Commonwealth v. Zakrzewski

¶1(dissenting).

¶2I dissent. My views, as expressed in Commonwealth v. Taylor, 449 Pa. 345, 355, 296 A.2d 823, 828 (1972), that appellant need not demonstrate that his plea was entered as a result of incompetent advice of counsel, remains unaltered. The facts of this case only highlight the absurdity of the third requirement under the Marsh test. Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970). Here appellant is represented by the same counsel who represented him at the time of the entry of the plea. The issue which the majority now demands this appellant to pursue if he is to be allowed to attack the constitutionality of the circumstances under which the confession was obtained is the effectiveness of his present counsel in advising appellant to enter the plea. *536Counsel must guide appellant in criticizing his own stewardship of the case at the trial level.

¶3The majority contends that the record is sufficient for us to make this determination without any recognition of the fact that appellant is severely compromised in this appeal because he lacks objective guidance on this issue. In Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), we refused to find a waiver of the effectiveness of counsel claim under the Post Conviction Hearing Act1 although it had not been raised on direct appeal, because appellant had been represented in that appeal by a member of the same office that represented him at trial. There we said “the law will not assume that counsel had advised his client of his inadequacies or those of his associates.” Id. at 377, 316 A.2d at 898. Cf. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

¶4The clear rationale expressed by this Court in Via, supra,is that a party who is called upon to meet the issue of his counsel’s incompetence is in fact uncounselled. The majority while recognizing this principle2 suggests that although the issue of counsel’s stewardship at the time of the entry of the plea remains open for collateral attack, nevertheless, ignores the principle when it attempts to apply the Marshformulation in this instance. The absurdity of such reasoning in my judgment is obvious.