Commonwealth v. Hubbard

ROBERTS, Justice,

dissenting.

The majority states that even if appellate counsel establishes that post-trial counsel was ineffective because he failed to raise the ineffectiveness of trial counsel, the issue of trial counsel’s ineffectiveness is waived. I cannot agree. Where appellate counsel establishes that post-trial counsel was himself ineffective in failing to raise the ineffectiveness of trial counsel, the issue is not *287waived. Waiver cannot be imposed where a defendant has been denied effective assistance of counsel.

Nor can I agree that an evidentiary hearing is necessary in this case. During closing argument, the district attorney expressed his personal opinion concerning appellant’s credibility and guilt:

“Only two people know where the scratch marks [on Jennifer’s neck] came from, Jennifer Hill, who is never going to testify, and the killer. So we will never be able to explain everything in this case, obviously, because one party to the explanation is dead and the other party is not telling the truth.” (N.T., summation, 10-11).
“And once you conclude it didn’t happen in that cornfield, where did it occur? Only two people know, one of them is Jennifer Hill, she will never tell you, and the killer, and we can’t prove where that killing took place, but what we do know is that the Defendant has consistently fabricated in this case. Does he know?” (N.T., summation, 16).
“How about some of the other lies? The Defendant said he had never been in that cornfield in his life.” (N.T., summation, 21).
“Now, let’s talk about a few other things. The Defendant said, T lied to get a job.’ He said that sort of proud.- Would he lie if he murdered? Certainly.” (N.T., summation, 22).
“But he made a mistake of the tire prints and the foot markings, and once he started to lie to cover it up, they kept getting bigger and bigger and he kept getting enmeshed in his own lies.” (N.T., summation, 27).

This was an unprofessional expression of the prosecutor’s personal opinion regarding appellant’s guilt and credibility. These remarks far exceeded the bounds of propriety.

*288On these facts, I can conceive of no “reasonable basis designed to effectuate” appellant’s interests for trial counsel’s failure to object to these prejudicial remarks, or for post-trial counsel’s failure to raise trial counsel’s ineffectiveness. Absent appropriate cautionary instructions, these remarks require reversal.

Finally, I disagree with the majority that the proper remedy for post-trial counsel’s ineffectiveness is leave to file post-trial motions “nunc pro tunc.” This places an unnecessary burden on the judicial system and professional resources, and delays relief to which appellant is entitled. The record clearly establishes that the prosecutor’s remarks were prejudicial, that trial counsel was ineffective in failing to object to the remarks, and that post-trial counsel was ineffective in failing to raise trial counsel’s ineffectiveness. Trial counsel’s ineffectiveness in failing to object to the prosecutor’s remarks prevented appellant from receiving a fair trial.1

I dissent and would vacate the judgment of sentence and remand for a new trial.

Newly appointed or retained counsel must raise the ineffectiveness of his predecessor at his first opportunity or the claim will not be preserved for appellate review.2 However, this rule does not and cannot apply where the new post-trial counsel is himself ineffective in failing to raise the ineffectiveness of trial counsel. Appellant cannot be deemed to have waived his claim of ineffective assistance of trial counsel because he failed to raise the issue in post-trial motions if he was denied effective as*289sistance of counsel when post-trial motions were filed. Absent effective assistance of newly appointed or retained counsel, the issue of ineffectiveness of trial counsel cannot be waived. See Commonwealth v. Musser, 463 Pa. 85, 87, 343 A.2d 354, 354-55 (1975), and cases cited therein.

In Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973), appellant sought relief pursuant to the Post Conviction Hearing Act (“PCHA”) 3 on double jeopardy grounds. This Court held that appellant’s failure to raise the issue on appeal did not bar him from seeking PCHA relief because appellant was without effective assistance of appellate counsel. Although Wideman was brought pursuant to the Post Conviction Hearing Act, the decision is equally applicable to the issue of appellant’s waiver of the ineffective assistance of trial counsel on direct appeal. Without the effective assistance of post-trial counsel, appellant here cannot be deemed to have waived the ineffectiveness of his trial counsel.

In Commonwealth v. Strachan, 460 Pa. 407, 333 A.2d 790 (1975), this Court held that appellant did not waive his claim of ineffective assistance of trial counsel even though the issue was raised for the first time in his petition for allowance of appeal in this Court. Strachan was represented by counsel at the trial, but filed a pro se appeal to the Superior Court. In holding that appellant did not waive the issue of ineffectiveness of trial counsel by failing to raise the issue before the Superior Court, this Court held that although an uncounseled defendant may waive an issue, this principle is not applicable to a claim of ineffective assistance of counsel. “[I]t is unrealistic to expect ... a layman to ferret out instances of ineffectiveness without the assistance of counsel.” Id. at 410, 333 A.2d at 791. If the counsel who represents a defendant on post-trial motions is found to be ineffective, *290the defendant himself can hardly be expected to ferret out the ineffectiveness of both his trial and post-trial counsel.4 As in Strachan, the appellant did not waive the ineffectiveness of trial counsel.

