Commonwealth v. JonesCommonwealth v. Jones
Lead Opinion
This is аn appeal from the denial of appellant’s petition for relief under the Post Conviction Relief Act (PCRA),
On December 23, 1990, appellant met his former girlfriend, Edna Dorsey, in a South Philadelphia bar. When Ms. Dorsey rejected appellant’s proposition that she resume seeing him, even though he intended to marry another woman, appellant drew a handgun and shot Ms. Dorsey in the neck, and then shot her three more times as she lay on the floor, killing her. Appellant left the bar and drove to his home at 6133 Walnut Street in West Philadelphia where he saw Earl
On August 18, 1992, a jury found appellant guilty of four counts of first degree murder, two counts of possessing an instrument of crime, and one count of burglary. Following a penalty hearing, the jury returned verdicts of death on three of the murder counts and a sentence of life imprisonment on the fourth.
Represented by new counsel, Mitchell Scott Strutin, Esquire, appellant appealed to this Court, raising nearly two dozen claims, most involving allegations that trial counsel had been ineffective. This Court reviewed the claims on the merits and affirmed the convictions and sentences on September 18,1996. Commonwealth v. Jones, supra.
On January 17, 1997, appellant filed a pro se PCRA petition. John Cotter, Esquire, was appointed to represent appellant. Attorney Cotter filed an amended petition and supporting memorandum of law on September 9
After the notice of appeal was filed, James Moreno, Esquire, of the Capital Habeas. Unit of the Federal Court Division of the Defender Association of Philadelphia, еntered an appearance, and appointed counsel subsequently withdrew. Judge Jones filed an opinion on December 9, 1998, addressing the four issues which appellant had raised in his amended petition.
Attorney Moreno then filed a brief in this Court, listing sixteen claims for relief, and a separately-bound “Index.” The Index includes a copy of Attorney Cotter’s amended PCRA petition, as well as a 164-page document, styled as a “Second Amended Petition for Habeas Corpus Relief Under Article I, Section 14 of the
Appellant’s brief in this Court raises essentially the same claims set forth in the non-record Second Amended PCRA Petition. The claims, as stated in the brief, are as follows:
1. Whether appellant is entitled to relief from his invalid conviction and sentence despite his failure to raise these claims in prior proceedings because he was dеnied his right to effective assistance of post-conviction counsel rendering the reliability of the PCRA proceedings invalid.
2. Whether trial counsel violated appellant’s right to effective counsel by disclosing to the Commonwealth damaging information contained in a psychiatric evaluation that was privileged and confidential pursuant to the attorney-client privilege and not otherwise discoverable, resulting in the Commonwealth’s presentation of appellant’s expert as an adverse witness.
3. Whether appellant is entitled to a new trial because the Commonwealth materially interfered with his ability to present both a guilt-phase and sentencing phase defense through its subjugation of his attorney-client privilege and right to effective assistance of counsel.
4. Whether trial counsel’s failure to investigate and present at sentencing readily available evidence of appellant’s profound brain damage, delirium, schizoaffective disorder, alcohol and drug abuse, head injuries, behavioral changes and emotional trauma at the time of the offenses violated appellant’s right to the effective assistance of counsel.
5. Whether appellant is entitled to relief from his conviction and sentence because trial counsеl was ineffective at the guilt phase for failing to investigate, develop and present diminished capacity based on appellant’s brain damage, delirium, dementia, mental illness and drug and alcohol abuse the day of the offenses.
6. Whether trial counsel deprived appellant of his right to the effective assistance of counsel by presenting an insanity defense that had no basis in fact or law.
7. Whether appellant is entitled to a new trial and sentencing because he was constructively denied counsel during both aspects of his capital trial by counsel’s presentation of a baseless defense and his abject failure to investigate and present any mitigating evidence upon which the jury could predicate a life sentence.
8. Whether the Commonwealth’s discriminatory exercise of peremptory challengesto exclude African-Americans from the jury in this case on the basis of race violated appellant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 9 and 26 of the Pennsylvania Constitution.
