*1 zer, letters, solely Spet- to Mrs. though addressed unless by Spetzer to zer, to be Mrs. actually intended delivered were categories privi- fashioning these three limited another. communications, made clear that Superior Court it leged if the apply still would not communications privilege made within the categories into three limited were fall these Spetzer. or on Mrs. The physical assault threat context of Appellee’s failure of Superior concluded Court of the communications that object admission communi- categories privileged into fall these three limited of counsel. Su- ineffective assistance cations constituted conviction on the Appellee’s vacated perior Court therefore trial court and remanded fifty-eight total counts remaining counts of criminal thirty-six on the new trial Appellee. charges against Superior According-
I the order Court. would affirm I dissent. ly, respectfully A.2d 726 Pennsylvania, Appellee
COMMONWEALTH Bryant Damu Taibu Modamu GRANT a/k/a Gramm, Tyrone Appellant. Taibu a/k/a Pennsylvania. Supreme Court Argued March 2002. Dec.
Decided officials, letters, being by prison if the letters were read even meaning privilege of these terms would would violate the because read confidential even if others. remain (citations Spetzer, (Pa.Super.1998) A.2d omitted). *4 Kaczynski, Pittsburgh, appellant. for William C. McCarthy, Francis Pitts- Wayne Streily, Kevin Michael for Com. burgh, appellee, curiae, Westchester, Suss, amicus appellee B. for
Stuart of PA. Atty. Gen. CAPPY, CASTILLE, NIGRO, ZAPPALA, C.J., and
Before SAYLOR, JJ. NEWMAN
OPINION CAPPY. Justice to consider whether granted court instant
This Appellant’s Superior failing remand Court erred prosecutorial and trial counsel claims related to misconduct evidentiary trial court. hearing herein, affirm the order of For the reasons stated we Superior Court. victim, case as follows. surrounding
The facts Gilliam, It At Bar leaving his the Where’s wife were Keith Shortly The victim was killed. gunshots when were heard. thereafter, round a maroon car drove and second of shots *5 out, two rang wounding people. other Various witnesses police response, to of shooting, testified the details presented the forensic one evidence. The Commonwealth Grant, Appellant, witness who identified Taibu as the shooter. represented Following trial a public Appellant. At defender trial, jury Appellant conclusion of convicted of first- imprisonment. him An degree murder and to life sentenced of public was filed another defender’s member trial of office. The court found the existence of a conflict appointed represent Appellant interest and new counsel to appeal. On appeal, Superior Court remanded the matter pro to motion nunc Appellant post-sentence allow to file a tunc challenge weight the evidence. The court judgment affirmed the as to sentence the remainder Appellant’s claims. The court most reviewed the substance of of Appellant’s they claims and concluded were without merit. However, Appellant’s the court dismissed two of claims related to trial adequately counsel’s ineffectiveness for his failure to the claims. See develop Superior slip opinion Court at 5-6. granted This court limited allowance of consider Further, Appellant’s three of claims. we parties directed the present argument this whether court should reconsider Hubbard, Commonwealth v. practice first announced (1977), 472 Pa. requiring A.2d that claims related to counsel stage ineffectiveness be raised at the earliest proceedings allegedly at which the long- ineffective counsel no represents er the defendant.
Appellant argues that Superior affirming Court erred judgment Specifically, Appellant sentence. contends the Commonwealth committed misconduct when it failed eyewitness, Moore, only reveal that its Christopher was on probation at the time that he had more than one crimen falsi Appellant argues conviction. also that the Superi- or dismissing Court erred his ineffectiveness claims develop claims, to adequately failure those since case law prevents an from appellant referring to matters outside claim, record Appellant Related Hubbard. approves practice forth in Lastly, Appel- set *6 to be permitting the court erred in evidence lant asserts that carry fact that he was not licensed to regarding introduced the a firearm.1 Court did responds Superior that the
The Commonwealth claims must be concluding in that not err for court to ascertain whether facts a supported sufficient Further, claim may Appellant’s been ineffective. have misconduct was not sufficient- alleged prosecutorial to related to this of the issue. Related ly developed to warrant review provides that claim, points out Hubbard the Commonwealth procedure appeals alleging ineffectiveness proper for the in an disposed that claims are efficient to ensure the order argues that the the Lastly, fashion. Commonwealth it that allowing to introduce evidence court did err carry gun to a the of the was not licensed time Appellant instant incident. effectively Appellant’s arguments, to rath-
In order evaluate they addressing the claims the order in which er than impli- first claims that do not presented, will consider the we Following our trial counsel’s ineffectiveness. review cate issues, issues, remaining the which are those we consider as of trial presented claims counsel ineffectiveness. prosecutor to argues first failed Appellant that witness, Christopher key that reveal Moore, falsi violation had more than one crimen conviction 1194, 10 L.Ed.2d Brady 373 U.S. 83 S.Ct. Maryland, (1963). to Additionally, the Commonwealth failed disclose parole at the trial. that Moore was on state time prosecutor’s According prejudiced by was Appellant, he provided may Appellant information have failures since this testimony impeach of Moore. with additional evidence order a defendant establish existence violation, a he must establish there been Brady im- prosecution exculpatory of either or suppression by infra, alternatively firearm Appellant raises both the As discussed impeachment infor- and the failure to disclose claim Commonwealth's of trial counsel ineffectiveness. mation to defense accused, peachment evidence that was favorable to the prejudiced of such defendant. the omission evidence 569 Pa. Paddy, See Commonwealth (2002). Further, Brady parties no violation occurs where equal had or if access the information the defendant knew dili- or could have uncovered such with reasonable evidence gence. Id. case, trial,
In this gave before the Commonwealth defense information that Christopher Moore had theft and burglary dating Appellant conviction from 1983. attempted to information, impeach Moore with this but the trial court did not allow the of the age introduction evidence due However, Appellant convictions. alleges now was there *7 dating at least one more crimen falsi from conviction to related this witness as well additional information that during Moore was intervening years. incarcerated Addi- tionally, Appellant alleges parole that Moore was on state at incident, the time of instant which may have colored his testimony. to According Appellant, such additional informa- may
