Commonwealth v. Brown

sаnction is compromised, appropriate has been process disbarment. statement. joins dissenting SAYLOR

Justice 872A.2d 1139 Pennsylvania, Appellee, COMMONWEALTH BROWN, Wesley Appellant. John Pennsylvania. Supreme Court of Submitted Feb. 2002. April

Decided 2005. July Concurring Opinion Filed Farrell, for Esq., Philadelphia, Wesley J. Michael John Brown. Oberholzer, Burns, Esq., Amy Marie

Hugh Esq., Regina J. Philadelphia, Pennsylvania. Zapp, Esq., Commonwealth CAPPY, C.J., CASTILLE, NIGRO, BEFORE: BAER, NEWMAN, SAYLOR, EAKIN and JJ.

OPINION Chief Justice CAPPY. Brown, from the

Appellant, Wesley appeals John Order Philadelphia County, denying the Court of Common Pleas of for relief to the Post Relief petition pursuant Conviction (PCRA), §§ Act 9541-9546. For the reasons that Pa.C.S. follow, affirm the court. we order PCRA case, facts of the as set forth this Court underlying appeal, on direct are as follows: 10, 1990, father, Brown, Wesley June and his appellant On old, then in seventy-seven years together who was were their home in A the Philadelphia. quarrel between two occurred over use of his father’s car for “hack- appellant’s is, an ing,” Appellant that unlicensed taxi service. shot his him pistol father four times with a .38 caliber and left bleed to death in their home. A heard the neighbor who called the she in turn granddaughter; shots victim’s called her the and told grandfather. Appellant phone answered grandfather Appellant his niece that her was outdoors. a .38 caliber next to his placed body revolver father’s wallet, took from his father’s then off in his drove $400 car. He disposed weapon by father’s the murder throw- the en ing Maryland Georgia. out car window route to days appellant stopped Two later at a road check was check of license Georgia; computer appellant’s driver’s disclosed that the license that the car expired, was stolen, and that appellant Pennsylvania was wanted father, but Appellant shooting murder. admitted his claimed it was done in self-defense after his father pointed magnum pistol .357 at him. trial, him guilty the found jury

Following appellant’s an robbery, possessing degree, of the first murder Following penalty phase of crime. instrument exist- circumstance trial, aggravating that an jury found of a prior convicted ed, to-wit, had been appellant that mitigat- three also found jury voluntary manslaughter; significant no circumstances, had namely, appellant ing convictions, he acted under criminal history prior disturbance, he and that had mental or emotional extreme balancing the statu- mitigation. other some evidence cir- factors, aggravating that the jury concluded tory circumstances, and mitigating outweighed cumstance of death. unanimously reached a verdict 1177, Brown, 410, A.2d Pa. Commonwealth omitted). (1994) (footnotes counsel conviction, obtained new Appellant Following Court, numerous issues raising to this appeal and filed a direct counsel ineffectiveness. error as as claims of of trial court well 6, on October of sentence judgment affirmed Our Court 15, 1997, filed a se PCRA Appellant pro January 1994. Id. On Appel- appointed represent Current counsel was petition. 2, lant, April filed on 1998. petition and an amended he Thereafter, which pleadings, filed supplemental motions replies as either Commonwealth’s captioned pleadings These petitions. amended supplemental dismiss 1, 1998, 26, 1998, April October August were filed on to each responded and June Commonwealth 2, 1999, February to dismiss. On pleading by filing motions 17,1999 22,1999, court conducted and December the trial May determining whether an purpose for the sole hearings and the After evidentiary hearing was warranted. the trial court legal positions, their argued Commonwealth 12, 2000, the April took the matter under advisement. On motion to dis- the Commonwealth’s orally granted trial court 13, 2000, the court filed April and on petition, miss the PCRA thereof. support its order and opinion court’s dismissal In this from PCRA appeal issues, and numerous twenty-three raises petition, Appellant sub-issues, for our note that Initially, review. we this Court jurisdiction has over Appellant’s petition directly because we the denial of relief in post penalty review conviction death 9546(d). § to 42 In pursuant cases Pa.C.S. cases where judgment of sentence final to the 1995 prior enactment of requirement, the timeliness a first petition PCRA is consid- ered if filed timely year within one of the effective date of the 8(1) enactment or January 1997. Section Act 1995 1), (Spec.Sess. No. Nov. P.L. No. 32. Because the petition Appellant’s instant is first it petition PCRA and was 15,1997, filed on January timely is considered filed. addressing issues, Prior to the merits of Appellant’s we must first entertain the Commonwealth’s contention that Ap- pellant’s claims are not under cognizable the PCRA. The argues Appellant erroneously Commonwealth that alle- raises of error if gations presenting as he the claims direct were ignores appeal proof his burden under the PCRA. It further argues Appellant’s boilerplate assertions of all ineffectiveness, counsel’s prior providing without the required for legal analysis demonstrating layer each of counsel’s sup- ineffectiveness, posed is insufficient to avoid waiver underlying Upon claims. careful consideration of the manner Appellant’s which claims been presented, light have of the strict of the requirements PCRA and this Court’s case interpreting requirements, agree law such we with Com- of Appellant’s monwealth several claims are not renewa- issue, however, ble. Each must be examined independently to determine whether rеquired. review merits is relief, eligible order to be petitioner PCRA must establish a preponderance of the evidence' that his conviction or sentence resulted from one or more of the 9543(a)(2), § enumerated defects found in 42 Pa.C.S. and that allegation of error not been previously has litigated 9543(a)(3). § waived. 42 A claim Pa.C.S. is previously litigat ed under the if the highest appellate PCRA court in which could petitioner have had as a matter of has right review ruled 9544(a)(2). § on the merits of the issue. Pa.C.S. An “if allegation petitioner deemed waived could have trial, trial, or in appeal failed to do so before on raised but 42 Pa.C.S. prior postconviction proceeding.” state 9544(b). that, § further note to Commonwealth pursuant We Albrecht, (1998), the relaxed v. 554 Pa. 720 A.2d 693 waiver appeals no to PCRA and therefore longer applicable rule is are any by Appellant beyond claims that have been waived the terms of the power of this Court review under PCRA. mind, in turn to principles Appellant’s With these we review, of error. For of our do not allegations purposes we in in by examine these issues the order raised Appellant Rather, begin brief. we with those issues that find to be we “previously litigated” under the they PCRA because were on by appeal. agree reviewed this Court direct We "withthe court that Appellant’s PCRA challenge sup evidence porting aggravating circumstance of a prior conviction 9711(d)(12) voluntary manslaughter, § set forth at 42 Pa.C.S. I), (Argument raised on appeal rejected by direct and was precise, this Court. To be Appellant challenged aggrava tor on direct appeal arguing prosecutor that the elicited from a testimony establishing detective that had Appellant “charged” been in a prior Appellant argued homicide. of a charge evidence was not of a evidence “conviction.” Our rejected frivolous, Court this claim finding as that the detec Appellant tive testified that been charged voluntary had with and that manslaughter pled guilty he to such charge. Com Brown, 410, 426-28, monwealth v. 648 A.2d at 1185. also Appellant argued on direct appeal prosecutor erred the manner she presented which the evidence of circumstance, ie., the aggravating from by eliciting the detec long tive a recitation of the facts of the prior manslaughter case. rejected Our Court likewise this claim on the merits. claim, Id. at 648 A.2d at 1186. again Such raised the instant as one appeal challenging testimony detective’s hearsay, as is not reviewable. cannot obtain post conviction review of claims previously litigated appeal by theories presеnting new of relief to support previously Stokes, 299, 304- Pa. claims. Commonwealth litigated (2003). argues additionally current appeal, Appellant In his inappli found is legally that the sole circumstance aggravating 9711(d)(12),the To section Common satisfy cable to his case. has been con demonstrate that defendant wealth must “[t]he in 18 as defined Pa.C.S. voluntary manslaughter, victed substantially or a (relating voluntary manslaughter), § 2503 to jurisdiction, in committed either any crime other equivalent 42 time of the offense at issue.” Pa.C.S. before or at the 9711(d)(12). because he convict maintains that was Appellant to when Pa.C.S. voluntary manslaughter prior ed of codified, not As this is aggravator apply. § does 2503 was up which was challenge aggravator, another to the sole yet previously claim has been appeal, arguably held on direct this issue not specific To the extent that was litigated. the issue is due to litigated appeal, on direct waived previously 42 Pa.C.S. appeal. failure to raise it on direct Appellant’s 9544(b). § on direct previously litigated

The next claim that was he that entitled to relief because alleges Appellant is appeal his trial and because there during forced to shackles was wear VII). in (Argument the courtroom large police presence not its held that the trial court did abuse appeal, On direct we in the court to be shackled permitting Appellant discretion any juror that offered no evidence Appellant room because by influenced the observation. the shackles or was saw claim, that he is part Appellant’s A.2d at 1189. The latter in the large police presence relief as a result of the entitled to courtroom, is therefore appeal, not raised on direct and 9544(b). § 42 Pa.C.S. waived. Appellant issues that also find several other

We waived that the Appellant’s on claims appeal. failed to raise direct jury charge an self-defense gave improper trial court XII) that his conviction and death sentence (Argument XVI) (Argument racial were the result of discrimination were and are therefore on direct to this Court appeal never raised relating claims following not Also waived are reviewable. prospective jurors improperly that were jury selection: life-qualified (Argument dismissed for cause and were Appellant’s restricted XIII), improperly that the trial court XIV), jurors (Argument prospective to voir dire right racially discriminatory peremptory exercised prosecution XV). find Additionally, we waived (Argument challenges its doubt court reasonable the trial erred claims XVII), the trial court failed and that (Argument instructions XVIII). (Argument “life instruction parole” provide without appeal direct These issues available were As he failed he was counsel. represented when new sentence, are they them on from the appeal judgment raise 9544(b).1 § waived. Pa.C.S. find claim that Justice

Additionally, Appellant’s waived we appeal deprived direct participation Appellant’s Castille’s tribunal because right impartial appellate him of his to an at the time Attorney Appel the District Justice Castille was XIX). (Argument This claim was criminally charged lant was and therefore is not in PCRA presented Appellant’s petition not reviewable.2 of Appellant’s next to claims ineffective

We turn McGill, Pa. assistance of counsel. In Commonwealth 574 574, 583-94, 1014, (2003), this recently 832 1020-26 Court A.2d procedure preserving prov to be in and clarified followed of counsel challenging a PCRA claim the effectiveness ing than In the context of this appellate other immediate counsel. McGill, case, “in to petitioner proper that order for a explains claim, and a suffi- ly prevail layered raise ineffectiveness XX, Argument Appellant attempts overcome 1. waiver by baldly asserting of the ineffectiveness all aforementioned claims setting prong ineffec- prior counsel without forth the standard for three Pierce, 153, in tiveness established Commonwealth v. (1987), any performance as counsel at level of 973 it relates to the of claim, undeveloped upon boilerplate representation. based Such an ineffectiveness, prior of all counsel's cannot convert a claim assertion court one of ineffectiveness. See Common- trial error into counsel's 935, 4, (2001) Bracey, Pa. 273 A.2d n. 4 wealth v. n. 795 940 (The prior tacking stating mere all were on of a sentence counsel satisfy failing underlying of error ineffective raise claims does establishing post Appellant's burden of he is entitled conviction claim.). relief on ineffective assistance of counsel We further did Justice Castille's recusal note that not seek sought appeal in the matter. on direct and has not recusal instant meritorious, dent to plead, warrant relief if present, he must prove” and counsel, ineffectiveness of direct appellate which necessarily relates back to the actions of trial counsel. Id. at 1022 in (emphasis Therefore, original). to preserve a claim that direct appellate ineffective, counsel was the peti- (1) tioner must: plead, petition, PCRA that direct appellate counsel was ineffective for failing allege that trial (2) ineffective; counsel was and present argument develop all three prongs of the Pierce test regarding ineffective- ness of direct appellate counsel. Id.

As explained we and expounded McGill upon Rush, Commonwealth v. (2003), Pa. A.2d 651 review of the issue of ineffectiveness of trial merely counsel is component the claim at issue—that challenging effec Therefore, tiveness of appellate counsel. to demonstrate that a “layered” claim of appellate counsel’s ineffectiveness has arguable merit, petitioner must all three develop prongs of the Pierce test as to the ineffectiveness of trial counsel. McGill, 586-88, 1022; Rush, 574 Pa. at 832 A.2d at 576 Pa. at 11-12, 838 A.2d at 656.3 Stated if differently, petitioner fails to develop any of the three Pierce prongs regarding the underlying ineffectiveness, issue of trial counsel he or she will have failed to establish the arguable prong merit of the claim appellate McGill, counsel’s ineffectiveness. 574 Pa. at 588- 1023; Rush, 832 A.2d at 576 Pa. at 838 A.2d at 656. Only petitioner when the adequately has pled presented ineffectiveness trial counsel pursuant to the Pierce test will this Court proceed to the layered review claim to deter mine he or proven whether she has appellate counsel’s ineffec McGill, 588-90, tiveness. 574 Pa. at at A.2d 1023. McGill, Pursuant to the mandate of peti where the tioner pled, has presented, proved and issue of underlying ineffectiveness, trial counsel a remand may be to necessary 3. It requires is well-established that the petitioner Pierce test the PCRA (1) merit; (2) underlying to demonstrate that: claim has substantive being challenged counsel whose effectiveness is did not have a reason- act; and, (3) able basis for his or her actions or petitioner failure to prejudice suffered as a performance. result of that counsel's deficient Pierce, (1987). Commonwealth v. 527 A.2d 973 petitioner opportunity any an to correct errors allow with regard presentation and of his or her claim of pleading McGill, appellate counsel ineffectiveness. 574 Pa. at the petitioner plead A.2d at 1024. Where fails to and prove all three of the Pierce test the under- prongs regarding ineffectiveness, however, lying issue of trial counsel’s a re- unnecessary mand is because the cannot establish petitioner arguable prong regarding merit Pierce test Id.; Rush, 11- appellate ineffectiveness of counsel. 576 Pa. at Therefore, matter, as a threshold we must determine wheth er has Appellant properly preserved remaining his claims of appellate required by counsel ineffectiveness as McGill Appellant properly pled layered Rush. We find that these ineffectiveness claims a manner sufficient to merits warrant Court, to Appellant adequately review. his Brief also addressed the Pierce regarding standard ineffectiveness of However, below, trial Appellant counsel. as detailed has to three prove prongs failed all of the Pierce test as it relates to each issue of trial underlying counsel’s ineffectiveness. Having failed to establish trial counsel’s for ineffectiveness each issue raised on cannot appeal, Appellant satisfy the arguable merit of the Pierce prong regarding test the ineffec determination, tiveness of counsel. In of this appellate light here.4,5 remand is warranted recognize Appellant’s 4. We the PCRA court neither identified layered develop appellate failure to his claims of counsel ineffectiveness dismissal, ground opportunity as a nor offer him did it an to amend Instead, petition develop those claims. the court examined the Appellant's underlying allegations merits of of trial counsel’s ineffective- agree ness and found them to be without merit. Because we with this assessment, required. a remand is not brief, reply Appellant attempts remedy 5. We further note that in his comply some of the deficiencies in his initial brief and to with the capital various PCRA cases that were decided his initial brief had after reply been filed. attaches to his brief a declaration of counsel, states, alia, appellate wherein counsel inter that he had no omitting petition tactical reason for the claims raised in the PCRA practice present that it was not within his normal non-record based appeal. claims on direct application post- The Commonwealth has filed an for leave file Appellant’s reply permit response. submission motion to strike brief or Therein, Appellant’s reply it contends that brief should be stricken for 476 Rush, claim of to McGill the first