9. Whether appellant’s death sentence violates the Pennsylvania capital sentencing statute, the Pennsylvania Constitution, the Sixth, Eighth and Fourteenth Amendments, International law, and United States treaty obligations because it was thе impermissible product of racial discrimination.
10. Whether appellant’s death sentence must be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be statutorily ineligible for parole.
11. Whether counsel was ineffective for failing to object to numerous instances of prosecutorial misconduct at trial that denied appellant due process, and for failing to litigate these issues at all stages of his appellate and post-conviction proceedings.
12. Whether the trial court improperly instructed the jury on reasonable doubt at both the guilt and penalty phases of trial.
13. • Whether the trial court failed to properly instruct the jury on the nature and use of aggravating and mitigating factors, in violation of the Eighth and Fourteenth Amendments.
14. Whether trial counsel rendered ineffective assistance of counsel by failing to adequately advise and discuss with appellant his right to choose between a bench trial or a jury trial.
15. Whether the trial court violated appellant’s right to due process by failing to conduct a colloquy concerning his right to choose a jury trial and by ultimately subjugating that right.
16. Whether trial counsel’s failure to adequately advise appellant on the Commonwealth’s plea offer and his failure to recоgnize appellant’s compromised mental state due to over-medication denied him his right to the effective assistance of counsel.
Initial Brief of Appellant, 2-3 (Statement of Questions Presented).
In addition to the issues specifically argued in his brief, appellant attempts to expand issue number 9 by “incorporat[ing] by reference” the non-record Second Amended PCRA Petition. Initial Brief of Appellant, 63. We cannot consider the Second Amended PCRA Petition for several reasons. First, this document is not of record and, indeed, was not part of the litigation below. Second, this appeal involves the PCRA court’s denial of appellant’s counseled, first amended PCRA petition. As the Commonwealth notes, appellant “does not ... have the right to amend his PCRA petition after the lower court has already denied it.” Brief for Appellee, 41-42 & n. 26. A serial or subsequent PCRA petition may not be entertained while such an appeal is pending. See Lark,
To be eligible for relief under the PCRA, an appellant must prove by a preponderance of the evidence that the conviction or sentence he is collaterally attacking resulted from one of seven specifically enumerated circumstances.
Some preliminary comment on the confusing structure of appellant’s brief is necessary to understand his framing of the claims. Appellant’s first issue includes a broad allegation that his prior, appointed PCRA counsel was ineffective for failing to raise all of the succeeding fifteen issues. Thus, according to appellant, none of those fifteen issues was raised and preserved in the PCRA proceeding that is the subject of this appeal; instead, all of these claims are being raised for the first time in his brief on appeal.
Despite the fact that issues 2 through 16 are renewable only to the extent that they sound in PCRA cоunsel’s alleged ineffectiveness, appellant does not individually argue the claims under that rubric. Instead, as the Commonwealth accurately
We have recognized that claims of ineffective assistance of counsel are often derivative of claims of trial error or counsel ineffectiveness which have been waived; i.e., previous counsel is alleged to have been ineffective for failing to raise and pursue claims which are perceived by subsequent counsel. Commonwealth v. Williams,
Some additional comment on the underlying questions briefed in issues 2-16 will make clear exactly why those versions of the claims arе, as appellant implicitly
The Commonwealth is correct. See Bond,
Some further comment is required to properly analyze issues 9 and 11. In issue 9, appellant develops a claim that his death sentence was the product of racial discrimination. The basis for the claim is a 1998 law review study of the imposition of the death penalty in Philadelphia written by Professors David Baldus and George Woodworth of the University of Iowa (the “Baldus-Woodworth study”). Appellant characterizes the Baldus-Woodworth study as “newly discovered evidence” which “was not available to prior counsel.” Initial Brief of Appellant, 63 & n. 38, 75 & n. 54. Since appellant argues that the basis for this claim was unavailable to previous counsel, his assertion in his summary of argument and in his first issue that PCRA counsel was ineffective for failing to present the unavailable claim obviously is frivolous.