tion changed have court’s decision to allow Appellant impeach to with prior Moore his convictions. How- ever, to Appellant argue fails that the Commonwealth had possession such in evidence its of trial time knowingly Instead, withheld such information. Appellant ac- knowledges that the failure the Commonwealth was most likely oversight Further, part. on its public defender’s trial, office uncovered this evidence after the trial. At Appel- by lant represented public was a Appellant defender. to failed explain why public procured defender could not have this same during Thus, information before or by Appellant’s trial. admission, own he has not demonstrated that there has a been suppression of such information the Commonwealth that violated the Brady. Additionally, dictates of it appears that Appellant may equal have had access to this information during fact, before or In Appellant trial. alternatively raises this issue as one trial counsel’s failing ineffectiveness for to Appellant identify not does the nature of the crimen falsi in conviction his to brief this court. It appears that the ineffectiveness
uncover evidence. Appellant’s to issue.3 presents claim a better avenue address previously, will discuss the ineffec- Accordingly, as stated we opinion. later in the tiveness claims Second, that court asserts the trial erred Appellant Ap- fact that evidence admitting the Commonwealth’s carry firearm over defense was not to a pellant licensed trial, the submitted objection. At counsel’s indicating of a document copy into a certified evidence Then, carry during a firearm. Appellant was licensed to give the court would charges of what discussion requested jury given a jury, the Commonwealth provides: § 6104. charge upon based 18 Pa.C.S. Section committing person attempting In of a for or the trial (relating commit a crime section 6105 enumerated use, manufacture, control, possess, sell or persons not firearms), person fact that that was armed with transfer used, firearm, attempted had a or to be no license used same, carry person’s of that inten- shall be evidence commit the offense. tion to charge.4 agreed give § court such a
18 Pa.C.S. 6104. The apply for 6104 to argues § order Appellant case, must establish viola particular the Commonwealth However, § plain language tion 6106.5 Pa.C.S. argument. support Appellant’s § 6104 does not order *8 case, particular requires to a it that apply § 6104 to 1) as a fact: that a crime has been Commonwealth establish 2) 6105; person com §in that the committed as enumerated Brady supra, alternatively Appellant raises the claim a 3. As discussed Superior only Court claim of trial counsel ineffectiveness and it addressed in terms of trial counsel ineffectiveness. argues jury regard Appellant with 4. also that instruction argument improper. in terms of trial was This raised firearm offense object failing for to to the instruction. Accord- counsel ineffectiveness ingly, of the ineffective- will be addressed with the remainder issue claims. ness § to be without a license” and 5. 6106 is entitled "Firearms not carried establishes, alia, weapon, person carrying a a that concealed inter felony lawfully-issued a the third a and license commits without valid degree. 3) firearm; mitting the crime was armed with a used; 4) attempted firearm was used or to be that the carry had to person no license the same. When these facts established, are “shall they person’s be evidence of that intent to § commit the offense.” See 6104. require None these a ments includes mandate that the a Commonwealth establish Thus, §of contrary argument, violation 6106. to Appellant’s § 6104 not require does that the Commonwealth establish predicate § violation of 6106.6
Appellant
two
next raises
claims of trial counsel ineffective-
Court,
ness.7
appeal
Superior
On
these
Appellant raised
argued
same two claims of in
Appellant
effectiveness.
trial
failing
counsel was
impeach-
ineffective
uncover
regarding
ment
Christopher
Additionally,
evidence
Moore.
Appellant argued that trial
was
for failing
ineffective
to call two
Superior
Commonwealth witnesses. The
Court
dismissed both of these claims for lack
adequate develop-
Appellant argues
ment.
Superior
that the
was
Court’s action
improper.
According Appellant,
procedural
pre-
rules
require
scribed
this court
appellant to confine his issues
raised on
to those
Thus,
contained
the record.
prevented Appellant
rules
from supplementing
record on
incapable
him
of providing
rendered
concrete
challenges
Appellant
relevancy
6.
disputed
also
evidence.
According Appellant,
requirement
1o
violation
the license
not
does
any
likely
possessor
make it
more
that the
used
firearm with
intention to commit a crime and the
invocation
such an inference
process.
violated due
Appellant
utterly
develop
argument
failed to
his constitutional
Sattazahn,
beyond a
Pa.Super.
mere
cite to
“cf."
Indeed,
(1993).
evidence,
reports
regarding
alleged
or
through
Thus,
than
concludes
rather
Appellant
ineffectiveness.
Superi-
inadequate development,
for
dismissing the claims
claims to the trial court
have remanded the
or Court should
fully develop
his claims.
opportunity
him the
give
order to
not reconsid-
that this court should
Appellant also contends
Hubbard, 472
Pa.
in Commonwealth
original position
our
er
(1977). However,
argument
made
above
In order to address Hubbard, that it would be viability of we believe continued rule, origins Hubbard to consider the beneficial Commonwealth, in this developed how the rule has examine Pennsylvania, and to practice general appellate review claims. jurisdictions manage ineffectiveness assess how other Thus, rule. origins the Hubbard we will first examine wisdom, ,re-
Contrary
generally-accepted
research
genesis for
rule that
Hubbard was not the
veals that
must
raised at the time
defen-
claims of
counsel; rather,
by
principle
was
represented
dant
years
two
earlier in Commonwealth
first announced over
(1975). Dancer,
Dancer,
this court
59 (“PCHA”),8 that presumption which created a rebuttable the “knowing understanding.”9 failure to raise an issue was and at presumption, Id. 437. Due to this the court determined only appeal that the failure to raise an issue on direct be justified extraordinary where exist. Id. Fur- circumstances thermore, court concluded that of trial ineffectiveness only proceedings may counsel be raised in collateral under the following circumstances:
1) petitioner represented appeal by where his trial counsel, for it to expect is unrealistic trial counsel on direct 2) ineffectiveness, argue to his own peti- where the represented counsel, appeal by tioner is but new upon grounds which claim of ineffective assistance are 3) record, not appear based do in the trial where the petitioner prove is able to the existence of other “extraordi- nary justifying circumstances” his failure raise the issue 4) petitioner or presumption where the rebuts the of “know- ing understanding and failure.” Thus,
Id. at general that rule was claims of ineffec- tiveness were to at presented petitioner be the time a obtained However, general new counsel. this recognized rule implicitly all that appeal by were suited direct preserving a exceptions few well-defined general rule.
