dissenting:
I respectfully dissent. My objection to the majority’s disposition in this case is that by overruling Commonwealth v. Bossick, 305 Pa.Super. 196, 451 A.2d 489 (1982), our mandate to reconcile this decision with the holding in Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), has been effectively sidestepped in a way which serves only to exacerbate the negative effects of these decisions while failing to promote either the public (judicial economy) or private (rights of the defendant) interests on behalf of which resolution was sought.1 This is true because although Fox and Bossick seem to present conflicting solutions to the problem of self-proclaimed ineffectiveness of trial counsel, the conflict is in reality superficial.
The context of the apparent dissonance is one in which the claim of ineffective assistance of counsel on appeal is advanced by the same attorney or an associate of the same attorney who acted as trial counsel. Fox allows the examination by the appellate courts of such claims only if reversible error is demonstrated by the record; and if it is not, the alternative is remand to the trial court for appointment of new counsel and a hearing. Bossick, in contrast, advocates immediate dismissal of the claim if, on the basis of the record, the claim may be evaluated as totally lacking in merit under any circumstances.2 The cases then present the obverse and reverse of the same notion, that the appellate courts may deal with an ineffectiveness claim such as the instant one if it is a priori either meritorious so as to constitute reversible error or wholly devoid of legal substance.
*323The majority, in support of its argument that expeditious disposal of self-proclaimed ineffectiveness claims is not served by appellate review of clearly meritless issues on the basis of the record, cites Bossick for the proposition that this review “does not preclude appellant from the initiation through new counsel of proceedings under the Post-Conviction Hearing Act ...” Id. 305 Pa.Super. at 204, 451 A.2d at 493. However, conveniently omitted from the quotation is the coda that “[appellate review] does eliminate this particular claim of ineffectiveness in any such proceeding.” Id. Therein lies one fallacy in the majority’s reasoning which we would hasten to correct. Under any set of circumstances, post-conviction relief is available, given the extraordinary circumstances required by the Act. Addressing trial counsel’s claims of ineffectiveness on the basis of the record does serve judicial economy, however, in that at least those issues addressed on appeal will have been previously litigated, thus obviating their re-examination. In addition, the presumption that trial counsel would not be zealous and would ignore possible issues of ineffectiveness is belied by the multitude of claims of ineffectiveness at every stage of the proceeding by trial counsel.
There was a time when it could be assumed that trial counsel, out of pride or concern for sanctions, would assert his best effort to avoid the appellation of ineffective counsel. In recent times, since the Fox decision, trial counsel has absorbed the ineffectiveness ploy as one of the weapons in his arsenal of appellate tactics. We must now be alert to trial counsel’s insinuating into a case such errors to circumvent the effect of Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). If an attorney is willing to take that first humbling step to allege his own ineffectiveness, why is it presumed that he will not be zealous or diligent in asserting every aspect of that ineffectiveness. In the alternative, if he fails to assert ineffectiveness, a second lawyer must search the record and the first is called upon to defend that record as a Commonwealth witness. I fail to see how *324the defendant is better served by the second approach as compared to the first.
This pragmatic approach to procedure finds an analogue in the situation presented by Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983). There this Court found that it would be superfluous to grant to appellant the right to file an appeal nunc pro tunc, which would serve only to reintroduce to the appellate process the same issues fully presented in his PCHA proceeding, and already before us on the appeal therefrom. Instead, after ruling that the appellant had been denied his absolute right to appeal through ineffective assistance of counsel, we examined his other claims as if on direct appeal nunc pro tunc rather than collateral attack, and found them to be meritless — a solution responsive to both judicial economy and the rights of the accused.
In fact, the policy concern here is of precisely the same nature — the balance which must be struck between judicial economy on the one hand, and on the other the caliber of representation possible when counsel must assert a professional inadequacy in defense of his client. What becomes crucial under such circumstances is whether the issue of ineffectiveness of counsel so pervades the case as to leave any element unaffected by the quality of counsel’s appellate advocacy or lack thereof. In specific instances contemplated by Bossick and Fox, the element which prevails over the ineffectiveness issue is the sufficiency of the record itself. Both cases, in their willingness to deal with the ineffectiveness issue on the basis of the record, effect the same provident action and where, as here, the record is clear on the points at issue, such treatment is dictated by both logic and judicial economy.
