Commonwealth v. Byers

502 A.2d 1324, 349 Pa. Super. 162

• Court: Supreme Court of Pennsylvania
• Decided: January 3, 1986
• Docket: 00148
• Status: Published

Opinions

BROSKY, Judge:

This appeal is from the judgment of sentence imposed after a jury found appellant guilty of unlawful restraint and criminal conspiracy. Appellant argues that trial counsel, who is from the same public defender’s office as appellate counsel, was ineffective in failing to brief post-verdict motions. We find that counsel’s ineffectiveness is not apparent on the record and, therefore, we vacate the judgment of sentence and remand for appointment of new counsel and for consideration of any claims of ineffective assistance raised by new counsel.

Appellant was tried by a jury and, on September 16, 1980, was found guilty of the charges noted above. The Office of the Public Defender of Allegheny County represented appellant at trial and filed post-verdict motions, which the trial court denied on December 4, 1980, by an order stating: “[AJfter due consideration of oral argument and briefs filed, motion for New Trial and Arrest of Judgment is denied.” In the opinion filed in support of this order, the trial court summarizes the evidence presented at trial, but does not express its view on the sufficiency of the evidence; instead the court states: “[CJounsel did not submit a written brief on the errors allegedly committed by the Court____ [T]he trial Court not having the benefit of counsel’s legal theory underlying the assertion of error can thus consider the claim abandoned.” The Office of the Public Defender of Allegheny County filed a notice of appeal from the judgment of sentence, and this court denied counsel’s petition for leave to withdraw.

Counsel’s general, rather than specific, post-verdict motions challenging the sufficiency of the evidence did not in themselves waive the issue of sufficiency for the trial court’s review, since the motions were filed before this court’s opinion in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). However, issues preserved by post-verdict motions will still be deemed waived if they are neither briefed nor argued to the trial court. See Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509 (1978); Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983).¹ It was pursuant to this rule that the trial court declined in its opinion to address the issue of sufficiency. As a result, as the Supreme Court noted in Holzer, supra, when it found itself in the same situation: “[T]his Court has been deprived of the lower court’s analysis and resolution of those issues, review of which would frustrate the policies underlying Blair?[²]” Id. 480 Pa. at 101, 389 A.2d at 105.

We recognize that the trial court’s order states that it was entered after “oral argument and briefs filed”, and that this is inconsistent with the statement in the trial court’s opinion that “counsel did not submit a written brief” and that the court “[did] not hav[e] the benefit of counsel’s legal theory____” Nevertheless, since counsel failed to make a copy of his brief or a transcript of the proceedings part of the record, we are unable to determine what issues counsel argued, and the issues raised in the post-verdict motions must therefore be deemed waived. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979).³

However, appellate counsel, who is from the same office as trial counsel, argues that trial counsel was ineffective for failing to preserve the issue of the sufficiency of the evidence. It is settled that when trial counsel and appellate counsel are from the same defender’s office, and the argument on appeal is that trial counsel was ineffective, we must remand for the appointment of new counsel before we may reject the ineffectiveness claim. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). This rule has most recently been applied by this court in Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984) (allocatur denied, July 24, 1985) (en banc). The only exception to this rule is that stated in Commonwealth v. Fox, supra:

While this court will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before us, we will not reject such a claim without a remand for appointment of new counsel.

Id. 476 Pa. at 479, 383 A.2d at 201.⁴

Thus, we must examine whether reversible error is apparent on the record before us. In order to find reversible error in the context of a claim of ineffective assistance of counsel we must conclude that: (1) the underlying issue is of arguable merit; (2) counsel had no reasonable basis for his actions; and (3) counsel’s actions were prejudicial to the defendant. See Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc); Commonwealth v. Larkins, 340 Pa.Super. 56; 489 A.2d 837 (1985).

Our Supreme Court in Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980), stated that if counsel fails to raise an issue in post-verdict motions he is deemed to be ineffective only if the issue is of arguable merit. We believe this holding is equally applicable to a case in which counsel fails to preserve an issue by briefing it for or arguing it to the post-verdict court on the record. Thus, here, a necessary (although not sufficient) condition to finding that reversible error is apparent on record is that the arguable merit of the appellant’s claims regarding the sufficiency of the evidence be apparent on the record.

It is sufficient for our purposes here to simply note that we have thoroughly reviewed the record and arguments of counsel, and conclude that the arguable merit of the claims that trial counsel failed to preserve regarding the sufficiency of the evidence is not apparent from the record before us. We must, therefore, also conclude that reversible error is not apparent from this record.

