# Commonwealth v. Pierce > Supreme Court of Pennsylvania · June 9, 1987 · 515 Pa. 153 URL: https://www.frixlaw.com/law-library/cases/9704972 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Charles PIERCE, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** June 9, 1987 - **Citations:** 515 Pa. 153; 527 A.2d 973; 1987 Pa. LEXIS 729 - **Precedential status:** Published - **Opinion:** Dissent by Zappala - **Judges:** Nix, Larsen, Flaherty, McDermott, Hutchinson, Zappala, Papadakos - **Cited by:** 1,816 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704972 ## How later opinions describe it (automated extraction) - explaining that to succeed on a claim asserting the ineffective assistance of counsel, the petitioner must establish: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice a… - stating that in reviewing counsel’s stewardship, we do not employ a hindsight evaluation of the record to determine whether other alternatives were more reasonable; rather, counsel will be deemed effective so long as the course chosen by counsel had some reasonable basis desig… - concluding that “the identical textual and policy considerations” in Pennsylvania precedent and Strickland “logically lead us to hold that together they constitute an identical rule of law in this Commonwealth” ## Opinion text ZAPPALA, Justice, dissenting. A popular and indeed cogent axiom states “if it ain’t broke don’t fix it”. Furthermore, there is a far more important and cherished principle that has been the founda *171 tion of criminal jurisprudence in this nation which simply provides that a person is presumed innocent and his guilt must be proven by his accusor. With these two tenets in mind, I must respectfully dissent from the majority’s holding here today. The majority once again seizes upon public clamor to walk in lockstep with our federal brethren. We have once again abandoned our coveted position of being a leader among this nation’s judiciary and relegate ourselves to a position of “follower of federalism”. In moving along this path, the majority of this Court has disregarded this Commonwealth’s reputation for both fairness and excellence. I am convinced that the standard this Court set in 1967 in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967) is a fair and appropriate standard upon which to measure claims of ineffectiveness of counsel and should be retained in this Commonwealth independent of the United States Supreme Court’s addition of an “actual prejudice” component to that standard. I realize, however, that the majority of this Court is of the opinion that the test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) is the proper standard under which to judge ineffectiveness. I respect the majority’s prerogative to so decide. My difficulty here is with the impercipience of the majority in its denial of the fact that Washington and Strickland are two distinct standards which cannot coexist. The majority, rather than acknowledging the obvious distinction between Washington and Strickland , stating the desire of the Court to adopt the “actual prejudice” component, and specifically overruling Washington , instead chooses to argue away both the clear intent of the Washington Court and the obvious distinctions. In so doing, the Court weakens and confuses the law in this area. At the same time, the reasoning reaffirms my belief that Strickland should be rejected. The weakness in the path chosen by the majority in adopting the Strickland standard is clear. The entire theo *172 ry is predicated upon a selective reading of Washington and a denial of the obvious. We began to interpret Washington as paralleling Strickland in Commonwealth v. Buehl, 510 Pa. 363 , 508 A.2d 1167 (1986). We did so, however, by taking out of context a portion of a footnote in Washington, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. When read as it is quoted in Buehl, 510 Pa. at 376 , 508 A.2d at 1174 , the note appears to state that relief will only be granted if Appellant can demonstrate that counsel’s ineffectiveness worked to his prejudice. A reading of the full footnote however, reveals just the opposite. Cases such as Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356 , 223 A.2d 736 (1966), and Commonwealth ex rel. Jones v. Maroney, 417 Pa. 567 , 209 A.2d 285 (1965), indicate that, for relief to be granted, appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice. Appellant, however, advances the proposition that any requirement of prejudice is inconsistent with White v. Maryland, 373 U.S. 59 , 83 S.Ct. 1050 [ 10 L.Ed.2d 193 ] (1963), and Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 [ 7 L.Ed.2d 114 ] (1961). Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, 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. 