Commonwealth v. Boyer

Concurring and Dissenting Opinion by

Hoffman, J.:

I agree with the Majority that Commonwealth v. Rose, 457 Pa. 380 , 321 A.2d 880 (1974), is not retroactive, and that trial counsel’s handling of the insanity defense was adequate. I cannot agree with the Majority’s conclusion that where the alleged ineffectiveness of trial counsel is apparent in the trial record, the petitioner is precluded from raising the issue in a post conviction hearing 1 because he failed to prosecute a direct appeal.

On January 9, 1973, appellant was found guilty by a jury of prison breach and was sentenced to one to two years’ imprisonment. Although advised of his appellate rights by the trial court, appellant did not seek *352 review in our Court. On January 25, 1974, however, appellant filed 1 a petition under the Post Conviction Hearing Act, alleging that trial counsel was ineffective for failing to raise an insanity defense adequately, and for failing to object to a reference by the Commonwealth witness to appellant’s silence at the time of his arrest. Following an evidentiary hearing, the lower court dismissed the petition.

The Majority first concludes that appellant’s decision not to take a direct appeal was both knowing and voluntary. The Majority then relies on Commonwealth v. Dancer, 460 Pa. 95 , 331 A.2d 435 (1975), for the proposition that if the alleged ineffectiveness is apparent in the record, the failure to take a direct appeal constitutes a waiver. Thus, the Majority does decide the claim of ineffective assistance for failing to raise adequately the defense of insanity, because that issue could not appear in the trial record. In regard to counsel’s failure to object to a reference to appellant’s silence at the time of his arrest, however, the Majority concludes that the issue is waived. In my opinion, this conclusion is not warranted by Dancer .

In Dancer , the Supreme Court held that if ineffectiveness is not raised on appeal, it cannot be considered in PCHA, unless: (1) the petitioner’s appellate counsel also served as trial counsel; or (2) the petitioner has new appellate counsel, but the claim of ineffective assistance is based on grounds not appearing in the trial record, or (3) the petitioner can prove “extraordinary circumstances” which justify his failure to raise the issue. Dancer does not address the question of the effect of the petitioner’s failure to prosecute a direct appeal. The more recent case of Commonwealth v. Strachan, 460 Pa. 407 , 333 A.2d 790 (1975), however, does provide some guidance. In Strachan , appellant rejected the assistance of appointed counsel and chose instead to prosecute his appeal to this Court pro se. In so doing, appellant *353 raised only the issue of the sufficiency of the evidence. The claim of ineffective assistance of counsel was raised for the first time on appeal to the Supreme Court. The Commonwealth’s argument that appellant had waived the issue was rejected: "... 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.” 460 Pa. at 410, 333 A.2d at 791 .

The rationale of Straehan is equally applicable to the instant case. In both, the defendant knowingly chose to reject the assistance of his trial counsel or any other attorney. The Court noted that one of the reasons underlying Dancer was the observation that “it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness.” 460 Pa. at 100, 331 A.2d at 438 . In applying this consideration to the facts of Straehan, the Court stated: “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.” 460 Pa. at 410, 333 A.2d at 791 . In the instant case, it is just as unrealistic to expect appellant to have “ferret [ed] out instances of ineffectiveness.” Thus, appellant’s knowing waiver of his right to appeal did not carry with it a knowing waiver of grounds for relief which he had no reason to know existed. 2 In regard to the issue of ineffectiveness, *354 there is no difference .between an uncounseled appeal which fails to raise the issue and no appeal at all. In both cases, the issue of ineffectiveness was never raised before the appellate court. We should, therefore, address the merits of appellant’s contention.

At trial, the following colloquy took place between the prosecutor and a Commonwealth witness:

“Q. When you claimed him at the front door did he make any statements to you?

“A. Not more than I asked him how he got outside?

“Q. Did he make a reply to that question?

“A. No, he would not make a reply to it.”

Defense counsel failed to object to this reference to the accused’s silence. Before deciding whether this constituted ineffective assistance, however, it must first be decided whether a trial judge would commit reversible error if he denied a motion for a mistrial under the facts of this case.

