Lead Opinion
Appellant Edward Bracey appeals from the order of the Court of Common Pleas denying his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541, et seq. We affirm.
On February 4, 1991, Philadelphia Police Officer Daniel Boyle attempted to stop a stolen vehicle- being driven by Appellant. Appellant refused to stop the vehicle and eventually crashed into a building. Appellant immediately jumped out of the vehicle and onto the hood and roof of Officer Boyle’s cruiser while brandishing a 9 mm automatic handgun. He then jumped off the cruiser, pointed his gun at Officer Boyle and instructed the officer not
On February 6, 1991, police responded to a call that a man had entered a residence and set himself on fíre. Policé entered the residence and found Appellant. Appellant was arrested and taken to the hospital, where he was eventually interviewed after physicians advised police that Appellant was well enough to do so. During the interview, Appellant confessed to shooting Officer Boyle. The police
On March 3, 1992, a jury found Appellant guilty of murder in the first-degree, possessing an instrument of crime, theft by receiving stolen property and criminal trespass. Following a penalty hearing, the jury found two aggravating circumstances
Appellant raises numerous issues in his voluminous brief to this Court. The Commonwealth argues, however, that several of Appellant’s claims have either been waived or previously litigated. We agree.
To be eligible for relief under the PCRA, a petitioner must establish that his allegations have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue is deemed finally litigated for purposes of the PCRA if the “highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). If the allegations of error have not been previously litigated, a petitioner must also demonstrate that those allegations have not been waived. An allegation is deemed waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, [or] on appeal....” 42 Pa.C.S. § 9544(b).
Here, Appellant claims that the Commonwealth improperly introduced victim-impact evidence during the penalty phase of his trial; that the Commonwealth improperly relied on two burglary convictions to establish the aggravating circumstance under 42 Pa.C.S. § 9711(d)(9), i.e. that the defendant has a significant history of felony convictions involving the use or threat of violence; and that his confession was involuntary and therefore, inadmissible. These claims were all disposed of on Appellant’s direct appeal to this Court, see Commonwealth v. Bracey,
Appellant also raises several claims of trial court and constitutional error and
In his reply brief to this Court, Appellant argues that the Court must review all of his issues on the merits, despite any waiver, in accordance with our relaxed waiver rule in capital cases.
Appellant asserts, however, that retroactively applying the rule in Albrecht to his case, which involves a PCRA petition filed before the decision in Albrecht was issued in November of 1998, would unconstitutionally permit a “new rule of law” to bar review of his claims. We disagree. As we stated in Commonwealth v. Pursell:
[W]e recently held that we would no longer apply the “relaxed waiver” rule applicable to direct appellate review of capital cases in appeals from post-conviction proceedings in capital cases. See Commonwealth v. Albrecht,554 Pa. 31 ,720 A.2d 693 (1998). Instead, we now require strict adherence to the statutory language of the PCRA, and will afford post-conviction review only where a petitioner shows that the statutory exceptions to waiver in the PCRA apply [found in the pre-1995 version of the PCRA], or where a petitioner properly raises claims of counsel’s ineffectiveness. Because this represents a clarification of our existing standard for reviewing appeals from the denial of post-conviction petitions in capital cases, we apply the Albrecht standard to all similar cases currently under review by this Court.
Pursell,
Appellant also raises several claims of prior counsel’s ineffectiveness. Because these claims are framed as ones of ineffectiveness, and because they are adequately argued under the standard governing such claims, these: claims have not been waived for purposes of the PCRA and are therefore, reviewable.
Appellant first claims that the PCRA court erred in finding that Appellant’s trial counsel, Mr. Perrone, did not render ineffective assistance at his penalty phase. ' Specifically, Appellant argues that Mr. Perrone was ineffective for failing to adequately investigate and present evidence at the penalty phase that Appellant was organically brain damaged or mentally ill. In support of his claim, Appellant presented the testimony of Drs. Carol Armstrong, Neil Blumberg and Barry Krop, who examined Appellant five and six years after the shooting, and essentially concluded that Appellant has suffered from long-standing organic brain damage.
