Commonwealth v. Pierce

OPINION OF THE COURT

PAPADAKOS, Justice.

In this appeal, once again we are required to consider the standard for analyzing ineffectiveness of counsel claims and are specifically asked to compare our previously announced standard of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), with the United States Supreme Court standard set forth in its recent decision of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Charles Pierce, Appellant, was convicted by a jury and sentenced to serve a term of imprisonment of not less than four nor more than ten years for aggravated assault. On appeal to Superior Court, Appellant challenged his trial counsel’s actions in introducing Appellant’s prior incarceration into testimony and in failing to object to the trial court’s charge defining circumstantial evidence. Characterizing both actions as ineffective assistance of counsel, Ap*156pellant argued that he was denied a fair trial by his trial counsel’s actions and, therefore, is entitled to a new trial. A panel of the Superior Court agreed with Appellant’s allegation and, by its opinion of October 14, 1983, reversed the judgment of sentence imposed on Appellant and remanded the matter for a new trial.

The Commonwealth thereupon sought, and was granted, its petition to reargue this matter before an en banc panel of the Superior Court which, by its opinion and order of September 6, 1985, vacated the panel opinion and affirmed the judgment of sentence. Commonwealth v. Pierce, 345 Pa.Superior Ct. 324, 498 A.2d 423 (1985). In a comprehensive opinion, Superior Court analyzed Appellant’s ineffectiveness claims and rejected them using our Maroney standard and adopted as part of that analysis a prejudice standard as found in Strickland.

We granted Appellant’s Petition for Allowance of Appeal to consider how our Maroney standard and the Strickland standard compare, and whether Superior Court’s analysis comports with our notions of how ineffective assistance of counsel allegations should be analyzed.

Appellant argues that Superior Court’s analysis of his ineffectiveness claim is at variance with Maroney and Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978). He argues these cases forbid consideration of a harmless error or prejudice test as part of determining whether counsel’s actions had a reasonable basis or after a finding that counsel’s actions were ineffective.

According to Appellant’s reading of Maroney and Badger, a determination of ineffectiveness is prejudicial per se, and the defendant is not required to demonstrate that the ineffectiveness resulted in actual prejudice to his case. Appellant further argues that Superior Court’s linkage of Strickland into Maroney in order to deny his claim of ineffectiveness constitutes reversible error. In short, he alleges that Strickland’s prejudice requirement is not presently part of the jurisprudence of this Commonwealth and, indeed, should not be infused into our law. For the follow*157ing reasons, we reject Appellant’s arguments and affirm the Order of Superior Court.

Strickland was the result of numerous legal efforts to deal with competing arguments regarding the effect of counsel’s incompetency. Two views have emerged on this subject.1 On the one hand, some argue that ineffectiveness is per se a violation of the Sixth Amendment and is, automatically, a prejudice to the defendant’s case. This prophylactic guideline often is labelled as a “categorical approach.” 2 A contrasting view insists that ineffectiveness must be linked specifically to a reasonable demonstration that it had an adverse effect on the outcome of the case: the impairment must have been sufficiently serious to have had an effect on the reliability of the outcome of the proceeding.

Strickland’s major thrust is directed at establishing the rule that ineffective assistance mandates relief only where it has been established by the defendant that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Often referred to as the “judgmental approach,”3 the commanding intent of Strickland is to burden the defendant with the task of proving actual prejudice. Eschewing “mechanical rules” for a “totality of circumstances test,” Strickland requires that:

Convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defend*158ant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced that defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Strickland, therefore, directs the review of the appellate court at the reliability of the verdict rather than at the quality of counsel’s performance. It emphatically rejects the argument that an exclusive categorical approach is required by the Sixth Amendment.

Our standard governing ineffectiveness claims was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), which requires that we independently review the record and examine counsel’s stewardship in light of the available alternatives. As we stressed in Maroney:

Our inquiry ceases and 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. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

Id., 427 Pa. at 604, 235 A.2d at 352-353.

Our cases clearly indicate that ineffectiveness claims are measured by two components. First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 *159A.2d 687 (1977). We also presume that counsel is acting effectively. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Clemmons, 505 Pa. 356, 497 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) cert. denied 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Maroney, supra. These same principles were also recently reaffirmed in Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); and Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986).

Appellant, however, reads Maroney to mean that once a court determines that no reasonable basis exists for counsel’s performance, that he has been prejudiced a fortiori. In Maroney we noted:

Cases such as Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966), and Commonwealth ex rel. Jones v. Maroney, 417 Pa. 567, 209 A.2d 285 (1965), indicate that, for relief to be granted, appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice. Appellant, however, advances the proposition that any requirement of prejudice is inconsistent with White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 [10 L.Ed.2d 193] (1963), and Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157 [7 L.Ed.2d 114] (1961). Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, 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. Obviously, then, if there is no reasonable basis to support trial counsel’s decisions (a finding prerequisite *160to a conclusion of ineffectiveness), his decisions a fortiori were prejudicial to the client.

Maroney 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8.

In determining whether counsel’s performance had any reasonable basis, Appellant points to Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978), where we cautioned a reviewing court that:

In examining the alternatives a court may not utilize a harmless error analysis, and the alternatives must be examined only as a means of determining whether the course chosen had some reasonable basis.

Id., 482 Pa. at 244, 393 A.2d at 644.