Pursuant involves the issue whether counsel ineffectiveness appellate the dece procure for failing counsel ineffective trial II). father’s) history (Argument criminal (Appellant’s dent’s counsel was ineffective argues appellate also that Appellant Brady6 to raise a trial counsel’s failure challenging for not the dece failed to disclose the Commonwealth violation when to defense counsel. history dent’s criminal ineffective- claims of counsel examining appellate In these the three ness, satisfied Appellant must determine whether we of Pierce as to trial counsel’s We find performance. prongs It the Commonwealth undisputed that he did not. is criminal record the decedent’s provided defense with 1973, for included 1973 conviction dating back to which Act, Firearms and two convictions violating the Uniform influence of alcohol. driving and 1974 for under 1973 however, failed the Commonwealth Appellant argues, robbery, for his the decedent’s 1930 Ohio conviction disclose deadly weapon, carrying concealed 1946 conviction Act, Firearms 1953 for a violation Uniform conviction from the 1950’s and driving drunk convictions and several 2113(a) any not address noncompliance with Pa.R.A.P. because it does Appellant has filed in the Commonwealth's brief. new matters raised opposes the application, wherein he an answer to the Commonwealth's requested by Commonwealth. relief appellant prohibited from agree We with the Commonwealth that an remedying original deficient discussion raising new issues or an brief's 2113(a); Fahy, reply Commonwealth v. in a brief. See Pa.R.A.P. However, 8, 214, (1999). 313, under Pa. 322 n. 737 A.2d 219 n. here, present this Court has considered circumstances similar to that reply capital PCRA arguments appellant's made in an brief in a such at 941 Bracey, v. 568 Pa. 274 n. case. See Commonwealth (Because applicability of appeal a discussion of the n. 5 necessitated capital appeals and because the the relaxed waiver doctrine to PCRA reply respond appellant's brief filed a motion to Commonwealth arguments provided response, we considered the "new" such a brief.). argu- reply Accordingly, we shall consider the raised in the request deny reply forth in the brief and the Commonwealth's ments set however, infra, we find no merit the same. As noted because to strike ineffectiveness, Appellant's of trial his assertions claims counsel regarding appellate performance do not entitle him to relief. counsel's (1963). Brady Maryland, S.Ct. 10 L.Ed.2d 215 373 U.S. have contends that these convictions would 1960’s. allega of this support claim of self-defense. supported his counsel, tion, of trial upon relies a declaration Appellant that, provided complete states had he been wherein counsel victim, investigated the of the he would have history criminal presented have offenses and would background prior theory of his of self- jury support material in the penalty phase. and also as evidence mitigation defense Greene, of Exhibits to Initial Appendix Declaration of Daniel Brief of Exhibit 5.7 Appellant, no that it has persuasively argues

The Commonwealth his victim’s criminal obligation provide to a defendant with here, where, equally that record is history, as particularly is the defendant’s accessible to the defense and victim Spotz, father. See Commonwealth 1139, 1154(2000) Brady there is no violation (stating A.2d that readily to turn evidence рrosecutor where the failed over defendant). to, Moreover, because by, obtainable and known to only are to be relevant the self- alleged convictions claim, himself have had to have defense would not, previous If he then convic knowledge of them. did claim. As bearing tions have no his self-defense would violation, no trial there no there was basis for Brady has failed Accordingly, Appellant counsel to raise such issue. merit of the Pierce test as to satisfy arguable prong and, therefore, the claim of trial counsel’s ineffectiveness fails. appellate counsel ineffectiveness exhibits, Appellant 5 as the 7. Similar to his other refers Exhibit exhibits, Appellant's of Daniel Greene.” howev- "Declaration/Affidavit er, properly they are not characterized as “affidavits” because have not by to adminis- been sworn to the declarant before an officer authorized (“Affidavit” § is defined as state- "La] ter oaths. See Pa.C.S. it, writing signed by party making ment in of a fact or facts sworn to or affirmed before an officer authorized the laws of this Common- deeds, acknowledgments wealth to take or authorized to administer oaths, particular designated by or before the officer or individual law as taken, officially may certified to the one before whom it is to or be However, office.”) case an officer his seal of as noted under declarations, infra, assuming Appellant's claim of even the truth of the ineffective assistance of counsel fails. appellate The related claim of counsel ineffectiveness trial, for not counsel’s failure to discover the challenging history criminal on his fails. The decedent’s own likewise in time of the convictions and the fact that the remoteness made of the victim’s 1973 violation of the jury was aware Act, claim of dispel any prejudice. Having Uniform Firearms failed the Pierce test as to trial counsel’s satisfy perform ance, unsup his claim of counsel ineffectiveness is appellate portable. appellate

The next claim of counsel ineffectiveness the issue of trial counsel ineffective encompasses whether failing investigate, develop, present evidence (Ar of self-defense supported Appellant’s theory would have III). Appellant argues that trial counsel gument Specifically, presented psychiatric establishing should have evidence from mental and cognitive impairments, including he suffered brain bipolar organic damage, disorder and as well as evidence by argues that he was threatened and abused his father. He presented support that such evidence should have been a of either an theory voluntary manslaughter, by demonstrating provocation passion self-defense claim or a and imperfect declaration, theory. He relies on trial counsel’s wherein coun states that had he of mental and Appellant’s alleged sel known cognitive impairments, presented he would have them to the of Daniel at of Exhib jury. Appendix Declaration Greene Appellant, its to Initial Brief of Exhibit 6. arguable

We find that there is no merit to the issue trial because the at time of trial counsel’s ineffectiveness record of mental or did not reveal evidence illness abuse that would prompted investigation have trial counsel to conduct a further fact, in that In the record regard. contrary. established police, Appellant specifically his sworn statement to the was he been for mental health asked whether had ever treated (N.T. 748). 7/18/91, “no.” problems. Appellant responded Moreover, Id. a pre-sentence investigation report prepared by 10, 1991, psychologist Appellant who evaluated on December that Appellant reported history neurological, indicated no suicidal, B psychiatric problems. Exhibit to the Common- 14, 1999, in Philadelphia December filed Motion of wealth’s further indicated report Pleas Court. County Common illness, major mental any not suffer from did Appellant disorder N.O.S. “personality diagnosed but rather was with and anti-social with some dissocial specified], otherwise [not basis for counsel to have primary alleged features.” Id. The ill the time of trial is mentally suspected Appellant was The record demon- space “obsession with travel.” Appellant’s strates, however, not such interest that trial counsel did view irrational, by in mitigation rather offered such evidence as but and that he shared his interest NASA the fact presenting in the his niece and other children program with space conventions, educating them taking them to neighborhood, 1044). (N.T. 585; 7/24/91, 1085, 7/17/91, subject. on the record indicated that had Additionally, Appellant he testimony father. In his at trial when been abused shooting, Appellant describing leading the events had can at his car garbage that his father thrown explained (N.T. 842). 7/19/91, the homicide. When prior moments before, Appellant his father had ever done that asked whether stated, any any “me and dad never had kind.” my violence state, me, had hit not once.” “My Id. He went on to dad never Id. exist, illness assuming

Even such abuse and mental did same, there never informed trial counsel objective prompted no evidence of record that would have to look into the issues.8 counsel further See Cоmmonwealth (trial 279-81, Pa. at at 944 counsel not Bracey, 568 795 A.2d alleged for evidence of abuse failing present ineffective neither the nor his informed counsel family defendant where abuse). fact, to police In the same statement above, made a comment that he Appellant flippant referenced he sorry “pleading for occurred and that was what 747). (N.T. 7/18/91, insanity Presumably and self-defense.” upon Appellant to estab- The 1999 declarations which now relies on involve examinations that were lish his mental illness at the time of trial trial, years Appellant’s and therefore did not exist at the conducted after penalty phase of the trial was conducted. time establishing the lack of record evidence such recognizing defense, motion pre-trial seeking trial counsel filed a in limine made preclude any Appellant evidence reference from opinion See Trial court at 8 and exhibit. regarding insanity. trial cannot be deemed Accordingly, counsel ineffective failing.to present support Appel- mental health evidence to lant’s of self-defense there was no such evidence theory when trial arguable of record. As there is no merit to the issue of ineffectiveness, appellate counsel the claim of counsel ineffec- tiveness fails. must next determine counsel appellate

We whether as trial counsel’s to investi was ineffective a result of failure IV). gate prepare penalty phase (Argument and for the As issue, that trial counsel failed to prior Appellant alleges major present significant mitigating Appellant’s evidence illness, childhood, organic damage. mental traumatic brain Although Appellant has a declaration of trial counsel produced he admits that he did not conduct an investigation wherein illness, childhood, Appellant’s into mental traumatic and or ganic damage, brain counsel states he was unaware of noted, deficiencies in this As the informa Appellant’s regard. tion to trial counsel at the time of trial did not alert available counsel to further such issues. investigate See Common Uderra, Bracey, wealth v. Commonwealth v. supra; 398-402, (1998) (holding 339-340 that trial declining present mitigation counsel was not ineffective for regarding problems evidence appellant’s psychological drug appellant any use when failed to disclose information trial). addition, problems prior about those the nature of his father a heated crime—Appellant shooting following not on its face that the argument—did suggest perpetrator mentally supra ill. As discussed in detail record at the time of trial indicated that did not Appellant from and had not any infirmity suffer mental been abused his father. disabled, portray mentally

Rather than as trial Appellant portrayed caring counsel as a friend and neighbor, proposition theory consistent the self-defense presented with during guilt phase. succinctly recog- court PCRA nized, the [Appellant] testified for who

All of the witnesses (pulled hero witness as a Appellant penalty phase portrayed accident); wayward of a counselor of auto wreckage from leader; and a lover community a father-figure; a youth; neighborhood. in the children young protector at 9. opinion Trial court argua is of claim assuming Appellant’s

Even reasonable basis to have a and that counsel failed ble merit abuse issues mental health and investigate further failing to trial, to demonstrate has failed Appellant the penalty phase performance. ‍‌​‌‌​​​​‌​‌​​​​​​​‌‌‌​‌‌‌​​​​​​‌​​‌‌‌​‌​‌‌​‌‌‌‌​‍substandard by counsel’s prejudiced that he was to a claim a always prerequisite has been showing Such a of counsel. See Common the assistance alleging ineffective (1987); Pierce, 153, 515 Pa. 527 A.2d 973 Strickland wealth v. 80 L.Ed.2d 674 104 S.Ct. Washington, U.S. context, (1984). in this prejudice In order to demonstrate probability is a reasonable must show that there Appellant that, mitigation failure to evi present absent counsel’s able to prove he have been currently proffers, dence he would mitigating preponderance at least one circumstance member jury that at least one would have evidence and circumstance(s) outweighed mitigating concluded 9711(c). Here, circumstance(s). § See Pa.C.S. aggravating that Appellant circumstances jury mitigating found the and the under extreme mental or emotional disturbance acted mitiga circumstance of other evidence mitigating catchall circumstances relate to the evidence mitigating tion. These Moreover, cannot conclude we Appellant currently proffers. jury that the would have probability that there is reasonable circumstances any weight mitigating more afforded that such evidence has failed to establish Appellant when Thus, has illness existed at the time of trial. mental by trial counsel’s prejudiced failed to demonstrate that he was the issue phase. Accordingly, performance during penalty the claim of of trial counsel fails and renders ineffectiveness untenable.9 appellate counsel’s ineffectiveness recent decision in Relying trial counsel's declaration and our (2004), Malloy, Justice 856 A.2d 767 Commonwealth v. next claim of counsel Appellant’s appellate ineffective ness trial counsel’s failure to impeach misleading involves VI). trial, testimony (Argument of the medical examiner At Preston, M.D., Bennett the Assistant Medical Examiner for City Philadelphia, the of testified that the victim had been hit by three bullets: two of those bullets entered the left victim’s arm, chest the entered left upper passed third his outer arm, through the reentered the under his left body victim’s skin, arm and under the partially exiting through traveled the back. Dr. Preston testified that the of the bullet that path arm the entered the victim’s was consistent with victim having his left hand raised in a at the he posture defensive time was shot, discounting Appellant’s theory thus that he had acted in (N.T. 758-766). 7/18/91, self-defense. that Dr.