In fact, the correspondence between Fox and Bossick is underlined by our Supreme Court’s recent decision in Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). There, although the record was admittedly unclear with respect to counsel’s rationale in foregoing a certain claim, it was clear enough to permit evaluation of the claim’s merits, *325which were ascertained to be non-existent. We too have proceeded in this manner wherever the record was sufficient to allow it. See Commonwealth v. Long, 310 Pa.Super. 339, 456 A.2d 641 (1983); Commonwealth v. King, 317 Pa.Super. 196, 463 A.2d 1152 (1983). But see Commonwealth v. Prisznyak, 306 Pa.Super. 137, 452 A.2d 253 (1982), wherein we found nothing in the record on which to base a decision with respect to the claim of ineffectiveness of counsel, and remanded accordingly.
The conventional wisdom in favor of remand is that the ineluctable conflict of interest generated when an advocate must argue his own or an associate’s deficiencies acts as an effective diluent to the zeal he is expected to demonstrate on his client’s behalf. Beyond a certain point, however, this rationale becomes disingenuous; where the record alone amply demonstrates that the issue of ineffectiveness is unarguably meritless, remand for appointment of new counsel is an exercise in futility. Indeed, even with alchemical intent the appointment of new counsel cannot transform dross into gold. Contrary to the majority’s extrapolation of the Bossick rationale as assuming self-proclaimed ineffectiveness to arise from overzealous advocacy, such protestations are found suspect.
It would be further realistic to accept the proposition that while a claim by trial counsel of his own ineffectiveness can be quite a sincere plea by trial counsel whose fervor has been replaced by remorse, it can also be a contrived assertion by counsel motivated by improper ends.
Id. 305 Pa.Super. at 202, n. 1, 451 A.2d 492, n. 1.
Automatic remand, per Fox, renders a nullity all previous attempts, represented by that line of cases extending from Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) to Holmes, supra, and beyond, at limiting appeals to those which have been properly introduced below. The Bossick reference to “improper ends” most certainly encompasses actions designed by counsel to evade the exclusions imposed by case law. The majority now offers a carte *326blanche to such of the legal community as is given to the manufacture of meritless issues by the simple addition of a self-serving mea culpa. There is no reason to facilitate such abuses.
Further, rigid adherence to the general rule of Fox could easily lead to the actualization of “worst case scenario” decisions. An obvious example of this genre would be one in which a single question, that of insufficiency of the evidence, was excluded by trial counsel from post-trial motions, resulting in its waiver for appeal purposes.3 Ordinarily, such a claim could be explored according to the precepts of Commonwealth ex rel. Washington v. Maro-ney, 427 Pa. 599, 235 A.2d 349 (1967) and its progeny, and appropriate results achieved immediately by this Court since the quantum of evidence necessary to support the verdict either exists within the confines of the bare record, or does not exist at all. However, if both appellate and trial counsel were, for instance, members of the same defenders’ association, remand without evaluation of the underlying claim would be ordered almost reflexively. Applying a reductio formula, the theoretical train of events would then evolve as follows: after hearing and appointment of new counsel below and denial by the hearing court, the case would, predictably, be before us again, and on the basis of the same record,4 the adequacy of trial counsel’s representation would at last be assessed, a process which approaches the nadir of ritualistic punctilio.
To the extent that we permit the claim of ineffectiveness of counsel to be raised on appeal for the first time, or in P.C.H.A. proceedings, we have created an exception to the rule expressed by Holmes, supra and established a safety *327valve to the abrogation of the doctrine of fundamental error under Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) as it applies to criminal cases. There, Justice Roberts stated:
Trial counsel, though he may not have claimed error at trial, is inspired after trial and an adverse verdict by the thought that an appellate court may seize upon a previously unclaimed error and afford relief on a ground not called to the trial court’s attention. Id., 457 Pa. at 258, 322 A.2d at 116.