Appellant’s claim, however, is negated by the mental health evaluation conducted by Dr. Arthur Boxer on September 15, 1991, less than one year after the murder. Prior to trial, Mr. Perrone hired Dr. Boxer, a board-certified psychiatrist who had performed at least two hundred psychiatric evaluations in criminal cases before evaluating Appellant.
We agree with the PCRA court that Mr. Perrone reasonably relied on the opinion of Dr. Boxer, who no one disputes is a qualified psychiatric expert. Despite Appellant’s suggestions to the contrary, counsel was not required to disregard the findings of his expert and continue to consult
Moreover, as the PCRA court noted, prior mental health evaluations of Appellant did not give rise to the conclusion that Appellant was brain damaged or mentally ill. One court-ordered mental health evaluation of Appellant, prepared by Dr. Edwin Camiel in 1982, stated that although Appellant showed evidence of a personality disorder, he did not manifest any major mental illness. Likewise, a mental health evaluation report prepared by Philadelphia court psychologist Lawrence Byrne in 1984 indicated that while Appellant had schizoid personality traits, he suffered from no psychological factors which would interfere with the court’s ability to sentence him. Both Dr. Camiel and Mr. Byrne, who also evaluated Appellant for the instant ease and found him to be competent for sentencing, testified at the evidentiary hearing that they saw no signs of organicity or organic brain damage during their evaluations of Appellant. N.T., 4/24/98, at 230; N.T., 4/27/98, at 20, 44. While Appellant baldly asserts that Mr. Perrone was also ineffective for failing to present Dr. Camiel’s and Mr. Byrne’s mental health reports to the jury, we agree with the PCRA court that counsel’s decision not to do so did not constitute ineffectiveness. See Commonwealth v. Holland,
In sum, we find no error in the PCRA court’s determination that counsel was not ineffective for failing to pursue and present evidence related to Appellant’s alleged mental illness and organic brain damage when previous mental health evaluations did not conclude that Appellant was brain damaged or mentally ill and when counsel consulted a recognized mental health expert and relied on his conclusion that his evaluation revealed no mitigating mental health evidence to which he could testify. Thus, this claim fails to offer Appellant any basis for relief. See Commonwealth v. Lewis,
Appellant also alleges that counsel was ineffective for failing to discover and present evidence that as a child, he was physically and emotionally abused by his father and stepfather. He contends that counsel should have discovered this evidence of abuse from family members and presented such evidence as mitigation in the penalty phase of his trial. This claim fails.
Mr. Perrone testified at the PCRA hearing that he met with members of Appellant’s family several times and that, although he asked questions about Appellant’s background, no one indicated during the interviews that Appellant had been abused as a child. N.T., 4/22/98, at 90-91, 108-09, 124. Further, Appellant himself did not inform counsel of any physical abuse and had even informed previous mental health practitioners that he had not had any problems at home and had gotten along with his stepfather. See Evaluation by L. Byrne, May 4, 1984; Evaluation by A. Boxer, M.D., Sept. 15, 1991 (family history section of report noting Appellant’s statement that stepfather “did everything for us.”); N.T., 4/24/98, at 224-25; N.T., 4/27/98, at 19, 20. Because Appellant and his family failed to reveal the abuse to counsel during their consultations with him, counsel cannot be deemed ineffective for failing to present such evidence. See Commonwealth v. Miller,
Next, Appellant argues that the PCRA court erred by failing to grant an evidentiary hearing or a new trial based on his remaining claims of ineffective assistance of counsel. Under Rule 1509 of the Rules of Criminal Procedure, a PCRA court is entitled, after a review of the petition, answer and other matters of record, to determine whether an evidentiary hearing is required. See Pa. R.Crim. P. 1509; Commonwealth v. Morris,
First, Appellant contends that the PCRA court erred in failing to hold a hearing on his assertion that Mr. Perrone was ineffective for failing to impeach the testimony of Hector Crespo. We disagree.
