Commonwealth v. MacEk

Concurring Opinion by

Hoffman, J.:

Though I concur in the result reached by the majority, I believe one aspect of this case deserves additional comment.

Appellant’s attorney contends that no pretrial suppression motion was filed because a motion would have *133been a “mere formality.” I agree with the majority that such an assertion is spurious. Our rules of criminal procedure provide a detailed procedure to be followed when one accused of a crime believes that he is aggrieved by an illegal search or seizure. Pennsylvania Rules of Criminal Procedure, Rules 2000-2001. Appellant’s attorney was aware of this Rule and as an officer of the court had an obligation to follow the correct procedures.

The actions of appellant’s attorney may well have prejudiced appellant. The jury had before it the directly contradictory testimony of appellant and the arresting officer. The jury chose to believe appellant and found her not guilty on the charge of prostitution and assignation. Of course, the majority is correct that the standards used in determining probable cause differ from those used by the trier of fact in determining guilt or innocence beyond a reasonable doubt. However, the fact still remains that the jury believed appellant. A judge at a suppression hearing might also have believed appellant and have suppressed the evidence obtained pursuant to the arrest and search.

It is evident that appellant may have a good claim that her counsel was ineffective. The standard for this determination was enunciated in the landmark case of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A. 2d 349, 352 (1967): “[Cjounsel’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.” (Emphasis in original). However, such an issue is ordinarily not treated without an evidentiary hearing on the matter. Commonwealth v. Nash, 436 Pa. 519, 261 A. 2d 314 (1970). Appellant has advanced no convincing reason why an exception should be made in this case.

*134By affirming the judgment of sentence, it is my understanding that this Court is not precluding appellant from raising any possible ineffective assistance of counsel claim she might advance at a Post Conviction Hearing Act hearing. On this basis I concur in affirming the judgment of sentence.

Spaulding, J., joins in this concurring opinion.