Testimonial reference to an accused’s silence is an impermissible violation of the defendant’s Fifth Amendment right. The United States Supreme Court has held that the Fifth Amendment forbids comment by either the prosecutor or the court on the accused’s failure to testify in his own behalf. Griffin v. California, 380 U.S. 609 (1965). In Commonwealth v. Haideman, 449 Pa. 367, 371 , 296 A.2d 765, 767 (1972)., our Supreme Court applied the Griffin rationale to reference to an accused’s silence at the time of arrest: “The difference between prosecutorial use of an accused’s silence at trial and the use of an accused’s silence at time of arrest is, as one court stated, ‘infinitesimal.’ Gillison v. United States, 399 F. 2d 586, 587 (D.C. Cir. 1968). In both instances, the defendant’s silence is exploited as evidence of guilt. As the Fifth Circuit observed, ‘ [w] e would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.’ Walker v. United States, 404 F. 2d 900, 903 (5th Cir. 1968). *355 It is clear that ‘ [t] he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to confession of guilt or a conclusive presumption of perjury.’ Slochower v. Board of Higher Ed. of N.Y., 350 U.S. 551, 557 , 76 S. Ct. 637, 641 , 100 L. Ed. 692 (1956).” Similarly, in Commonwealth v. Greco, 227 Pa. Superior Ct. 19, 23 , 323 A.2d 132 (1974), our Court held that it was reversible error for the prosecutor to elicit testimony that the defendant was silent at the time of his arrest, even if the reference was inadvertent: “In United States v. Kroslack, 426 F. 2d 1129 (7th Cir. 1970), and United States v. Matos, 444 F. 2d 1071 (7th Cir. 1971), both cited with approval in Commonwealth v. Haideman, supra, similar arguments were found to be without merit. . . . The fact that the reference may have been inadvertent or unintended does not lessen the prejudice caused by the introduction of the testimony.”

The United States Supreme Court has recently ruled that testimonial reference to an accused’s pre-trial silence was inadmissible. See United States v. Hale, 17 Crim. L. Rep. 3094 (June 23, 1975).. The Court did not base its decision on constitutional grounds, but chose to exercise its supervisory powers over the federal courts. The Court’s reasoning, however, is highly pertinent: “Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.” 17 Crim.L.Rep. at 3096. 3 Thus, had defense coun *356 sel moved for a mistrial in the instant case, the trial court would have committed reversible error if it denied the motion. The question of ineffective assistance of counsel, therefore, is squarely presented.

The standard for determining ineffectiveness was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605 , 235 A.2d 349, 352-353 (1967): “We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh 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 decisions had any reasonable basis.”

During the hearing held pursuant to appellant’s PCHA petition, trial counsel was questioned as to the possible motives behind his decision not to object and request a mistrial:

“Q. Would it be fair to say that portion of the Commonwealth’s testimony making reference to the fact that the defendant remained silent at the time he was taken into custody, if you will—

“A. Yes_

“Q. This kind of testimony might well be objectionable, might it not?

“A. Yes. . . .

“Q. Is there any reason why you did not object to that testimony at trial?

*357 “A. No, I guess the reasonable — the primary reason at that time at the trial, it didn’t seem important enough. Hindsight is better than foresight.

“Q. I understand that. I was wanting to know if there was any reason you might have had to do with trial strategy which caused you not to object at the time.

“A. I don’t recall any, right now.”

The record reveals, therefore, that trial counsel had no basis at all for failing to object and move for a mistrial. Furthermore, it is obvious that the alternative not chosen offered a “potential for success substantially greater than the tactics actually utilized.” Commonwealth ex rel. Washington v. Maroney, supra, at 605, n.8, 235 A.2d at 353, n.8 . If we are to adhere to our Supreme Court’s statement that the standards for ineffectiveness are meaningful and not simply fictional, see Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974), we must find that appellant was not afforded effective representation.

I would reverse and grant a new trial.

Spaeth, J., joins in this opinion.

. Pursuant to Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §1 et seq., 19 P.S. §1180-1 et seq. (Supp. 1975-76).

. Commonwealth v. Hines, 461 Pa. 271 , 336 A.2d 280 (1975), does not negate this proposition. In Hines , appellant’s contention was that his guilty plea was involuntary and unintelligent. Because no direct appeal had been taken, the Supreme Court held that the issue could not be raised for the first time in a PCHA petition. Thus, the knowing waiver of the right to appeal will waive the issue of the voluntariness of a guilty plea under Hines , but Hines does not address the question of whether a waiver of appellate rights precludes a petitioner from raising ineffectiveness in a PCHA petition.

. In Hale, the defendant took the stand in order to present an alibi defense. The Government argued that because the defend *356 ant chose to testify in his own behalf, it was permissible to impeach his credibility by proving that he remained silent at the time of his arrest. The Court rejected this contention: “In light of the many alternative explanations for his pre-trial silence, we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant admission.” 17 Crim.L.Kep. at 3096.