At Appellant’s trial, Mr. Crespo, who had witnessed the shooting of Officer Boyle from his apartment window, testified for the Commonwealth. Mr. Crespo testified that in the early morning hours of February 4, 1991, he heard a crash, looked out the window of his third floor apartment and saw a man pull out a gun and
While Appellant contends that Mr. Perrone was ineffective for failing to impeach Crespo on his ability to see and identify Appellant, the record demonstrates that counsel effectively cross-examined this witness. During cross-examination, Mr. Perrone brought out the fact that Crespo was unable to see the shooter’s face from his third floor apartment, that Crespo’s apartment was approximately 140 feet from the crime scene, that Crespo had been sleeping when he first heard the crash and that it was dark outside when Crespo witnessed the shooting. N.T., 2/25/92, at 127-36. Mr. Perrone also tried to establish that a light pole and a billboard actually blocked Crespo’s view of the shooting. Id. at 153-54. Moreover, the jury was shown photographs of the view from Crespo’s apartment to the crime scene, Id. at 116. Given this record, it is clear that counsel was not ineffective in his efforts to impeach Crespo on his ability to see and identify Appellant. Accordingly, the PCRA court did not err in denying relief without first holding a hearing on this claim.
Appellant also complains that the PCRA court erred in failing to grant a hearing on his claim that counsel was ineffective for failing to interview and call three witnesses, namely Bobby James Payne, Donna Stroman and Arthur Berry, regarding their allegations that police were intimidating witnesses throughout their investigation of Officer Boyle’s murder. This claim fails.
To establish that counsel was ineffective for not. calling certain witnesses, a defendant must prove (1) the existence and availability of the witnesses; (2) counsel’s actual awareness of, or duty to know, the witnesses; (3) the witnesses’ willingness and ability to cooperate and appear on the defendant’s behalf; and (4) the necessity for the proposed testimony. Commonwealth v. Wilson,
Here, Appellant has failed to meet his burden. His brief to this Court fails to establish that Mr. Perrone was aware, or should have been aware, of Bobby James Payne or Donna Stroman, or that they had information related to alleged police misconduct. As to Mr. Berry, Appellant has failed to establish that Mr. Berry was prepared to cooperate and testify for him at trial. In fact, Mr. Berry did testify at Appellant’s trial-for the Commonwealth. N.T., 2/26/92, at 60. There is simply no indication that Mr. Perrone should have known of Mr. Berry’s allegations of police misconduct, which were not made until long after Mr. Berry testified for the Commonwealth at Appellant’s trial. Thus, Appellant has failed to establish that counsel was ineffective for not calling these witnesses and the PCRA court properly dismissed this claim without a hearing.
Next, Appellant claims that the PCRA court should have granted a hearing on his claim that Mr. Perrone was ineffective for failing to request a competency hearing. He essentially contends that his family members’ testimony at the PCRA hearing that he has always been “slow” and the opinions of Drs. Armstrong, Blumberg and Krop demonstrate that counsel should have challenged Appellant’s competency to stand trial. This claim fails.
In the first instance, Appellant’s reliance on the conclusions of his defense experts to support his competency claim is misplaced. Although the focal time for
Next, Appellant argues that the PCRA court erred in failing to hold a hearing on his claims that counsel was ineffective for failing to present the defenses of diminished capacity, imperfect self-defense and voluntary intoxication. We disagree. ¡
Again relying on family members’ testimony and the expert opinions, presented at his PCRA hearing, Appellant first asserts that Mr. Perrone was ineffective for failing to investigate and present a defense of diminished capacity.
Next, Appellant asserts that Mr. Perrone should have presented an imperfect self-defense theory at trial. He suggests that the abuse he suffered as a child
Under 18 Pa.C.S. § 2503(b):
A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
18 Pa.C.S. § 2503(b). In explaining what elements are necessary to establish unreasonable belief voluntary manslaughter, which is sometimes referred to as “imperfect self-defense,” we have stated:
This self-defense claim is imperfect in only one respect — an unreasonable rather than a reasonable belief that deadly force was required to save the actor’s life. All other principles of justification under 18 Pa.C.S. § 505 must [still be met in order to establish] unreasonable belief voluntary manslaughter.