The more pertinent questions are whether Issue 9 is reviewable and has merit as a stand-alone claim for relief under the PCRA, not sounding in previous PCRA counsel’s alleged ineffectiveness. However, as noted above, this vеrsion of the claim was not presented in the original or amended PCRA petitions below and,
In issue 11, appellant develops a claim that trial counsel was ineffective for failing to object to several instances of prosecutorial misconduct. In addition to being waived, two of these sub-claims are also previously litigated. First, appellant alleges that trial counsel was ineffective for failing to object when the prosecutor, during her penalty phase summation, asked the jury to consider the reaction of others to their verdict if they returned a life sentence. Trial counsel did, in fact, promptly object to these comments. See N.T. 8/18/92 at 38. The trial court sustained that objection and instructed the jury that its sentence should be based solely upon the evidence presented and should not be influenced by what others might say or think. The issue was raised on direct appeal as a preserved claim of prosecutorial misconduct. This Court con-eluded that, although improper, any prejudice which may have resulted from the prosecutor’s remarks was сured by the trial court’s contemporaneous instructions and its final charge to the jury. Accordingly, we denied relief. See Jones, 683 A.2d at 1201. Second, appellant alleged on direct appeal, as he does now, that trial counsel was ineffective for failing to object to the prosecutor’s penalty phase suggestion that, if the victims’ friends and families had been permitted to testify, they would have requested that the jury sentence appellant to death. In rejecting this claim, this Court held that the prosecutor’s “isolated reference” fell “within permissible bounds,” and thus trial counsel was not ineffective. See id. at 1203-04. Because the substance of these two sub-claims was decided on appellant’s direct appeal to this Court, these particular claims are previously litigated, see
Before turning to a consideration of appellant’s claims under the rubric of previous PCRA counsel’s ineffectiveness, we note some important considerations relevant to the cognizability of such claims raised for the first timе on PCRA appeal. Permitting new claims to be raised upon appeal, of course, is contrary to our general appellate practice.
The practice of entertaining new claims of PCRA counsel ineffectiveness upon PCRA direct appeal arose long before the 199,5 amendments to the PCRA. The PCRA petition in this case was filed after the 1995 PCRA amendments became effective in January, 1996, however, and “[t]hose amendments therefore govern this petition.” Commonwealth v. Pursell,
Permitting a PCRA petitioner to append new claims to the appeal already on review would wrongly subvert the time limitations and serial petition restrictions of the PCRA.
The claims of PCRA counsel ineffectiveness here, which are properly subject to review as a matter of judicial issue preservation under the Hubbard doctrine, were, with but two exceptions,
In the past, of course, this Court has had to consider the continuing viability of judicial rules that find themselves in separation of powers tension with the governing terms of the PCRA. Albrecht,
Turning to the merits of appellant’s claims of PCRA counsel ineffectiveness for failing to raise issues 2 through 16, appellant baldly avers that prior PCRA counsel conducted no investigation of his case and neglected even to acquire the trial transcripts or trial counsel’s file. As a consequence of this alleged lack of investigation
We begin with a discussion of the basis and contours of the right to counsel at issue. There is no federal constitutional right to counsel upon state collateral review. Rather, this right to counsel derives from Pennsylvania Rule of Criminal Procedure 904, which we have held confers an enforceable right to the effective assistance of PCRA counsel. Gamboa-Taylor,
Contrary to appellant’s broad assertion, it appears that prior PCRA counsel did review the trial transcript; indeed, the amended PCRA petition contains no less than thirteen citations to the trial record. See Amended PCRA Petition at 4-5. In addition, two of the issues appellant faults PCRA counsel for allegedly failing to pursue below—whether trial counsel rendered ineffective assistance when he disclosed to