Appellant argues testimony Preston’s is scientifical ly unsound and trial counsel ineffective for to failing was obtain an to rebut it.10 He relies on expert two declarations Saylor dissenting opinion noted in his that he would remand to the evidentiary hearing, particularly disposition PCRA court for an case, however, clearly distinguishable this issue. The instant is from First, Malloy. in which this case is not one the PCRA court denied Appellant opportunity prove contrary, to his claims. To the hearings solely PCRAcourt conducted several to determine whether an (N.T. 2/2/1999, 5/17/1999, evidentiary hearing required. was See 12/22/1999). ultimately adopted PCRA court the Commonwealth's that, argument it clear from the because is record that trial counsel's reasonable, stage performance penalty objectively at the was there is no present testimony reason to of trial counsel's assertion of "self-ineffec- Court, (N.T. 65-66). tiveness.” at In its brief to this 12/22/1999 willingness allege Commonwealth trial a lack characterizes counsel’s preparation misrepresentation aas “blatant to this Court” because it simply actually is not with what at consistent occurred trial. Common- wealth's Brief at n. 23. Second, Malloy, mitigation present- unlike substantial evidence of was Malloy, cursory In trial ed. counsel failed to conduct even a review of background appellant's no affirmative and offered evidence at all consider, jury only argument stipulation. for the a brief and a

Malloy, jury surprisingly, Malloy 856 A.2d at 789. Not found no contrast, mitigating Appellant's pre- circumstances. trial counsel and, eight during penalty phase sented no less than witnesses as noted, jury mitigating Accordingly, found three circumstances. Malloy, Appellant's abrogate unlike trial counsel counsel did not duty present penalty mitigation. phase evidence of knowing pres- further contends that the Commonwealth’s materially testimony entation of Dr. Preston's false violates his constitu- Contostavlos, M.D., it opined impossible that was Dimitri who left the victim’s single gunshot to tell from a wound whether Dr. Contostavlos position. arm raised a defensive was palm the victim’s that one could not determine whether found left body from the or whether the victim’s facing away Dimitri a firearm. Declaration of Dr. holding hand was Contostavlos, Appel- to Initial Brief of Appendix Exhibits lant, Exhibit 16. that, argues contrary Appellant’s

The Commonwealth contentions, a opinion upon Dr. Preston’s based wound,” but on a total of four “single gunshot instead wounds Moreover, persuasively at him his pointed gun right testified that his father with (N.T. 902). 7/19/91, Thus, hand. whether the victim’s left his of by question hand was raised side irrelevant he a firearm at aiming Appellant. whether was Common- Preston wealth further notes that Dr. Contostavlos and Dr. the the in a agreed passed through body that bullets victim’s direction, theory refutes trial Appellant’s downward which father in self- ground up that he dove to the and fired at his circumstances, the agree defense. Under these we with Com- that trial counsel’s failure to secure Dr. Contostav- monwealth testify prejudice Appellant los to at trial did not and therefore trial counsel cannot be deemed This the being ineffective. case, cannot sustain burden of the Appellant satisfying his appellate Pierce standard as to counsel’s ineffectiveness. next claim of counsel Appellant’s appellate ineffectiveness present guilt phase that trial counsel failed to material alleges of of support theory (Argument evidence his self-defense X). III, in Argument Appellant argues Identical his claims ignored history that trial counsel evidence of the decedent’s Appellant by firearm offenses and the abuse that suffered disposing Appellant’s hands of his father. As noted in rights process. tional to due This claim is frivolous as a difference in opinion clearly testimony.” medical does not amount to "false Appellant did previous supra, claims ineffectiveness of his father’s not demonstrate that he made counsel aware 568 Pa. at Bracey, abusive behavior. See Commonwealth (trial failing 795 A.2d at 944 counsel not ineffective for neither the defen- present alleged evidence of abuse where abuse). Thus, dant nor informed counsel of the family there is no merit to the issue of trial counsel ineffectiveness the claim counsel has not been appellate ineffectiveness established. ineffectiveness, further

Within this same claim of to trial contends that counsel was ineffective due appellate hire a firearms to examine the expert counsel’s failure to weapon. to the murder He asserts linking Appellant evidence that currently expert opined that he has retained such an who gun police grossly negligent failing were have fingerprints destroyed by before the were fingerprinted that counsel appellate blood examination. He also contends object to as a result of trial counsel’s failure to was ineffective or more shells were found testimony twenty shotgun that establishing room there no evidence Appellant’s when was in the commission of the instant murder. shotgun was used merit claim under To determine the of this McGill Rush, arguable look to there is merit again we whether of trial to have failing issue counsel’s ineffectiveness the firearm Bittenbender testified at fingerprinted. Detective handgun trial to be submitted for supposed but not because of a mistake made fingerprints, (N.T. 652-53). 7/18/91, Because trial police department. why gun counsel had to do with the reason the was nothing the promptly fingerprinted, arguable not there is no merit to Thus, regard. issue trial counsel’s ineffectiveness this claim of counsel cannot appellate prevail. the ineffectiveness trial counsel’s failure to relating

As to the issue found in object testimony shotgun Appel that shells were bedroom, that failed to demon Appellant lant’s we find has it relates prong strate the of the Pierce standard as prejudice not to trial counsel’s could have been performance. Appellant testi- by testimony Appellant such because himself prejudiced as shotgun, a blank guns, including tied that he owned several 831-32). (N.T. Thus, 7/19/91, trial items. gun-related as well of appel- and the claim deemed ineffective counsel cannot be fails. necessarily ineffectiveness late counsel ineffective counsel was argues appellate that Appellant also improperly counsel the issue that trial failing to raise XI). that in argues (Argument client denigrated Appellant his his counsel stated penalty phase, of the closing argument following: Brown, of the client, to be one most evil John has my [T]hen He planet. the threshold of graced that ever people the most He has to be evil to be rotten and malicious. has there ever was. person that trial coun- contends Appellant Brief at 62.

Appellant’s to the ultimate emphasized of his client denigration sel’s person. he a bad sentence!- that was arguing Rather than claim is belied the record. This that, evil, if trial counsel asserted Appellant that was jury true, Appellant of the events were version prosecution’s was, but I most there ever person to be “the evil would have (N.T. 9/22/92, that.” he is not. He is not you that suggest 925). ver- explained why prosecutor’s then Trial counsel trial counsel not true. The issue of was sion events claim of merit and the arguable therefore lacks ineffectiveness fails. counsel ineffectiveness appellate not previ examine those claims that were Finally, we allege and do not ineffective ously litigated or waived category alleges in this of counsel. The first claim assistance trial and therefore incompetent to stand Appellant (Argu sentence are unconstitutional his conviction and death V). challenge recognize ment did We direct and first asserted the appeal at trial or on competency of ineffective petition guise in his PCRA under claim appeal, Appellant of trial counsel. the current assistance “unconstitutionally he tried the issue of whether presents Brief at Issue As this V. incompetent.” Appellant’s while find appeal, generally raised on direct we would issue was not 486 held, however,

it consistently waived. This Court has that the issue of whether a defendant to trial is competent stand exception an to the waiver rule in cases on direct appeal. 344, (1979); Commonwealth v. 485 Pa. 402 Tyson, A.2d 995 Silo, 40, (1976); Commonwealth v. 469 Pa. 364 A.2d 893 Marshall, (1974); Commonwealth v. 318 A.2d 724 Robinson, 375, 385, See also Pate v. U.S. S.Ct. (1966) (finding L.Ed.2d 815 that it is to contradictory argue that may incompetent, yet knowingly a defendant be intelligently right “waive” his to have the court determine his trial). capacity stand

The issue of applies equal whether case law with force in the context has recently PCRA divided this Court. See (2004). Commonwealth v. Santiago, 579 Pa. 855 A.2d 682 Santiago, plurality this Court held that the failure to raise on direct a claim that the appeal appellant incompe- tent at the time of trial does not constitute a waiver that purposes claim for of the PCRA. reaffirm the plurality’s We position Santiago the instant appeal. begin analysis

We our with a of the pertinent review 9544(b) noted, statutory As language. provides Section that an purposes issue is waived for of the PCRA “if the petitioner trial, trial, could have raised but failed to do so before appeal or in a state prior postconviction proceeding.” 42 9544(b). § Pa.C.S. We that recognize Appellant “could have” review, the competency raised claim on direct but we conclude 9544(b) Assembly General intended Section apply to those claims that are required preserved. to be If the nature of the claim a right involves so fundamental to a fair non-waivable, trial that renders it then claim is not re- quired preserved subject be and is not to the waiver provision To hold to the contrary PCRA. would render language statute absurd and violate a fundamental 1922(1); (stat- statutory § rule of construction. 1 See Pa.C.S. ing presumed that it is that the Assembly General does not absurd.); 1922(3) § intend result is also Id. at See forth that it (setting presumed Assembly that the General the Constitution of the United States does not intend violate Commonwealth). or this similarly previous has ruled three cases.

Our Court Fernandez, 493, 8, Pa. 497 n. 410 A.2d v. 487 Commonwealth 296, (1980), reasoning 298 n. 8 this Court held that the same on an issue of non-waivable direct finding competency a of issues under appeal preclude competency would waiver (PCHA), 25, Act Act of Hearing January the Post Conviction (1965) -1980), 1966, 1580, 1 seq. (Supp.1979 § P.L. 1180-1 et PCRA, to the when the defendant is shown predecessor that the chal incompetent. Recognizing appellant’s have been grounds incompetency to his on lenge guilty plea was our appeal, proceeded raised on direct Court nevertheless examine the of the issue. concluded that the merits We that the properly appellant possessed PCHA court determined plea guilt. Having the mental to enter a valid capacity presumption appellant’s failed to the that the failure overcome knowing understanding, and our Court affirmed appeal was order PCHA court.11 proposition We elaborated on that Commonwealth v. (1980). Nelson, 491, There, 414 489 Pa. A.2d 998 the Court an from of relief appeal addressed the denial under PCHA. The raised the issue of whether trial counsel appellant failing request hearing appellant’s was ineffective in competency to stand trial. This issue was abandoned hearing. counsel at the PCHA stated: We long We have held that “the mental of an competence regarded accused must be as an absolute basic and condi- Bruno, 200, tion of a fair trial.” Commonwealth v. 435 Pa. (1969). 1, 519, 205 n. 255 A.2d 522 n. 1 Accordingly, we have been loath to find of such a claim. waiver Common- Marshall, (1974). wealth v. 318 Pa. A.2d 724 appellant precise, 11. To be Court concluded that the did Fernandez presumption appeal knowing not overcome the that his failure to was understanding, and and the claim was “waived.” Id. at 298. therefore Considering preceding paragraph explicitly that the Court in the stated PCHA, competency precluded that waiver of claims was under the presumably employed Court the term "waived” to indicate that the appellant demonstrating incompetence. had not satisfied his burden of Indeed, recently present- held that “when issue we have trial, person competent is stand ed whether was Tyson, is not Commonwealth v. applicable.” waiver rule (1979). 344, 348-50, id., Marshall, is, course, Tyson, supra, It true that Bruno, a collater- supra, direct appeals, were while Nevertheless, attack, our petition. al not a PCHA doctrine, although judge-made statutory, and not waiver expressly discarded the stringently apply. one we We have Clair, Pa. error” rule. “fundamental Commonwealth (1974). Thus, recognizing 326 A.2d 272 while not error, will not permit fundamental we nevertheless of a claim of so basic is it to our incompetency, waiver an is no trial justice incompetent that a trial of concepts Although recognize at all. the PCHA includes waiver we own, 1180-3(d), § held the provision having of its 19 P.S. of an accused to be an absolute and basic competency trial, of a fair further hold the rule condition we no-waiver in to be here as Tyson applicable well.

414 A.2d at 1000-1001. As no had been competency hearing conducted, evidentiary hearing.12 the for an Court remanded reaffirmed the rule in

Our Court Nelson Commonwealth (1980). Giknis, to our appeal 420 A.2d 419 On relief, appellant from the denial of Court PCHA Giknis independent raised the issue of whether the trial court had an upon competence plea basis to determine his to enter which participated in the decision. O’Brien 12. Six Justices Nelson Justice opinion, joined by Eagen drafted the lead which Chief Justice and was dissenting Although opinion, filed a it is Justice Nix. Justice Roberts beyond agreed supra. cavil that he with the rule of law cited The first states, agree majority “I sentence of Justice Roberts' dissent with the proceedings that this Court must remand the record for further on . appellant's competency A be claim." Id. at 1001. remand would unnecessary competency if the claim was found to have been waived. disagree majority Justice Roberts went on to with the mandate of the as he have allowed claims of ineffective assistance of would additional remand, fully litigated opposed solely counsel to be on as Flaherty dissenting opinion, competency issue. Justice also filed a Larsen, disagreed joined by which which was Justice with resolu- competency participating tion of the issue. As four of the six Justices agreed precedential with the rule of law at issue Nelson is here. authority proposition. on that Commission report Sanity because the issued guilt also contended that due inadequate. appellant was the trial court proceed- had been when process rights violated competency case in of his questionable ed with his view normal circum- initially trial. noted that under stand We stances, claims be because PCHA would waived two if it “could have been raised provided that an issue waived trial, trial, ...” Id. at appeal. before the at 1580, 4, 25, 1966, § P.L. January at Act of P.S. citing appellant § could (Supp.1979-80). recognized 1180-4 We trial, trial on direct prior raised those issues at have declined to find the issues but did not do so. We appeal, waived, however, in Nelson. pronouncement based on our proceeded compe- Our Court examine the substance claims on the evidence of record аnd concluded tency based of trial. Id. at competent that the time appellant Having precluded established that this Court has the waiver Fernandez, Nelson, competency claims under the PCHA Giknis, we must determine we reach the same whether provisions result under the of the PCRA.13 The relevant statutes, however, provisions defining waiver both are near if ly they provide identical in that both that an issue is waived been raised on direct appeal. Accordingly, could have we hold that the failure to raise on a claim that the appeal direct not consti appellant incompetent at the time trial does tute a purposes waiver that claim for of the PCRA. that our decision not conflict clarify

We does with Albrecht, 31, seminal case of Commonwealth v. 554 Pa. 720 (1998), 693 the capital A.2d where this Court eliminated case relaxed rule on In for the waiver PCRA review. order waiver “relaxed,” rule be applica- to the waiver doctrine must first be Concurring Opinion disagrees analysis employed by with the Nelson, Fernandez, this Court in and Giknis and characterizes such “uneven,” ‘‘problematic,” “frankly decisions as useless.” Concur- 501-02, 506-08, 1163, ring opinion at 872 A.2d at 1166. With all due disparaging any respect, such do not render the cases characterizations cited, they proposition less authoritative for the narrow for which were namely, precluded challenging that this Court has waiver of issues competency mental of the accused under the PCHA. 490 supra, it is at hand. As demonstrated well-

ble to the issue competent that the issue of a defendant was settled whether Thus, subject rule. our stand trial is not waiver rule has no bearing of the case relaxed waiver capital abolition case, to address being proceed on this issue. This we now claim.14 Appellant’s the merits of incompetent that he was to stand Appellant argues sentence are trial therefore his conviction and death claim, to his of this he attached support unconstitutional Jr., Dudley, of Dr. Richard PCRA the declaration petition Dr. that based his examination Dudley upon wherein states 1999, as to “significant questions [Appel he has Appellant trial counsel.” Declaration of Dr. capacity to assist lant’s] Exhibits to Initial Brief of Dudley, Appendix Richard Appellant, Exhibit 14.