Commonwealth v. Tilley,
With little elaboration, Appellant also claims that Mr. Pen-one should have investigated and presented a defense that he was voluntarily intoxicated when he shot Officer Boyle. This claim is without merit. As Appellant concedes, the only alleged evidence of any potential intoxication at the time of the murder was Appellant’s own statement that he had been drinking before the offense. Clearly, Appellant’s bald assertion that counsel should have somehow mounted a voluntary intoxication defense from this statement, when
Finally, Appellant asserts that he is entitled to relief due to the cumulative effect of the alleged errors and instances of ineffective assistance of counsel. In previously addressing a similar claim, this Court has stated that “no number of failed claims may collectively attain merit if they could not do so individually.” Commonwealth v. Williams,
In sum, we find that those claims of Appellant that have not been previously litigated or waived are without merit. Moreover, the PCRA court properly rejected Appellant’s claim that counsel rendered ineffective assistance at.his penalty phase hearing and acted within its. discretion by dismissing the remainder of his claims without holding a hearing. The order of the PCRA court denying post-conviction relief is therefore affirmed.
Notes
. The two aggravating circumstances found by the sentencing jury were that the victim was a police officer killed in the performance of his duties, 42 Pa.C.S. § 9711(d)(1), and that Appellant had a significant history of felony convictions involving the use or threat of violence, 42 Pa.C.S. § 9711(d)(9).
. Appellant's attempt to frame these previously litigated issues as claims of prior counsel's ineffectiveness does not make these claims cognizable under the PCRA. This Court has held that a petitioner cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. See Commonwealth v. Porter,
. Appellant also argues that the victim impact testimony that he now complains of was broader than that challenged on his direct appeal. To the extent that this claim has not been previously litigated, and to the extent that Appellant avoids a finding of waiver by making an adequate argument that all prior counsel were ineffective for failing to properly litigate this -claim, such allegations of ineffectiveness offer Appellant no basis for relief. In support of his claim, Appellant essentially relies on Commonwealth v. Fisher,
. At the end of his argument relating to several of these waived claims, Appellant, in what appears to be nothing more than an after-thought, tacks on a sentence that trial and appellate counsel were ineffective for failing to raise and/or properly litigate the underlying claims of error. Such an undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is entitled to any relief. Moreover, when addressing these claims in his PCRA petition, Appellant either failed to raise a properly layered ineffectiveness claim or did so in the same inadequate and cursory manner in which he attempts to present such claims to this Court. See Commonwealth v. Zillgitt,
. Despite Appellant's clear burden under the PCRA to show, as a threshold matter, that an issue has not been waived, Appellant waited until his reply brief to raise a number of arguments as to why his claims should not be dismissed as waived. Under our Rules of Appellate Procedure, an appellant is prohibited from raising new issues or remedying an original brief’s deficient discussions in a reply brief. See Pa. R.A.P. 2113(a); Commonwealth v. Fahy,
. As this Court has previously stated, a petitioner can avoid a finding of waiver under the PCRA by making a proper claim of ineffective assistance of counsel at his first available opportunity to do so. Commonwealth v. Wallace,
. Dr. Boxer was referred to Mr. Perrone by the Mental Health Division of the Defenders Association of Philadelphia.
. We also note that the Commonwealth presented the testimony of Dr. Thomas Sacchetti, a board-certified neurologist, at the PCRA hearing. Dr. Sacchetti essentially agreed with the findings of Dr. Boxer, Mr. Byrne and Dr. Camiel, testifying that Appellant does not suffer from organic brain disease. N.T., 4/28/98, at 112.
. Although Appellant's mother and sisters never disputed at the PCRA hearing that they did not inform Mr. Perrone that Appellant had been abused as a child, Appellant complains that this omission resulted from counsel’s failure to ask the right questions. During his interviews with the family, however, counsel did question the family about Appellant’s background and household environment, see N.T., 4/22/98, at 108-09, but no suggestions were made that Appellant's background included physical or emotional abuse. As the PCRA court found, the record in the instant case simply does not demonstrate that "counsel failed to ask questions which would logically lead to the answers [Appellant] now claims went unexplored.” PCRA Ct. Op., July 28, 1998, at 21.
