Commonwealth v. Fultz

POMEROY, Justice,

concurring.

I join in the opinion of Mr. Justice O’Brien. I take this opportunity, however, to reemphasize briefly what I perceive *220to be the function of an appellate court in resolving questions of ineffective representation of counsel first raised on direct appeal.

In the case at bar appellant, through new appellate counsel, alleges that trial counsel was ineffective in that he failed to include in his motion for a new trial a number of reasons in support of that relief. Because such grounds for a new trial were not included in the motion, the merits of these points could not be presented to the trial court, sitting en banc, at the post verdict stage and cannot now be presented to this Court. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). All that is properly before us is whether or not this failure to present certain reasons in support of the motion for a new trial was so serious a dereliction as to deny appellant his constitutional right to effective representation by counsel.*

Whether counsel was constitutionally ineffective necessarily involves an analysis of the trial situation and of the alternatives which the lawyer for the defendant had available to him. We recently had occasion to consider our approach to this analysis in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). What we there said bears repeating:

“In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
‘[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.’

*221The initial factor which must be considered in applying this reasonable basis standard is whether the claim which post-trial counsel is charged with not pursuing had some reasonable basis. In Maroney we noted that ‘a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.’ Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. Because counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion. See, e. g., Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974); cf. Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for the post-trial counsel’s decision not to pursue the matter. Thus the starting point of our inquiry is whether there were reasonable grounds upon which to advance the two claims which were not advanced in the motion for a new trial.

“We emphasize that our analysis of the abandoned claim is undertaken solely for the purpose of resolving questions of ineffective representation. Not having been raised in post-trial motions, the claim itself has not been properly preserved for appellate review. See, e. g., Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975). Rather, once we conclude that the omitted contention is of arguable merit, our inquiry into the substance of the claim ceases and shifts to an analysis of post-trial counsel’s basis for decision. If it cannot be determined from the record whether a satisfactory basis for the omission exists then a remand for an evidentiary hearing on that question is proper. See, e. g., Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If, on the other hand, we can *222determine from the record that counsel was ineffective then the appropriate remedy would be to grant appellant the right to file post-trial motions nunc pro tunc. We do not decide the issue which counsel was ineffective in failing to preserve.” 472 Pa. at 277-78, 372 A.2d at 695-696 (1977). (footnote omitted).

Although the majority omits to cite to Hubbard, I understand its resolution of the issues to be in harmony with it. That is, I view the majority opinion as determining only that counsel is not to be deemed ineffective for failing to raise issues devoid of merit, and that it does not purport to decide the merits of the issues not preserved. With this result I am in agreement. If, however, we were to conclude that the omitted contentions might be of some substance, i. e., were “arguably meritorious”, the proper disposition for this Court to make would be to remand to the trial court for either an evidentiary hearing as to counsel’s strategy or for the filing of post-trial motions nunc pro tunc. If we were actually to reach and resolve issues not preserved below, the result would not only permit the hearing on appeal of issues that might be deemed “basic and fundamental”, a concept supposedly discarded in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), but to hear any reason for a new trial which might have been reasonably believed to advance a client’s interests.

Because new counsel raised the issue of the preceding counsel’s effectiveness at the first stage in the proceedings immediately following the replacement of prior counsel, that issue is properly preserved for review in this Court. See, e. g., Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975).