A is to be to stand presumed competent defendant duPont, 564, 567-70, v. Commonwealth trial. 545 Pa. 681 (1996). 1328, Thus, on Appellant 1330-31 the burden is A.2d evidence, that he was prove, by preponderance that, contrary myri- Concurring Opinion repeatedly to a 14. The asserts cases, inappropriately ineffec- ad of Court "converts” the claim of our underlying whether tive assistance of counsel into the claim of Appellant competent to stаnd trial. No such conversion has taken Court, previously by place. approach with the taken we Consistent noted, examining by simply Appellant. the issue raised As the issue are "unconstitutionally presented Appellant’s Brief is whether he was 2, incompetent.” Appellant's V. To the tried while contrary, Brief at Issue by appellant’s in the brief in each case cited the issue raised failing whether counsel was the Concurrence was challenge ineffective request competency competency of the accused or Matrero, 100, 102-03, hearing. 202, v. 561 Pa. 748 A.2d Commonwealth 377, 385-87, (2000); Judge, v. 568 Pa. 797 203 Commonwealth 250, 264, 281-83, (2002); Bracey, 568 Pa. A.2d 256 Commonwealth v. Basemore, 258, (2001); v. 560 Pa. 795 A.2d 945 Commonwealth (2000); Breakiron, 271-73, 519, 529-30, 556 Pa. 744 A.2d Commonwealth 1088, 1093, (1999); A.2d Commonwealth v. Cross, 38, 41-43, (1993); Commonwealth v. Nelson, we find 489 Pa. at 414 A.2d at 999. As that issue rule, subject we presented Appellant is not to the waiver see no need guise address it under the of ineffective assistance of counsel. To the to extent, however, additionally argues appellate coun- failing challenge competency, such claim sel was ineffective for arguable underlying that there no merit to the fails as we conclude issue.

491 that he was prove trial. order stand incompetent that he either must establish was incompetent, Appellant against the proceedings the nature of unable to understand v. in his defense. Commonwealth participate him or to own (1989); 1264, 423, 434-36, 1270 see 521 Pa. 555 A.2d Hughes, 7402(a). satisfy § has failed to Appellant 50 also P.S. standard. his examination of Dudley of Dr. discloses that report trial. While eight years Appellant’s took after

Appellant place regard- “significant questions” states that he has Dudley Dr. counsel, he has not to assist trial ing capacity Appellant’s the trial in 1991 when Appellant incompetent stated that Moreover, the court by psycholo- when evaluated occurred. 10, 1991, of “capable December was found gist Appellant on The doctor also understanding sentencing procedure.” major from a illness.” found that “does not suffer Appellant counsel, the defendant from the time Trial who worked with trial, the issue until after his no reason to raise arrest saw and, instead, that he acted argued of defendant’s competency therefore, court, properly in self-defense. The PCRA conclud- to consult counsel ration- ed that the defendant was able with of the ally possessed understanding a rational and factual proceedings. argues proportionality next that the review

Appellant him by appeal this Court on direct denied due performed IX).15 process (Argument consistently recog This Court has sen regarding proportionality capital nized issues aрpeal tences decided our Court on direct and are were previously litigated beyond purview therefore Edmiston, 284, 312-13, PCRA. See Commonwealth v. 578 Pa. Albrecht, (2004); Commonwealth v. 720 A.2d Wharton, 85, 106-08, 708; Commonwealth (2002). however, challenging is not Appellant, A.2d sentence, of his but rather method proportionality As the PCRA employed appeal. review our Court direct the first to raise such a petition opportunity issue, Although specifically 15. the PCRA court address this did Appellant’s Supplemental petition PCRA dated was listed as Issue V in June claim, we shall entertain the merits the issue. See Com- Edmiston, monwealth v. 851 A.2d at 900. trial,

At the of Appellant’s required time Court was determine his death sentence “excessive or dis whether in 42 proportionate penalty similar cases.” imposed 9711(h)(3)(iii).16 § our Appellant Pa.C.S. contends an inaccurate proportionality Court’s review utilized database counsel notice and an providing Appellant’s opportuni without ty rejected This identical claim raised and participate. Edmiston, v. 578 Pa. at 851 A.2d at Commonwealth 901, recognized consistently where we that our Court has validity of our review simi upheld proportionality against Marshall, Pa. challenges. lar See also Commonwealth v. 571 289, 308-10, 539, (2002); 812 A.2d 551-52 Commonwealth v. Wharton, 991; Gribble, 811 A.2d at v. 550 Pa. Commonwealth (1997). 62, 89-91, 426, next that the PCRA court erred in Appellant argues him failing grant evidentiary hearing an on his PCRA XXII). however, claims not identi (Argument Appellant, does fy evidentiary hearing. which his various issues warrant an Rather, that, he the myriad asserts “based on material issues resolution, of fact for the requiring evidentiary was error petition granting court below dismiss without Appellant’s Brief hearing Appellant’s first.” at 94. Such a broad declara tion of error is insufficient to relief. warrant also that the court erred in

Appellant argues PCRA XXIII). discovery He denying requests (Argument of, alia, that he sought “discovery any asserts inter whether in return for their payments testimony witness received [sic] of the District part Attorney’s protection program as witness discovery provided any and the to trial counsel as as well 1997, Assembly repealed requirement propor the General tionality proportionality review. This Court continues to undertake appeal review on direct of death sentences in cases where the sentence 25, 1997, imposed prior of death was to June the effective date of the See, Edmiston, 284, 11, repeal. Commonwealth v. 578 Pa. 312 n. Gribble, (2004); A.2d 900 n. 11 550 Pa. Commonwealth 426 (1997). A.2d case, any that exists in this notes or Brady other material jury peremptory selection and the use training policies Brief at 95. Appellant’s strikes in this and other cases.” jury he Brady sought. fails to materials specify what Moreover, argument support his entire of this claim is his ac- Attorney’s assertion that the District Office Philadelphia housing ar- knowledged making payments undisclosed rangements allegation for witnesses other cases. Such falls to relief. In ad- woefully establishing short of entitlement Lark, dressing a similar claim in Commonwealth v. (2000), 746 A.2d 585 stated: we petition regarding fails to tie the broad allegations Attorney’s policy paying

District witnesses to the wit- in Appellant’s ‍‌​‌‌​​​​‌​‌​​​​​​​‌‌‌​‌‌‌​​​​​​‌​​‌‌‌​‌​‌‌​‌‌‌‌​‍discovery nesses case. Allusions to own in violations other cases are insufficient to demonstrate that in any such violations existed this case. has not Appellant evidence, presented one iota of as an from one such affidavit case, in of the witnesses his to of those suggest any any witnesses received economic benefits. not We will fishing sanction a fails to expedition Appellant provide when even a minimal for basis his claim. As fails to make a showing exceptional pursuant circumstances to 1502(e)(1), Pa.R.Crim.P. the court not below did abuse its discretion in failing grant the motion. 498-500,

560 Pa. at Accordingly, Appellant 746 A.2d at 591.17 has failed to demonstrate that the PCRA court abused its discretion in denying requests discovery.

Finally, Appellant contends that the cumulative effect of the he alleged errors has his brief entitle him to relief (Argu- XXI). ment Because find no any Appellant’s we merit claims, their alleged cumulative effect does not warrant relief. 565, 586-88, Blystone, See Commonwealth v. A.2d 1, April 17. Rule which was renumbered as Rule effective 2001, provides discovery permitted any stage that “no shall be of the proceedings, except upon showing good leave of court after a cause." 11, 1997, August Pa.R.Cr.P. 902. As this rule was enacted on after filed, Appellant's petition inapplicable. it is Our discussion in Lark claim, however, regarding inadequacy appellant’s of the is relevant disposition to our of the instant claim. (1999) (“No collec- may amount of failed claims 1208-09 individually.”). not so they merit if could do tively attain court.18 affirm the order PCRA Accordingly, we Mr. concurring which opinion files Justice CASTILLE joins. Eakin Justice dissenting opinion. concurring files a

Justice NIGRO dissenting opinion. files a SAYLOR Justice CASTILLE, concurring. Justice for its discussion of except join Majority Opinion, I assistance of counsel claim of ineffective appellant’s layered failure, appeal, at trial and on direct from counsels’ deriving Majority op. tried. competence his mental be See challenge at, respectfully 1153-57. I dis- Pa. at conversion of this ineffectiveness Majority’s agree with competency claim of underlying into the waived claim itself, Majority’s competency conclusion upon based of the Post subject provision to the waiver claims are (“PCRA”), § et seq. Act 42 Pa.C.S. Relief Conviction ignored legislatiоn has relevant doing, Majority so rule that defeats the PCRA’s judicial relaxed waiver creating finality there never be and assures that will provision waiver separately I also from criminal convictions. write appeals I characterization proper a concern have to address with appellant statements which and effect unsworn witness “affidavits” of those they to this as if were the proffers Court witnesses. plurality opinion taken in the recent

Following approach the (2004) 46, Santiago, in Commonwealth C.J.), dismisses the Majority the opinion by Cappy, (plurality in the sounding claim is as one appellant’s posed fact that counsel, see Brief previous of his layered ineffective assistance 42-43; the claim as the converts and reviews Appellant, for Prothonotary Supreme the Court is directed to transmit 18. The ninety days of our complete of this case to the Governor within record l(i). § with 42 Pa.C.S. decision in accordance itself; holds that incompetency claim of underlying waived provision; immune from the waiver such claims are PCRA’s the merits of the waived claim proceeds and then evaluate rather appellant’s appeal, as if this second direct appeal were upon judgment. my than a collateral attack his final Concurring Opinion Santiago, I the propriety addressed claim in competency/ineffectiveness the Court approaching I the rely upon Concurring Opinion such a fashion and that as my the primary disagreement Majority’s ap- basis with in the case sub judice. Santiago, See Pa. at proach (Castille, J., Eakin, J., joined 855 A.2d at concur- by 704-11 however, The ring). Majority, appellant’s has articulated Santiago plurality’s in support behalf new theories of the deriving alleged conclusion that claims from a defendant’s mental to stand trial are from the incompetence exempt I provision. PCRA waiver write to address the theories new the Majority poses. Santiago plurality

The that mental competency declared claims are an exception statutory command issues PCRA, not raised at trial or on are appeal waived under as citing support judicial sole a 1970s-era doctrine non-waiver crafted See by appeal this Court direct cases. 579 Pa. at 63 ease sub n. 855 A.2d at 691-92 n. 9. The in the Majority judice Santiago plurality and step takes a forward from the at acknowledges least matters are not PCRA the same as direct appeals. Majority nevertheless “reaffirms” the unexplained position in the Santiago plurality, putting forth two new theories to support plurality’s assumption that trial competency subject stand claims are fоrever to relaxed First, that, waiver treatment. as a Majority argues construction, of statutory matter provision PCRA waiver Assembly intended General apply default Second, ed competency claims of mental to be tried. Majority argues that a trio of 1980 decisions from this Court (“PCHA”),1 under the Post Act Hearing Conviction the statu PCRA, tory predecessor empowers requires 25, 1966, (1965) January § 1. Act of P.L. 19 P.S. 1180- codified seq. repealed part, part, 1 et The PCHA was modified in Act, April renamed Post Conviction Relief effective 496 judicial despite “relaxed the exception

Court craft waiver” view, my In neither of explicit provision. PCRA’s waiver usur remotely supports judicial these theories the new-found pation represented by Majority’s holding the relaxed waiver of assistance of layered and its conversion ineffective claim here. actually posed counsel statutory Pennsylvania interpreta The most basic tenet of tion is that courts must ascertain and effectuate the intention 1921(a); § 1 re Assembly. Pa.C.S. Canvass General Election, Ballots November 2003 Absentee General 57 lh of Pa. of 7 281, 241-43, 1223, (2004); Hannaberry 843 A.2d 1230 Jr.), (Snyder, v. Board Compensation Appeal HVAC Workers’ (2003). 66, 77-79, 524, plain Pa. 834 A.2d 531 575 of a statute is the best indication language generally Manufacturing intent. v. legislative Commonwealth Gilmour (2003). Thus, Co., 143, 148-49, 676, Pa. 822 A.2d 679 573 that, Act mandates the words Statutory Construction “[w]hen ambiguity, of a statute are clear and free from all the letter of disregarded pretext pursuing to be under its 1921(b); § 1 see also Canvass Absentee spirit.” Pa.C.S. Ballots, 241—43, Scheipe Pa. at 843 A.2d at 1230 v. (citing 577 Orlando, 112, 117, 475, (1999)); Pennsyl 559 Pa. A.2d 478 739 v. En Responsibility Assigned vania Financial Claims Plan (1995) (“Where 424, 429-31, glish, 541 Pa. 664 A.2d 87 and free from ambiguity words of a statute are clear words.”). from legislative gleaned very intent is to be those may legislative Courts resort to other considerations to divine intent of the statute are not only explicit. when words 1921(b). Thus, § held that consistently Pa.C.S. this Court has statutory only the rules of construction are to be utilized at Absentee ambiguous. where statute issue is Canvass of Ballots, 241-43, at 1230 v. (citing 577 Pa. at 843 A.2d O’Rourke Commonwealth, Corrections, 161, 172-74, Dept. 566 Pa. 1194, 1201(2001)); Compen A.2d see also Ramich Worker’s (Schatz Electric, Inc.), Appeal sation Bd. (2001); 664 A.2d at English, unam- provision plain