. When asserting a diminished capacity defense to first-degree murder, a defendant is attempting to negate the element of specific intent to kill and if successful, first-degree murder is reduced to third-degree murder. Commonwealth v. McCullum,
. Since there is no indication that Officer Boyle used or attempted to use his weapon, it appears that Appellant is suggesting that he believed Officer Boyle was going to run him over when trying to escape Appellant's loaded gun. However, the record demonstrates that Officer Boyle actually put his cruiser into reverse and backed away from Appellant before Appellant fired his gun.
. 18 Pa.C.S. § 505 provides:
The use of force upon or toward another person is justifiable when, the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
. As the Commonwealth points out, despite the fact that there was no evidence to support a finding that Appellant acted in self-defense, counsel did argue that Appellant fired at the officer because he was scared and also requested and received an instruction on voluntary manslaughter.
. The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor of Pennsylvania. See 42 Pa.C.S. § 971 l(i).
Concurrence Opinion
concurring.
Although I agree with the majority that appellant is not entitled to PCRA relief from his death sentence for the murder of Philadelphia Police Officer Daniel Boyle, I do not entirely agree with the majority’s characterization and analysis of appellant’s “layered” claims of counsel ineffectiveness. 1 also write separately to briefly address appellant’s argument that the failure to apply “relaxed waiver” to defeat the PCRA’s statutory waiver provisions would be unconstitutionally retroactive.
The majority holds that those of appellant’s claims sounding primarily in trial court error are either previously litigated (claims I, IV, and VII) or waived (claims II, III, V, VI, VIII, IX, and X). As to the several claims it deems waived, the majority correctly notes that those claims could have been raised on direct appeal, but were not. Op. at 939-40. I agree with the majority as to its previously litigated and waiver holdings and join in its opinion on these issues.
The majority also notes that, as to each of the waived claims of trial court error, appellant adds an undeveloped, conclusory argument that trial and appellate counsel were ineffective for failing to raise the claim. The majority summarily holds that the boilerplate allegations of layered ineffectiveness do not prove an entitlement to relief. Op. at 940 n. 4.
Though boilerplate, these nevertheless are distinct, independent Sixth Amendment claims that are cognizable in their own right under the PCRA. See discussion below. Moreover, under this Court’s precedent in Commonwealth v. Marrero,
The remainder of appellant’s substantive: claims are posed primarily as claims of ineffective assistance of counsel. As the majority notes, appellant alleges that both trial and direct appeal counsel (appellant was represented by new counsel on direct appeal) were ineffective with respect to these claims. The majority also accurately notes that the PCRA petition marked appellant’s first opportunity to challenge appellate counsel’s stewardship. Nevertheless, the majority inexplicably proceeds to analyze each of these claims as claims of trial counsel ineffectiveness, not appellate counsel ineffectiveness, apparently viewing the allegations as to appellate counsel as operating to “avoid” the waiver of the underlying claim respecting trial counsel. Op. at 351 & n. 6.
The claims of trial counsel ineffectiveness unquestionably are waived under the PCRA. An issue is waived under the PCRA “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b) (emphasis supplied).