However, since “we cannot rely on counsel to be a zealous proponent of his or her own ineffectiveness,” Serianni, supra, 337 Pa.Superior Ct. at 314, 486 A.2d at 1351, we will not find that trial counsel’s self-made claim of ineffectiveness is, in fact, without arguable merit without a remand for appointment of and zealous argument by new counsel. Such a remand will allow new counsel not only to argue the claim that trial counsel was ineffective for failing to preserve issues regarding sufficiency of the evidence, but also any other potential claims of ineffective assistance of counsel which might have been overlooked by self-serving counsel. See Serianni, supra.⁵ Thus, the purpose of judicial economy will be served by allowing all possible claims of ineffective assistance to be presented at once and in the first instance to the lower court. Id6

Accordingly, the judgment of sentence is vacated and the case is remanded to the trial court for appointment of new counsel for appellant other than counsel from the public defender’s office. After such appointment, the trial court shall hold an evidentiary hearing at which it shall determine the merits of the claim of ineffectiveness raised in this appeal and any other claims of trial counsel’s ineffectiveness raised by new counsel. If it is determined that trial counsel was ineffective, the trial court shall grant appropriate relief. If trial counsel is determined not to have been ineffective, the trial court shall reinstate the judgment of sentence. Either party may then appeal from an adverse order of the trial court.

So ordered; jurisdiction is not retained.

TAMILIA, J., files a dissenting opinion which is joined by ROWLEY and McEWEN, JJ. McEWEN, J., files a dissenting statement.

1 . Although these cases do not apply this principle specifically to the issue of sufficiency of the evidence, we see no reason why an issue of sufficiency of the evidence should be an exception to the general rule established by these cases that issues preserved by post-verdict motions must also be briefed or argued in order to preserve them for appeal.

2 . Commonwealth v. Blair, 463 Pa. 383, 344 A.2d 884 (1975) (issues not included in post-verdict motions are deemed waived).

3 . It should be noted that in addition to raising claims regarding the sufficiency of the evidence, appellant’s post-verdict motions also allege that the trial court erred in admitting certain evidence, in denying certain motions during trial, and in its charge to the jury. Appellant has not pressed these claims on appeal.

4 . We believe it appropriate to note here the comments made by this Court in Commonwealth v. Smoyer, 281 Pa.Super. 320, 422 A.2d 189 (1980) (Cavanaugh, J.):

We do not condone the practice of counsel from the public defender’s office raising the effective assistance of counsel where trial counsel is a different attorney from the same public defender's office. If a genuine issue of the effectiveness of trial counsel exists, then the public defender should request the trial court to appoint appellate counsel who is not a member of the public defender’s office. The allegation of ineffective assistance of counsel is tantamount to an allegation of incompetency on the part of counsel____ The best interest of an appellant is not served where his counsel must establish that an associate from his office acted in an incompetent manner at trial.

Id., 281 Pa.Superior Ct. at 323, 422 A.2d at 190 (emphasis added).

"The better practice is for counsel to remove himself and permit different counsel to develop a record on the ineffectiveness issue before the case is removed from the trial court’s jurisdiction by virtue of the filing of a notice of appeal.” Commonwealth v. Smith, 321 Pa.Super. 170, 202 n. 25, 467 A.2d 1307, 1324 n. 25 (1983) (Rowley, J.).

5 . In Serianni, trial counsel claimed that he had been ineffective for failing to preserve two issues by including them in post-verdict motions. There, we also found that reversible error was not apparent on the record, although we did not specify which of the three requirements for finding reversible error was not apparent on the record. We do note that even if arguable merit is apparent on the record, a remand for appointment of new counsel and an evidentiary hearing is still the proper procedure if it is not apparent from the record that counsel had no reasonable basis for his actions. See Commonwealth v. Gray, 329 Pa.Super. 347, 478 A.2d 822 (1984) (Johnson, J.).

6 . The dissent is apparently attempting to establish two points: (1) the issue of the sufficiency of the evidence has not been waived; and (2) even if the issue has been waived, we may reject appellant’s ineffective assistance claim. As to both points, we fear the dissent's quarrel is not with us, but with the decisions of our Supreme Court.

The dissent's first point is based on a fundamental misunderstanding of Holmes, supra. We have not ignored Holmes as the dissent claims; it is simply not applicable to this case except to the extent that under Holmes the sufficiency issue was not waived by a boilerplate post-trial motion in arrest of judgment. However, our Supreme Court has held that an issue will not be preserved for appeal unless in addition to filing proper post-verdict motions a defendant briefs or argues the issue to the trial court. See Holzer, supra; Williapts, supra; Pittmann, supra. Holmes does not speak to these two additional requirements for preserving an issue for appeal, but holds only that in regard to an issue of sufficiency, the first requirement is satisfied by a boilerplate motion prior to Holmes effective date.

The dissent’s second point, that we should reject the claim of ineffective assistance, is in conflict with the mandate of our Supreme Court that we may not reject a self-made claim of ineffective assistance of counsel without a remand for appointment of new counsel. See Fox, supra. While the dissent may feel competent to review the record without the certainty of zealous argument by new counsel, our Supreme Court has held that it may not do so. This conclusion is further buttressed by our Supreme Court’s denial of allocatur in Serianni, supra., in which the dissent advanced a similar argument.