Commonwealth v. Mims

POMEROY, Justice,

dissenting.

I agree with the majority that the action of the trial court in encouraging a second attempt by a prosecution witness to identify the defendant in the courtroom was, absent some reason not apparent from the transcript, an improper exercise of the trial court’s function. I also accept that trial counsel’s non-objection to this judicial intervention presents, under the particular facts of this case, an arguable instance of ineffective assistance of counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). I cannot, however, agree that an arguable conclusion is enough, by itself, to justify this Court in awarding a new trial. Hence this *283dissent. Cf. Commonwealth v. Ceasar, 478 Pa. 575, 576, 387 A.2d 471, 472 (1978) (dissenting opinion of Pomeroy, J.).

This Court has recognized that claims of ineffectiveness of defense counsel may, under certain circumstances, be raised on direct appeal. See Commonwealth v. Hubbard, supra; Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Nevertheless, we have acknowledged that it is often impossible to resolve claims of ineffectiveness on the basis of a cold record and have remanded such cases to the lower court in order that an evidentiary hearing might be held.* See Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978); Commonwealth v. Santiago, 473 Pa. 14, 373 A.2d 455 (1977); Commonwealth v. Hubbard, supra. As we stated in Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976):

“The problem in this case, as in most cases where the claim of ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged. Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judg*284ment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.” (Footnotes omitted.)

I have no confidence that the claim of ineffectiveness in the present case can be intelligently resolved merely by reading the transcript of testimony quoted in the majority opinion. While the notes of testimony do afford a basis for the prima facie but tentative conclusion of “arguable” ineffectiveness, they do not allow a definitive, informed decision of ineffectiveness. As we observed in Hubbard, supra, “the failure to object could have been born of a reasonable, calculated trial strategy.” 472 Pa. at 285, 372 A.2d at 699. For instance, counsel may have felt confident that the misidentification of his client would be repeated by the witness — a development which would considerably strengthen the possibility of acquittal.

In my view the proper action for this Court to take at this juncture is to remand to the trial court for an evidentiary hearing at which time the basis of counsel’s omission may be explored, and a determination with respect thereto made by the trial court.

Of course, where ineffectiveness of counsel is alleged as a ground for post-conviction relief, an evidentiary hearing is normally held by the trial court as a prelude to its resolution of the claim. See the Act of January 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9 (Supp.1978). In such cases an appellate court is in a position to resolve claims of ineffectiveness on the basis of the trial record as augmented by the post-conviction hearing record. This is normally not the situation where ineffectiveness is raised for the first time on direct appeal, although a record on such a claim can and sometimes should be made at a hearing ancillary to post-trial motions before they are decided by the trial court. See Commonwealth v. Wade, 480 Pa. 160, 173 n. 9, 389 A.2d 560, 567 n. 9 (1978) (plurality opinion).