenile Act does not provide for the filing of post-trial motions. Nor does the Act itself provide for a right of appeal. Rather the right of appeal generates from the Pennsylvania Constitution, Article V, section 9, which guarantees the right of appeal from a court of record to an appellate court. Case law has established that the appeal properly lies from the dispositional order and not from adjudicatory order. In the Interest of McDonough, 287 Pa.Super. 326, 430 A.2d 308 (1981). The question remains whether the requirement of post-decision motions should be imposed in juvenile proceedings.

The purpose of post-trial motions is to allow a trial court the opportunity to consider and rule upon allegations of error committed by it. The interest of judicial integrity and economy are served where the court whose actions are challenged is afforded the chance to address the concerns of the losing party.

In criminal matters the filing of post-verdict motions to preserve issues for appeal is mandated by Pa.R.Crim.P. 1123. The Rules of Criminal Procedure do not apply to juvenile matters. In re Becker, 370 Pa.Super. 487, 536 A.2d 1370 (1988); Pa.Rule Crim.P. 1. We find, however, that the application of a post-adjudication motion requirement in juvenile cases would serve the same interest of economy and review as it does in criminal cases. Post-adjudication motions were filed in this case and it appears that this practice in juvenile cases is not uncommon.

Additional reasons for requiring post-adjudication motions are the applicability of the waiver doctrine⁴ and the finality of the direct appeal process in juvenile matters. Since issues may not be presented and reviewed on direct appeal unless they have been properly preserved below, the post-adjudication motion affords both the juvenile and the court the opportunity to address all issues which may be the subject of possible appeal. The fact that there exists no statutory collateral appeal from juvenile matters militates in favor of questions of ineffective assistance of counsel being fully considered at both the trial and direct appeal levels.

The absence of a post-adjudication motion procedure would result in delay and, in some cases, complete preclusion of appellate review of issues in juvenile matters. Without application of post-adjudication motions, the direct appeal procedure would not resolve effectiveness issues postured similarly to the one here under scrutiny. Without them, trial counsel, who was replaced after arguing her own ineffectiveness in post trial motions, would not have been able to present this claim to the trial court, 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, for whatever reason, to proclaim her own ineffectiveness, no such allegation would ever appear before us. Since the waiver rule does in fact exist and is applied in juvenile dispositions, the badly represented child would have no avenue of redress unless the broad scope of review already afforded this court in juvenile matters were further extended to include the power to raise all questions of,counsel’s stewardship sua sponte. The mechanism of post-adjudication motions at the trial court ensures both timely and thorough review of claims of ineffectiveness of counsel.

We conclude, therefore, that the procedure used in the instant case was proper, and that post-adjudication motions are the appropriate means by which allegations of ineffectiveness of counsel are brought before the trial court and are preserved for appellate review.⁵

We now turn to appellant’s specific allegations of his attorney’s incompetence. It is first contended that appellant’s trial counsel was ineffective in waiving a viable suppression motion. Appellant’s trial counsel had filed a pre-trial motion to suppress his arrest and/or identification. However, at the hearing on March 23, 1987, it became known that the arresting officer was unavailable to testify, despite a subpoena by the Commonwealth, due to his involvement in another trial. Thus a request for a continuance by the Commonwealth was necessitated, and in response thereto, defense counsel waived the motion to suppress. Counsel’s basis for her waiver of the motion was her fear that, if the case were continued, the defense witnesses would fail to appear at the future date. When she later filed post-trial motions on appellant’s behalf, trial counsel cited her failure to pursue this motion as one of the grounds for alleging her own ineffectiveness.

On appeal, appellant claims that, had his attorney pursued the suppression motion, she could have challenged the identification procedure on the basis that his arrest was not supported by probable cause and the identification was inherently suggestive.⁶ He now contends that his attorney’s waiver of the suppression motion allowed both his arrest and the out-of-court identification to go unchallenged and that he was prejudiced thereby.

However, appellant has not shown that the suppression motion would have been successful. Even if it were true that the arrest was not supported by probable cause, an illegal arrest does not, by itself, provide a basis for suppressing identification evidence, since we cannot assume that were it not for the illegal arrest the defendant would never be required to face his accusers. See, Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); Accord, Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984). The trial judge found appellant’s contention to be meritless, concluding that although the hospital identification may have been suggestive, the victim nevertheless had an independent basis for making his in-court identification, having viewed appellant for at least five seconds during the commission of the. assault. We agree. Thus, we find that appellant’s claims with regard to the underlying issues concerning the legality of his arrest and the suppression of his identification by the victim lack arguable merit. As such, 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 contained questions of arguable merit, counsel’s decision to forego the suppression issue' is a matter of tactics supportable by reference to appellant’s best interests. As appellee points out, the arresting officer was unavailable to testify for the prosecution, and his absence could have been perceived as having an adverse effect on its case. Counsel was faced with a dilemma in which she was forced to weigh the possibility of her own witnesses’ failure to appear at a later date against the definite absence of certain Commonwealth evidence. She chose the latter. As this court stated in Commonwealth ex rel. Washington v. Maroney, supra 427 Pa. at 604, 235 A.2d at 352-53:

The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weight the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

In his next argument, appellant alleges ineffectiveness in his trial counsel’s failure to present supposedly exculpatory eyewitness testimony. Specifically, appellant alleges that counsel should have presented an eyewitness to the shooting who, according to a police report, told the officers at the scene that appellant was not the assailant.

