
    Commonwealth v. Davis, Appellant.
    September 26, 1972:
    Submitted June 12, 1972.
    Before Weight, P. J., Watkins, Jacobs, Hoppman, Spaulding, Cbecone, and Packel, JJ.
    
      Michael L. Levy and Francis 8. Wright, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
    
      Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
   Opinion

Pee Cueiam,

Judgment of sentence affirmed.

Dissenting Opinion by

Packer, J.:

The constitutional right to effective assistance of counsel at a trial to determine guilt is denied if the defendant’s attorney admits guilt. The conduct of counsel for the appellant constituted such an admission.

Defense counsel stipulated during trial that were the complainant present and sworn he would have testified that: at 4:00 p.m. on December 31, 1968, two men entered his milk truck, pointed a pistol at his head and demanded all of his money; after he complied, the thieves withdrew and he notified the police; and, at the preliminary hearing, he identified the appellant as one of the two robbers. The complete closing speech of appellant’s counsel was: “If Your Honor please, this man has been in jail for almost one year. This man has a narcotic problem.”

The Commonwealth’s case hinged upon identification. Although one policeman testified that he saw a person running in the vicinity of the incident who fitted the general description later given by the complainant, it was the identification by the complainant himself which was the pivotal evidence in the case. Defense counsel gave up the opportunity to cross-examine and this was not part of a planned strategy based on availability of other witnesses to attack the identification.

Competency of counsel is not to be measured by 20-20 hindsight, but rather by the determination of whether “the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests”, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A. 2d 349, 352 (1967) and whether counsel’s performance was within “the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970); Moore v. United States, 432 P. 2d 730 (3d Cir. 1970).

Under the circumstances of this case, the stipulation, particularly with reference to identification, amounted to an admission of criminal responsibility which was not consonant with a plea of not guilty. The determination of whether to plead guilty or not guilty or whether a plea should be changed is reserved to the defendant. A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to the Defense Function, §5.2 (1972). Even the sincere desire to minimize circumstances tending to aggravate the appellant’s case did not justify the adoption of a trial strategy which effectively altered a plea of not guilty.

Defense counsel’s closing speech at the very least was an implied admission of the defendant’s guilt. Certainly, the important right to make a closing speech is not to be converted to a mere plea for leniency. It was improper for counsel to make an admission of guilt in order to give the interest in securing a favorable sentence, if convicted, a greater emphasis than the interest in securing an acquittal.

The judgment of sentence should be reversed and a new trial granted.

Hoffman and Spaulding, JJ., join in this dissent.  