While Dilliplaine would preclude raising such an issue for the first time on appeal, it may be raised in the context of a criminal case by alleging ineffective counsel, albeit according to the majority’s interpretation of Fox, not by offending counsel. We would hold that it is time that Fox be revisited and the wisdom expressed in Dilliplaine and more recently by Justice Nix in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983) be applied. “It is fundamental that a rule of law should not be applied where its application fails to serve the purpose for which it was designed.” (citations omitted) Id., 500 Pa. at 291, 455 A.2d 1198. The application of Fox and Bossick urged by this dissent would bring a rational rule into use which would save considerable judicial time and bring some credibility into the process.
Therefore, and in light of the above, I would hold that where appellate counsel and trial counsel are the same person or are associated, and a claim of ineffectiveness of trial counsel is articulated on appeal, remand to the trial court for appointment of trial counsel is necessary only where the record is insufficient to demonstrate on its face either the validity or the insubstantiality of the underlying claims.
Here, counsel advances the proposition that the inadequacy of his representation is evidenced by his failure to include in post-trial motions issues relating to Pa.R.Crim.P. 1100, and appellant’s motion to suppress the evidence. It is insisted that no sound strategy underlay the omission which occurred through inadvertence (for which read negligence) *328alone. On the contrary, there would have been no sound strategy demonstrable had counsel raised the omitted issues.
In the recent case of Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court, in addressing a claim of constitutionally inadequate representation, held that:
The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id. at —, 104 S.Ct. at 2068; cited favorably in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); also cited favorably and quoted extensively in Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984).
While appellant has asserted that the issues omitted by counsel were of arguable merit because “the charges against him would have been dismissed and/or a new trial granted had he prevailed on appeal” (Appellant’s brief at 8), this is insufficient to meet the “probability” requirement, itself a judgment which can be made from the bare record. We would feel no compulsion to remand for a foregone conclusion. Even the majority concludes there is no merit to appellant’s claim.
Cited favorably in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); also cited favorably and quoted extensively in Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984).
From the record, the following facts are apparent: three continuances were granted by the court at defense counsel’s request; the Commonwealth timely filed a petition for extension of time to commence trial; no objection was made to the court’s adjournment sine die at the time of the third requested postponement. In addition, appellant’s willingness to forego his Rule 1100 right is evidenced by both a written waiver and an on-the-record colloquy. Neither of *329these indicia of appellant’s acquiescence to any delay is even alluded to in his petition to dismiss on the basis of a Rule 1100 violation. Should appellant through counsel have attempted to pursue this chimerical avenue of relief, he would have received the same reply I would now give, that on the basis of the unembellished record he has raised no issue justifying reversal.
Finally, it is alleged that counsel was ineffective for having failed to preserve his motion to suppress appellant’s inculpatory statement(s) and the physical evidence subsequently obtained by police. Appellant’s pre-trial omnibus motion on the issue was denied after hearing. As raised therein appellant’s complaint speaks severally to the legality of statements allegedly obtained in violation of his constitutional rights, to his testimonial capacity to make such statements (and incidentally his capacity to waive his constitutional rights),5 and to the validity of the search warrant under which physical evidence was seized. These are separate issues which are governed by specific authority and may be dealt with as such on the basis of the information contained in the record.
The facts surrounding appellant’s admissions, briefly stated, are that in the early afternoon of January 5, 1978 after his commission that morning of the murder of his ex-father-in-law, appellant sought out at a local cemetery Robert Snyder, a former police officer with whom appellant had previously dealt and whom appellant knew to be employed as head groundsman at the cemetery. He informed Snyder that he had committed an assault, and was told to contact the district attorney’s office. Appellant then returned to his own place of work. Appellant was arrested on the afternoon of the murder, and after having been given his rights on at least three separate occasions, made both *330formal and informal statements. On this basis, a search warrant issued and his shop and car were searched, revealing, inter alia, a gun which proved to be the murder weapon.