When a defendant seeks to establish ineffectiveness of counsel for failure to call or investigate witnesses, he must supply a factual basis indicating (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have procided; and (4) the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Torres, 329 Pa.Super. 58, 477 A.2d 1350 (1984).

Instantly, the information necessary to meet three of the four prongs of the Torres test relies on material which we may not consider. Although the police report in question appears in appellant’s reproduced record and is argued in appellant’s brief, it is not contained in the official record which is the only source on which we may base our determinations. Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 534 A.2d 798 (1987). See also Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). It is therefore not persuasive. However, even assuming that the thoretically exculpatory material were available for appellate review, appellant does not allege that he interviewed the witness, that he actually had useful information, or that he would have testified on his behalf. See Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989) (no showing that allegedly exculpatory witnesses would have aided defense); Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989) (testimony of absent witness must be presented by witness himself.) Moreover, another eyewitness testified on behalf of the defense that he had seen the shooter and it was not appellant. Therefore, the testimony not presented would merely have been cumulative, and counsel cannot be found ineffective for failing to present cumulative evidence. See, Commonwealth v. Smillie, 316 Pa.Super. 83, 462 A.2d 804 (1983).

Finally, appellant asserts his attorney’s incompetence in failing to impeach Commonwealth witness Bernard Johnson with his prior inconsistent statement. He contends that since Johnson denied at trial having made a statement to the arresting officer that appellant was not the perpetrator, his credibility could have been impeached by the arresting officer, but that with the waiver of the suppression motion, the opportunity to present the officer’s testimony was lost. Since appellant failed to provide the court below with an opportunity to rule on this matter when first presented by current counsel, he has failed to preserve it for our review. See, In re Del Signore, 249 Pa.Super. 149, 375 A.2d 803 (1977).

However, even if not waived, this issue lacks merit. At trial, Johnson testified that appellant was not the shooter, and thus was a favorable defense witness. As the Commonwealth states, any reasonable attorney would have been satisfied with Johnson’s trial testimony, considering it far more important than the issue of whether he had given police a similar account, and would not have wanted to destroy the credibility of a favorable defense witness. See Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982) (counsel properly did not present someone who would have undermined credibility of important defense witness).

Accordingly, we find that appellant was adequately represented at trial, and as such, his claims to the contrary must be defeated.

Order affirmed.

BECK, J., files concurring and dissenting opinion, joined by ROWLEY, J. TAMILIA, J., files concurring and dissenting opinion, joined by GRILLO, Presiding Judge. POPOVICH, J., files concurring statement. JOHNSON, J., files concurring and dissenting opinion.

1 . Although this-issue was presented below, the trial court declined to address it.

2 . Concern for the liberty and due process interests of children has led to the application of principles normally reserved for the adult offender. See, In Interest of Davis, 377 Pa.Super. 46, 546 A.2d 1149 (1988), (an en banc panel of this court extended the right of confrontation to a juvenile whose probationary status was revoked on the basis of hearsay testimony); In re Becker, 370 Pa.Super. 487, 536 A.2d 1370 (1988) (analysis of amendment to juvenile petition same as that under Pa.R.Crim.P. 229 relating to criminal cases); In re Saladin, 359 Pa.Super. 326, 518 A.2d 1258 (1986) (in determining existence of conflict of interest in representation at juvenile adjudicatory hearing same standard applies as to adults.); In Interest of Mellott, 327 Pa.Super. 396, 476 A.2d 11 (1984) (suppression of statement at adjudicatory hearing where juvenile not warned of Miranda rights prior to custodial interrogation).

3 . A “delinquent act" is defined as follows:

(1) The term means an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinances.

(2) The term shall not include:

(i) the crime of murder; or

(ii) summary offenses, unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court.

42 Pa.C.S.A. § 6302.

4 . See, In re DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977).

5 . A panel decision of this court, Commonwealth v. Clay, 376 Pa.Super. 425, 546 A.2d 101 (1988), stated that post-verdict motions were not the correct means by which to preserve issues for appeal in a juvenile matter. To the extent that Clay is inconsistent with the holding of the instant case it is disapproved.

6 . Since no physical evidence was seized, and appellant could not have suppressed his person as the product of an illegal arrest, see Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986), he sought only to suppress the identification evidence as the fruit of his allegedly illegal arrest.