The majority’s reliance on Commonwealth v. Dancer, supra, and its progeny, is misplaced. It is true that these cases hold that ineffectiveness of counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. However, our case law presupposes the effective assistance of the new counsel.

Moreover, Dancer expressly recognizes that there are circumstances in which ineffectiveness of trial counsel will not be waived by the failure to raise the issue on direct appeal. Where petitioner establishes the existence of “extraordinary circumstances” which justify his failure to raise the issue, Dancer explicitly allows petitioner to raise his claim. Id. 460 Pa. at 101, 331 A.2d at 438. In Commonwealth v. Wideman, supra, this Court held that ineffective assistance of counsel constituted an “extraordinary circumstance” which justified a petitioner’s failure to raise an issue on direct appeal. Therefore, if post-trial counsel was ineffective, trial counsel’s ineffectiveness is not waived.

The standard for determining whether post-trial counsel was ineffective was articulated in Commonwealth ex *291rel. Washington v. Maroney, 427 Pa. 599, 604, 285 A.2d 349, 352 (1967) (emphasis in the original):

“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.”

In order to decide whether post-trial counsel had a reasonable basis for failing to pursue the claim of trial counsel’s ineffectiveness, it is necessary to evaluate the claim which trial counsel is charged with not pursuing. Since the claim of trial counsel’s ineffectiveness is predicated on his failure to object to the prosecutor’s closing remarks, it is in turn necessary to analyze these remarks.

The district attorney interjected his prejudicial personal opinion concerning appellant’s credibility and guilt in his closing argument. This is highly improper. See e. g., Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974); Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972); Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971); ABA Project on Standards of Criminal Justice, Standards Relating to the Prosecution and Defense Function §§ 5.8(b) & (c), Prosecution Function (Approved Draft, 1971); Pennsylvania Supreme Court Code of Professional Responsibility DR 7-106(C)(4) (1974). The ABA Standards Relating to the Prosecution Function, supra, state in pertinent part:

“(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”
“(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.”

*292The district attorney repeatedly portrayed appellant as a liar, and stated that an explanation of the murder would not be forthcoming because the victim was dead and “the other party [was] not telling the truth.”

In Commonwealth v. Potter, supra, this Court, in reversing Potter’s conviction because the prosecutor branded his testimony as a “malicious lie,” stated:

“[The prosecutor] injected his highly prejudicial personal opinion of appellant’s credibility into evidence, thereby clearly and improperly intruding upon the jury’s exclusive functions of evaluating the credibility of witnesses.”

Id. at 287, 285 A.2d at 493 (citations omitted).

In Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975), this Court reversed Cronin’s conviction because the prosecutor expressed his personal opinion of Cronin’s guilt. It stated:

“ [A] prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of speech.”.

Id. at 143, 346 A.2d at 62.

“[S]uch personal assertions by the prosecutor on the guilt of the accused were beyond the scope of fair play and were reversible error.”

Id. at 142, 346 A.2d at 61, quoting Commonwealth v. Lark, 460 Pa. 399, 404-05, 333 A.2d 786, 789 (1975) (emphasis in original).

The majority recognizes that the prosecutor’s remarks in this case were improper, yet would remand to determine if there was a reasonable basis for trial counsel’s failure to object to the prosecutor’s remarks.

I disagree that a remand is necessary in this case. As the majority recognizes, where the record is sufficient to determine that there is no reasonable basis for counsel’s omission, an appellate court may decide that counsel was ineffective without remanding for an evidentiary hear*293ing. Majority opinion at 696. This is precisely the case presented here. There is no factual issue in dispute.5 Trial counsel’s failure to object occurred during closing argument. The objectionable remarks are on the record; at that point in the trial, evidence not in the record could not be brought to the jury’s attention. Moreover, the ineffectiveness of trial counsel was obvious from the record and post-trial motions could have been filed without resort to any other information. The record contains all that is necessary to resolve the issues of both trial and post-trial counsel’s ineffectiveness.