The PCRAs waiver is drafted biguous petitioner terms: “an issue is if the could have waived trial, trial, raised it but failed to do so before ... on appeal 42 Pa.C.S. proceeding.” postconviction in a state prior or 9544(b). provision the waiver has construed This Court § Bond, v. E.g., terms. Commonwealth plain to its according (issues (2002) 33, are waived 588, 598-600, 39 Pa. 572 on direct them presented if could have appellant under PCRA Bracey, v. 568 Pa. so); to do Commonwealth but failed appeal (same). (2001) The statute 264, 273-74, A.2d Here, Majority exception. no “relaxed waiver” contains un- appellant the alwаys-counseled actually recognizes claim at competency mental raised” a “could have questionably Indeed, claim such a would because appeal. trial or on direct ordinary judicial principles from waiver been shielded have governing rule judicial a “relaxed waiver” direct review claims, see Commonwealth competency of appeal direct review (1979); v. 402 A.2d 995 Commonwealth Tyson, (1974), Marshall, and appellant Pa. 318 A.2d 724 competen- to raise a opportunity a broad lawyers uniquely had so, plain and not do under appellant claim. Because did cy statute, in sounding claim any unambiguous language on collateral and is therefore unavailable is waived competency attack. provi- concludes that the waiver Majority

The nevertheless plainly according provision be to what applied sion cannot different, but Assembly had because the General says, some claims. respect intention defaulted unexpressed, with construction statutory principles its invocation fails to Majority of the statute the meaning the plain defeat polestar in the statute. Since identify any ambiguity Majority’s no room for the lacking, is there is ambiguity infirmity—and constitutional statutory construction. Absent on his by Majority argued by appellant none has been controls. language of the statute plain behalf—the result, Majority in preferred To achieve its non-waiver Majori- The relief statute. conviction post effect rewrites that the read as if it said that the statute must be ty states are those purposes for PCRA defaulted claims waived only at trial. But the to be required preserved” claims that “are Indeed, not speak the statute does say statute does not this. in judicial terms of issue ephemeral preservation doctrines at Instead, all. provision—contained the PCRA waiver statute that affords criminal defendants that is which afforded ie., to no other a chance to litigant, undo a final judgment— rationally opportunities speaks only previous terms claim, ie., raise a petitioner whether the could have raised before, the claim but failed to do so. absurdity There is no reading this sensible upon restriction collateral accord- review ing plain to its language'. appropriate preferred and time small, to raise claims either monumental or constitutional or otherwise, fresh, they ripe-when when are the record is exists, a fair opportunity respond when a fair when timely possible. resolution is A claim which could have been at a point raised where relief could have been afforded and averted, not, error but properly is deemed defaulted and into the merges judgment. final Such a foregone claim should only be reviewable on collateral attack as collateral is, attack that it and as authorized Assembly. General claim, quintessential The collateral one specifically deemed PCRA, cognizable under the is a claim of counsel ineffective- ness. This form of only the claim is the logical way retroactively inquire into a defaulted competency issue: held,

Instantly competency no hearing was nor was one us, then, it requested. issue as had survived is appellant passed whether would have the two-pronged test for competency, it is rather only whether his counsel was ineffective for to raise the claim failing that he not. would Nelson, Commonwealth v. 489 Pa.

(1980) (footnote omitted). (plurality opinion)

Moreover, if judicial even “construction” plain of this unambiguous statute appropriate, Majority’s were is the rewriting provision of the to include relaxed waiver which will lead absurdity. Under the Majority’s rewriting, issues objected-to which had to be at trial in order to be reviewable subject waiver, on direct are appeal to PCRA while issues objected-to which did not have to be at trial in order to be on appeal subject reviewable direct are “not to the waiver provision Op. PCRA.” 872 A.2d at 1154. In words, subject been to “re- other claims which would have judicial appeal carry laxed” waiver rules on direct their re- forevermore, rendering laxed waiver status claims immune But, in Majority from PCRA if the is correct waiver. statute, reconstruction of the then this decision in Court’s Albrecht, (1998), Commonwealth v. 720 A.2d 693 demonstrably wrong. direct inno appeal

The rather esoteric relaxed waiver rule Tyson vated for claims Marshall and is not the competency most familiar of this historic relaxed rules: Court’s waiver belongs formerly appli status relaxed waiver rule Albrecht, cable in capital appeals.2 capital direct When decided, the appeal, capital PCRA relaxed waiver rule still provided existed. That doctrine this Court would review if permitted claims for which the record review even those waived—i.e., they claims been even if would otherwise have preserved Thus, preserva were not below. under that issue scheme, tion of error “required record-based claims were not preserved” be order to be reviewed. 720 A.2d at 700. For purposes reviewability, such defaulted claims were treated the same manner as defaulted claims of competency yet, abrogated stand trial. And the Albrecht Court relaxed review—unequivocally excep waiver PCRA and without tion—thereby rendering previously nonwaivable claims Moreover, the emphasized defaulted. Albrecht Court that it judicial so the relaxed in limiting part was waiver rule “application because of the doctrine of in a relaxed waiver PCRA runs proceeding very afoul terms the Post- Act, Conviction Relief excludes issues from which waived class of cognizable Accordingly, subje PCRA claims.” claims only ct to PCRA be waiver would reviewed when raised under guise Thus, assistance of ineffective counsel. Id. Al brecht recognized proper role of the General Assembly question of PCRA waiver. abrogated capital appeal 2. This Court has since the direct relaxed Freeman, 532, waiver rule. See Commonwealth v. 573 Pa. A.2d 385 denied,--U.S.--, (2003), 30, (2004). cert. 125 S.Ct. 160 L.Ed.2d 31 to mean” truly “intended provision If the PCRA waiver waiver, always Majority says—i.e., once relaxed today’s what of Albrecht underpinning the principled relaxed waiver—then to the Albrecht Court’s just Contrary been has eviscerated. deem declining court’s waived understanding, a PCRA be trial required preserved claims which were could not run afoul of the principles of relaxed because waiver “intended provision because provision PCRA waiver “required pre- to be only to claims which were apply” since yet, capital petitioners countless PCRA served.” And “nonwaivable” claims dis- previously Albrecht have seen their Majority If the believes upon grounds. missed PCRA waiver in must be resurrected on PCRA review that relaxed waiver instance, Al- it should address and overrule squarely this brecht, contradictory PCRA creating hopelessly instead of jurisprudence. waiver provision construction of the PCRA waiver Majoritys not inter- the fact that until this Court has ignores

also now treatment to defaulted affording special the PCRA as preted I in my to be tried. As noted competency claims of mental there Concurring Opinion Santiago, plurality’s approach here) (which Majority squarely echoed is now decision Commonwealth inconsistent with Court’s (2000) Marrero, 100, claim of (layered A.2d 202 561 Pa. arising competency from defaulted counsel ineffectiveness merits, Amendment rejected claim addressed and on Sixth claim claim into converting supposedly-non-waivable without itself). represents prevailing Marrero incompetency In cases decided under this Court. interpretation PCRA itself), routinely Albrecht this Court has (including the PCRA involving competency to claims applied principles waiver deriving claims routinely analyzed it has ineffectiveness and/or cognizable issues as ineffectiveness competency from defaulted claims, is- converting competency them into waived without be “relaxed” under the PCRA. See sues must whose waiver 12, A.2d 385-86 n. Judge, Commonwealth v. J.) (2002) Newman, that all (per (holding 256 n. 259-60 claim “Is entitled to claims—including asking PCRA

501 to the court failed and request, counsel failed to relief because manifested order, appellant when competency evaluation during guilt- emotional disturbance mental and extreme could have been they because waived testimony”—were stage light appel in of but defaulted appeal, on direct were raised status); Bracey, v. Commonwealth fugitive lant’s prior J.) (2001) 935, Nigro, 281-84, (per 945-46 264, A.2d 795 for ineffective claim that counsel was on merits (deciding trial, to stand competency challenge appellant’s to failing of underlying claim into converting claim non-waivable without Basemore, 560 Pa. itself); v. Commonwealth incompetency (2000) 8, 717, n. 8 258, 271-73, A.2d 725 & 727 275 n. 744 & (claim in to J.) failing of counsel ineffectiveness (per Saylor, request or incompetence present evidence develop in not raised PCRA waived because hearing was incompetency argu appellant’s to court; declining address specifically cannot be deemed competency implicating ment that claims Breakiron, 519, Pa. waived); v. 556 Commonwealth (claim J.) (1999) Newman, 1088, (per A.2d 1098-99 729 re issue litigate competency failing ineffectiveness claim, underlying not as unwaivable as ineffectiveness viewed Albrecht, itself); v. 554 incompetency Commonwealth claim J.) Cappy, 13 (per A.2d at 706 & n. Pa. at 56 n. 720 & of counsel for (PCRA assistance sounding claim ineffective competency the defendant’s “determine whether failing heavy medication defense affected assist his own for want of the trial” was waived receiving during he was Cross, 38, 44-46, Pa. 634 development); Commonwealth J.) (claim (1993) Montemuro, of ineffective (per A.2d compe investigate appellant’s failing adequately ness for claim, not into converted tence as ineffectiveness evaluated claim).3,4 competency underlying ground that the Majority distinguish cases on the would these

3. The guise only in allegedly presented in them competency issue A.2d at 1156 n. Op. at 490 n. ineffective assistance of counsel. simply Appellant’s Brief in this case Respectfully, not so. 14. capital PCRAclaims have very poses this claim in the same fashion underlying of these cases: typically been raised to this Court all by boilerplate accompanied developed then claim is and it is waived ineffectiveness, in an effort to near-boilerplate of counsel assertion briefing. waiver is a relic of relaxed the obvious waiver. It overcome page appears 4. Footnote 4

Equally unpersuasive is the Majority’s upon reliance three 1980 decisions from this Court decided under the PCHA— Fernandez, Commonwealth v. 493, Pa. 487 410 A.2d 296 Nelson, (1980), 491, 998, 489 Pa. 414 A.2d and Commonwealth Giknis, 215, (1980). Indeed, 491 Pa. 420 A.2d 419 these cases are so problematic as a jurisprudential matter—in their failure to account for one another despite being decided within other, months of each while outlining no less than three approaches distinct question waiver under the PCHA— it is unwise in the extreme to up hold them if they as established some harmonious precedent, PCHA much less suggest they operated prospectively preempt the waiv er options available to the General it Assembly adopted when the PCRA. Majority is mistaken in deeming these three cases to

inform, control, much less the question waiver under the The Majority PCRA. declares that the PCHA and PCRA statutory waiver “are paradigms nearly identical.” This is not Fernandez, so. The PCHA Nel- provision waiver issue in A struggles series law review articles could be written on this Court’s years "pleading the five proof” complications last over the and in PCRA appeals arising pleading from this manner of and this Court’s non- prospective abrogation of PCRA gener relaxed waiver in Albrecht. See McGill, 574, ally (2003); Commonwealth v. 574 Pa. 832 A.2d 1014 see Ford, 378, 325, (2002) also Commonwealth v. 570 Pa. 337 J., denied, (Saylor, concurring), cert. 540 U.S. 124 S.Ct. (2004). L.Ed.2d 1044 The unfortunate truth is that there is no material cases, briefing distinction in only the in these way a distinction in the Majority particular the in this pleadings. case has elected to treat the construction, point concerning statutory a final As it is also worth noting Majority's assumption that the Assembly that the General intend- special involving ed competency treatment for claims mental is contra- dicted the Competency overall structure of the Act. claims are not only special the claims which against have been afforded treatment judicial implicating jurisdiction waiver Claims doctrines. sentencing illegality court and claims of have also been shielded from claims, claims, competency waiver. These unlike very involve legitimacy power of the court's asserted over the individual. It is specifically cognizable notable that the PCRA involving deems claims jurisdiction exceeding of the court and sentences the lawful maxi- mum, 9543(a)(2)(vii) (viii), § see 42 special Pa.C.S. & while no such Instead, involving competency. status is afforded to claims mental purposes, plain PCRA it Assembly that the General intended such precisely claims to be treated the same as other claims of error. son, that an issue under that provided and was waived Giknis Act if only petitioner understandingly “[t]he knowingly and trial, been raised before the failed to raise it and could have Fernandez, trial, at 494- etc. appeal,” at the See 1180—4(b)(1))(now § (quoting 410 A.2d at 297-98 P.S. PCRA) if an issue was repealed by (emphasis supplied). Even waived, the PCHA knowingly understandingly permitted if he could petitioner negate “prove waiver circumstances to his failure extraordinary justify existence of Fernandez, to raise the issue.” 487 Pa. at 410 A.2d at 1180—4(b)(2)).5 contrast, § (quoting 19 P.S. PCRA contains no whatsoever that the provision requirement waiver knowing understanding, failure to raise a claim must be negated by proof nor does it a of an issue to be of allow waiver precedent circumstances. This Court’s under extraordinary the of the distinctly language simply different waiver PCHA cannot control the to the ‍‌​‌‌​​​​‌​‌​​​​​​​‌‌‌​‌‌‌​​​​​​‌​​‌‌‌​‌​‌‌​‌‌‌‌​‍question properly interpret how language Perhaps explains far different of the PCRA. this fact why practice previously Court has treated mental if competency they impervious claims as were to PCRA waiv er.