Those claims which are not waived under the PCRA are appellant’s allegations that his direct appeal counsel was ineffective for failing to raise the claims of trial counsel’ ineffectiveness. Pierce, supra. Claims that appellate counsel was ineffective are distinct, substantive Sixth Amendment claims separate and apart from the underlying claims of trial court error and trial counsel ineffectiveness. See Williams,
Claims of appellate counsel ineffectiveness are subject to the same general test applied under Strickland v. Washington,
Appellant’s claims of appellate counsel ineffectiveness are raised via boilerplate statements at the end of appellant’s arguments concerning trial counsel’s performance, as well as an overriding, but no less boilerplate, claim at the end of appellant’s brief, in which he baldly alleges that “prior counsel” were ineffective for failing to “properly investigate and to make the objections and arguments raised throughout this Brief.” Initial Brief of Appellant at 76 (Claim XVII). Although such a boilerplate argument has been deemed sufficient to require merit review of a claim of ineffectiveness, see Lambert,
Turning to relaxed waiver, appellant argues that, notwithstanding the PCRA’s waiver provision, and notwithstanding that he has articulated reviewable claims of layered ineffectiveness, the waived versions of his claims cannot be deemed defaulted because of this Court’s relaxed waiver rule. The majority responds to this argument by noting that, in Commonwealth v. Albrecht,
Of course, the fact that this Court has called Albrecht a “clarifying” rule is not much of a response to the question of retroactivity. Whether clarifying or not, if Albrecht altered settled expectations, there are obvious implications which this Court should more squarely address. Furthermore, the answer to the question is a matter of some consequence since this case
Appellant’s portrayal of the relaxed waiver rule as an absolute — i.e., as a rule that meant until Albrecht, that this Court would always address waived claims — is a mischaracterization of our cases. Nor does appellant’s misrepresentation of the law in this regard even begin to account for the history, purpose, and scope of the relaxed waiver rule. See Williams,
The statutory waiver enacted under the terms of the PCRA, which limits the types of claims deemed cognizable on collateral attack, and which is the bar to review of many of appellant’s claims here, is not, and never properly was, subject to the “relaxed waiver” practice this Court has employed in capital direct appeal cases to reach certain claims that would otherwise have been unreviewable pursuant to judicial waiver doctrines. Our discretionary practice of “relaxing” judicial waiver doctrines in direct capital appeals has its genesis in this Court’s opinions in Commonwealth v. McKenna,
The McKenna decision involved unique circumstances impossible to divorce from their time. In 1972, the United States Supreme Court issued its landmark decision in Furman v. Georgia,
The Pennsylvania legislature responded by enacting, as part of the Crimes Code of 1972, a death penalty provision that the McKenna Court noted “was distinguished by a complete lack of direction as to the circumstances that would warrant imposition of the' death penalty.” McKenna,
The McKenna Court held that the 1972 death penalty statute was unconstitutional on its face because it left totally unbridled discretion in the finder of fact to determine the penalty. Indeed, that the 1972 statute was facially unconstitutional under Furman and Bradley was indisputable. The more difficult question was a question of appellate jurisprudence, i.e., whether to
Notwithstanding that McKenna involved the unique, “rare” circumstance of a defendant who intentionally refused to challenge the facially unconstitutional death penalty statute under which he was sentenced, McKenna has been carried over to and expanded under the current death penalty statute, a statute which has survived multiple constitutional challenges. The first case to so employ McKenna was Zettlemoyer. Zettlemoyer relied upon McKenna to reach, not a claim that the then-new death penalty statute was unconstitutional on its face, but a routine evidentiary claim which had been waived because it was not raised in post-verdict motions. We justified overlooking our procedural waiver rule with the following analysis:
[F]or the reasons stated in Commonwealth v. McKenna ... and because this Court has an independent, statutory obligation to determine whether a sentence of death was the product of passion, prejudice or some other arbitrary factor, whether the sentence is excessive or disproportionate to that imposed in similar cases, and to review the record for the sufficiency of the evidence to support aggravating circumstances, we will not adhere strictly to our normal rules of waiver. The primaiy reason for this limited relaxation of waiver rules is that, due to the final and irrevocable nature of the death penalty, the appellant will have no opportunity for post-conviction relief wherein he could raise, say, an assertion of ineffectiveness of counsel for failure to preserve an issue or some other reason that might qualify as an extraordinary circumstance for failure to raise an issue. 19 P.S. § 1180-4(2). Accordingly, significant issues perceived sua sponte by this Court, or raised by the parties, will be addressed and, if possible from the record, resolved.
If this were a conventional case, in which a judgment of sentence other than death were imposed, appellant would be able to challenge the. effectiveness of counsel in subsequent proceedings initiated pursuant to the Post Conviction Hearing Act [PCHA]. Here, the sentence imposed forecloses the availability of those subsequent proceedings. See 42 Pa.C.S. § 9711(i) (record to be transmitted to Governor at close of this Court’s review).