Nevertheless, Hubbard, when rule was restated requirement the claim must be raised the time a petitioner had new counsel was In made absolute. the after- Hubbard, flexibility math no there was to the rule. The rule became claims of trial counsel must raised petitioner at the that the time obtained new counsel regardless myriad impracticalities associated with See, an unbending such pronouncement. e.g., Commonwealth Pierce, 186, 203, (2001); v. 567 Pa. A.2d 786 212 Common- Chester, 358, 1242, wealth v. (1999); 557 Pa. A.2d 733 1254 ("PCRA”) replaced by 8. The was PCHA Post Conviction Relief Act 9541, § in 1988. 42 Statutory Pa.C.S. and Historical notes. provided 9. The PCHA petitioner that an issue waived if was “know- ingly underslandingly” and it on failed raise 19 P.S. Í80-3(d). PCRA, 9544(b), § 1 equivalent longer § no section “knowing understanding” language. 60 1054, Hammer, n. 88, Pa. 494 A.2d
Commonwealth (1985).10 recently, Most a result of this absolute declara- tion, necessity “layering” arose. the aftermath Hubbard, only way to consider claims related not raised on direct were counsel’s prove was the additional claim of plead ineffectiveness, i.e., layered claim of counsel’s appellate Williams, See, v. Craig Commonwealth e.g., ineffectiveness. (2001) concurring); J. (Zappala, 782 A.2d Marrero, 203, n. 561 Pa. *11 1 (2000). rule when claims regarding
When the Dancer, in the more originally be raised was announced should all recognized in case that not approach taken flexible Thus, contrary to claims were suited for review. follow, inception currently rule its absolute rule we ineffectiveness, general guidelines raising created in practice, that in for the rule to work recognizing while order With required exceptions. these consid- common sense some mind, interpretation in our waiver we reassess erations Hubbard. expressed in briefly starting point, we will our
As examine raising cases than those ineffec appellate procedure in other Pennsylvania routinely in courts Appellate tiveness claims. for the first time. decline entertain issues raised Indeed, Pennsylvania specif Appellate Rules of Procedure 302(a). Pa.R.A.P. The ically proscribe such review. See prohibition that such a is pre and case law indicate Rules opinion pose a of a trial court can ferred because absence meaningful appellate impediment effective “substantial Lord, 415, See, v. 719 e.g., 553 Pa. review.” Commonwealth currently exception recognized only 10. to this rule that is capital appeal, is where this court "relaxes” the court in cases on direct error, even waiver and reviews the issue one of court rules intervening preserved in where is counsel and issue was not there 16, Zettlemoyer, v. 500 Pa. 454 the court below. See Commonwealth Albrecht, 31, (1982); 554 720 A.2d A.2d 937 Pa. cf. (1998) ("relaxed longer recognized capital in waiver" no cases on 693 appeal). collateral
61 (1998). 306, Further, normally appellate courts do A.2d or in- matters the record matters that not consider outside in volve consideration facts not evidence. Commonwealth (1996). Rios, 271, 1025, 546 Pa. A.2d 1036 n. 11 Most finders, importantly, courts do not act as fact appellate since require do credibility so “would an assessment of the See, testimony clearly and that function.” e.g., our Pierce, Commonwealth v. 645 A.2d (1994); Griffin, Commonwealth v. 511 Pa. (1986).
Yet,
claims,
appellate
the arena of ineffectiveness
courts
routinely
upon
perform
are
called
each of these tasks.
In
claim,
ruling on
it
is rare that a trial court
opinion
appellate
exists which will aid
court in examining
Appellate
the claim.
courts
frequently
upon
called
Moreover,
consider matters outside
appellate
the record.
courts often
engage
finding by being
some fact
required to
as to
speculate
strategy
the trial
of trial
order to
upon
rule
It
these claims.
seems anomalous that where the
ineffectiveness,
issues involve claims of
employ
we
the exact
appellate
process
opposite
review
require
we
almost all
fact,
appeals.
require
other
we
the defendant to raise a
*12
claim for
first
on appeal.
appellant
time
anWhen
not
on appeal,
subject
raised
new claim
is
to
he
the waiver
9544(b).
provision of
§
the PCRA. See 42 Pa.C.S.
These
prompt
considerations
to
validity
us
revisit the continued
However,
Hubbard.
process
the mere fact that our current
review
claims
not square
ineffectiveness
does
with the rules of
procedure
appellate
employed in most cases cannot conclude
matter,
our discussion of this
of appellate
since these rules
procedure existed
the time we announced the Hubbard rule.