In addition to being an inaccurate characterization of PCRA counsel’s actual performance, appellant’s claim of PCRA counsel ineffectiveness is fatally undeveloped. Appellant’s arguments on issues 2 through 16, liberally construed since this is a capital case, could be interpreted as attempting to set forth the “arguable merit” of a series of otherwise largely waived claims. Even if we assume that the arguments successfully demonstrate the arguable merit in the claims, however, that alone does not prove PCRA counsel ineffective, nor does it prove prejudice. On these equally essential substantive elements of the test for ineffective assistance of counsel, appellant is largely silent. Appellant forwards no relevant argument as to why PCRA counsel’s failure to perceive and pursue any particular claim must be deemed ineffective. Instead, appellant declares in summary fashion that, simply because he believes the claims have merit, PCRA counsel must have been ineffeсtive for failing to pursue them. This per se approach to ineffectiveness fails to establish either that counsel acted in an objectively unreasonable fashion or that prejudice ensued. (Michael) Pierce,
Appellant’s per se approach to PCRA counsel’s performance fails to account for the circumstances actually facing PCRA counsel. It is important to emphasize in this regard that this is a case where appellant had new counsel on direct appeal. Accordingly, with the exception of appellant’s newly-discovered evidence claim (issue 9), all of the claims appellant faults PCRA counsel for failing to raise below could also have been raised on direct appeal. Therefore, those underlying claims were waived under the PCRA,
Appellant’s direct appeal counsel, Mitchell Scott Strutin, Esq., is an experienced appellate advocate who raised a
Appellant here has made no argument whatsoever that the claims he has identified in hindsight in this appeal are clearly stronger than the twenty-two issues, including numerous claims of trial counsel ineffectiveness, that were advanced by Attorney Strutin on direct appeal. He has not begun to demonstrate how it was that previous PCRA counsel could have proven an entitlement to relief on any of these claims which, of necessity, had to sound in appellate counsel’s ineffectiveness. Because appellant has not shown how previous PCRA counsel acted deficiently in light of the circumstances confronting him, appellant has not proven PCRA counsеl ineffective.
Nor has appellant addressed in any meaningful way how the outcome of his PCRA proceeding would have differed had these claims been advanced in the bald, per se fashion in which he now advances them. (Michael) Pierce,
Since Madame Justice Newman’s Concurring Opinion addresses an issue that has sharply divided the Court in the recent past, see, e.g., Commonwealth v. Moore,
Respectfully, the concurrence’s dispute over the appropriate substantive standard for assessing Sixth Amendment claims of appellate counsel ineffectiveness is with the U.S. Supreme Court and not with this opinion, which aрplies the settled federal authority. The High Court has explicitly recognized that appellate counsel is not constitutionally obliged to raise any and all nonfrivolous claims; to the contrary, the Court has, on repeated occasions, emphasized that vigorous, effective appellate advocacy requires the exercise of reasonable selectivity in deciding upon which claims to pursue. Robbins,
Even if this Court were free to pursue a different Sixth Amendment standard, I would not adopt the concurrence’s hindsight-based, per se approach to claims of appellate counsel ineffectiveness. The distinct and essential constitutional value implicated in such claims is the right to competent counsel, and not whatever underlying value (constitutional or otherwise)
The “challenged proceeding” that was the necessary subject of the PCRA petition filed by initial PCRA counsel was the direct appeal. The per se, non-Sixth Amendment test proposed by the concurrence would decide the distinct constitutional question of the effectiveness of appellate counsel without accounting for that lawyer’s actual performance. Instead, the concurrence would bootstrap from the underlying claim. Because an exclusive focus upon a foregone claim in isolation, as the concurrence suggests, does not account for the constitutional value which is at issue, and which is authorized for collateral attack under the PCRA, we would not adopt it even if we were free to do so.