Id. at 970 (Roberts, J., dissenting). The perceived unavailability of PCHA review in capital cases led the dissent to conclude that the Court should fashion its own procedure for entertaining claims of counsel ineffectiveness. Absent such a procedure, the dissent believed that the Court could not discharge its statutory duty to review thoroughly the judgment of sentence of death. Id. at 971.
In the very next opinion from this Court discussing the relaxed waiver rationale, the Court realized that the “primary reason” leading to Zettlemoyer’s approval of the practice, ie., the perception that PCHA review was unavailable in capital cases, was mistaken. In Commonwealth v. Travaglia,
Further experience with state collateral review, of course, has shown that Justice Zappala was correct. Death-sentenced prisoners have been afforded an opportunity for full post-conviction review under the PCHA and its successor, the PCRA. Thus, the “primary reason” for relaxing our procedural waiver rules in death penalty direct appeals proved to be an illusion.
Nevertheless, the practice of relaxing waiver became common in direct appeals in capital cases. The practice has often been justified with no more than a bare reference to the Zettlemoyer dicta. E.g., Commonwealth v. Clark,
Furthermore, this Court has expressly warned that the relaxed waiver doctrine was not to be used, and abused, as a litigation tool:
This Court does not countenance trial counsel intentionally sitting by silently at trial only later to complain of trial errors on appeal after an unfavorable verdict. That a matter is a death penalty in no way relieves trial counsel of the duty to raise appropriate contemporaneous objections at trial to allow the trial court to cure any alleged error as well as preserve issues for appellate review.
Commonwealth v. Gibson,
The final, essential point in any consideration of this Court’s relaxed waiver rule is that the waivers it relaxes or excuses are waivers arising from our appellate procedural rules and practices. The appellate procedure waiver relaxed in McKenna was a doctrine of our creation, designed to ensure “the orderly functioning of the judicial process.” McKenna,
The same jurisprudential concern justifies, as a matter of judicial power, a decision to relax our waiver rules on direct capital appeals. The waiver doctrine that we relax on a direct capital appeal is the same one at issue in McKenna. But the calculus is entirely different when the waiver at issue arises from a non-judicial source such as the legislative commands of the PCRA. When an issue is waived under the PCRA, it is not because of our appellate preservation/waiver doctrine, but because a legislative judgment has been made as to what types of claims should be available at all on collateral review. We cannot simply ignore that legislative judgment as if it were a judicial concern subject to weighing against other judicial concerns. The judicial “relaxed waiver” doctrine devised in McKenna, Zettlemoyer and their progeny simply cannot be employed to “rescue” claims that are waived, and hence not cognizable, under the'PCRA. See Craig Williams, 782 A.2d at 534 (Castille, J., concurring) (noting distinction between waiver under PCRA and waiver as question of appellate jurisprudence).
Nevertheless, this Court erroneously employed our relaxed waiver rule to overcome the legislative waiver provision on occasion before Albrecht. Albrecht represents the inevitable recognition that the relaxed waiver rule cannot apply in the context of PCRA-based waivers at all. Albrecht returned the rule to its judicial moorings not only because a contrary practice would prevent finality in capital cases, but also because of separation of powers concerns: “application of the doctrine of relaxed waiver in a PCRA proceeding runs afoul of the very terms of the [PCRA,] which excludes waived issues
Such is the actual history of the rule that, appellant contends, absolutely entitles him to consideration of his claims on the merits, even if the claims are waived under the PCRA. In my view, enforcement of the statutory terms does not retroactively deprive appellant of any settled right to which he could lay claim. The rule is not, and never was, absolute. The analysis was always case by case: whether a claim would be reviewed on the merits depended upon this Court’s assessment of the nature of the particular claim, the waiver at issue, and the record.
