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COMMONWEALTH of Pennsylvania v. David H. STRACHAN, Appellant

Supreme Court of Pennsylvania1975-03-18No. No. 540 Allocatur Docket, No. 60
460 Pa. 407333 A.2d 790

Summary

Holding. The court granted the petition for allowance of appeal limited to the ineffective-assistance-of-counsel issue and vacated the judgment of sentence, remanding to the trial court for an evidentiary hearing on whether trial counsel provided effective assistance.

David Strachan was convicted of arson and appealed pro se to the Superior Court, raising only sufficiency-of-evidence arguments, which were rejected. He then petitioned for allowance of appeal, raising for the first time a claim that his trial counsel was ineffective. The Commonwealth argued this claim was waived because Strachan had declined appointed counsel on his first appeal and proceeded without representation.

The court held that the waiver rule does not apply to ineffective-assistance claims under these circumstances. The court reasoned that it is unrealistic to expect trial counsel to argue his own ineffectiveness and unrealistic to expect a layperson proceeding without counsel to identify and raise such claims on appeal. Therefore, Strachan did not waive the ineffective-assistance issue by failing to raise it in his pro se appeal.

The court identified two types of ineffective-assistance claims: first, that trial counsel failed to adequately cross-examine the prosecution's key witness despite available lines of attack; second, that counsel failed to call certain witnesses allegedly present in the courtroom. Because the record was insufficient to resolve these claims, the court vacated the sentence and remanded for an evidentiary hearing before the trial court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether ineffective-assistance-of-counsel claims are waived when a defendant declines counsel on direct appeal and proceeds pro se
  • Whether trial counsel was ineffective for failing to adequately cross-examine the prosecution's key witness
  • Whether trial counsel was ineffective for failing to call available witnesses

Procedural posture

Strachan appealed his arson conviction pro se to the Superior Court on sufficiency-of-evidence grounds, which affirmed; he then petitioned for allowance of appeal raising ineffective-assistance-of-counsel claims for the first time.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION OF THE COURT

ROBERTS, Justice.

This petition for allowance of appeal presents the questions of whether petitioner received the effective assistance of counsel at his trial and whether there is sufficient evidence to support his conviction of arson. For the reasons stated below, we grant the petition limited to the issue of ineffective assistance of counsel, vacate the judgment of sentence, and remand to the trial court for an evidentiary hearing.

Appellant was convicted of arson after a jury trial. He was then informed of his right to appointed counsel on appeal and his trial counsel was appointed to represent him on appeal if he desired the assistance of counsel. Appellant chose instead to prosecute his appeal to the Superior Court pro se, raising only the sufficiency of the evidence to support his conviction. The Superior Court affirmed. 228 Pa.Super.Ct. 787, 315 A.2d 299 (1974). Because the claim of the ineffective assistance of counsel is presented for the first time in the petition for allowance of appeal, the Commonwealth contends that it is unavailable here. On this record, we cannot agree.

As a general rule, failure to raise an issue in a criminal proceeding does not constitute a waiver where the defendant is not represented by counsel in that proceeding. See Commonwealth v. Wilson, 444 Pa. 433, 435, 283 A.2d 78, 80 (1971). This rule does not apply where, as here, the defendant knowingly and intelligently waived representation by counsel. Id. In the particular circumstances of this case, however, we believe that the principle involved does have application to the claim of ineffective assistance of counsel.

The counsel whose representation appellant declined was his trial counsel. In Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975), we observed that “it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness,” and held that where the same counsel represents a defendant at trial and on direct appeal the issue of ineffective counsel is not waived by failure to raise it on direct appeal. Similarly, it is unrealistic to expect counsel to advise his client that he was ineffective or to expect a layman to ferret out instances of ineffectiveness without the assistance of counsel. Therefore a defendant who declines the assistance of his trial counsel on appeal and proceeds pro se cannot be deemed to have waived the issue of ineffective assistance of counsel simply because he failed to raise it in his uncounseled appeal.

Appellant’s claims of ineffective assistance of counsel are of two basic types. He first contends that counsel failed to pursue any substantial attempt to weaken the testimony of the prosecution’s key witness, despite the availability of several possibly promising lines of attack on her ability to identify appellant and the necessity of undermining this testimony as the only method of furthering appellant’s case. The record is inadequate to enable us to resolve this claim and we therefore find it necessary to remand the case to the trial court for an evidentiary hearing on whether counsel’s limited cross-examination of the Commonwealth’s witnesses had any reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant also urges that counsel was ineffective because he failed to call certain witnesses who were allegedly present in the courtroom. Because this contention rests on grounds not in the record, it would normally be unavailable on appeal. See Commonwealth v. Dancer, supra. However, as a hearing on ineffective assistance of counsel will be necessary in any event, we see no point in postponing consideration of this claim until post-conviction proceedings. This claim also should be presented to the trial court on remand.

The judgment of sentence is vacated and the case remanded to the trial court to hold an evidentiary hearing on whether appellant received effective assistance of counsel at his trial. If the court finds that he did not receive effective assistance of counsel, a new trial is awarded. If it finds that he did receive effective assistance of counsel, the judgment of sentence should be reinstated. An appeal from the determination may be taken to the Superior Court.

JONES, C. J., dissents.

. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1974).

. At appellant’s request, new counsel was appointed for preparation of a petition for allowance of appeal.