In addition to diminishing the constitutional value that the PCRA would vindicate, the concurrence’s per se standard also ignores the bedrock Sixth Amendment requirement that counsel’s performance must be viewed, not in hindsight, but from counsel’s perspective at the time. As this Court recently noted in Bond, supra:
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,466 U.S. at 689 ,104 S.Ct. 2052 .... This is so because it is “all too tempting” for a defendant to second-guess counsel, and “all too easy” for a court to deem a particular act or omission unreasonable merely because counsel’soverall strategy did not achieve the result his client desired. Id. See also Lockhart [v. Fretwell], 506 U.S. [364,] at 372, 113 S.Ct. 838 ,122 L.Ed.2d 180 [(1993)] (Strickland Court adopted “the rule of contempоrary assessment” because it recognized that “from the perspective of hindsight there is a natural tendency to speculate as to whether a different trial strategy might have been more successful”)....
Finally, we do not agree with the concurrence’s suggestion that application of the substantive constitutional standard to claims assailing appellate counsel elevates “formalism” over some vague notion of “fairness” that would allegedly be served by ignoring the constitutional value at issue. Ours is a society of competing values. The General Assembly has determined that, in criminal cases, unlike all other cases, otherwise final judgments are subject to collateral attack, under the PCRA. This second bite at the review apple obviously is afforded because of the important stakes uniquely involved in serious criminal cases, i.e., life and liberty. But the exceptional collateral attack thus authorized is not arbitrary or uncabined: it exists to vindicate specifically delineated, fundamental, and primarily constitutional, values. It is hardly “fair” to the victims of crime, to the cause of justice, to appellate counsel, or to society in general, for a Court to take it upоn itself to arbitrarily overlook or “relax” the substantive constitutional standard which is approved for collateral attack by the General Assembly, in order to vindicate some lesser, vague, and debatable notion of fairness—no matter how much easier a lesser standard would make the job of PCRA petitioners and reviewing courts.
One need only look to the pertinent facts in this case to understand that application of the relevant standard is not an elevation of formalism at the expense of the fairness embodied in the PCRA’s balancing of the core values of finality and constitutionality. Presumptively effective direct appeal counsel did not simply “mail in” his appellate performance; rather, he raised nearly two dozen claims. The notion that each of the fifteen new substantive claims that appellant identifies on this PCRA appeal are both clearly meritorious and clearly stronger than the ones actually pursued by counsel on direct appeal—bald assumptions which the concurrence is willing to accept as proof that appellate counsel was ineffective—is implausible in the extreme. The notion that any one of the present claims is both clearly meritorious and clearly stronger than the direct appeal
For the foregoing reasons, the order of the PCRA court denying appellant’s petition is affirmed. The Prothonotary of the Supreme Court is hereby directed to transmit the complete record in this case to the Governor in accordance with
Notes
. The facts underlying appellant's convictions are set forth in further detail in the opinion on direct appeal, Commonwealth v. Jones,
. We note that, under this Court's precedent, appellant could not file a second PCRA petition while the appeal from a prior petition was pending in this Court:
Appellant could not have filed his second PCRA petition in the court of common pleas while his first PCRA petition was still pending before this court. The trial court had no jurisdiction to adjudicate issues directly related to this case; only this court did.
Commonwealth v. Lark,
. Appellant also lists, as a potential 17th issue, the following: "Whether prior counsel were ineffective for failing to raise and litigate the issues presented in [appellant’s] Second Amended PCRA petition.” Initial Brief of Appellant, 3. Because appellant fails to pursue the seventeenth claim in the body of his brief, it is waived. See, e.g., Commonwealth v. LaCava,
. Those circumstances are as follows:
(i) A violation of the Constitution оf Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea oí guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
. As noted above, although the Second Amended PCRA Petition included in appellant’s Index is captioned as ii it were filed, or to be filed, in the Court of Common Pleas, it is dated contemporaneously with his brief and was never before Judge Jones.
. Appellant does not argue that his waived claims are reviewable under this Court’s direct capital appeal relaxed waiver doctrine. Such an argument would be unavailing since relaxed waiver does not apply to capital PCRA appeals. See Commonwealth v. Kemp,
. The mere boilerplate allegations that PCRA counsel, or all prior counsel, were ineffective, which is found in some of appellant’s arguments do not prove an entitlement to relief. See Commonwealth v. Bracey,
. The question of affording latitude in appellate pleadings in capital cases involves application of this Court's appellate rules and principles of appellate jurisprudence and not any provision of the PCRA. See Williams, 782 A.2d at 534 (Castillo, J., concurring) (noting distinction between waiver under PCRA and waiver as question of appellate j urisprudence).