This distinction the PCHA’s standard as opposed waiver academic; indeed, to that in the merely found PCRA is not Fernandez, was essential to the unanimous decision in the first-in-time of the trio of cases cited As a by Majority. matter of statutory interpretation, the Fernandez case is the sense, only one of the three 1980 cases that makes any remote since it is the only purports apply language one which to statute, thereby recognize and that the General Assem- is bly permitted post-conviction a role matters. In holding that the defaulted claim in Fernandez could be competency PCHA, renewable under the specifically Court invoked the distinct “knowing understanding” language and Moreover, the ultimately PCHA. Fernandez Court concluded that the claim The competency analysis was waived. relevant holding and reads as follows: proved

5. Claims of ineffective assistance of counsel soon to be the most “extraordinary negate common circumstance’’ invoked to the PCHA waiver. here, due plea that his was invalid Fernandez’s contention that could have been mental is an issue incapacity, to his would, thus, be he appeal raised on direct and waived unless file a direct that his failure to presumption rebuts the that ex- knowing understanding proves and appeal was failure to file excusing circumstances existed traordinary Yet, a lacked the a direct defendant appeal. proof a intelligently” plea and enter capacity “knowingly mental of a to rebut the presumption be sufficient guilty would appeal and failure to where “knowing understanding” suf- non-transitory. incapacity, Mental incapacity shown a would entering guilty plea, ficient to of valid prevent to ap- failure prevent “knowing understanding” also and peal. case, court concluded Fernan-

In the the PCHA present capacity plea did the mental to enter valid possess dez record us that this persuades examination of the guilt. Our has, the evidence. Fernandez conclusion is warranted therefore, that his fail- presumption failed overcome Thus, his understanding. appeal knowing ure to claim was waived. (footnotes omitted). Pa. at 410 A.2d at 298 the Nelson case is misplaced reliance Majority’s upon First, multiple despite

for distinct and reasons it. peculiar the fact that Nelson involved a similar issue decided a Fernandez, after the unanimous decision in mere two months Nelson plurality responsive opin- neither the nor the opinion Fernandez; cited to it is as if there were two ions ever Second, Majority’s jurisdictions despite different at work. Nelson is a contrary, prece- the notion argument A is plainly “majority opinion” dential decision is erroneous. majority in of its appellate of an court which the opinion “[t]he (6th Dictionary Black’s Law join.” ed.1990), at 955 members added). contrast, In a is (emphasis “plurality” opinion “[a]n justices join court in more than opinion appellate of an which any concurring opinion (though majority in a court)....” Id. 486-88, key at 1154. The 872 A.2d tally in is the of appellate opinion status an precedential

505 in a man- with, or concurrence Agreement votes. “joining” in the crucial joinder less is it a much date, “joinder,” not a is in a Indeed, joinder a even the case. of ratio decidendi “I in the join saying, of polite way more just is a “disposition” establishing of joinder purposes not a only”—it is result precedent. joined Justices Nelson, participating of the six three only dissenting in a three were the other opinion;

in plurality is that Nelson argues Majority nevertheless posture. here”—i.e., apparent- rule of at issue “for the law precedential dictate to power has rule that this Court ly, a claims competency mental that defaulted Assembly General attack—by on collateral to deem waived its beyond power are Roberts as of Mr. Justice dissenting opinion relying upon 12, 1155 n. A.2d at at 488 n. 872 Op. fourth vote. the crucial of join any part But, did not Roberts’ dissent Justice concurring a nor it even opinion, was plurality the Nelson disposi- in the joinder might indicate dissenting opinion, which Roberts indicated tion, All that Justice if not the rationale. pro- record for further to remand the his “agreement” claim, explaining without competency-based on the ceedings Roberts Justice contemplated. he proceedings further what and we opinion of the lead on to the rationale signed never definition, by Plurality opinions, he did. cannot pretend E.g., cases. Com- for future binding precedent no establish 1066, 100, 110-12, 1073 Bethea, Pa. monwealth v. 574 745, 134, A.2d 720 (2003); Hoy Angelone, O.A., Pa. 676 n. (1998); Interest see also (1998) Announcing Judgment (Opinion n. 4 A.2d J.) (“While of a plurality ordеr the ultimate by Cappy, Court reversal, parties on the binding i.e. an affirmance opinion, case, reasoning conclusions legal in that particular and/or binding not constitute certainly do plurality a employed authority.”). remand that a

Third, agreement Roberts’ if Justice even in the “rule joinder in Nelson could be deemed required that the rule “established,” noting requires Nelson law” claim that waived by Nelson was thereby “established” sounding as a claim only is reviewable incompetency mental Thus, very next of counsel. assistance ineffective paragraphs following Majority’s quotation abbreviated Nelson, from disposed the plurality actually of the case as follows:

Instantly held, no competency hearing was nor was one requested. us, then, issue as it had for survived is not whether appellant passed would have the two-pronged test it competency, is rather only whether his counsel was ineffective for failing raise the claim that he would not.

Accordingly, the case is remanded for an evidentiary hearing to determine whether trial “any counsel had reason- able foregoing basis” for a claim “arguable merit.” ... such Following hearing should the court determine trial counsel ineffective for not a requesting competency it hearing, should order a hearing.... such If no ineffective- found, ness is the judgment of sentence is affirmed. (footnote omitted). Thus, A.2d and citations if Nelson is truly precedential, stands for the proposition that where, here, as a competency claim has been defaulted at trial without a a hearing, collateral claim implicating is competency a claim only reviewable as in sounding the ineffective assis- tance of counsel. Coincidentally, appellant how claim, case poses his and it is how the Santiago appellant posed his claim. Both the Santiago plurality and today’s Nelson in converting the claim. Majority act contrary case, Giknis, The third 1980 was filed five months after Nelson and was author of the Nelson plurality written Fernandez, opinion. Like Giknis was unanimous decision in a case involving defendant had pleaded guilty who to murder belatedly sought challenge competency on PCHA Court, Giknis the Nelson Court, review. The like inexplicably failed to cite or even to acknowledge the opinion unanimous Fernandez. addition, Giknis Court approached competency/waiver question differently than either Fernandez limit, Nelson—without purporting distinguish, or over- Thus, rule those decisions. Giknis although quoted PCHA provision, waiver including its “knowing and under- standard, Giknis did not follow Fernandez. standing” Indeed, the Giknis Court did not inquire into the circumstances at all. Nor did the author of his plurality waiver Giknis follow hearing in Nelson and remand for an opinion ineffectiveness on the trial counsel to question why challenge failed competency client’s to be tried.

Instead, the that portion Giknis Court cited Nelson plurality opinion Tyson which had cited Marshall and for the that tangential proposition competency claims are not waiva- appeal concluded, ble on direct and further explana- without tion, the competency two issues raised on collateral in review Giknis therefore must be reached on the merits. remarkable, This rather analysis truncated never acknowl- (1) or edged realized that: Tyson and Marshall involved (2) appeals; direct Nelson a non-binding plurality opinion; (3) event, in any language quoted the from Nelson did not reflect the Nelson disposition, Court’s which considered the competency defaulted claim to be only reviewable as an inef- (4) claim; recent, fectiveness Fernandez was unanimous prec- edential authority different, took a which statutorily-based (5) approach PCHA waiver question; and the Nelson plurality had recognized that Marshall Tyson and were direct cases, appeal not PCHA cases. To further to add the confu- cases, sion on the Court these then Giknis went on to the analyze competency question both as a direct review matter matter, and as an ineffectiveness ultimately citing to testimony PCHA trial counsel as justifying his decision not to challenge competency: counsel be in a “[a]s would best position to judge ability of a client to communicate to aid in a ability defense and the to comprehend the nature of the ” charges, we cannot find that counsel was ineffective.... Giknis, 420 A.2d at 421-22.

I would avoid reliance these upon quarter-century old because, PCHA cases to put are mildly, they uneven. No less than three distinct and conflicting approaches to PCHA gleaned cases, waiver can be from and yet, Court rulings which issued all three closely time made no attempt Moreover, harmonize the divergent rulings. the cases standard, thus, involved a different very statutory waiver and they are not inquiry relevant under PCRA. And a jurisprudential useless as frankly the cases are

finally, sepa- the crucial explain justify they matter because never that a faced with of how it is Court powers ration of issue manufacture a simply statutory language may unambiguous language. judicial exception explicit about very strongly feel that some Justices It is obvious claims, that the General prefer mental would competency claims status to relaxed waiver Assembly special had afforded But, Assem- to be tried. the General competency sounding that, statute I not do rewrite bly clearly did would Moreover, I would judicial preference. a different indulge existing precedent rational that this has not conclude Court deeming from Assembly the prohibit to General which acts for review claims to be unavailable defaulted competency Majority cited the None of the cases under the PCRA. lacks constitutional Assembly the to hold that General purport to be competency waiva- sounding to deem claims authority and ble, of claims of constitutional just majority like the vast Moreover, review the PCRA’s non-constitutional dimension. can A claim competency not irrational. defaulted is paradigm the lens of through in a far more rational fashion litigated be ineffectiveness—counsel, all, after sounding in counsel claim a client to commu- ability to the of “position judge in the best the ability comprehend and the nicate to aid in a defense ” Giknis, A.2d at 422. of 420 charges.... nature the theoretically only the separated powers, In a of system sponte the sua could arise from question which legitimate Majority is Santiago plurality today’s and concern of the claims provision of the PCRA waiver application whether to be tried be unconstitution- sounding competency would (and a distinct pose itself would argument—which al. an Such waivable) constitutional di- claim of procedural presumably constitutionality If of question not before us. mension—is concern, the case where true it should await Majority’s is the it then. In the absence directly, and decide the claim is raised not resurrect unconstitutionality, we should finding of a legislative author- negate proper rule to PCRA relaxed waiver ity.

509 rewriting of the PCRA radical and unwise Majority’s given harmful prove particularly provision waiver will v. decision in Commonwealth recent relaxed waiver Court’s (2005). 587, Roney, A.2d this Court 866 351 Roney, penalty phase question faced whether waived with claim, rule premised procedural instruction new jury upon 466, 2348, Jersey, New 530 U.S. S.Ct. Apprendi v. (2000) Arizona, 584, 122 Ring v. 536 U.S. L.Ed.2d 435 (2002), 2428, could be reached and S.Ct. 153 L.Ed.2d Roney afforded the appeal. decided on the merits on direct rule, appellant the retroactive benefit of new notwithstand- claim, that “because the ing reasoning waiver challenge premised upon Apprendi implicates a sentence sentence, legality appeal.” it cannot be waived 32, (citing 581 Pa. 600-01 n. 866 A.2d at 359 n. 32 Common- Pa. 802 n. 1 Aponte, wealth 250 n. (2004)).

Roney apparently sentencing will dictate that all claims of alleged implicate “legality” constitutional dimension now therefore preserved need be in order to be raised on direct appeal. By thе tortured logical operation Majority’s case, statutory in the such interpretation present non-waivable sentencing longer subject constitutional claims also no be will so, to the PCRA’s constitutional sen- provision. waiver And claims, claims, like are tencing competency impervious only preserved, waiver. Such claims not need be but never may be raised for the first time in a they will-nilly: PCRA or, or in petition; appeal; light as late as PCRA of unfortu- Commonwealth, Fajohn nate cases such as Pa. 692 (1997), A.2d 1067 in the future the anytime when defendant like filing “illegal pro feels an sentence” motion nunc tunc. Indeed, there is in relaxed nothing the ad hoc waiver review Roney in cases such as this and to reemerging prevent prospective entirely procedural rules of constitutional dimen- enforceable, sion to become affecting sentencing retroactively upset judgment. and thus available to final proper in question Since the on direct derives from appeal waiver doctrines, judicial it is certainly power within this Court’s craft in exceptions, Roney—albeit such as it did in unwisely (Castille, Pa. at

my view. See 581 866 A.2d at 362-66 J., But, concurring). the at issue on PCRA review is waiver statutory, and this not have the same of power Court does constitutional negation suspension. presumptively leg- standard is entitled to deference. Because the islative waiver Majority respect refuses to the clear mandate PCRA statute, join I not in its treatment of claim of appellant’s do ineffective assistance of counsel based on mental incom- petence. the merits of appellant’s cognizable

On non-waived claim that counsel prior failing litigate were ineffective trial, Brief for question competency of stand appellant’s 42-43, I conclude that Appellant, appellant’s proffer would did Hence, arguable agree not a claim of even merit. I establish relief, appellant my that is not entitled to PCRA albeit conclu- considering sion is the claim he raises. premised upon actually “affidavits,” Turning question taken, be and may the one before whom it is to by law as officer his seal of certified to in the case of an under officially (7th ed.1999), office.”); (defining at 58 Dictionary Black’s Law of facts down voluntary as declaration written “[a] affidavit before an officer authorized to by and to the declarant sworn oaths”). in this Appellant’s proffered administer “affidavits” counsel, case, from his former not sworn including those were oath, they to administer an before an officer authorized were officer, bear no seal by qualified they not certified such and or other confirmation of certification. Thе statements are not Instead, the consist of “declara even witnessed. “affidavits” tions” committed to paper, allegedly signed by named declarants, containing and would-be self-certifications.6 that,

I am aware definitions section Judicial a more adopted Code lax definition of the term that, additional, subject The provides “affidavit.” Code specific usages, more the term in the affidavit when used “[ijncludes Code, an containing unsworn document statements of fact signatory and statement it is made subject penalties § of 18 (relating Pa.C.S. authorities).” falsification to Al- § unsworn Pa.C.S. 102. though declarations this case do not cite to Section appellant upon does not otherwise advert to a reliance definition, relaxed his declarations conform to Section 102. PCRA, course, Code, is contained the Judicial within but it the term employs never affidavit.7 The term is used governing post- Court’s Rules Criminal Procedure 902(D), conviction see proceedings, Pa.R.Crim.P. but specifically Criminal Rules do not define the term.8 Since Notably, 6. the declarations do not even state that the witnesses would willing repeat allegations be their under oath in court. addressing pleadings

