Commonwealth v. Yocham

397 A.2d 766, 483 Pa. 478, 1979 Pa. LEXIS 448

• Court: Supreme Court of Pennsylvania
• Decided: January 24, 1979
• Docket: 2
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Rickie Yocham appeals from an order of the Court of Common Pleas of Somerset County denying post-conviction relief. The court rejected appellant’s claim that appellate counsel provided constitutionally ineffective representation by abandoning a challenge to the admissibility of an inculpatory statement made to Pennsylvania State Police. We agree with appellant that the court erroneously rejected his claim and reverse.

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Pennsylvania State Police suspected appellant’s involvement in a Somerset County homicide and robbery. Four months after the Somerset County crimes, Pittsburgh police took appellant into custody in connection with an Allegheny County rape. State police learned that appellant was in the custody of Pittsburgh police and went to the Pittsburgh Public Safety Building to question him. Appellant admitted his involvement in the Somerset County crimes. Appellant was then charged with murder, robbery, and conspiracy.

The court of common pleas appointed counsel to represent appellant. In a pre-trial motion to suppress, appellant contended that the inculpatory statement was the product of an illegal arrest. The Commonwealth sought to prove both that police gave appellant Miranda warnings and that no evidence of police coercion existed. But the Commonwealth failed to demonstrate that the arrest was lawful or that the inculpatory statement was not the product of the allegedly unlawful arrest. The suppression court nonetheless denied the motion.

A jury convicted appellant of murder of the first degree, robbery and conspiracy. In post-verdict motions, appellant renewed his challenge to the admissibility of the inculpatory statement. The court of common pleas denied the motions. Appellant was sentenced to life imprisonment on the murder conviction and received concurrent sentences on the robbery and conspiracy convictions. On direct appeal, the same appointed counsel alleged various trial errors, but did not pursue the challenge to the inculpatory statements. This Court affirmed judgments of sentence. Commonwealth v. Yocham, 464 Pa. 223, 346 A.2d 297 (1975).

Appellant, with the assistance of new counsel, filed a petition for post-conviction relief in which he challenged the effectiveness of appellate counsel in failing to pursue the claim that his inculpatory statement was unlawful. The PCHA court summarily dismissed the petition without a hearing. This Court reversed and remanded for a hearing on appellant’s petition. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977).

At the hearing, trial counsel testified that, following the hearing on the motion to suppress, he conducted an “independent investigation” into facts the Commonwealth did not introduce at the suppression hearing. Counsel stated that his investigation into facts outside the record led him to conclude that Pittsburgh police took appellant into custody on the basis of an arrest warrant. Counsel concluded that appellant’s assertion “had no factual basis” and was improper. Counsel decided not to “press the issue further.” The PCHA court again denied relief and this appeal followed.

Counsel’s conclusion that his client’s suppression claim “had no factual basis” does not justify the abandonment of the issue on appeal where at the suppression hearing the Commonwealth fails to meet its burden of proving that the challenged evidence was legally obtained. Once appellant filed his motion to suppress the inculpatory statement, the Commonwealth was obliged to demonstrate the lawfulness of the statement by a preponderance of the evidence. See Pa.R.Crim.Proc. 323(h) (“[t]he Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights”); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968) (preponderance of the evidence standard). While the Commonwealth produced evidence concerning the voluntariness of appellant’s statement, it came forward with no evidence supporting the lawfulness of appellant’s arrest. Nor did it meet its burden of demonstrating that appellant’s inculpatory statement was not the product of the allegedly unlawful arrest. See e. g., Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (state has burden of demonstrating dissipation of primary illegality).

Despite the Commonwealth’s failure to meet its burden, and despite appellant’s insistence that the challenge to the admissibility of the statement be pursued, counsel chose to' abandon the claim. The decision to abandon the motion was based upon an inquiry into what evidence the Commonwealth could, but did not, present at the suppression hearing. On the basis of these facts outside the record, counsel interposed a personal judgment concerning the propriety and validity of appellant’s motion and did not pursue a meritorious claim.

In Commonwealth v. Yocham, 473 Pa. at 451, 375 A.2d at 328, this Court stated: “[Wjhen a contention which is not patently frivolous is abandoned, the decision to do so must be justified by some reasonable basis intended to inure to the client’s benefit.” Commonwealth v. Townsell, 474 Pa. 563, 569, 379 A.2d 98, 101 (1977), further stated: “Strategy of defense counsel may warrant deliberate choice as to the manner, emphasis, and length of [oral] argument but complete disregard of an important issue cannot be ignored.” Appellant’s claim that the Commonwealth failed to meet its burden at the suppression hearing was not patently frivolous. Indeed, the claim was an important and meritorious issue which counsel should not have disregarded. That appellate counsel, because of a personal view of facts outside the record, considered pursuit of the claim improper, does not justify a contrary conclusion. “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). See American Bar Association Standards Relating to the Administration of Criminal Justice, Criminal Appeals, Standard 21-3.2 (2d ed. Tent. Draft 1978); High v. Rhay, 519 F.2d 109 (9th Cir. 1975) (Lumbard, J., sitting by designation). An “active advocate” would violate no professional obligation by arguing that the record of the suppression hearing fails to demonstrate the admissibility of the challenged evidence.

On this record, appellant’s inculpatory statement was inadmissible. By failing to raise this inadmissibility on appeal, counsel deprived appellant the effective representation to which he is constitutionally entitled. Appellant must therefore be awarded a new trial. Cf. Commonwealth v. Townsell, supra (new trial granted where appellate counsel failed to pursue meritorious objection to prosecuting attorney’s closing argument).

Order reversed, judgments of sentence vacated, and new trial granted.

NIX and LARSEN, JJ., filed dissenting opinions. POMEROY, former J., and O’BRIEN, J., did not participate in the decision of this case.

We hear these appeals pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, §§ 202(1) & 503(c), 17 P.S. §§ 211.202(1) & 211.503(c) (Supp.1978), and the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 11, 19 P.S. § 1180-11 (Supp.1978).