. By order dated August 11, 1997, this Court suspended
. See Commonwealth v. Kenney,
. We note that the Lark opinion cited above involved the subsequent appeal filed from the denial of the serial PCRA pe)ilion and, thus, the Court proceeded to address the Baldus-Woodworth study claim, which Lark had argued was a proper subject of a serial petition under the after-discovered evidence exception to the PCRA time-bar. See
. As we discuss below, notwithstanding appellant’s claim that PCRA counsel was ineffective for failing to raise all issues on this appeal, in point of fact two of appellant's claims (issues 2 and 8) were raised in the amended petition.
. In light of the Rules-based conferral of a right to PCRA counsel, this Court has not decided whether there is a state constitutional right to counsel upon PCRA review. Albrecht,
. In Pierce, this Court recognized that the Strickland "performance and prejudice” test was the proper test to evaluate ineffectiveness claims raised under the Pennsylvania Constitution. This Court has come to characterize the test as a tripartite one, by dividing the performance element into two distinct parts, i.e., arguable merit and lack of reasonable basis. The Third Circuit has recognized that Pennsylvania's standard for assessing claims of counsel ineffectiveness is materially identical to Strickland. Werts v. Vaughn,
. Justice Newman apparently has rethought her position in this regard, since she has previously joined in opinions by this author selting lorth the substantive Sixth Amendment standard for assessing claims of appellate counsel ineffectiveness. See, e.g., Commonwealth v. Moore, supra (Castillo, J., joined by Newman and Eakin, JJ., concurring and dissenting).
Concurrence Opinion
concurring.
I concur in the result only. I write separately, however, first to note my disagreement with the majority’s conclusion that a majority of Appellant’s claims are waived as well as the reasoning used by the majority in arriving at that conclusion. Unlike the majority, and consistent with my previous position on waiver under the PCRA, I would find that those of Appellant’s claims that apply the three prongs of the ineffectiveness standard as it relates to trial counsel and contain at least a boilerplate assertion that prior counsel were ineffective for failing to raise the issue of trial counsel’s ineffectiveness are not waived for purposes of the PCRA. See, e.g., Commonwealth v. Bracey,
I also note my disagreement with the majority’s commentary on the alleged tension between the PCRA’s timeliness requirements and allowing appellants to present claims of PCRA counsel’s ineffectiveness on appeal to this Court. In my view, Commonwealth v. Pursell,
Pursell did not in any way treat the appellant’s claims of PCRA counsel’s ineffectiveness as new claims that should have been presented in a separate PCRA petition but rather, consistent with this Court’s precedent, treated such claims of ineffectiveness as ones being presented at the first available opportunity to do so. Although Justice Castille correctly notes that Pursell was not decided under the 1995 amendments, which added the timeliness requirements to the PCRA, we fail to see how these amendments serve to alter Pursell’s clear holding that this Cоurt may properly review claims of PCRA counsel’s ineffectiveness when it is an appellant’s first, and quite possibly only, opportunity to do so.
That said, the complex issue of which claims can properly be reviewed by the Court on an appeal from the denial of a PCRA petition is, as noted by the majority, one that has so blatantly divided the Court in the recent past. In light of the divergent positions on this issue, I made it my usual practice and thought it least divisive to simply concur in the result in PCRA cases when my own independent review of the files resulted in an ability to at least agree with the ultimate outcome of the case. By doing so, I tried to avoid muddying the waters even more by adding to the mix yet another responsive opinion which merely reiterated my own understanding of the approach to be used when deciding which claims should or should not be deemed waived for purposes of the PCRA. However, as time passes and the issue remains unresolved, I felt the better course would be to at least offer the parties some explanation as to where it is that my approach differs from that offered by the lead opinion.
