“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.
How later courts described this 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.
- Cirillo, J.; Spaeth, P.J., Beck and Popovich, JJ., concurring in the result; Brosky, J., dissenting
- no relief due where counsel’s alleged error had no effect on the outcome
Written by the judges who cited it.
The opinion
BROSKY, Judge,
dissenting:
I dissent.
First, I find it a dubious undertaking for this Court to rewrite definitive Supreme Court enunciated standards. See note 2 of the majority opinion quoting Commonwealth ex rel. Washington v. Maroney and paraphrasing Commonwealth v. Hubbard.
The fact that the United States Supreme Court in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), has declared a “harmless error” standard applicable to the Sixth Amendment right to counsel is, for this Court; a non-sequitur. This is because the Courts of this Commonwealth are free to impose a higher level of protection of an individual’s civil liberties than is mandated by the Federal Constitution. Commonwealth v. Walsh, 314 Pa.Super. 65 , 460 A.2d 767 (1983). Ker v. California, 374 U.S. 23 at 34 , 83 S.Ct. 1623 at 1630 , 10 L.Ed.2d 726 at 738 (1963). See Pa. Const. Art. 1 § 9. Until, and if, the Supreme Court of this Commonwealth reshapes the declared standard we continue, I believe, to be governed by it. I suggest that we forget our subordinate role to our Commonwealth’s high court when we follow the lead of the U.S. Supreme Court in areas where Pennsylvania’s Supreme Court is not obliged to follow.
Second, I find the majority’s “sub silentio ” argument unconvincing. If, indeed, the Pennsylvania Supreme Court advocates a harmless error standard, let it do so openly and plainly. I would also note that it has had the opportunity to do so in a number of cases and has not explicitly done so. 1 I fear that legal predictability rests on too fragile a footing when we read into Pennsylvania Supreme Court cases stan *595 dards which have not been forthrightly announced and which, further, go beyond the clearly stated standards.
Third, while not expressing a firm conclusion on this matter (for I do not think that we are in a position to do so), I note that Justice Marshall’s dissent in Strickland raises some salient points which are cause for deep concern. Most significantly in this regard is the following:
First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel.
Strickland v. Washington, supra — U.S. at —, 104 S.Ct. at 2076 (Marshall, J., dissenting).
I would reverse. 2
. Of course, this case itself, were allocatur granted, would provide a forum for such a change.
. I note that the majority opinion did not treat appellant’s other issues dealing with excessiveness of sentence, a Riggins, 474 Pa. 115 , 377 A.2d 140 (1977) violation and a merger question.