Commonwealth v. Pierce

*164 NIX, Chief Justice,

concurring.

I agree with the majority that this jurisdiction should adhere to its formulation of ineffectiveness as set forth in Commonwealth ex rel. Washington v. Maroney (“Washington”), 427 Pa. 599 , 235 A.2d 349 (1967). I also agree that the Washington standard as originally formulated clearly required an independent finding of prejudice. Using the Washington standard, properly applied, it is clear that appellant did not establish ineffectiveness of counsel in this matter. Thus I join in the mandate of the majority. I cannot however join the opinion because I do not believe that Washington and Strickland v. Washington (“Strickland”), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), are premised upon “identical textual and policy considerations”, maj.op. pg. 16l, nor do I agree with the assertion that Washington does “not create greater ... protection under Article I, Section 9, of the Pennsylvania Constitution, than the present federal standard.” Maj.op. pg. 161. I am also in disagreement with the implication in the majority opinion that Washington permits a finding of ineffectiveness and that such a finding can be rendered harmless by the absence of a showing of prejudice. The Washington rationale requires a finding of prejudice resulting from counsel’s alleged dereliction before it can be deemed to be constitutionally deficient. 1

In Washington the Court was assessing the trial strategy employed by counsel. It first established the test as being whether the “course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.” 427 Pa. at 604 , 235 A.2d at 352 (emphasis in original). The Washington court further directed that the test was “not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.” Id. (em *165 phasis in original.) Rather, that Court instructed that effective assistance is to be found if trial counsel’s decision had any reasonable basis. It pointed out that “a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.” Id., 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. In that context the Court proceeded to dispose of the question as to whether there must be an independent demonstration of prejudice by stating:

Obviously, then, if there is no reasonable basis to support trial counsel’s decisions (a finding prerequisite to a conclusion of ineffectiveness), his decisions a fortiori were prejudicial to the client.

Id., 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8.

The above language was intended merely to indicate that, where the underlying strategy of the defense was found wanting under the reasonable basis test, such an error would so infect the entire course of the trial that the prejudice to the defendant would be obvious. The majority is correct in concluding that this language did not warrant a conclusion that prejudice would be presumed. The Washington Court reasoned that in the case before it the existence of prejudice was evident and further demonstration of its presence was unnecessary. The Washington opinion properly read clearly mandates that prejudice must be an essential ingredient of a finding of ineffectiveness. Therefore, I cannot accept the majority’s suggestion that there can be a finding of ineffectiveness of counsel without a finding of prejudice. I also reject the suggestion that the absence of prejudice merely renders the ineffectiveness of counsel harmless.

This disagreement is more than mere semantics because it reaches the very heart of the term “ineffective assistance of counsel.” The right to assistance of competent counsel at trial as recognized at this time, in this Commonwealth, is a critical element of the panoply of rights encompassed in the concept of a fair trial. Article I, section 9, of our *166 Constitution has been interpreted to require that an accused is entitled to competent counsel at trial. Commonwealth v. Wideman, 453 Pa. 119 , 306 A.2d 894 (1973); Commonwealth ex rel. Simon v. Maroney, 405 Pa. 562 , 176 A.2d 94 (1961), cert. denied, 376 U.S. 966 , 84 S.Ct. 1126 , 11 L.Ed.2d 984 (1964). This is based upon a recognition of the myriad duties that trial counsel must fulfill on behalf of the client to assure a fair trial to the accused. American Bar Association, Standards for Criminal Justice (hereinafter ABA Standards), Standard 4-1.1, Commentary, “The Role of the Defense Counsel” (1982). Counsel must assure procedural fairness, ABA Standards, supra, Standard 4-3.6(a), keep the accused fully informed of all of his options throughout the proceedings, ABA Standards, supra, Standard 4-3.1(a); 4-3.1(b); 4-3.8; 4-6.2(a), and assure that the client’s cause is presented in the most favorable light. ABA Standards, Standard 4-1.1, Commentary, supra. For this reason it is obvious that the right to counsel must necessarily require the right to the assistance of effective counsel. 2 See McMann v. Richardson, 397 U.S. 759 , 773 n. 14, 90 S.Ct. 1441 , 1449 n. 14, 25 L.Ed.2d 763 (1970); Reece v. Georgia, 350 U.S. 85, 90 , 76 S.Ct. 167, 170 , 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 69-70 , 62 S.Ct. 457, 464 , 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 446 , 60 S.Ct. 321, 322 , 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 57 , 53 S.Ct. 55, 59 , 77 L.Ed. 158 (1932); see generally Bazelon, “The Defective Assistance of Counsel”, 42 U.Cin.L.Rev. 1 (1973); Waltz, “Inadequacy of Trial Representation as a Ground for Post-Conviction Relief in Criminal Cases”, 59 N.W.U.L.Rev. 289 (1964).