Concurrence Opinion
concurring.
I concur in the result reached by the lead opinion. However, I write separately because I am concerned that, in our аttempts to resolve the difficulties posed by appellate review of layered claims of ineffective assistance of counsel in PCRA capital cases, this Court gives too much significance to the need for adequate “layering,” i.e., the articulation of the three-part test from Commonwealth v. (Charles) Pierce, 515 Pa.153,
In this case, the lead opinion states, “[t]o prove [direct appeal counsel] ineffective under the Sixth Amendment, PCRA counsel would have had to prove not only the underlying merit of each waived claim ... but satisfy the entire [Strickland v. Washington,
I do not subscribe to the position of Mr. Justice Castille on this question. When appellate counsel fails to advance an issue that would, if raised, have entitled his or her client to a new trial, or a new sentencing hearing in a capital case, I simply cannot see how this strategy would ever be reasonable. Although I realize that trial lawyers, in arguing a case to a jury, often forego meritorious objections for a variety of strategic reasons (for example, not wishing to confuse the jury on a technical issue, the possibility of defense theories appearing to conflict, credibility with the jury, etc.), appellate litigation presents entirely different considerations. As an adjunct to the lawyer’s responsibility to represent his or her client zealously, an appellate lawyer must be expected to pursue every avenue for his or her client, even where two appellate issues rest on conflicting legal theories, with the understanding that appellate courts are capable of digesting inconsistent claims in the same appeal without suffering from the confusion or incredulity to which juries are occasionally subject. In brief, if the underlying claim of error is of such an important magnitude that it would have entitled a defendant to relief had it been raised on appeal, there can be no justification for the failure of appellate counsel to pursue the claim that would ever qualify as a reasonable professional judgment.
Consequently, I do not believe that this Court should insist on elaborate arguments from appellants as to each level of post-trial counsel’s ineffectiveness in these cases. As long as an appellant has sufficiently layered his or her claim, even in boilerplate fashion, to overcome waiver, this Court should undertake as much as possible to determine the significance of the underlying claim that appellate counsel defaulted (i.e., whether it possesses merit and/or establishes how the- appellant was prejudiced), rather than dismiss the claim because the appellant inadequately pled the ineffectiveness of each level of counsel with reference to the Strickland test. This is the course that this Court followed in Commonwealth v. (Michael) Pierce,
Concurrence Opinion
concurring and dissenting.
I would remand to the PCRA court for a hearing on the claims of ineffective assistance of post-conviction counsel and write to the following points:
First, I favor consistent enforcement of the governing procedural rules, which serve to ensure fairness and reliability in the collateral review process. See generally Commonwealth v. Williams,
Second, I would not summarily dispose of Appellant’s claims concerning PCRA counsel’s ineffectiveness—where allegations of ineffectiveness of counsel are made on appeal, a remand is appropriate unless the merits of the allegations can fairly be discerned from the record. See, e.g., Commonwealth v. DeGeorge,
In this regard, I share many of the concerns motivating Madame Justice Newman’s concurrence. As here, the Court has in recent opinions frequently denied merits review of capital, post-conviction claims because of the manner of their presentation in the appellate briefing. That attorneys in capital cases are recurrently being deemed to have forfeited their clients’ ability to obtain a post-conviction assessment of the reliability of their convictions and/or sentences by an appellate court raises fundamental questions concerning the clarity of the rules governing appellate briefing, the manageability of the burden imposed by them, and/or the effectiveness of the bar practicing in the capital, post-conviction area in Pennsylvania. Unless and until such questions are adequately addressed, I believe that the Court should be less exacting in its strict enforcement of waiver principles predicated on deficiencies in appellate briefing.
Since it appears to me that the necessary review of Appellant’s claims of ineffective assistance of PCRA counsel involves a more probing assessment, potentially having factual aspects, I would remand to the PCRA court.
. This precept should apply equally in the post-conviction context to vindicate the rule-based right to effective representation on a first petition, see Commonwealth v. Priovolos,