This matter is not the sort of case where relaxed waiver would have been appropriate. Appellant invokes relaxed waiver as if of absolute right, and apparently as a litigation strategy. I say “litigation strategy” because a non-waived version of each of appellant’s claims was available to him and actually pursued by him; thus, his alternative invocation of relaxed waiver would appear to be strategy-based. Appellant had no settled expectation that this Court would entertain his waived claims instead of, or in addition to, his preserved claims upon mere demand in a PCRA appeal. Furthermore, since appellant mischaracterizes the rule as an absolute, he advances no relevant argument as to why any of his particular claims would have been subject to the discretionary application of our relaxed waiver rule, such that the majority’s application of the holding in Albrecht could be deemed “retroactive” as to him. This Court, of course, is not obliged to make appellant’s argument for him. Since non-waived versions of appellant’s claim were available to, and actually pursued by him, he is not “entitled” to have the waiver of his preferred versions of the claims ignored.
. In my view, the majority's statement that an allegation of ineffectiveness suffices to "avoid waiver” misperceives the inquiry under the Sixth Amendment and the PCRA. An allegation of ineffectiveness does not "avoid” waiver of a claim under the PCRA; rather, it is itself a distinct and cognizable claim under the PCRA. As with any other substantive constitutional claim under the PCRA, a claim of ineffectiveness is available only if it has not been waived, i.e., only if the petitioner did not have a previous opportunity to raise it. Focusing in this manner recognizes the constitutional nature of claims of ineffective assistance of counsel, respects the terms of the PCRA, and ensures that like claims are treated similarly. In this case, as I explain more fully in the text, the only non-waived claims are the claims sounding in appellate counsel's ineffectiveness. The other versions of appellant’s claims, i.e., those sounding in trial court error and ineffective assistance of trial counsel, are waived under the PCRA because they could have been raised on direct appeal, but were not.
. By order dated August 11, 1997, this Court suspended § 9544(b) insofar as it references "unitary review.” That suspension is not pertinent here.
. This Court recently granted allocatur to determine whether this Court's practice of requiring counsel to raise claims of ineffectiveness at the first opportunity where new counsel enters the case, which began with the footnote in Hubbard, should be reconsidered. See Commonwealth v. Grant,
. The 1972 statute provided only that, "A person who has been convicted of a murder in the first degree shall be sentenced to death or to a term of life imprisonment.” 18 Pa.C.S. § 1102. The statute provided less guidance than the 1939 provision that was struck down in Bradley. McKenna,
. McKenna sought only a new trial, raising nine claims of trial court error, errors that this Court summarily rejected as meritless.
. Given this history, there is much to be said for reconsidering relaxed waiver in the context of direct capital appeals. The fact of the matter is that PCRA review does exist, and .ineffectiveness claims are cognizable under the PCRA. Abolition of relaxed waiver, or restriction of the doctrine to fundamental constitutional claims, relating to the capital nature of the case, which are apparent on the face of the record, would be a much more realistic and principled approach than what has come into being. Through direct appeal relaxed waiver, this Court reviews a claim in an analytical vacuum, for example, passing on whether something, not objected to, was objectionable, or whether a cautionary charge, not asked for, should have been issued if it had been asked for. The trial judge is in the best position to evaluate these matters in the first instance; the relaxed waiver practice, however, erases the trial judge and his discretionary authority from the picture. Also, there are often specific, tactical reasons why counsel deliberately chooses not to raise an issue. Failing to consider the waived claim for what it really is excludes both the trial judge and trial counsel from the analysis, and leaves this Court to review what amounts to a theoretical claim. Review under the PCRA, on the other hand, allows for consideration of claims in light of what actually happened, and also provides a mechanism by which a record, when necessary, can be generated for review. Also, the substantive advantage that the relaxed waiver doctrine creates for capital defendants raises concerns. Unlike capital defendants, non-capital defendants may raise waived claims only under the rubric of ineffectiveness, which places a burden of proof upon them, including the requirement of proving prejudice, rather than requiring the Commonwealth to prove harmless error. Whether a claim is subject to harmless error or Strickland píejudice can be outcome-determinative. See Commonwealth v. Howard,
Concurrence Opinion
concurring.
I join the concurring opinion of Mr. Justice Saylor, for the reasons as more fully set forth in the concurring opinion of this author filed in Commonwealth v. Lambert,
Concurrence Opinion
concurring.
I join the opinion of the majority, save for footnote 4. See Commonwealth v. Williams,