See, e.g.,
307,
v. Piper,
458 Pa.
A handful of impose similar absolute 62 jurisdictions rule in Hubbard.11 Most consider announced however, that issue, express preference a clear inef
ing this proceedings. raised in collateral review claims be fectiveness recognized example, generally For courts have the federal ap direct appropriate claims not that are action.12 raised in collateral These peal, but should be may recognize exceptional circumstances exist courts patent is on the record there where the ineffectiveness See, fore, on United e.g., can direct be addressed Cronic, 648, 659, 2039, 104 80 L.Ed.2d v. 466 U.S. S.Ct. States may egre so (1984)(recognizing that counsel’s conduct be 657 prejudice of want of would showing “no amount of gious that Gambino, 938, it”); v. 788 F.2d cure see also United States (3d exception gener- Cir.1986)(recognizing a narrow 950 See, Ward, 1206, Cir.1999); (10 th e.g., v. 184 F.3d 1213 White 11. Hooks Kelso, 32, 733, State, (1991); 79 S.E.2d 734 Tachibana v. v. 261 Ga. 401 P,3d 1293, Litherland, 226, (1995); 12 v. Hawai'i 92, 900 P.2d 1299 State (Utah 2000). 98 See, McIntosh, 479, (5th 481 e.g., United v. 280 F.3d Cir. States 2002)("A generally of ineffective cannot claim assistance presented appeal it has been to the district reviewed on direct court.”); unless States, 429, (7th 211 F.3d 433-34 Fountain v. United Cir.2000)(ineffective generally counsel claims are not assistance of they rely outside appropriate for direct often on evidence Kincaide, 771, record); (6th 785 145 F.3d United States Cir.1998)(“Unless adequate to assess the merits the record allegations, will not an ineffective we address assis defendants' appeal.”); counsel claim raised for first time tance of al., 566, (3d 1996) (same); F.3d Cir. United States v. Cocivera et 104 570 157, (2d Cir.1996) (same general Eltayib, 170 United States v. 88 F.3d 1239, (10th 1995) Galloway, ly); F.3d 1241 Cir. States v. 56 United (holding apply procedural bar does rule claims); Camacho, 1994) (11th 355 Cir. United States v. F.3d (insufficient ineffective evidence in the record to review the claims of ness, proceeding); they in a properly resolved collateral United thus 1994) (8th (Ineffectiveness McNeely, F.3d Cir. States v. presented pursuant "should be District Court first (citations omitted), may parties develop § U.S.C. 2255 so facts, original record."); ordinarily lie outside the United States which Mala, Cir.1993) (same); (1st United States v. F.3d 1062-63 Tatum, 1991) (follows rule, (4th general Cir. but 943 F.2d 379-80 *13 reviews of ineffectiveness on direct where conflict claim Molina, record); on v. 934 interest could be reviewed United States Cir.1991) 1440, (9th (declines to review claims of ineffective F.2d 1446 appeal). on ness direct
63
trial,
objection
properly
al rule “where an
has been
made at
or,
clearly
where the record
shows actual conflict of inter-
”). However,
rule,
general
....
a
the federal
est
courts
defer review of
claims until collateral review.
Similarly,
overwhelming majority
gen-
of states
a
indicate
eral reluctance
entertain ineffectiveness claims on direct
appeal.13
only
These states will
review those claims on direct
adequately
existing
that can be
reviewed on the
record.
among
expressing
Even
preference
the states
a
ineffec-
tiveness
on
appeal,
claims be raised
direct
those
limit
states
requirement
“were known
Tello,
437,
264,
People
Cal.Rptr.2d
v.
15 Cal.4th
62
933
Mendoza
1134,
(1997) (claims
review,
P.2d
1135
be
should
raised on collateral
record);
they
Downey
1200,
People,
unless
are obvious on the
v.
25 P.3d
Patrick,
(Colo.2001) (same);
640,
1202
3
Conn.App.
n.
v.
42
State
681
380,
(1996) (same);
(Del.Su
Eley,
A.2d
386
v.
State
64 733, v. Neb. Suggs, from the record.” 259 apparent
or
State
State,
8,
(2000); see also Robinson v.
567
613 N.W.2d
11
(Minn.1997);
Pierce,
491,
127
App.3d
494
State v.
Ohio
N.W.2d
(1998). Thus,
578,
498,
713 N.E.2d
502
similar
federal
to
express
preference
states
review inef-
jurisdictions, most
proceedings.
fectiveness claims
collateral
of this
varying
support
have
rationales
Courts
offered
to
claims
general reluctance
entertain ineffectiveness
to
jurisdictions decline
review ineffectiveness
review. Several
sufficiently
record is not
claims on direct
because the
the first
on direct
developed to raise these
for
time
(3rd
Cocivera,
Cir.1996);
A
expressed by
court, is
related
at least one
appellate
the role of an
to review the record
error,
necessarily
claims of
but not
to uncover extra-record
See,
State,
e.g.,
claims.
Woods
701 N.E.2d
1221-22
*15
(Ind.1998);
Griffin,
see also
The Right
Lissa
to Effective
Counsel,
Appellate
Assistance
97 W.Va.L.Rev.
36-37
of
counsel). Woods,
(1994)(explaining the
of
In
appellate
role
the
Supreme
Indiana
Court discussed
issue of whether the
the
of
waiver
claims
trial counsel ineffectiveness was inconse-
quential since there always
possibility
raising
remains
the
such claims as ones of
appellate
ineffective assistance of
Ultimately,
counsel.
court
determined that “a
claim
appellate
adequate
ineffective assistance of
is not an
counsel
back door to a full adjudication of
of trial
ineffectiveness
counsel.”
In relied, part, the Woods court on that appellate usually the fact counsel is not considered Id,. be for failing ineffective uncover extra-record claims. v. California, Anders 386 U.S. 87 S.Ct. (1967), L.Ed.2d 493 Supreme the United States Court indicat- ed appellate that where counsel appeal determined that is frivolous, merely counsel certify need that the record had presented been reviewed and grounds no colorable for rever- sal. at n. N.E.2d 22. The Woods court concluded that “because there is no requirement appel- constitutional for late error, counsel search outside for ineffec- record an tive of appellate assistance counsel claim that is in substance a trial requiring claim may counsel extrinsic evidence be dead on Thus, arrival.” Id. at 1222. at court least one has found that appellate the role of raising counsel not does include claims extra-record on direct appeal.