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. Washington, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. We again quoted the same abbreviated portion of the footnote in Commonwealth v. Albrecht, 510 Pa. 603, 625 , 511 A.2d 764, 775 (1986), and likewise in Commonwealth v. Christy, 511 Pa. 490, 496 , 515 A.2d 832, 835 (1986) and Commonwealth v. Bennett, 512 Pa. 525, 531 , 517 A.2d 1248, 1251 (1986). *173 In the instant case the majority finally confronts both the entire footnote (Slip Opinion at 7, 8) and our holding in Commonwealth v. Badger, 482 Pa. 240 , 393 A.2d 642 (1978). Badger held that in determining ineffectiveness the court may not utilize a harmless error analysis. Faced with this conflict, the majority acknowledges that the Appellant’s reading of Washington and Badger (that prejudice is implicit in the unreasonableness of counsel’s actions and a harmless error standard is not to be utilized), appears to be a correct interpretation, yet attempts to counter that interpretation by stating that this Court has applied Washington and Badger in a manner which requires that the defendant show prejudice. Cited as authority are Buehl, Albrecht, Christy, and Bennett , the cases wherein only a portion of footnote 8 had been reproduced. I cannot subscribe to the theory or practice of creating new law by “incestuous citation” — that is, by quoting phrases in case law taken out of context, and citing them in a sufficient number of cases. As Mr. Justice Musmanno so aptly put it: Our system of jurisprudence is based on precedent. To allow a glaring omission in a judge’s charge to go uncorrected would mean that in future trials where the evidence to convict would not be so overwhelming as the District Attorney and the lower Court believe it to be in this case, a similar omission could not be complained of because this case would be cited as a precedent. It will be recalled that when Bassanio asked that the law be modeled to suit his pressing needs, Portia answered: ‘It must not be; there is no power in Venice Can alter a decree established: “Twill be recorded for a precedent, And many an error, by the same example, Will rush into the state: it cannot be.” ’ [footnote omitted] [Merchant of Venice, Act IV, sc. 1.] Not to order a new trial in the case at hand would be to set our approval on an error and by that example, error could be cited as authority, and a misleading signboard would rise on the highway of truth. *174 Commonwealth v. Edwards, 394 Pa. 335, 338-39 , 147 A.2d 313, 315 (1959). The majority’s error is compounded by citing to earlier cases for support of its position that the defendant bears the burden of demonstrating he was prejudiced by counsel’s ineffectiveness. The majority points to cases such as Commonwealth v. Clemmons, 505 Pa. 356 , 479 A.2d 955 (1984); Commonwealth v. Wade, 501 Pa. 331 , 461 A.2d 613 (1983); Commonwealth v. Vogel, 501 Pa. 314 , 461 A.2d 604 (1983) cert. denied 465 U.S. 1104 , 104 S.Ct. 1603 , 80 L.Ed.2d 133 (1984); Commonwealth v. Johnson, 490 Pa. 312 , 416 A.2d 485 (1980); Commonwealth v. Weathers El, 485 Pa. 28 , 400 A.2d 1295 (1979); Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), as mandating that the defendant demonstrate how the ineffectiveness prejudiced him. A close reading of each of these cases, however, reveals that while the word “prejudice” is used in the context of “ineffectiveness”, not one of them can be read to support the contention that this Commonwealth requires a defendant to meet the Strickland burden of establishing how the ineffectiveness of his counsel (as found by a court under Step 1 of the majority’s test) prejudiced him. In every one of the cases cited by the majority, the claims of ineffectiveness were dismissed at the first inquiry — whether counsel was ineffective. The claims of the defendants in each of these cases were grounded on failure to raise what was judicially determined to be either a baseless or non-meritorious claim in the first instance. We have always declined to find counsel ineffective for failing to raise such a claim. Commonwealth v. Silo, 509 Pa. 406 , 502 A.2d 173 (1985); Commonwealth v. Stoyko, 504 Pa. 455 , 475 A.2d 714 (1984) cert. denied sub nom. Stoyko v. Pennsylvania, 469 U.S. 963 , 105 S.Ct. 361 , 83 L.Ed.2d 297 ; Commonwealth v. Manigault, 501 Pa. 506 , 462 A.2d 239 (1983). The majority errs, however, where it attempts to interpret the Step 1 finding as being identical to the greater Step 2 burden under Strickland which requires an additional showing of prejudice following a finding of ineffectiveness under Step 1. In each case cited by the majority, the Step 2 burden was *175 never reached due to the failure to find ineffectiveness at the initial inquiry. It is clear, therefore, that the prejudice standard referred to by the majority as being identical to the federal test cannot be supported by citation to these cases. Indeed, under the majority’s theory, if, in any of the above cases, a defendant could have shown a claim of arguable merit, the ineffectiveness claim would still have been susceptible