Commonwealth v. Davis

Philadelphia County Court of Common Pleas

Commonwealth v. Davis

25 Pa. D. & C.3d 650, 1982 Pa. Dist. & Cnty. Dec. LEXIS 252

Pennsylvania Court of Common Pleas, Philadelphia County·Decided February 8, 1982·No. nos. 2602-2606·Published

Opinion

RIBNER, J.,

Defendant, James Davis, was convicted of first degree murder in a non-jury trial before the Honorable Juanita Kidd Scout on February 26, 1981. At a hearing before the homicide calendar judge, the writer of this opinion, on November 16, 1981, defendant’s request for removal of his attorney and the appointment of new counsel was denied. The background of this particular matter and the problems engendered by the movement of counsel in and out of homicide cases in the city of Philadelphia are set forth hereinafter.

At the November 16 hearing, the court examined the petition of Mr. Davis entitled, “Motion for the Withdrawal of Counsel as Ineffective and for the Appointment of Other Counsel on Appeal” (sic). This motion closely parallels numerous other motions that are filed by many defendants based upon “boilerplate” forms prepared by someone and is[652] sued on a wholesale basis to defendants, especially those in custody.

Footnotes

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Defendant Davis claimed in his petition that he did not have proper communication with his attorney, that the latter did not establish an effective defense nor did he bring forth witnesses who could establish the innocence of defendant. This court asked defendant at the hearing to explain his position fully in order to establish whether there was any reason whatsoever to appoint anew attorney at this stage of the proceedings to go through the entire record, with all the attendant delays which would result, in order to argue the ineffectiveness of counsel issue. Defendant’s attorney, Richard E. Johnson, a member of the Philadelphia Bar and an experienced and able attorney, explained his efforts to try and find any witnesses and further pointed out that defendant was on bail and had the time and opportunity to produce the alleged witnesses but he completely failed to do so on his own behalf. With regard to another witness, defendant’s counsel pointed out that she was a prosecution witness and indeed testified against defendant. Defendant’s counsel impressed this court with his [653] statement that he did everything he could to represent defendant properly, he made efforts to obtain the witnesses, through defendant, but that defendant made no effort to secure any information upon which his counsel could act. At the time of the hearing, defense counsel had filed the necessary brief on appeal and was still representing defendant to the fullest extent possible. Defendant Davis apparently was unhappy with the result of the trial and was merely attempting to create a new issue which was simply not in existence during the November 16 hearing. At that point, this court denied the request to remove Mr. Johnson as counsel and the findings of the court were set forth on the record to the effect that there was a finding that no other attorney would have done any more than this attorney did, defendant was effectively represented, and that no other attorney would find any basis for a claim of inadequate representation.

Had there been any basis whatsoever for an intelligent argument that Mr. Davis was not adequately represented, this court would have appointed new counsel to present that issue, but such an appointment in this case would have been totally futile, a total waste of time, effort and money, and would have continued the process of causing us more and more problems in dealing with the enormous backlog presently existing in this county. While this court is always mindful of every constitutional right guaranteed to every defendant, and scrupulously examines every claim and every record in every proceeding to make sure that no constitutional rights are taken away from any defendant, there is a line beyond which no court should be forced to go in re-hashing useless issues, and searching for some possible reason for finding out why a defendant was convicted, or in giving [654] defendants relief asked for as a result of numerous petitions and claims that have no merit.

It is becoming commonplace in numerous cases in our homicide program for defendants to attempt to secure different counsel prior to the case going on trial and apparently it is becoming routine in almost every case after a conviction for defendants to claim that one of the issues on appeal should be ineffective assistance of counsel. If this process is carried to its ultimate conclusion, every defendant should be entitled to a new attorney any time he claims ineffectiveness on the part of his attorney, and if he doesn’t get the desired relief, he should be allowed to get the next attorney who will then examine whether the first examination for ineffectiveness was in itself effective, and then the third attorney would examine the effectiveness of the first two, etc. ad infinitum. The people of this Commonwealth are beginning to become very restless because of the seeming lack of finality of judgments in criminal cases which, when added to the ever growing influx of new cases, may well cause our system to become virtually unmanageable in the foreseeable future. During the year 1980, the last year for which complete statistics are available to this court at this momemt, there were 334 new homicide cases received and 301 disposed of. If new counsel are continually appointed in pending cases and appointed in every case where there is a conviction in order to raise frivolous arguments about ineffectiveness of counsel, the losing battle we are now waging is going to turn into a complete rout. A quick glance at our records for a representative period from September 8, 1981, until February 5, 1982, reveals the flood of these petitions for new counsel, and illustrates why this court felt on November 16 that there was no argu[655] able basis or need for new counsel to argue the ineffectiveness issue.

1. September 8, 1981, Com. v. Lopes, after conviction, counsel allowed to withdraw.

2. October 14, 1981, Com. v. Mitchum, petition for new counsel granted.

3. October 20, 1981, Com. v. Knight, petition for new counsel denied.

4. October 20, 1981, Com. v. Austin, after conviction, new counsel appointed.

5. October 29, 1981, Com. v. Pakalinsky, attorney allowed to withdraw because of possible conflict.

6. October 29, 1981, Com. v. Robinson, petition for new counsel, after conviction, denied, after claim that counsel had not produced a witness but at hearing it was determined that the witness had an attorney who advised the witness not to testify citing the Fifth Amendment.

7. November 9, 1981, Com. v. Maxwell, petition for new counsel after conviction where defendant claimed that his attorney gave his statements to the prosecution, but at the hearing it developed that it was his wife who gave those statements of events to the prosecutor.

8. November 10, 1981, Com. v. Brown, Jr., petition for withdrawal of counsel allowed by court.

9. November 18, 1981, Com. v. Ross, after conviction court allowed appointment of new counsel.

10. December 1, 1981, Com. v. Hussman, request for new counsel denied at post-trial stage, after conviction, where there was a wholly unsubstantiated claim that counsel was ineffective.

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