*167 Ineffective assistance by definition should relate to the responsibilities imposed upon counsel in undertaking the stewardship in the matter. The finding of ineffectiveness must reflect that counsel has been derelict in the performance of one of the duties undertaken in the role of counsel, i.e., that counsel has failed to assure procedural fairness or to keep the accused fully informed of all of his options throughout the proceedings or to present the cause of his client in the most favorable light. In assessing counsel’s responsibility in each of these instances, the reasonable basis test of Washington is to be applied. Under this test, counsel’s assistance is to be found lacking only if one of these responsibilities was not met. In such a case, prejudice would be evident. This eliminates the scrutiny of an isolated judgment which did not impact upon the basic responsibilities of counsel in the discharge of his office.

Under the Washington type of situation, where the stewardship of the conduct of the trial has been found wanting, the prejudice is clearly present and a finding that the constitutional mandate requiring effective counsel has not been met. However, where the reasonable basis test is being applied to an isolated judgment made by counsel during the course of trial, its impact upon the overall quality of representation is not necessarily as clear as in the Washington type situation. In this instance, it can only be demonstrated that the constitutional mandate requiring effective counsel has been ignored when it is clearly established that the dereliction was such as to reduce the overall quality of representation below the acceptable level. That occurs when one of the obligations of counsel to the client has not been met (iie., where the dereliction of counsel has caused the defendant to have been deprived of procedural fairness, failed to properly inform the accused of the important options throughout the proceedings, or failed to present the position of the client at trial in the most favorable light available). It is the resultant prejudice to the defendant that establishes that the defendant did not *168 receive the benefit of effective representation and justifies the finding of ineffective counsel which is constitutionally offensive. 3

This formulation is clearly different from that established in Strickland . The Strickland test focused upon the reliability of the judgment. It has been charged that the Strickland majority construed the federal constitutional quarantee of effective assistance of counsel to reducing the chance of an innocent person being convicted of crime. Strickland v. Washington, supra, 466 U.S. at 711 , 104 S.Ct. at 2077 (Marshall, J., dissenting). Such a view would be incompatible with the concept of the right to effective counsel in this Commonwealth which guarantees anyone charged with crime a fair trial, which necessarily includes the right to competent counsel.

Moreover, I do not subscribe to the view that permits an assessment of the strength of the Commonwealth’s case, after the fact, as a valid indicator of the reliability of a verdict of guilt. It may well be that counsel’s ineffectiveness substantially contributed to the apparent invincibility of the Commonwealth’s proof. As noted by this Court in Commonwealth v. Edwards, 394 Pa. 335, 338 , 147 A.2d 313, 315 (1959):

Even, if in a hypothetical case, the evidence of guilt piles as high as Mt. Everest on Matterhorn, even if the District Attorney conscientiously believes the defendant to be as guilty as Cain, and no matter with what certainty the Judge views the culpability of the accused at the bar, the defendant is still entitled to all the safeguards of a fair trial as announced in the Constitution and the law of the land.

Unfortunately, there have been decisions which purportedly applied the Washington standard that presumed preju *169 dice where it was not evident from the record. 4 Commonwealth v. Bolden, 512 Pa. 468 , 517 A.2d 935 (1986) (Nix, C.J. and McDermott, J. dissenting); Commonwealth v. Bricker, 506 Pa. 571 , 487 A.2d 346 (1985). It was cases such as these that caused this writer to seriously consider the wisdom of abandoning Washington as a standard. However, in view of today’s reaffirmance that prejudice is indeed a critical element for such a finding, 5 I can again enthusiastically embrace Washington as the appropriate test for a determination of ineffectiveness of counsel under our constitutional provision.

. The discussion in the concurring opinion of Mr. Justice Hutchinson and the dissenting opinion of Mr. Justice Zappala relating to the question of the applicability of harmless error to a finding of ineffective assistance of counsel is misplaced. Properly defined, ineffective assistance of counsel requires a finding of prejudice that would necessarily negate the proposition that the error was harmless.

. Judge Bazelon noted that “[t]he Sixth Amendment [right to counsel] demands more than placing a warm body with a law degree next to the defendant____ A defendant is no less harmed when counsel is present but fails to perform the duties owed to his client than when counsel is absent altogether," United States v. DeCoster, 199 U.S.App. D.C. 359, 453 n. 129, 624 F.2d 196 , 290 n. 129 (D.C.Cir.) (en banc) (Bazelon, J., dissenting, joined by J. Skelly Wright, C.J.) cert. denied, 444 U.S. 944 , 100 S.Ct. 302 , 62 L.Ed.2d 311 (1979). Although Judge Bazelon was referring to the Federal right to counsel, his observation is equally applicable to the constitutional right to counsel provided in this Commonwealth.

. In this context it must be emphasized that the Washington standard does not mandate the highest quality of advocacy but rather insists upon the minimal level of competency. See Commonwealth ex rel. Washington v. Maroney, supra.

. These were decisions where the claimed error of counsel did not in fact deprive the defendant of the guaranteed assistance of counsel and, therefore, the grants of new trials were clearly unwarranted.

. My only regret is that the majority did not explicitly make the finding of prejudice an element of the determination of ineffectiveness.