Appellant’s reading of this portion of Maroney and Badger equates prejudice as the unreasonableness of counsel’s performance. Appellant argues that these cases provide that if counsel had no reasonable basis for acting in the manner he did, he prejudiced his client because counsel compromised his client’s constitutional right to effective representation and, therefore, the client is entitled to a new trial. While Appellant’s reading appears to be correct, the difficulty with Appellant’s reading of Maroney and Badger is that we have continuously restated that a defendant who claims that his counsel’s performance was ineffective or had no reasonable basis has not brought the ineffectiveness inquiry to an end. He must additionally demonstrate that he was prejudiced by the ineffectiveness. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); and Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986); Commonwealth v. Clemmons, 505 Pa. 356, 49 A.2d 955 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

In light of our application of a performance and prejudice review to ineffectiveness claims, we find the language relied on by Appellant in Maroney and Badger to be inconsistent with the law as we have actually applied it. Accord*161ingly, to the extent that Maroney or Badger have been interpreted to exclude prejudice from analysis of ineffectiveness claims, that language is expressly overruled.

The obvious identical textual and policy considerations in Maroney and Strickland logically lead us to hold that together they constitute the same rule. Our decisions in Maroney and its progeny, therefore, do not create greater or lesser protection under Article I, Section 9, of the Pennsylvania Constitution, than the present federal standard. For these reasons, we insist that our cases require that a defendant must show that the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result thereby. Commonwealth v. Clemmons, 505 Pa. 356, 497 A.2d 955 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983).

In this conclusion, we hold that there are independent and adequate state grounds under Article I, Section 9, of the Pennsylvania Constitution by which defendants are afforded adequate protection. Under the present analysis, therefore, we see no reason to address the academic question of whether Maroney is being brought into line with Strickland or vice-versa. The fact of the matter is that the identical textual and policy considerations logically lead us to hold that together they constitute an identical rule of law in this Commonwealth.4

*162Applying our principles judging ineffectiveness (which correspond to those of Strickland), it becomes apparent that on this record Appellant cannot demonstrate that counsel’s conduct had an adverse effect on the outcome of the proceedings. Appellant claims that trial counsel committed error when he brought before the jury the fact that he had a criminal record. Based on our review of this record, however, we cannot see how this knowledge by the jury could have reasonably had an adverse effect on the outcome or how keeping this fact from the jury “would have offered a potential for success substantially greater than the tactics used.” Commonwealth v. Clemmons, supra.

The evidence produced at trial revealed that on September 21, 1980, Appellant entered the hospital room of his former common law wife, Carmen Myers, who was recovering from a hysterectomy, and stabbed her in the chest. Immediately after Appellant stabbed the victim, she called out for a nurse and stated that she had been stabbed. Saundra Dawson, a clerk who was working in the hall where the assault occurred, observed Appellant walk past her desk while she telephoned security. Appellant passed within an arm’s length of her, and she positively and unwaveringly identified Appellant at trial. Appellant then fled to the roof where he was apprehended by security personnel in hot pursuit. He matched the description provided by the desk clerk. After being apprehended, Appellant stated, “You got me____” He was then given his Miranda warnings and taken to the police station where he admitted, “I was up on the roof waiting to see Carmen [the victim] and guards came up and arrested me.” Appellant was forthwith transported to the victim’s bedside where she identified him as her attacker. Appellant presented next to no defense, as was his constitutional right.

*163Upon cross-examination of Mrs. Myers, Appellant’s trial counsel elicited the following testimony:

Q. Mrs. Myers, how long did Fred Myers live in your home with you and your husband?

A. I don’t recall.

Q. Approximately?

A. About four months. Three months.

Q. During that three or four months, during a portion of that time the defendant was incarcerated, is that correct?

A. Yes. (N.T. at 44-45).

Even if such an admission were erroneous, we cannot see how it affected the outcome of the trial. The uncontradicted, properly admitted evidence of Appellant’s guilt was overwhelming, and we can find no reasonable probability that had the admission not been made, the result would have been different. Since the prejudice question is resolvable, we need not even consider whether counsel’s decision to introduce Appellant’s prior incarceration had a reasonable basis, and the ineffectiveness claim can be dismissed.

Since Appellant’s trial was not fundamentally unfair, we reject his claim of ineffectiveness. The Order of Superior Court is affirmed.5

HUTCHINSON, J., joins the Majority and files a concurring opinion. NIX, C.J., files a concurring opinion. FLAHERTY, J., concurs in the result. ZAPPALA, J., files a dissenting opinion.

. The evolution of this analysis can be traced through the famous vacillations of the District of Columbia Circuit Court of Appeals in the decisions of United States v. Decoster: Decoster I at 487 F.2d 1197 (D.C.Cir.1973), and Decoster III at 624 F.2d 196 (D.C.Cir.1976).

. This terminology was used by Judge Leventhal in his highly influential plurality opinion in Decoster III.

. This phrase also belongs to the Decoster opinions.

. Strickland has been applied to several subsequent Sixth Amendment cases. Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d (1986); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the United States Supreme Court addressed the question of whether a state court can analyze an ineffectiveness claim without looking for prejudice. At issue in Van Arsdall, was the allegation that the trial court had violated the defendant’s right of confrontation by restricting defense counsel’s cross-examination. The Supreme Court of Delaware concluded that the trial court’s ruling was contrary to the mandate of the confrontation clause of the Sixth Amendment, but refused to consider whether that error had an adverse effect on the outcome of the proceeding. The United States Supreme Court concluded that the state court "was wrong when it declined to consider whether that ruling was harmless in the context of the trial as a *162whole” and remanded to the state court so that it could review the record for prejudice. Van Arsdall may be an indication that the United States Supreme Court will expect, in the future, that state tribunals conduct ineffectiveness analyses via a performance and prejudice standard which, as already has been shown, is our standard.

. Appellant also challenged the effectiveness of his counsel’s assistance because he failed to object to the court’s charge defining circumstantial evidence. We note that, while Appellant has not raised this issue before us, Superior Court correctly rejected the claim, finding that the allegation had no arguable merit.