In Commonwealth v. Valle, 240 Pa.Super. 411, 362 A.2d 1021 (1976), the Superior Court held that Valle was denied effective assistance of counsel because his attorney failed to object to inflammatory comments made by the prosecutor during closing argument. The court decided that there was no need for an evidentiary hearing to determine whether defense counsel had a reasonable basis for failing to object to the remarks designed to effectuate his client’s interests. In light of this Court’s repeated condemnation of closing arguments of this nature, the Superior Court held that there was no reasonable basis for defense counsel to remain silent while the prosecutor continually exceeded the proper scope of closing argument.

Here too, there is no “reasonable basis designed to effectuate [appellant’s] interests” in post-trial counsel’s failure to raise the ineffectiveness of trial counsel and trial counsel’s failure to object to the remarks. As the *294majority notes, comments of this sort can be so prejudicial that even cautionary instructions are not sufficient to cure the harm done. See e. g., Commonwealth v. Cronin, supra; Commonwealth v. Lark, supra; Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974); Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974). Because the Court views remarks of this sort to be extremely prejudicial, any “strategy” which allows them to be made to the jury without objection is indeed, firm proof of counsel’s ineffectiveness.

In view of these cases, how can counsel’s stewardship be other than ineffective where he permitted such remarks without objection and, therefore, without at least a request for curative instructions.6 If, as the majority suggests, it may be “effective to let remarks of this sort pass without objection for fear of calling attention to them,” the defendant who is the victim of such remarks and who is represented by counsel who fails to object will never be given the fair trial to which he is entitled. Commonwealth v. Valle, supra; ABA Project on Stand*295ards of Criminal Justice, Standards Relating to the Prosecution and Defense Function §§ 5.8(b) & (c), Prosecution Function (Approved Draft, 1971).

Absent cautionary instructions, the prosecutor’s remarks were sufficiently prejudicial to require reversal. In light of the case law, trial counsel was clearly ineffective in failing to object to these prejudicial remarks. Post-trial counsel was also ineffective in failing to raise trial counsel’s ineffectiveness.

The majority refuses, in the face of a full and uncontradicted record, to hold that appellant was denied effective assistance of counsel. Instead, the majority remands for a useless evidentiary hearing. This wastes judicial and professional resources and causes unnecessary delay. On remand, the trial court, following our case law, will, of necessity, be obliged to reach the same result that this Court should reach today — and grant a new trial.

I dissent and would vacate the judgment of sentence and remand for a new trial.

MANDERINO, J., joins in this dissenting opinion.

. Trial counsel should have objected and requested cautionary instructions or made a motion for a mistrial. Since trial counsel did not object, I do not reach the issue whether cautionary instructions would have been sufficient in this case.

. See Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975); Commonwealth v. Strachan, 460 Pa. 407, 333 A.2d 790 (1975); Commonwealth v. Twiggs, 460 Pa. 105, 333 A.2d 440 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

. Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. §§ 1180-1 et seq. (Supp.1976).

. As a rule, issues not raised by post-trial motions will not be considered on appeal. Commonwealth v. Carter, supra; Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975); Commonwealth v. Spriggs, 463 Pa. 375, 344 A.2d 880 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975). However, where the failure to raise issues on post-trial motions constitutes ineffective assistance of counsel, the issues are not waived. Just as Dancer was predicated on the effective assistance of appellate counsel, so Carter and cases cited above, presuppose the effective assistance of counsel on post-trial motions.

. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.5(a): “Applications for post-conviction relief can appropriately be decided on the merits without a plenary evidentiary hearing

Such summary disposition is proper in all cases where there is no factual issue . . .

See Dabbs v. People, 175 Colo. 273, 275, 486 P.2d 1053, 1054 (1971). Where there is no factual dispute, an ineffective assistance of counsel claim should also be decided without an evidentiary hearing.

. There is no basis for the majority’s conclusion that trial counsel may have been effective in waiving the issue if, as the majority hypothesizes, counsel failed to object in reliance on his belief that cautionary instructions compound prejudice. The majority’s conclusion undermines the decisions of this Court which have relied upon cautionary instructions to cure errors at trial. See e. g., Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975); Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973). If this Court believes in cautionary instructions, it is improper to accept their alleged harmfulness as a reasonable basis for failing to ask for them.

The majority’s assertion that counsel may be effective even where he fails to object to prejudicial remarks, based on his belief that cautionary instructions compound prejudice, is inconsistent with the rationale of the waiver doctrine. Timely objections are required to allow the trial court the opportunity to give cautionary instructions. Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973). See McCormick, Evidence § 52 (2d ed. 1972). Where counsel does not make timely objection, he is deemed to have waived the issue. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). If, as the majority asserts, an objection and request for cautionary instructions only compound error, there would be no reason to require an immediate objection to preserve the claim.