concurring. Justice Brown’s majority opinion carefully focuses on the critical issue before us for review — the conduct of appellant’s defense counsel in the case sub judice. I concur in his analysis of the relevant law and support the conclusion that appellant was denied the fundamental right to the effective assistance of counsel.
Appellant’s central claim is based on the denial of the effective assistance of counsel in the penalty phase of his capital trial. This same issue was before the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. In Strickland, the defendant pleaded guilty to three capital murder charges. The only evidence presented in mitigation at the sentencing hearing was a plea for mercy from counsel stressing the defendant’s willingness to accept responsibility for the crimes and his remorse. The trial judge found that the aggravating circumstances outweighed the mitigating factors and sentenced the defendant to die.
Defendant subsequently sought habeas corpus relief, claiming that counsel had rendered ineffective assistance at the sentencing proceeding. The Supreme Court found this claim to be without merit. The record before the court showed that, in preparation for sentencing, counsel had conferred with the defendant, his wife and his mother about the defendant’s background. Counsel decided on the basis of those conversations not to request a psychiatric report for two reasons: first, there was no indication that defendant had psychological problems and second, counsel did not wish to give the state the opportunity to put on psychiatric evidence of its own. Counsel also decided not to request a presentence report in order to avoid mentioning defendant’s prior criminal history. Counsel formulated a strategy for his argument which highlighted defendant’s remorse and acceptance of responsibility based on the trial judge’s reputation as one who responded favorably to defendants who “owned up” to their crimes. After considerable investigation and thought, counsel determined to forego other evidence in mitigation in the belief that his argument would provide the best chance to spare the defendant’s life. Id. at 673. The Supreme Court found ample evidence that counsel had fulfilled his duty to make reasonable investigation or to make a reasonable decision that a particular investigation was not necessary:
“On these facts, there can be little question, even without application of the presumption of adequate performance, that trial counsel’s defense, though unsuccessful, was the result of reasonable professional judgment.” Id. at 699.
The performance of Strickland’s counsel is in clear contrast to the case sub judice. There is a complete lack of evidence in the record before us that counsel’s conduct of the penalty phase of appellant’s trial was the result of any reasonable professional judgment. The insinuation that counsel’s failure to present any evidence in mitigation was a strategic decision reached after some reasonable deliberation and investigation is simply *97misguided. Any conjecture that counsel must have tactically considered and rejected the presentation of character witnesses in the penalty phase of this trial, based solely on the fact that counsel and appellant were personal acquaintenances, is pure speculation which has no place in the review of a capital case.
There is no evidence in this case, as in Strickland, that appellant’s counsel investigated the possibility of presenting the results of a psychological examination or a presentence report in mitigation. There is no evidence here, as in Strickland, that counsel investigated the members of appellant’s family and others as potential witnesses in mitigation. There is no evidence in the case sub judice, as in Strickland, that counsel conferred at length with appellant and apprised him of the nature of the evidence to be presented in the penalty phase of his trial. Instead, there is evidence in the record before us that appellant’s counsel had not made reasonable preparation or investigation for the mitigation hearing. When the trial court asked if counsel had any requests prior to commencement of the penalty phase, appellant’s counsel, Farris Williams, informed the court that he had not even discussed the mitigation presentation with appellant and then requested just ten minutes to do so.
The result of this lack of reasonable preparation and investigation on the part of appellant’s counsel was that no evidence in mitigation was offered. Rather, appellant’s counsel, Fred Middleton, allowed his own and appellant’s presentations in mitigation to degenerate into a rambling denunciation of the jury for its finding of guilt. The remarks of both appellant and his counsel demonstrate that counsel was entirely unprepared for, and indeed misunderstood, the nature of the penalty phase of this trial. As in Powell v. Alabama (1932), 287 U.S. 45, counsel’s lack of preparation and investigation so tainted the criminal process in the case sub judice that prejudice to appellant can be presumed. See, also, United States v. Cronic (1984), 466 U.S. 648; Kemp v. Blake (C.A. 11, 1985), 758 F. 2d 523, certiorari denied (1985), _ U.S. _, 88 L. Ed. 2d 367.8
As the majority also aptly illustrates, counsel’s conduct at the penalty phase of appellant’s trial was not the only instance of failure to render ef*98fective assistance. Even the state acknowledges that the firearm specification should not have been submitted to the jury as an aggravating circumstance. Yet, appellant’s counsel failed to recognize the error and to object to it at the three most critical stages of this prosecution: indictment, guilt phase of trial, and penalty phase.
Finally, I join in the conclusion that the trial court’s failure to grant the pretrial continuance requested by appellant’s attorneys was an abuse of discretion. We recognize that at some point trial dates must be set and held. It must be taken into consideration, however, that the attorneys moved for a continuance of only one week. In this regard, Justice Sutherland’s observations in Powell v. Alabama, supra, are particularly appropriate:
“It is true that great and inexcusable delay in the enforcement of our criminal law is one of the grave evils of our time. * * * The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to * * * prepare his defense.” Id. at 59.
It may be, as the state asserted, that appellant’s counsel could have learned of the presence of two registered guests at the hotel prior to the request for continuance. Nevertheless, it is clear from the record that counsel were not made aware of this “newly discovered evidence” and, upon discovery, considered themselves ill-prepared without further investigation. The requested continuance of one week was not unreasonable even if due in part to some alleged lack of diligence on the part of counsel. Appellant’s guilt or innocence was at issue, not the efficiency of appellant’s attorneys or the prosecution.
In summary, I too am aware of the admonition of the United States Supreme Court that “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland, supra, at 689.1 adhere to this position lest we face a proliferation of ineffectiveness claims in which “[criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense.” Id. at 690.
In the case sub judice, however, the instances of counsel’s ineffectiveness are so compelling that I must agree in this instance that “it is unfair to hang the client because of the fault of the attorney * * *.” Commonwealth v. Bell (1965), 417 Pa. 291, 297, 208 A. 2d 465, 469, Musmanno, J., dissenting.
For the foregoing reasons I respectfully concur.
In this writer’s opinion, it would be a rare case where presentation of mitigation evidence, no matter how meager, would be inappropriate. For example, assuming arguendo that appellant had demonstrated a spirit of cooperation with authorities during his pretrial incarceration, this fact would have been appropriate for consideration by the jury during the penalty phase.
The United States Supreme Court recognized the importance of such evidence in Skipper v. South Carolina (1986), _ U.S. _, 90 L.Ed. 2d 1. In Skipper the court reversed the trial court’s exclusion from the sentencing phase of a capital trial defendant’s proffer of testimony from two of his jailers and a “regular visitor” to the effect that defendant had “made a good adjustment” to jail life while awaiting trial. The high court stated that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.” Id. at 8.