The above discussion illuminates sound rationales behind general preference expressed overwhelming majori- ty of jurisdictions that ineffectiveness claims be deferred until recognize courts that stage. collateral review These that may raising not include claims appellate counsel
role for that appeal; record certified are not contained may sufficiently developed not record claims; that and permit review adequate not normally do not consider issues were appellate courts developed and in the court below. These rationales raised underlying difficulties the cur- highlight merit and have system Pennsylvania. followed rent nature, First, claims, by very their often Thus, apparent on claims that are not the record. involve for only existing must scour the record counsel appellate issues, any raising also has the additional burden any but client, may by interviewing exist extra-record claims that members, may light who shed family any people other during pursued have before or could been perform appellate must sentencing. Importantly, time task in the limited amount of this Herculean judgment from of sentence— filing available Further, following the rationale days. Pa.R.Crim.P. .720. *16 Woods, it if appellate is not even clear counsel’s expressed in appel- claims or whether duty finding extends to extra-record failing to uncover counsel would be ineffective for extra- late record claims.
Second, of the claim is presuming apparent the merit even record, oftentimes, trial demonstrating coun- existing on the will involve facts that are not available sel’s ineffectiveness prejudicial of trial coun- example, the record. For effect accurately of is more chosen course action determined sel’s to appellate opportunity have had the after the trial and courts necessary, if of and correct alleged claims error review only full trial court It is after any errors. review be context of the placed conduct can effect counsel’s case.
Third, trial is recognized, have court multiple as courts claims related to counsel’s position in the best review as that is the that observed the first instance court error performance. hand allegedly first counsel’s deficient juris- from discussion other apparent What is the above claims is that dictions’ review ineffectiveness same approach appellate concerns our general that animated vigor with apply equal review should the ineffectiveness unqualified ignores arena. The Hubbard rule these valid twenty-five years Dancer plus concerns. since Hubbard, necessary for a peti- we have learned that time fully develop tioner to discover and to trial related Deferring counsel of trial ineffectiveness. review stage ineffectiveness claims until collateral review proceedings petitioner a the best offers avenue effect his right Accordingly, Sixth Amendment counsel. for the herein, reasons stated we Hubbard to the overrule extent that requires it that trial counsel’s ineffectiveness be raised at that time petitioner when a obtains new counsel or those claims will be deemed waived. that, rule, hold general petitioner
We now a as should wait to raise claims of ineffective assistance of trial Thus, counsel until any collateral review.14 claim will only petitioner be waived has after had the opportunity to raise that claim collateral review failed to avail himself of opportunity. holding today Our PCRA, does not provision alter waiver Pa.C.S. 9544(b); merely § it alters that time when a claim will be stated, Simply raising considered a claim waived. trial coun will sel ineffectiveness no be longer considered waived because counsel on direct did raise a claim related to prior counsel’s ineffectiveness. rule today we applied announce
parties us as any before well other cases on where properly the issue was raised and general 14. The today rule announced is limited the issues raised in *17 Appellant allegation this case. does not raise an has there been a complete or constructive denial of or that counsel breached circumstances, duty loyalty. his or her of Under those limited this may court exception general choose to create an to the rule and review However, those on raising claims as there issue is no case, question such a appropriately such a consideration is more day. left to another 68 Commonwealth, See, v. Eth-
preserved.
e.g., Blackwell
State
(1991);
Com’n,
see
172,
527 Pa.
69 currently instant as pending case well as those cases on direct where the issues have ineffectiveness been properly preserved.16 raised and case,
Applying rule to the instant the claims regarding trial counsel’s will ineffectiveness be dismissed with- prejudice. out can Appellant raise these claims addition to other claims of in a petition first PCRA and at in position time the PCRA court will be to ensure that Appellant evidentiary an hearing claims, receives on his if necessary. Accordingly, holding consistent with our today, Court, Superior the order of affirming Appellant’s judg- sentence, ment of is affirmed. participate
Justice EAKIN did not in the consideration or of this decision case. concurring
Justice files a opinion. SAYLOR Justice concurring dissenting CASTILLE files a and opinion. SAYLOR,
Justice concurring. general As a proposition, I see benefit in majority’s preference to channel claims of ineffective assistance coun- sel into the process, collateral review and I no quarrel have with its effort to treat such claims in systematic a more balance, however, fashion. On I would not eliminate the requirements Hubbard, Commonwealth Pa. 472 372 (1977), 687 juncture. A.2d at this regard, I offer the following points.
First, I
regard
rule,
do not
itself,
the Hubbard
as
being as
majority
inflexible
portrays.
majority
fails
mention that
Hubbard allows for remand
an
today
16. Our
currently pending
decision
has no effect on cases
However, eventually
collateral review.
the new
law will
rule of
elimi-
layering
petitions,
nate the
petitioners
need for
in first PCRA
since
longer
plead
underlying
no
have
their
trial counsel ineffectiveness
through
appellate
claim
the lens of
in order
PCRA,
application
avoid
provision
the waiver
42 Pa.C.S.
9544(b).
§
to the trial court for an
evidentiary hearing
appellate court
concerning
of a claim of ineffective assistance
the merits
See, e.g.,
first
time on raised for the
trial counsel
Musi,
4,n.
(“Where
(1979)
to raise
claim of ineffec-
n.
one seeks
record is
enhanced
tive assistance
*19
claim,
proper
is to
support
procedure
the
the
required to
inter
(citing,
evidentiary hearing.”
a
for
request
remand
alia, Hubbard,
696)).
Indeed,
at
the
472 Pa. at
in Hubbard itself subsumed
a
on an
remand
ineffec-
mandate
Hubbard,
See
at
1. It would seem less same litigated through post-convic- a claim of ineffectiveness over later process. tion view, my troubling application what is most about achieving consistency application problem of in the Hubbard rule is the that, merely procedure. regard, clarify I In this would of remand concerning proffer appellant where the made a sufficient a claim challenging stewardship, facts issue trial counsel's there material claim, plainly concerning relief is as matter such unavailable law, the remand should be afforded. of Second, notes, party majority as the neither to this Further, departure present practice. advocates from the view amicus Attorney Pennsylvania, acting of General of curiae, aligns parties: with that of the Court its practice requiring allega-
This should continue tions of assistance of counsel to raised at ineffective Any opportunity first available on direct alternative procedures finality would delay where affirmance result, judgment delay would sentence is the correct result, grant relief where relief is the correct and would delay convening hearings evidentiary where there is Any to complete proce- need a factual record. alternative Commonwealth, would dures benefit neither the the defen- justice. nor dant the effective administration Brief of Amicus Curiae Attorney Pennsylvania General of at 2.