7. The nearest the PCRA comes to the substance of 9545(d), governing requests evidentiary hearings. is in Section That provision requires request signed that the include “a certification as to name, address, stating each intended witness the witness’s date of birth testimony any and substance of and shall include documents material to 9545(d) added). testimony." (emphasis § that witness’s 42 Pa.C.S. contrast, the Rules of Civil Procedure have adverted adopted the Judicial Code’s relaxed definition of affidavit. See Pa. term, not and the Rules do employ PCRA does Criminal affidavits, a to approve approach not “relaxed” Section definition and the traditional definition must implicated, the construction of this Criminal Rules. govern Court’s any an distinct from other out of court What makes affidavit statement, rumor, and the innuendo or falsehood is the oath mere formalities. The certification. These elements are not a real conse conveys very oath to the declarant sense of falsehood, felony a for a quences including potential § while the oath and perjury prosecution, Pa.C.S. certification alike to the tribunal at least some level of convey is, that the he he that his says assurance declarant is who or in and that he part, declaration is not fraudulent whole statement in court.9 Absent willing be to stand behind his will assurances, such out of court witness “declarations” have little or chatter. distinguish hearsay to them from other irrelevant If the statement is indeed an aсcount witness’s oath in a court of willing witness will be stand behind under only is the relevant such a purpose law—which which simple statement under the is a proffered could be PCRA—it by the realm rumor matter to remove the statement from it and certified before an officer. having appropriate sworn-to certify The fact or decline to that witness would refuse so subject may say account and the witness to sanctions volumes Moreover, reliability. particularly easy about its it should be (defining including R.C.P. 76 "affidavit” in alternative as both tradition- id., (sworn) (unsworn) definition); Explanato- al definition and relaxed that, ry (noting Comment-1981 Section 102 of the Judicial "[i]n concept that an affidavit ‘includes an unsworn Code introduced containing a [sic] document statements of fact and statement signatory § subject penalties that it is made of 18 Pa.C.S. aurhorities).' ”). (relating to unsworn falsification to Accord Rule Explanatory Comment-1981. contrast, governing upon reviewing provisions the Crimes Code crimes, seq., readily § falsification see 18 Pa.C.S. 4901 et it is not apparent whether falsehoods in unsworn and unwitnessed "declara- subject prosecution. tions” as are at issue here would be such Indeed, may well be that the form of "declaration” here was chosen uncertainty a falsehood in such a declara- because of as to whether any significant legal consequence. expose tion would the declarant a statement in form from members of the to secure affidavit bar of this Court. Majority does not address the relevance value declarations, that, instead even

appellant’s finding assuming truth, they their do not relief or an warrant substantive Justice, Like the Mr. evidentiary hearing. Majority, recog- appellant’s nizes that affidavits in fact are mere declarations and would conclude that the of lead trial counsel declarations counsel, and his associate along with other witness “affidavits” case, and defense proffers enough are warrant an hand, evidentiary hearing. Nigro, Mr. Justice on the other purported concludes that the declarations of and associate lead counsel establish trial counsel’s as a ineffectiveness matter issue, law as to one thus the need for an negating evidentiary hearing view, and cross-examination on that In question. my where a contested claim for PCRA relief is the premised upon sworn affidavits witnesses and truth those accounts is claim, a element necessary to the success of the the greatest relief available is the evidentiary award of an A hearing. mere possibly affidavit cannot the ultimate merit of prove a may contested matter which turn a upon faulty memory credibility assessment. putative This is so even where witnesses are members of the in system bar: of laws and not men, no memory, analysis, credibility witness’s and is beyond prodding challenge and and manipulation. even Absent con- cession or of the stipulation point by material the Common- wealth, the most that an can affidavit demonstrate is an issue of material warranting evidentiary fact an hearing and ulti- judicial mate determination. non-affidavits,

Unwitnessed and unsworn such as are at issue in jtidice, the case sub are of considerably less value than sworn affidavits. addition to insufficient to being prove claim, the ultimate merit of a it is questionable, my view, whether such pleadings should even be deemed relevant question an entitlement to a evidentiary PCRA hearing. Criminal Rule governs which content of PCRA petitions, directs that defendant shall attach to “[t]he affidavits, records, documents, the petition any or other evi- grounds support dence which show the facts stated they are not at- relief, why shall state petition for or the added). 902(D) Arguably, (emphasis Pa.R.Crim.P. tached.” for the “facts of a is the basis the account witness when an stated,” could warrant proffer sufficient which only affidavit; an unsworn declarations hearing is evidentiary this, recognize I said nevertheless nothing. Having “show” in the authority vested discretionary is considerable that there proffer may sort of to determine what judge PCRA trial Although judge the PCRA evidentiary hearing. an warrant in the requiring reliability certainly be warranted would that, affidavit, in an appropri- be may of a well form sworn based case,-the evidentiary hearing order an ate court could and, that course perhaps, mere declarations upon unsworn of the bar. if the declarant is a member acceptable be might case, I am of decision in this purposes Ultimately, “decla- of appellant’s the truth witnesses’ assume prepared does) (as Majority court did and as rations” PCRA rejects the analysis, which join Majority’s I in the substantive matter of those declarations as a law. upon dependent claims joins concurring opinion. EAKIN Justice NIGRO, dissenting. concurring Justice not entitled to majority I agree with of his guilt phase any relating relief on of his claims treat- majority’s with my specific agreement trial. I note stand competent that he to claim Appellant’s ment trial, petitioner’s that a including holding post-conviction its incompe- that he was appeal on direct failure to raise claim of that does not constitute a waiver at the time of trial tent However, majori- unlike the of the PCRA. purposes claim for on one of his is entitled to relief Appellant I believe that ty, his relating penalty phаse. claims to ineffectiveness trial counsel ineffec- Here, contends that his Appellant of mitigation, certain evidence faffing present for to tive illness and traumatic mental including Appellant’s evidence and, childhood, much like Justice phase hearing at his penalty to a remand on this Appellant I that is entitled Saylor, believe However, remand for Saylor, claim. unlike Justice who would claim, I find that hearing Appel an on this would evidentiary demonstrated, on the state primarily lant has based already associate to from his trial and petition ments affixed his PCRA counsel, has his claim of trial counsel’s ineffectiveness that merit, had no reasonable basis for his arguable that counsel case, that, of this inactions here and the circumstances given representation.1 counsel’s deficient prejudiced by he was has, view, trial Thus, demonstrated that Appellant my for and there is therefore no need counsel was ineffective None Saylor require. that Justice would evidentiary hearing theless, to Appellant adequately develop as has failed failing counsel to argument appellate that was ineffective would, I regard, raise trial counsel’s ineffectiveness this McGill, Court’s decision Commonwealth to this pursuant 574, 590-91, (2003), Pa. remand the to do so. opportunity matter to allow concurring opinion, much of the fact that In his Justice Castille makes here, attorneys' statements at issue in which both trial counsel and was ineffective at associate counsel all but concede that trial counsel labeled, phase, penalty were not sworn to and therefore cannot be of, carry weight nor “affidavits.” While there is no indication that notarized, agree were I cannot with Justice Castille that the statements relegates more akin to this omission the statements to a status that is Indeed, import “irrelevant chatter.” such an assessment lends little who, by attorneys, were unlike the fact that the statements submitted witnesses, lay by the Rules of Professional Conduct and other are bound understanding unique consequences, both who function with a disciplinary, may submitting criminal and result from false evi- (it professional dence to a See Pa.R.P.C. 8.4 misconduct for a court. fraud, lawyer engage involving dishonesty, in conduct deceit misrepresentation); (person § 4904 commits misdemeanor 18 Pa.C.S. if, degree public perform- of second with intent to mislead a servant in function, ing any which he his official he makes written false statement true). be And while Castille does not believe to Justice insinuates attorneys sought escape consequences by deliberately here these case, choosing they the form of declaration submitted in this light seems unfounded in of the Rules of Professional Con- accusation general against engaging prohibition in dishonest conduct—in duct's attorneys' whatever form—and the own certification that the informa- in their "is true and tion contained self-titled “affidavits/declarations” belief, personal knowledge, correct to the best of their information and § § (emphasis pursuant 4904.” 28 U.S.C. 1746 and Pa.C.S. added). SAYLOR, dissenting. Justice dissent, respectfully I as I remand to the PCRA court would for an on the evidentiary hearing Appellant’s capital, post- In accordance petition. conviction with Post-Conviction Act, Relief the PCRA court a series Appellant provided with counsel, declarations, effect including that of his trial that:

I shocked and I had by jury’s guilt-phase was verdict any penalty phase not done for the preparation case.... I had no or tactical reason not to ade- strategic for quately prepare penalty phase. any any aspect

I failed to witness about of Mr. interview I of Mr. upbringing. Brown’s mental health or was aware obsession but it did not space space Brown’s with travel I expert. occur to me to consult with a mental health have reviewed the affidavits submitted this case that chronicle Mr. of mental the abuse and history problems, Brown’s he he neglect young, bipolar received when was disorder information, organic brain Had I such damage. known jury.... strategic I have it to the I had no presented would or tactical failing investigate, develop, reason Mr. present compelling concerning evidence Brown’s background, history, life and mental illness. presented corroborating also declaration from an

attorney appointed as associate counsel: who was not for the fact that this prepared counsel] was

[Lead 2, 1991, capital July days case. For on six before example, trial, he indicated to me letter that he not sure going to ask for a death- whether Commonwealth was did no qualified jury. penalty phase prepa- [Lead counsel] ration After the prior guilt-stage guilt-stage verdict. verdict, urged he who the courtroom to people were behalf, testify [Appellant’s] any but he did conduct or ask about anyone [Appellant’s] background. interviews Carter, he Similarly, [Appellant’s] girlfriend, asked Harriet every that she could think good thing write down about inquire background, him. He did not about his childhood or

517 tactical reason no or strategic There was mental health. his background. and history investigate [Appellant’s] to experts. health mental any contact counsel] Nor did [lead mental- was [Appellant] indications that There sevеral were space with obsessed example, [Appellant] For was ly ill. with counsel] letters to me and signed [lead travel and the police, in interviews with Similarly, several “stardate.” strange. very acted [Appellant] indicated witnesses that chroni- in this case affidavits submitted I reviewed have and the abuse problems, of mental history [Appellant’s] cle bipolar and his young, he he when neglect received I of such Had known damage. brain organic and disorder to it information, present urged counsel] I have [lead would strength- greatly It have phase. would during penalty explained and phase ‍‌​‌‌​​​​‌​‌​​​​​​​‌‌‌​‌‌‌​​​​​​‌​​‌‌‌​‌​‌‌​‌‌‌‌​‍defense Appellant’s penalty ened crime. There was surrounding the the circumstances jury investigate, failing or tactical reason strategic no concerning evidence compelling develop, present mental illness. history, life and background, [Appellant’s] counsel, Appellant Further, to in the declarations as alluded from a psychiatrist an attestation the court with also furnished impair- health major from mental suffering to Appellant’s offenses, of his of the commission as of the time ments a damage; report brain organic disorder and including bipolar Appel- effects of describing impairing neuropsychologist of a cognitive of his health deficits terms lant’s asserted mental from declarations life-history functioning; abilities and abandonment attesting Appellant’s various witnesses his childhood. during abuse clear that very made Court has Supreme

The United States thorough investigation duty to conduct capital counsel have penalty for the background preparation of the defendant’s Smith, 123 v. 539 U.S. Wiggins of trial. See phase (2003); Taylor, 2527, 2535, 156 L.Ed.2d 471 Williams S.Ct. 1495, 1514-15, 362, 396, L.Ed.2d 120 S.Ct. 529 U.S. (2000). is trun- investigation mitigation To the extent that a the deci- cated, must whether reviewing court determine proles- reasonable supported inquiry sion to curtail judgment. sional Wiggins, See at U.S. 123 S.Ct. at The majority appears accept may counsel this case not have the sort of thorough conducted mitigation investiga- norms, tion that contemplated is under prevailing but despite the disturbing implications of the presented, declarations rejects the proposition that a factual inquiry implicated. respect With to the mental health dynamic, the majority posits that “the at record the time of trial did not reveal evidence mental illness or abuse that would have trial prompted counsel to conduct a further investigation in this regard.” Majority Opinion, op. 872 A.2d at 1149. To the extent that true, however, this would be it is not dispositive, since coun- sel’s duty investigate was not confined to matters developed fact, as of In record. claims of assistance ineffective of claims; indeеd, counsel are most often extra-record this was a primary premise of the Court’s recent decision to defer them to post-conviction so they review could be properly developed on a full complete and evidentiary record. See Common- Grant, 48, 64, 66, 726, wealth v. 572 Pa. 813 A.2d 736-37 (2002).

Moreover, the majority’s proposition accurate. fact, (albeit as the majority itself notes in in a 1991 passing), pre-sentence report which was presumably available to coun sel, Appellant diagnosed was as from a suffering personality 478-79, disorder. See Majority Opinion, op. at 872 A.2d at 1149. In addition to the other indicia of potential mental (if infirmity believed), referenced in counsels’ declarations this should, have triggered further on inquiry part. counsel’s Ac Basemore, 292, 294-96, cord 735, 560 Pa. at 744 A.2d at 737-38 (finding penalty-phase counsel’s awareness of unusual behav ior and a mixed personality part disorder on the of capital client important to the determination of whether further miti gation-based, warranted, mental-health investigation correspondingly, deficient, whether counsel’s stewardship and remanding for fact finding regard).1 Most other presentence report 1. Even if the had not person- contained indicia of a ality Appellant’s part, disorder on previously expressed my I have position difference pre-sentence with the that the report existence of a

519 sentencing jurors may place recognize capital courts indeed, a mitigation;2 on mental health weight substantial of the Ameri investigation pillar mental-health is a thorough guidelines Appointment can Bar Association’s for the Penalty Performance of Counsel Death Cases.3 having apprised for not majority also faults See, e.g., Majority counsel of mental health condition. any however, Again, 872 A.2d at 1149-50. Opinion, op. upon does not rest inquiry the focus ineffectiveness defendant, rather, on the of the capital but reasonableness v. Wiggins conducted counsel. See pre-trial investigation Smith, 510, 523, 2527, 2536, 539 123 156 L.Ed.2d U.S. S.Ct. government mitigation prepared at the obviates further instance investigation capital, penalty-phase part counsel. See Com- Fears, 281, 319-20, 52, (2003) 75 monwealth v. J., State, 924, (Saylor, concurring); accord Averhart v. 614 N.E.2d ineffective, alia, (Ind.1993) (finding capital naively counsel inter for pre-sentence report

placing emphasis on the contents of a undue mitigation). production of terms of the his own case 823, See, (9th Cir.2004) e.g., Woodford, Allen v. 366 F.3d 850-51 ("Defense complete, deepen, mitigation counsel’s use evidence picture presented by prosecution contextualize the of the defendant Barnette, crucialf.]”); (4th can be 211 F.3d United States Cir.2000) (stating "psychiatric important part evidence is an trials”); Thomas, (11th Cir.1995) many F.3d Baxter v. totally change (“[p]sychiatric mitigating potential evidence 'has the ”) evidentiary picture' (quoting Dugger, Middleton v. 849 F.2d Coleman, 509, (11th 1988)); People v. 168 Ill.2d 214 Ill.Dec. 495 Cir. 212, 919, (1995) ("We acknowledge impor 660 N.E.2d 934 the critical background sentencing tance of a defendant's and mental health to the decision.”). generally ABA Appointment 3. See and Performance Guidelines for 4.1, Feb.2004) (rev. commentary ed. Penalty in Death Counsel Cases (observing ubiquitous capital health so that “mental issues are representation provision that the of resources in that area should be 212, 919, routine”); (“In commentary 214 id. Ill.Dec. 660 N.E.2d particular, experts defending capital mental health are essential to Neurological psychiatric impairment, and combined cases. with abuse, history physical among persons and sexual are common row.”); (observing convicted of violent offenses on death id. that “the history psychological defendant's and social his emotional and and importance jury's mental health are often of vital to the decision at the punishment compile phase!;] .. . must extensive historical [c]ounsel data, neurological thorough physical as well as obtain a and examina- tion.”). 520 425, 459, Pa. 856 (2003); Malloy, v. 579