Firstly, our Supreme Court has held that suppression of admissions on the basis of determination of incompetency is properly made at trial rather than pre-trial pursuant to Pa.R.Crim.P. 323(a) which is germane only to evidence obtained in violation of a defendants constitutional rights. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Cunningham, 457 Pa. 397, 322 A.2d 644 (1974). This question of testimonial capacity was resolved at the same time as the jury finding that appellant was legally sane in the preliminary proceeding held under the Mental Health Procedures Act.6
Secondly, the standard of review in the examination of a pre-trial suppression hearing involves acceptance only of the Commonwealth’s evidence and so much of the evidence presented by the defense as remains uncontradicted. Scarborough, supra. The record reveals that appellant was aware that Robert Snyder worked at the cemetery, not at the police station, and made his admission of his own free will having sought Snyder out to do so. Since appellant was neither under arrest nor subject to custodial interrogation, the protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not applicable. Commonwealth v. Schoellhammer, 308 Pa.Super. 360, 454 A.2d 576 (1982). When, finally, appellant was placed under arrest, he was properly and several times advised of his rights, at no time giving any indication of non-comprehension or hesitancy on his part or coercion on the part of *331police. His mental condition formed no bar to the voluntary and willing disclosure of inculpatory information. Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). The warrant of search based on his admissions was therefore valid and the fruits of the search properly acquired.
Since the record is not susceptible to findings of ineffectiveness on the part of trial counsel in respect to the issues raised, the necessity of remand for the appointment of new counsel is obviated.
In addition, should new counsel not find a basis for an ineffectiveness claim of prior counsel, he might be tempted to manufacture one out of dross to bring finality by appellate review to endless pro se claims of ineffectiveness of prior counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
“Ineffective assistance of counsel has become the last ditch ploy of defendants in criminal cases and should not be encouraged.” Commonwealth v. Strickland, 306 Pa.Super. 516, 526, 452 A.2d 844, 849 (1982).
It is apparent that under the prescription of Strickland v. Washington, and Silver, supra, the record provides us with a sufficient demonstration that no further exploration on our part or that of the lower court is necessary to reach that which has already been arrived at: no ineffectiveness, no necessity for remand on the questions counsel has raised. Upon inspection of that same record, all doubts of the validity of the outcome of appellant’s trial, minimal at the outset, dissolve into legal nothingness.
For the foregoing reasons I would affirm.
ROWLEY and McEWEN, JJ., join in this dissenting opinion.. An exploration of the applicability of these cases was specifically ordered in both Serianni and a contemporary case, Commonwealth v. Byers, 148 Pittsburgh 1981, J-E2002/84, which presents a similar situation by presenting on appeal the issue of counsel's self-proclaimed ineffectiveness in connection with the filing of post verdict motions. The cases were argued contemporaneously before this Court en banc.
. Remand is still possible, in all equivocal cases, to appoint new counsel for the lower court's determination of the issue’s merits, and of course a petition under the Post Conviction Hearing Act is never foreclosed as an avenue of relief where appropriate.
. Byers, supra, presents the same issue, as does Commonwealth v. Harrison, 275 Pa.Super. 249, 418 A.2d 706 (1980). In the first instance, trial counsel was found not to have waived the issue, and in the second, no indication is given as to whether the record is complete.
. The addition of the hearing transcript would make possible an examination of counsel’s rationale in foregoing the claim, a procedure necessitated only by the preliminary conclusion that the claim itself was meritorious. Commonwealth v. Pittman, 295 Pa.Super. 234, 441 A.2d 436 (1982).
. Appellant was clinically diagnosed as a paranoid schizophrenic, a condition upon which expert witnesses for both the prosecution and defense agreed. It was further agreed that the condition was one of approximately twenty years duration.
. The standard for determining whether mental capacity existed to make statements is "whether [at the time of his admissions, the defendant’s] memory, his thinking processes or his orientation to reality made it unlikely that his admissions were untrue." Scarborough, supra, 491 Pa. at 310 n. 5, 421 A.2d at 151, n. 5 (citations omitted). In fact, testimony elicited at trial clearly demonstrated appellant's normalcy in these respects.