Third, I implementing about have fundamental reservations substantial, paradigm structural review changes without *20 settling parameters regard, the In this I review. that majority’s believe the observation that the “for rule practice, work in require[s] common exceptions,” sense some see Majority Opinion, applies just equally as to the new to Hubbard. For of as example, manner review majority the by of cited majority cases and relied on the it make clear claims of ineffective assistance of counsel be should resolved on appropriate disposition where apparent the is record, from the or duly the claim has developed been in the procedure.3 See, post-sentence court via the e.g., motion Majority cases).4 Opinion, at 734-35 nn. (citing 12-13 course, appellate 3. Of any appropriately court should consider also challenges evidentiary by hearing framed to denial anof a trial court. Notably, conception the federal also plain model maintains 4. significant affecting error account for errors or defects substantive rights brought properly have not been raised or attention 52(b). generally court. See F.R.Crim.P. See R. Wayne et LaFave 1999) 27.5(d) (2d (“All § jurisdic- ed. but a few ai.„ Criminal Procedure recognize authority appellate tions court to reverse on the error.”). (or plain basis of a Since this Court has abandoned at least restricted) see, Clair, substantially concept, e.g., this Commonwealth v. 418, 422, (1974), 458 Pa. it would seem to me that wholly claims that were accept is to that some
alternative on direct nevertheless amenable consideration on the light the restrictions appellate review evade See, e.g., 42 Pa.C.S. availability collateral review. state that, 9543(a)(1) eligible for relief under (providing § to be granted: time be PCRA, petitioner must at the relief probation or or imprisonment currently serving a sentence execution; which serving or a sentence parole; awaiting person may serving the must commence expire before sentence). disputed majority that the issue before disagree
I with also by law, procedures of state as the afforded purely Court is one due as implicate process direct review this Commonwealth I am by therefore guaranteed the United States Constitution. implementation majority as that this Court’s certain in the practice of a based on identified deficiencies consequences, manner will not have wider present of review pending on courts’ treatment of cases example, federal review. collateral in the availability of relief under Hubbard
Finally, as issue, I case, facts in present may there material while proffer was agree Superior Appellant’s Court with to an present evidentia- implicate insufficient entitlement ry hearing.5 CASTILLE, concurring dissenting.
Justice
opinion’s abrogation of the
join
majority
I
in the
Although
rule
announced
Common-
procedural
first
Court
exceptions
precluding raising
to the rule
the direct
preserving
oppor-
appeal assume a central role in
claims on direct
rights
opportunity.
tunity
at the earliest
to vindicate substantive
Grant,
See,
Pittsburgh
2000 WL
e.g.,
No.
*21
(“In
1577022, slip op.
(Pa.Super.2000)
to obtain relief on
at 6
order
failing
present
wit-
of counsel
for
claim of ineffective assistance
nesses,
allege
availability
the wit-
Appellant must
the names and
of
nesses,
testimony,
testimony
their
their
would
of
how
substance
coun-
appreciably strengthened Appellant’s defense and that trial
have
witnessesf;] Appellant
met
sel
has not
that burden.”
knew of
(citation omitted)).
may obviously implicate
While such deficiencies
appeal,
of
is
stewardship
no claim
this form
of counsel
direct
presently before the Court.
(1977),
Hubbard,
wealth
The Hubbard rule claims of new counsel raise previous counsel’s at opportunity, ineffectiveness the first even if first opportunity is on and of direct the claim ineffectiveness was not in raised the trial court. See Com- (Pa.2002) Ford, (Castille, J., monwealth v. dissenting) rule). (describing operation and effect of Hubbard experience This amply Court’s recent has more than demon- rule, strated inherent with difficulties difficulties aptly which expressed by majority. Application rule has particular caused capital havoc this Court’s PCRA jurisprudence, as the majority also question notes. The “layering” routinely capital appeals arises in PCRA because frequently those defendants represented by have been counsel other trial than counsel on direct The Hubbard rule makes those appeals a previous opportunity to raise trial first instance purposes of the provision. PCRA’s waiver See 42 Pa.C.S. (issue 9544(b) § petitioner waived under PCRA if “could it have raised but failed so” prior proceeding). to do Accordingly, to state a cognizable claim under the PCRA from deriving trial, alleged representation deficiencies petitioner “layer” must by pleading his proving claim that direct counsel was ineffective. This Court struggled with consequences Hubbard, interplay “layered” ineffectiveness, claims of PCRA waiver provision. majority accurately that requiring
74 Co., 255, Pa. Valley Trust 457 322 e.g., Dilliplaine Lehigh (1974); Clair, 114, 116 Pa. 458 326 A.2d (“Issues (1974). also Pa.R.A.P. 302 A.2d See and cannot in lower court are waived be raised raised the appeal”). practice Such a creates difficulties first time on the Moreover, reviewing the counsel and for court. both for new permit, require, it to much less to particularly is anomalous raising appeal claims on direct when the the of such new Assembly specific a vehicle for such provided General Indeed, sounding via in the collateral claims the PCRA. specifically assistance counsel are alleged ineffective 9543(a)(ii). cognizable § that Act. deemed under Pa.C.S. generally should appeals, appeals, Criminal like other to which properly confined those claims were raised level—which, course, may preserved trial court at the if actually such were include claims of counsel ineffectiveness by post-sentencing motions and were raised counsel on trial court. claims should be direct decided the Collateral PCRA, very purpose. which for that ed to the exists agree I the time has come to Accordingly, overrule dissent, however, majority’s from the respectfully Hubbard.1 place. to