to dismissal under a “harmless error” theory (Step 2) if there had otherwise been found overwhelming evidence of that defendant’s guilt; that is, if the defendant could not show prejudice, the acknowledged error could be overlooked as harmless. I can find no support for such a theory in any case decided by this Court. My position, therefore, is that Washington and Strickland represent two separate and distinct tests for analyzing claims of ineffectiveness of counsel. Strickland places the burden upon the defendant to show that the ineffectiveness of his trial counsel prejudiced his case. 1 Washington on the other hand does not place the burden of showing prejudice on either party, but rather concludes that the ineffectiveness of trial counsel is inherently prejudicial. This Court in Badger specifically rejected the notion that this error could be harmless. We said: [The Superior Court in Badger ] reasoned that the Commonwealth’s evidence was so strong that it would be a futile gesture for Badger’s counsel to ask for trial before another judge. Such an assessment of the ‘... strength of the prosecution’s evidence against the defendant is, of course, one step in applying a harmless *176 error standard. See Schneble v. Florida, 405 U.S. 427 , 92 S.Ct. 1056 , 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969).’ Cf. Commonwealth v. Story, 476 Pa. 391 , 383 A.2d 155, 165-66 (1978). Essentially, a harmless error standard seeks to determine whether the error had a prejudicial effect. Commonwealth v. Story, 476 Pa. at 412-413 , 383 A.2d at 166 . See Commonwealth v. Davis, 452 Pa. 171 , 305 A.2d 715 (1973); Schneble v. Florida, supra. Such an analysis in determining whether counsel is effective cannot be used because ‘assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” ’ Holloway v. Arkansas, 435 U.S. 475, 489 , 98 S.Ct. 1173, 1181 , 55 L.Ed.2d 426 (1978) quoting from Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Badger, 482 Pa. at 243-44 , 393 A.2d at 644 . Indeed, even Justice Pomeroy, who would have required a showing of prejudice, acknowledged that Washington did not require one. He stated: Time and again this Court, in its application of the Washington test, see Id., 427 Pa. at 604 , 235 A.2d 349 , has properly made an independent review of the record to determine whether there was ‘a reasonable basis’ for counsel’s action or non-action (citation omitted). But in so doing we have assumed, I think mistakenly, that no inquiry is necessary as to whether or not ineffectiveness, if found, resulted in prejudice. Id., 482 Pa. at 249 , 393 A.2d at 647 (Pomeroy, J. dissenting) (emphasis added). It is therefore clear that the Washington Court announced a new rule of law which introduced a test for ineffectiveness of counsel and that test neither allowed consideration of ineffective representation as a harmless error nor required the defendant to show prejudice following a finding of ineffectiveness. That we may have misapplied the rule at various times does not change *177 that rule unless this Court specifically overrules that precedent. The Court has not done so here nor in any of the other cases cited by the majority in support. While the Court is certainly free to overrule Washington and establish a new test for ineffectiveness in this Commonwealth, I am of the belief that the Washington test as it was originally intended is the only fair and workable standard under which to determine ineffectiveness. The Strickland standard unfairly burdens the defendant with a showing that not only was counsel ineffective but that his ineffectiveness “substantially” contributed to his conviction. This effectively allows his fundamental right to the effective assistance of counsel to be denied on the basis of an appellate court’s determination that there was overwhelming evidence of his guilt, and his claim therefore dismissed as harmless error. The unfairness of this standard was articulated best by Mr. Justice Marshall in his dissent in Strickland : I object to the prejudice standard adopted by the Court for two independent reasons. 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. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel, (footnote omitted) In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice. *178 Second and more fundamentally, the assumption on which the Court’s holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures, (footnote omitted) The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the state does not, in my opinion, constitute due process. In Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967), we acknowledged that certain constitutional rights are ‘so basic to a fair trial that their infraction can never be treated as harmless error.’ Among these rights is the right to the assistance of counsel at trial. Id., at 23, n. 8 , 87 S.Ct., at 827, n. 8 ; see Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). (footnote omitted) In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter, (footnote omitted). I would thus hold that a showing that the performance of a defendant’s lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby. Strickland, 104 S.Ct. at 2076-77 (Marshall, J. dissenting) (emphasis supplied). I must also take issue with the majority’s conclusion that the Pennsylvania Constitution as applied in Washington does not create a greater protection than the Federal Constitution as interpreted by Strickland and that “[t]he fact *179 of the matter is that the identical textual and policy considerations logically lead us to hold that together they constitute an identical rule of law in this Commonwealth.” (Slip Opinion at 10, footnote omitted). This conclusion is flawed because the premise underlying it is flawed. The majority’s misperception of the “obvious identical textual and policy considerations” in the two tests, I have already pointed out. 2 As to the constitutional aspect, the majority ignores our line of cases which state that “[t]his court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution.” See, Commonwealth v. Sell, 504 Pa. 46, 64 , 470 A.2d 457, 467 (1983) (emphasis supplied) and cases cited thereunder. The United States Supreme Court now restricts the rights of defendants because “[intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between an attorney and client,” Strickland, 104 S.Ct. at 2066 and “to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result,” Id. at 2069. We need not follow in blind obedience. I read the above quoted policy considerations underlying Strickland as an attempt by the United States Supreme Court to redefine what proper representation of counsel entails. In so doing, it appears that that court would obviate any requirement that a court hold a criminal defense attorney to the same standard of professional conduct generally mandated by the profession. If one interprets the court’s policy considerations in the context of its holding in Strickland and takes that analysis to its logical extreme, it appears that they would hold that even the most ill-prepared attorney, filled *180 with “sloth or lack of awareness of the alternatives” need not concern himself with his unprofessional conduct in the defense of a criminal defendant so long as he can be reasonably confident that there is overwhelming evidence of that defendant’s guilt. When the highest court in this nation deems it proper to place concern over the burdens and responsibilities imposed upon a professional attorney over those of a criminal defendant in interpreting our country’s constitution, I must respectfully part company with that line of reasoning and speak out in support of the broad, independent right of protection this Commonwealth has always granted to its citizens; even its citizens who stand accused of a crime. We have seldom succumbed to the pressure of the United States Supreme Court’s interpretation of the Federal Constitution when its provisions have been interpreted narrowly and in derogation of the rights this Commonwealth has deemed appropriate to protect its citizens. In the majority’s great haste to cast off the independent rights we have conferred upon the citizens of this Commonwealth in exchange for the simplicity of becoming homogeneous with the United States Supreme Court, and thereby allowing them to make decisions and conduct analysis in our stead, we have failed to be mindful of the concerns expressed by Mr. Chief Justice (then Justice) Nix in Commonwealth v. Sell, supra, where, in undertaking to interpret our State Constitution in terms of the Federal Charter he observed: [W]e find guidance in the admonitions of Mr. Justice Brennan of the United States Supreme Court: [T]he decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well- *181 reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977). Sell, 504 Pa. at 49 , 470 A.2d at 459 . Had the majority not acted in such haste as it embraced a mechanical application of Strickland , it would not now be in the unenviable position of attempting to force a “square peg into a round hole”. In further support of my contention that the majority has totally ignored not only the proper application of precedent in this Commonwealth, but also the distinction between our State Constitution and the Federal Charter, I note with interest the majority’s citation to Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986), (Majority Opinion at 161-162, footnote 4) which the majority reads as being “an indication that the United States Supreme Court will expect, in the future, that state tribunals conduct ineffectiveness analyses via a performance and prejudice standard which, as already has been shown, is our standard.” Id. at footnote 4. This statement, not only ignores the context in which the Van Arsdall decision was rendered, but again reveals the majority’s perceived omnipotence of that federal