Commonwealth v. Ford

421 A.2d 1040, 491 Pa. 586, 1980 Pa. LEXIS 795
CourtSupreme Court of Pennsylvania
DecidedSeptember 22, 1980
Docket420, 441
StatusPublished
Cited by35 cases

This text of 421 A.2d 1040 (Commonwealth v. Ford) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ford, 421 A.2d 1040, 491 Pa. 586, 1980 Pa. LEXIS 795 (Pa. 1980).

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, Wayne Ford, a/k/a Levan Spann, pleaded guilty to murder of the third degree in the Court of Common Pleas of Philadelphia County on December 4, 1975. On March 16, 1976, he was sentenced to a term of imprisonment of not less than eight nor more than twenty years.

A direct appeal was taken to this Court in which appellant claimed, inter alia, he had been denied effective assistance of counsel. We remanded to the trial court for an evidentiary hearing on the claims of ineffectiveness. Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979). The evidentiary hearing so ordered was held on May 30, 1979, and on [590]*590February 15, 1980, the Court of Common Pleas of Philadelphia County determined appellant “was not deprived of his right to representation by competent counsel.” In accordance with our mandate in Ford, id, 484 Pa. at 166, 398 A.2d at 996, the record is now returned to this Court for further consideration of the instant appeal.

Instantly, as at the evidentiary hearing, appellant argues his claim of ineffective assistance of counsel in five particulars.

Appellant correctly notes, initially, that, the standard by which counsel’s stewardship is gauged is well-settled:

“. . . 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.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 352-353 (1967) (Emphasis in original).

Notwithstanding the longevity of the Washington v. Maroney standard, appellant is constrained to note that it cannot be employed “from a standpoint of pure logic,” and opines that our test is “a well meaning but ill-advised judicial non-sequitur.” We decline appellant’s implicit, if somewhat pedantic, invitation to depart from our standard of review. Moreover, we reiterate that the Washington v. Maroney test is far from being “a well meaning but ill-advised judicial non-sequitur.” It is, rather, the law in Pennsylvania. We apply it to the instant case and affirm.

Appellant’s first claim of ineffectiveness assails trial counsel’s failure to attempt to interview witnesses or independently investigate his case.

Appellant had been represented initially by attorney George Gershenfeld. While so represented a suppression motion was filed, argued and denied. On November 10, 1975, attorney Gershenfeld, because of a conflict of interest which had arisen, withdrew and was replaced as counsel by [591]*591attorney Stephen Gallagher. It is attorney Gallagher’s representation which is now assigned as ineffective. Appellant complains counsel did not confer with him at sufficient length, did not conduct an independent investigation of the case, and did not attempt to interview witnesses.

We begin by noting that mere shortness of time in conference does not, without more, establish ineffective assistance of counsel. Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Neither is it per se ineffectiveness for counsel to fail to interview or call potential defense witnesses. Commonwealth v. Johnson, 479 Pa. 60, 387 A.2d 834 (1978); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979).

At the evidentiary hearing appellant asserted that if he had gone to trial he would have requested that counsel subpoena a doctor at the detention center who would testify appellant was given medication for narcotics withdrawal at the time he was arrested. It is true we have found ineffective assistance of counsel where counsel failed to call witnesses an accused wished to have testify. See, e. g., Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971).

In the instant case, however, trial counsel testified at the evidentiary hearing that when he was appointed to represent appellant he immediately met with prior counsel. Counsel testified he received the case file and transcript of the suppression hearing. He ascertained appellant’s statement had been ruled admissible. Counsel further learned that three of appellant’s co-defendants had been convicted for their participation in the instant crime and sentenced to life imprisonment, and that a fourth accomplice had testified at the trials of the three co-defendants and would testify against appellant. When counsel met with appellant prior to the entry of the guilty plea, appellant admitted the truth of the confession and volunteered nothing in mitigation. Appellant testified at the evidentiary hearing that he did not inform counsel of any witnesses he desired to have called, nor did he indicate what any such witnesses might provide by way of a defense.

[592]*592Any failure to attempt to interview witnesses of whose existence counsel is unaware is not ineffectiveness. Commonwealth v. Johnson, 479 Pa. 60, 387 A.2d 834 (1978); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Moreover, the failure to conduct a more intensive investigation of the case than was instantly conducted in the absence of any indication that such investigation would develop more than was already known, is similarly not ineffectiveness. Jones, supra.

Appellant next asserts trial counsel was ineffective in that he did not explain to appellant that the issue of voluntariness of his statement could, notwithstanding the adverse result at the suppression hearing, be argued to the trier of fact at trial. As we stated in Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978), “before a defendant on direct appeal is entitled to relief under a theory of ineffective assistance of trial counsel, it must appear that the lawyer’s act of omission or commission was arguably ineffective representation, and that it is likely that such ineffectiveness was prejudicial to the defendant.” Wade, Id., 480 Pa. at 172, 389 A.2d 560.

The record in the instant case reveals that appellant’s first attorney informed him subsequent to the denial of his suppression motion that the statement could still be challenged at trial. Moreover, counsel told appellant the issue of voluntariness could be appealed if the result at trial was adverse. Nevertheless appellant proposed entry of a guilty plea, on two occasions, in return for a sentence recommendation of five to twenty years.

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Bluebook (online)
421 A.2d 1040, 491 Pa. 586, 1980 Pa. LEXIS 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ford-pa-1980.