471 Commonwealth (2004) (“The 767, not a criminal upon A.2d onus is be identify types may defendant to what of evidence relevant duty is to development pursuit. and and Counsel’s require efforts, including his discovery through such evidence own client.”); Commonwealth v. Base pointed questioning his (2000) 717, more, 258, 290, (“Obviously, 560 Pa. 744 A.2d depending ... falls counsel’s light upon performance different told, and he asked and not or he did not ask upon whether told.”). can question simply therefore not The relevant alia, inter avenues exploring, not be answered without what evidence, mitigation including counsel what pursued develop client.4 questions counsel asked majority concerning also offers a brief assessment inquiry of the ineffectiveness that affords no prejudice prong at the express comparison presented between evidence of trial and that which seeks to penalty phase thus, that, lacks develop post-conviction review accounting qualitative aspect capital reasoned for the 479-82, at sentencing Compare Majority Opinion, op. process. preju- 872 A.2d at 1150-51 that (reasoning Appellant was trial by performance during penalty phase diced counsel’s jury mitigating because “the found the circumstance that under mental or emotional distur- Appellant acted extreme mitigating bance and the catchall cirсumstance of other evi- Brown, dence of v. 538 Pa. mitigation.”), with Commonwealth (1994) 410, 429, 1177, (explaining necessary explore apparent position it is not defense of its pursued, majority what avenues counsel cites Commonwealth v. 264, (2001), Bracey, 568 Pa. 795 A.2d 935 Commonwealth 389, decisions, however, Uderra, (1998). 706 A.2d 334 Both predate Supreme the United States Court's definitive clarification con- cerning investigation Wiggins, the essential focus on counsel's 522-24, by which this Court in U.S. 123 S.Ct. at was followed Malloy, majority’s 579 Pa. at 856 A.2d at 789. The efforts to facts, op. distinguish Malloy Majority Opinion, at 481-82 n. on the see legal speak straightforward 872 A.2d at 1151 n. do not it, proposition which I have cited above. noteworthy majority, It is that in both of the cases cited also evidentiary hearing Bracey, the afforded an Uderra and defendant was claim, penalty-phase which that I on the ineffectiveness is the sole relief presently would award. not ability and the presented, of the evidence weight in factor the mitigator, dispositive is the any particular “count” to the selection in qualitative approach death statute’s penalty the jurisdictions recognize other sentencing). Again, capital that mitigation Appel the sort of mental-health that potential trial of his by omitted from his virtue proffered lant has by jurors to may be deemed inadequate preparation counsel’s in See weight sentencing equation. be of substantial the of Indeed, by way done so hearing have been at the had trial counsel presented penalty in original)).5 such properly investigated (emphasis evidence” the court’s Finally, majority simply accept would PCRA (made credibility hearing determination without benefit witnesses) unpreparedness that counsels’ concessions of untrue, testimony are because counsel offered from eight penalty Majori- at the of trial. mitigation phase witnesses See ty op. at 481-82 n. 872 A.2d at 1151 n. 9. An Opinion, penalty-phase mitigation testimony, examination of the actual however, a brief 30 covering relatively pages transcript, rather than contradicts counsels’ declarations. The supports first called had testified in the witness detective who (and Commonwealth’s case-in-chief thus was immediately counsel), testimony proceeded available to and the as follows: Q: morning again, Good Detective. morning.

A. Good IQ. stopped you very briefly out in the hall a mo- few did I not? ago,

ments

A. Yes. I asked did I not?

Q. you question, A. Yes.

Q. question, since that incident back in Repeating guilty voluntary Mr. Brown man- pled where records,

slaughter conspiracy, according your any has he been arrested or convicted of crimes since that date? majority's analysis prejudice predicated

5. To the extent that the proffer has failed to evidence аssertion that of mental trial, 479-82, infirmity Majority Opinion, op. existed at the time of see at diagnosis pre-existing 872 A.2d at it overlooks the of a disorder, travel, personality space the unusual behavior relative to psychiatrist diagno- the attestations of the defense to the effect that his long-standing major sis of mental health disorder is confirmed See, Jr., e.g., Dudley, historical information. Declaration of Richard ¶ ("Mr. history, presented life Brown's as the collateral informa- tion, my view that Mr. confirms Brown suffered from these deficits for lifetime.”). much of his city our records the date A: Since arrested in the that he has not been Philadelphia show city. very Thank much. you

[Counsel]: N.T., 24, 1990. Jul. Carter, Harriet Appellant’s girlfriend,

The next witness was as testimony opened and her follows: I last did not? telephoned you evening, IQ.

A. Yes. I the verdict was you telephone told over what

Q. this case?

A. Yes. I I

Q. you something night, asked do for me last did

not?

A. Yes. you did I ask to do?

Q. What everything good A. You asked me write down about John Brown. added).

N.T., 24,1991, at 1032-33 The bulk of July (emphasis the testimony (covering the remainder of Ms. Carter’s direct pages transcript) reading five of the consists of her statement had prepared previous evening. she See id. at 1034-36. The remaining appear witnesses have been courtroom, persons Ms. Carter was able to summon to the (whose her Robert including testimony ap children covers (2 proximately pages transcript), Angela pages), April (2 (3 pages); Ms. Carter’s brother Ms. Carter’s sister pages); (1 (2 friend of page); pages).6 and a Ms. Carter’s Counsel’s attestation that he post-conviction guilt- was shocked record, is also phase penalty-phase verdict confirmed as N.T., jury he related this to the in his See closing argument. (“and 24, 1991, the look of July you course saw sister, only Appellant's 6. The other witness was who had testified as a guilt phase witness in the Commonwealth trial. announced surprise my you your shock and face when verdict”).

Thus, the record does not the characterization of support declarations as attorneys’ post-conviction misrepresenta- tions, rather, strongly but corroborates the declarations. of the case for life over presentation imprisonment Counsel’s deeper, explanatory-type death contains none of the evidence actual require investigation that would an and which counsel, seeks to demonstrate had he now was available Rather, reasonably. precisely it is of the sort performed immediately penalty could been fashioned before the have as counsel attested the case and as the record phase, have supports. here) (such that,

It my position remains circumstances as affidavits, declarations, similar evidentiаry proffers which which, believed, bring are to a court if presented PCRA would reliability of the death into legitimate question, verdict post-conviction hearing and associated are re fact-finding 909(2) See Pa.R.Crim.P. of a quired. (authorizing dismissal issue, there are no material facts in petition only PCRA where law).7 and no relief is available as a matter of Under the clear rules, and in of the import light perspective, above assessment counsels’ truthfulness in de concerning conceding ficient in terms of as stewardship penalty-phase preparation, of credibility weight Appellant’s post-convic well as the evidence, tion of on proffer mitigating should be made based an record. evidentiary .

I my disagreement also note with several other of aspects majority’s the articulation and of application legal relevant precepts the treatment of claims. For controlling Appellant’s example, majority suggests very application the broad of the doctrine to bar claim that his previous litigation Appellant’s failing trial and direct counsel ineffective for appeal were addition, summary disposition peti- Appellant’s post-conviction 7. of here, procedurally inappropriate tion the not was also as record does pre-dismissal reflect that was furnished notice of the reasons why denying hearing, required by the court was as Criminal 909(B)(2)(a). Rule Procedural

525 on aggravator the sole availability of legal the challenge construction, dispo based on Court’s of statutory grounds misconduct of a claim of appeal prosecutorial sition direct evidentiary presentation. underlying in the Commonwealth’s 470-73, at 1144-45 872 A.2d op. at Majority Opinion, See 427-28, Brown, 410, 648 A.2d Pa. v. (citing Commonwealth (1994)). this fully comfortable with 1177, Apparently majority alternatively previous litigation, application waiver, having on the claim not based invokes the doctrine 471-73, 872 A.2d at id. at appeal. been raised on direct See separate This, however, Appellant’s simply 1145. overlooks of his direct- part assistance on assertion of ineffective claim;8 but preserve to raise and failing counsel appeal may claim is separate proved, settled that if such a it is well underlying of an claim. be relied to overcome waiver upon McGill, 574, 586-87, See, e.g., Commonwealth (2003). might fault majority 1021-22 While A.2d such insufficiently developing counsel for Appellant’s present claim, the short acknowledged this Court has ineffectiveness the time during comings jurisprudence prevailed briefed, frame in this case see id. at which treatment of proper at and thus determined that the rejeсtion on along outright grounds claims these lines is not waiver, rather, of the adequate development but a remand for claim in accordance articulated McGill. with framework 591, 832 See id. at A.2d at 1024.9 articulates the majority exception also McGill’s by indicating petitioner pled,

remand rule that a must have claim in order to be presented, proved underlying 475-78, at Majority Opinion, op. for the remand. See eligible McGill, however, require 1147-48. does not 872 A.2d at mere of the claim as a to a remand proof prerequisite actual Compare, e.g., Majority Opinion, op. 872 A.2d at 1145 at (d)(12) aggra- challenge jury's finding (finding Appellant's appeal”), Appellant's to raise it on direct vator waived “due to failure (“All Appellant, prior counsel were ineffective for with Brief of claim.”). litigate failing properly remand, course, addressing by merely might be avoided 9. Such underlying Appellant’s statutory claim. merits of construction all it contrary, general circumstances—to the states a prefer remand, ence in favor of and the fair logical import exception recognizes only is that it should apply the underlying facially circumstances which claim is defec capable being tive deemed meritless on the state of the McGill, See presented. record 574 Pa. at 832 A.2d at (as here) Indeed, 1024-25. in circumstances the peti where claims,10 opportunity tioner has been afforded no prove as a post-conviction he was denied it is hearing, manifestly of a McGill remand suggest availability unfair to depend upon should some failure of the petitioner’s proofs.

872A.2d 1177 Pennsylvania, Appellee COMMONWEALTH HALL, ‍‌​‌‌​​​​‌​‌​​​​​​​‌‌‌​‌‌‌​​​​​​‌​​‌‌‌​‌​‌‌​‌‌‌‌​‍Appellant. Darrick Supreme Pennsylvania. Court of

Submitted Jan. 2002. April Decided majority Appellant 10. The controverts the observation that was denied case, opportunity prove an his claim in this via reference to the having "hearings solely PCRA court's conducted to determine whether evidentiary hearing required.” Majority Opinion, op. an See see, however, 481-82 n. 872 A.2d at 1151 n. 9. I fail to how characterizing argument oral on a Commonwealth motion to dismiss as "hearing” opportu- alters fact that was not afforded the nity evidentiary pursuant to create an record to Criminal Procedural 909(B). Rule inflicted bullet. it notes single that the left arm proposition, that Dr. Contostavlos’ victim’s holding weapon Appellant, was wounded while was trial, Appellant At by Appellant’s testimony. belied own

Notes

of notes Majority appellant supports by attaching a number of his claims witnesses, of appellant unsworn “declarations” would-be which Majority characterizes as “affidavits” in his brief. The accu- rately recognizes merely these “affidavits” fact are “declarations.” unsworn I realize that been lax in uniformly this Court has recent and has appeals appeared accept adopt PCRA defense characterizations of these of sorts attachments as “affidavits.” But, fact, these are point nothing “declarations” coming sort and to terms that fact should make for a with precise legal analysis more An appeals. PCRA affidavit is nor self-certifying by adoption does become certified attorney legal once an attaches it to a defini- pleading. “By tion an is a statement of by affidavit facts confirmed oath judicial before a officer having authority to administer Chandler, 113, 117-19, oath.” Commonwealth v. (search (1984) affidavit). A.2d also 1 warrant See (Affidavit § 1991 statement in of a writing Pa.C.S. fact “[a] it, signed by party making or facts to or affirmed sworn before an officer authorized laws this Commonwealth deeds, acknowledgments to take or authorized to administer oaths, or before particular designated officer or individual

notes and some have supra “humanizing” evi generalized contrast to the sort of explicit Majority Opinion, majority. Compare dence alluded to upon 1150-51 trial counsel’s (relying at 872 A.2d at op. Appellant as a mitigation portraying offered evidence having hearing concerning to foreclose a “caring neighbor” friend and major of mental of evidence Appellant’s post-conviction proffer Allen, illness), at 850-51 (explaining health with 366 F.3d “humanizing” difference evi generalized substantial between some explain dence and evidence which tends to afford mitigation to the defendant’s criminal behavior—“the context defendant], primar consisted proffered by [the evidence which that at in his life ily testimony points some [the defendant] people had been nice to and that some cared people some him, and as that ‘quantity quality’ same which (C.A.9, in F.3d 915 supported Mayfield[, our decision 2001)] [, alia, case inter substantial involving, life-history and mental-health related and could not have mitigation], during conspir ‘humanized’ him the time frame of the murder (“We issue.”); relief acy rarely granted at id. have habeas than miti solely upon humanizing, explanatory, based rather circum gation aggravating evidence the face extensive stances). Moreover, majority’s and failure its again, prejudice engage any explicit comparison assessment is offered on penalty-phase presentation with which See, post-conviction contrary precedent. e.g., review is at at that “in Malloy, (explaining must we consid considering appellant prejudiced whether only argument presented er not evidence argument penalty phase, but also the evidence would

Case Details

Case Name: Commonwealth v. Brown

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 6, 2005

Citation: 872 A.2d 1139

Docket Number: 303 CAP

Court Abbreviation: Pa.