court. It is clear that no derivative power can be pointed to which would allow that court to dictate to any state court, analyzing a question arising under its state constitution, the proper standard to be applied in a situation where that standard is being reviewed under a state constitution which provides greater protection than the minimum set forth under the Federal Charter. In Van Arsdall , it should be noted, the claim of ineffectiveness was addressed solely under the Sixth Amendment. For that reason, and that reason alone, it was proper for the Supreme Court to remand to the Delaware Court for proper application under the substantive standards of the Sixth Amendment as interpreted by the Supreme Court. As Mr. *182 Justice Marshall noted in his dissent in Van Arsdall , however: I also write to emphasize that this Court cannot require state courts to apply harmless-error analysis to violations of the Federal Constitution. See, Connecticut v. Johnson, 460 U.S. 73, 88 , 103 S.Ct. 969, 978 , 74 L.Ed.2d 823 (1983) (Stevens, J. concurring in judgment). While this Court has stated that federal law governs the application of harmless error to violations of the Federal Constitution, see Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824, 826 , 17 L.Ed.2d 705 (1967), that cannot mean more than that state courts must reverse convictions when the Constitution so mandates. When the Constitution does not mandate a particular remedy, this Court may not ‘declare which of many admittedly constitutional [remedial] alternatives a state may choose.’ Id. at 48 , 87 S.Ct., at 840 (Harlan, J. dissenting) (footnote omitted). We have never held that the Federal Constitution forbids state courts from reversing certain convictions pursuant to state substantive or procedural law, nor can I imagine what provision of the Constitution could grant us such power. Thus, the Delaware Supreme Court remains free on remand to decide that even though it applied the substantive standards of the Sixth Amendment to determine whether error occurred, its harmless error analysis was the product of state rather than federal Law. Van Arsdall, 106 S.Ct. at 1440-41 (Marshall, J. dissenting) (emphasis in original). I must therefore reject outright any inference which could be drawn from the majority’s observations of the Supreme Court’s intent in Van Arsdall , as indicating this Court’s willingness to abdicate any of its interpretive functions where an appellate question implicates rights guaranteed under our state constitution. As we continue to place greater, and at times insurmountable burdens of proof upon a defendant, as the majority does today, we increasingly retreat to the ancient precept that a criminal defendant is cloaked in the presumption of guilt until he proves his innocence. It was, in large part, *183 for this very reason, the harsh results experienced in the jurisprudential application of the presumption of guilt that prompted the migration of the Europeans to this Commonwealth over 200 years ago. The inequity of that system was that many innocent individuals suffered punishment because they could not overcome the overwhelming burden of proving themselves innocent of charges, the evidence of which was in the sole possession of the accusors. I do not choose to move one step closer to that system. I must therefore dissent from what I characterized in Christy to be nothing more than a move by this Court toward a “shortcut, result-oriented practice of jurisprudence.” Commonwealth v. Christy, 511 Pa. 490, 519 , 515 A.2d 832, 847 (1986) (Zappala, J. dissenting). . It would have indeed been helpful to my understanding of the majority’s holding today had it set forth its analysis of how that test compares with the harmless error test this Court announced in Commonwealth v. Story, 476 Pa. 391 , 383 A.2d 155 (1978). In Story , we placed the burden of showing harmless error with respect to all other trial errors upon the Commonwealth, Id., 476 Pa. at 406, n. 11 , 383 A.2d at 162 n. 11, setting the burden of proof at the greatest possible degree, “beyond a reasonable doubt". In other words an error is to be considered harmful, and the basis for granting relief, unless the Commonwealth can establish otherwise. To my knowledge, this Court has never overruled nor modified that test by shifting the burden to the defendant to prove the negative. . I note that the majority’s opinion is devoid of any citation or discussion of policy considerations in this Commonwealth that would support its contention that we are of the same mind as the Strickland court and have been so since the time of Washington . I cannot, therefore, point to their misperception of our policy considerations as they relate to ineffectiveness. The fact of the matter is, I cannot honestly argue that they have been misperceived, only ignored. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704972. Public record. Not legal advice.