The formulation of the new rule take Hubbard’s that, rule,” “general criminal defendants majority holds wait until collateral review to raise on direct “should” Majority op. new claims of counsel ineffectiveness. equivocal word employing addition “should” standard, majority appends actual also a footnote dicta, exception an new rule. I am suggests, which it inevitably equivocations that these will cause confu concerned litigants complications sion for future under PCRA Saylor's recognize legitimacy Mr. 1. I Justice concern that the Attorney Pennsylvania parties appeal, as well as General of this curiae, of the rule. as amicus have advocated retention Hubbard Never- theless, light experience substantial with deficien- Court’s rule, consequences Hubbard I am cies and unintended satisfied Moreover, obliged it fact that we are to correct now. I note parties agree point upon to an does not bind a court that when, point agreed judgment, upon simply incor- in the court’s Collins, rect. See Commonwealth v. (2001). n. 4 provision. appellants waiver word “should” does not bar raising from new claims of trial counsel suggests aspiration it than appeal: therefore rather standard; appellants try an actual invites it avoid *23 rule; “general” years it promises and of further confusion of play litigated. the contours in the new rule are regard, I note that Hubbard has of rule been a fixture and, Pennsylvania’s legal landscape twenty-five for years over bar, in for of many raising the criminal defense new claims trial counsel on has ineffectiveness direct no doubt appel- matter of A significant become a routine. number of lants and their of likely counsel are to share the view the parties and the that justice amicus here “the interests of by claims,” prompt adjudication best of served 41, see for Appellant they persist Brief will thus in attempting raise such claims on direct I am appeal. that concerned the formulation of the new standard majority’s salutary goal undercut the overriding, funneling of claims of stage. counsel ineffectiveness to the collateral review potential uncertainty equivocation
The for particular- is ly light exception of general acute suggested rule by majority. majority suggests might The that the Court exception an appellant merely create if alleged “that there has complete been a or constructive denial that counsel or duty loyalty.” counsel has breached or her Majority op. his at 738 n. 14. This particular involving sub-class claims stewardship of counsel has indeed been afforded distinctive Sixth Supreme Amendment treatment the U.S. Court—but procedural not on ground that there is something such requires they nature of claims that be entertained for Instead, first appeal. time has the Court afforded such claims substantive Specif- different treatment. ically, it has held that in situations where assistance of counsel in fact been entirely during denied or stage critical proceeding, or actively where counsel fact represented interests, conflicting the defendant does need to demon- prejudice strate the Strickland that would be re- otherwise i.e., quired showing ineffectiveness, he need not show 76
that,
errors,
proceeding
the outcome of the
but for counsel’s
Taylor,
Mickens v.
would
have been different. See
probably
(2002);
1237, 1240-41,
Of it extreme prejudice claim where involves instance we such presumed; allegations should deemed see But more capital allegation is far almost all the cases. Amendment stan- prove prevailing difficult to under the Sixth allegations special no reason to afford such mere dard. I see that the status It is than sufficient on direct more ap- standard will relaxation of the substantive ineffectiveness predict- claim is attack. ply when the raised collateral consequence majority’s able dicta is routine *24 accompanied by will now an of counsel ineffectiveness be of counsel— exaggerated assertion of the constructive denial i.e., in performance will claims that counsel’s the courts see so that it as if failing objection to raise was deficient was in unrepresented—merely hope were the defendant preview upon round of attack direct securing collateral appeal.
Furthermore, given vacillation built into the the unfortunate rule, agree majority’s predictive I do not with the assess- new upon rule ment of the effect the new will have the PCRA necessity “layering” and provision waiver for claims case petitions. first PCRA If the “exceptions”— law our possible new rule—and its interpreting permit new of trial develops way in such as to certain claims right raised as a matter of counsel ineffectiveness be then, least, right we will appeal direct to those claims be purposes back we under the Hubbard rule for to where were waiver. is so because the PCRA waiver PCRA This “could provision speaks terms of claims which have been major- exceptions raised” The invited on direct materialize, sounding if ity, they will create classes of cognizable which trial counsel ineffectiveness are direct raised, cognizable if not so appeal; they and those claims are subject they will be to waiver under the PCRA unless are reason, join properly layered. majority’s For this I cannot prediction “a claim hopeful raising trial counsel ineffec- will no longer tiveness be considered waived [under the because counsel on direct did not appeal PCRA] new raise a claim to prior Majority op. related counsel’s ineffectiveness.” at 738.
Consistently general with the preserva- standards issue govern tion that all and to appeals, avoid the confusion the majority’s engender, new I rule would formulate the new “general holding sounding rule” as that claims in the ineffec- counsel, of trial which properly tiveness were not raised and court, preserved the trial for upon unavailable review must, instead, pursued under the PCRA. question potential exceptions general rule, On the although concern, I recognize majority’s I believe that it is general now, sufficient to state experience rule let with the guide. Accordingly, rule be our I would await a case such an argument actually where forwarded and reserve judgment time, comment and until that rather than anticipat- that for ing prospect which have no adequately we account- ing.
I also respectfully dissent from majority’s holding applies retroactively rule to this case as well as to all other cases pending on direct where “the issue of properly preserved.” ineffectiveness was raised and Majority at 738. op. majority appears misapprehend scope *25 of the retroactivity doctrine. precedent, Under our settled a judicial global new rule cannot have the retroactive effect the majority here—ie., accords its new rule it cannot apply retro- actively party to a no case where raised a challenge even to the Hubbard doctrine. When a new rule is deemed to apply applies retroactively, only it still to matters where the question case, very continuing issue—in the propriety of the Hubbard rule and the a substitution of new rule—was properly preserved raised and at all of stages adjudication the See,
up e.g., the Common- including to and direct (2001); 566 Pa. Tilley, wealth Cabeza, A.2d (1983). Here, challenged propriety of the parties neither the specifically after this Court procedure—even the Hubbard majority The states invited them do so. nevertheless both no one asks for it— apply rule will here—where its new appeal “where the issue of ineffective- and to cases on direct if preserved—even party raised and no properly was ness” of Hubbard. complained about deleterious effects there rule, question, is in not the new whose retroactive effect The broad, majority misap- as the generic “issue ineffectiveness” require- rule’s prehends, propriety but the of the Hubbard Accordingly, the rule substituted Hubbard ments. new retroactively only apply should to a case where one properly change Hubbard doctrine. parties advocated nor, case, many, any, if suspect, is not such a I This majority’s will pending appeals which be affected “retroactivity” holding. contours of
Laying my specific aside differences over rule, retroactively difficulty I no with new would have criminal applying pending the new rule challenged actually continuing the defendant validi- where ty majority that is of Hubbard. But not what the does here. majority’s application of its new rule global, The retroactive appeals involving claims of all direct ineffective- Hubbard, ness—irrespective party challenged whether quite contrary, parties, and where the briefed explicit manifestly reliance Hubbard—is un- appeals upon just. “retroactivity” justifying global holding, majority its
reasons as follows: purpose will be since defendants rule served longer compelled no to raise ineffectiveness claims record; may although rely undeveloped parties
on an claims, old rule and raise neither of law by application of the new rule since party will be harmed pro- can be in a collateral raised
79 ceeding; finally, justice the administration of will be served provides today since rule announced a clearer and more concise for both parties standard courts to follow. Majority op. agree at I do criminal 738-39. not that defen- application dants be unharmed retroactive majority’s appeals question concerning no rule where Hubbard was ever raised. majority into does take appellate may account the fact counsel have made colorable, strategic forego raising preserved decision to claims error, of trial court available on were otherwise direct appeal, in favor of the ineffectiveness claims made available (and required, under Hubbard. today) Indeed, appellate until in may counsel this case have discarded other colorable claims in preference approved for the counsel by Hubbard. Moreover, undoubtedly there appeals currently pending Court, Superior and there may capital docket, cases on this Court’s where all of the claims raised in trial sound counsel’s ineffectiveness.
I have noted Supreme elsewhere the U.S. Court has recognized that appellate empowered advocates are to select which multiple pursue appeal: colorable claims
Arguably
may
meritorious claims
be omitted
favor of
which,
pursuing claims
of appellate
the exercise
counsel’s
objectively
professional
reasonable
judgment,
great-
offer a
Barnes,
Jones v.
prospect
securing
er
relief.
463 U.S.
745, 750-54,
(1983).
103
“[Ap-
S.Ct.
of reasonable raise.”).
Lambert, Today’s abrogation of the Hubbard 797 A.2d at claims that were substantially the universe of rule reduces the that they to criminal defendants when filed briefs available directly by today’s In those instanc- will affected decision. all of sound counsel’s ineffective- es the claims raised where essentially extinguish will the ness, of the new rule application entirely. appellant’s right constitutional to a direct See short, V, application § 9. In retroactive PA. CONST. Article pending rule all cases where claims majority’s new was of whether there present—irrespective ineffectiveness are any serious concerns under involving issue Hubbard—raises V, under process and due clauses and Article state federal frustrates, serves, than holding § rather ends 9. The justice. any hold rule we formulate
Accordingly, I would new purely prospective have effect—unless the involving Hubbard argued preserved and a claim that Hub- actually defendant would avoid approach be discarded. Such bard should appellants of criminal upsetting legitimate expectations upon direct who Hubbard and their relied addition, appeals. prospective and their In evaluating arguing general prac- with this application would be consistent Court’s dimen- tice new rules non-constitutional procedural when Roush, Pa. 462, v. 569 805 E.g., Chalkey sion are issue. 194, 491, (2002); 486 Pa. Gravely, 497 Commonwealth A.2d (1979). 1296, also v. Mi- 404 A.2d 1298 See Commonwealth (1981) narik, (plurality opinion) 493 Pa. (“Court-made not procedure generally apply do retro- rules motivating a new rule ‘is actively: when the circumstance wholly proportions, prospec- one a rule will be of constitutional ”) Milliken, (quoting tive’ (1973)). A.2d inevitably
Finally, complications I to note the write our rule. capital appeals in direct the wake of arise claims of trial counsel ineffective- routinely This Court sees appeals. In capital first time on direct ness raised cases, alleged most if not all of the claims sound in some In capital ineffectiveness of trial direct appeals, counsel. however, employs Today’s this Court a “relaxed waiver” rule. obviously is on a decision collision course with the relaxed capital rule in appeals. waiver direct Will Court entertain claims If those ineffectiveness under relaxed waiver rule? not, apply will the Court decision today’s retroactively pending capital appeals force defendants in to raise their ineffectiveness claims the PCRA—even if under such only waiver, respect raised? With to relaxed also it noting many bears concerns that have led today Court to overrule Hubbard present are also when Court “relaxes” waiver on capital direct appeals reviews that, fictional claims of “trial involving objections court error” fact, were brought never to the trial judge’s attention. *28 any system rational of jurisprudence, such claims prop- more erly should be only entertained as claims trial sounding in claims, object counsel ineffectiveness failing and those too, should await review collateral attack. I summary, join majority overruling I Hubbard.
believe, however, that the general rule should that a criminal must defendant wait until collateral review to raise claims of unless such claims were preserved raised and in the trial court. I apply would prospectively, new rule unless a criminal defendant Hubbard, appeal actually advocated abrogation of the rule. here, challenge Since no such made been like Justice Saylor, proceed I would reject to the merits and the claims appellant since has failed to his demonstrate that trial counsel rendered appellant’s ineffective assistance. As to prosecutorial error, misconduct and trial court I agree with majority that appellant is not entitled to relief. Accord- ingly, I would Superior affirm the Court’s order. notes new counsel upon appeal sounding raise claims in the counsel, below, even if such claims were never raised runs contrary See, principles appellate fundamental review.