*1 724 A.2d Pеnnsylvania, Appellant v. COMMONWEALTH KIMBALL, Appellee. Daniel Pennsylvania. Supreme Court 23, 1997. Oct. Submitted 22, 1999. Decided Jan. March
Reargument Denied *2 Muncer, Asst. Dist. Rosini, John P. Sunbury, Anthony J. the Com. Atty., for Kimball. Antkowiak, Daniel Greensburg, for A.
Bruce CAPPY, ZAPPALA, C.J., FLAHERTY, Before SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN THE OF COURT OPINION NEWMAN, Justice. Supe- appeals Pennsylvania
The Commonwealth
the trial counsel
finding
and Order
Opinion
rior Court’s
(Kimball)
reviewing
Superi-
Kimball
ineffective.
Daniel
decision,
plurality
on to reexamine
we are called
or Court’s
Buehl,
Pa.
To the element of specific intent to trial counsel attempted to present an of a expert support diminished defense, but capacity the trial court disallowed the expert’s Nonetheless, testimony. defense counsel testi- presented the father, mony of Kimball’s adoptive John Kimball Reverend (Reverend Kimball), who stated be- Kimball manifested problems infancy, havioral since his had problems school Navy, problem, history and has has a drinking violent and behavior. angry
The jury convicted Kimball first murder. The degree court him to On imprisonment. sentenced life direct appeal, sentence, Superior judgment Court affirmed the this Court denied Kimball’s Petition for Allowance of Appeal.
Kimball then filed a Petition for Post pursuant Relief (PCRA) 1, alia, inter Relief Act asserting, Conviction *4 key Shortridge, defense counsel’s failure to cross-examine a witness, concerning his with the prosecu Commonwealth deal presentation damaging testimony of the of tion and counsel’s ineffective assistance of counsel. Reverend Kimball constituted County of Northumberland Court of Pleas The Common (PCRA court) an at which Kimball evidentiary hearing held presented testimony on his behalf and the of his testified own seq. §9541 Pa.C.S. 1. 42 et the PCRA hearing, of the conclusion the
trial counsel. After relief, clear reasoning that “[i]t Kimball court denied no really viable overwhelming that there was the evidence at 6. Op., Ct. Defendant could raise.” PCRA defense this reversed, va- Court Superior a divided appeal, sharply On outset, the At for a new trial.2 the and remanded cated is no substantive held that there Superior majority Court assis- for ineffective prejudice the standard difference between on direct applicable PCRA and that of under the tance counsel concurring agreed court with the Accordingly, the appeal. opinions in Buehl of language that Section the dissenting and 9543(a)(2)(ii)3 standard set vary PCRA the of the does for a Initially, Superior reversed and remanded рanel of the 2. failing cross- holding for counsel was ineffective new testimony presenting of Shortridge concerning for the bias and examine application for to the Commonwealth’s Kimball. Pursuant Reverend argument en banc. reargument, the court then re-heard provides: of the PCRA 3. Section 9543 § Eligibility for relief (a) subchapter, the eligible for relief under this rule.—To be General prove by the evidenceall petitioner plead preponderance must of of following'. (1) a crime under the laws petitioner has been convicted of That the and is: of Commonwealth (i) currently probation or serving imprisonment, a sentence of crime; parole crime; (ii) or awaiting of for the execution of a sentence death may (iii) person expire serving a which must before sentence serving disputed sentence. commence (2) resulted from one or more That conviction or sentence following: (i) or the of this Commonwealth A of the Constitution violation which, in the circum- of the United States or laws Constitution case, truth-determining so particular undermined stances of adjudication innocence could process that no reliable of place. have taken which, (ii) in the circumstances assistance Ineffective case, truth-determining process particular so undermined the place. adjudication guilt or innocence could have taken no reliable (iii) unlawfully plea guilty A induced where the circumstances petitioner plead likely the inducement caused the make it guilty petitioner is innocent. (iv) government peti- improper obstruction officials of the The appealable right appeal issue exist- tioner's where meritorious properly preserved ed and was trial court. (v) Deleted. *5 304 Pierce,
forth
Commonwealth v.
Court,
9543(a)(2)(ii)
interpreted Section
as establishing a more
stringent prejudice requirement
for ineffectiveness claims
raised
collateral attack than on direct appeal. According to
Buehl
pursuant
PCRA,
plurality,
to the
it is insufficient
for petitioner
to show that there was a
probabili-
reasonable
ty
error,
but for counsel’s
proceedings
outcome
Instead,
have
may
been different.
in a collateral appeal, the
petitioner must
prove by preponderance of the evidence that
“[ijneffective
his conviction or sentence resulted from
assis-
which,
of tance
the particular
circumstances
case, so
process
undermined the truth
no
determining
adjudication
reliаble
or innocence could
taken
have
Buehl,
at
place.”
(citing
42 Pa.C.S. Buehl, case, capital petitioner Specifically, raised several relief, petition including post-conviction claims in his trial counsel’s Buehl, Section Thus, plurality opinion applied 9543(a)(2)(ii) an claim ineffectiveness deny relief did not more but affected the outcome may have Specifically, the verdict unreliable. likely than render *6 cautionary a request in to failing in Buehl erred trial counsel introduction of evi- regarding prosecution’s the instruction of the Buehl Although the outcome of other crimes. dence caution- requested had counsel a have been different may trial instruction, to conclude was unable plurality the Buehl ary of defendant’s overwhelming the evidence the due to verdict. in unreliable omission resulted guilt, counsel’s an opinions, Justice concurring dissenting In former Chief Nix, and Justice Flaherty, Flaherty, now Chief Justice Justice 9543(a)(2)(ii) a does not create that Section Cappy asserted applicable the Pierce standard stringent more standard than appeals.5 to direct cautionary failing request a instruction after the for to
ineffectiveness
concerning
involvement in robber-
prosecution
evidence
introduced
question. We
to
affirmed the
prior
that occurred
the murders in
ies
judgment
post-conviction
the
of sentence
denial of
relief and reinstated
Buehl,
493,
(1995).
DISCUSSION PCRA Under the Ineffectiveness order understand the evolution standard counsel, ineffective assistance of it necessary to reexamine this Court’s decision Pierce and the effect that Pierce had *7 the then-existing standard for evaluating ineffective assis tance of counsel claims. Court in presented This Pierce was question with the of whether Pennsylvania’s standard for claims, ineffective as assistance counsel set forth in Com 599, monwealth rel. Washington Maroney, ex Pa. 235 427 (1967), A.2d 349 by included the prejudice standard described the United States Supreme Washing Strickland v. ton, (1984). 2052, 104 S.Ct. 80 U.S. L.Ed.2d 674 The majority in Pierce following cited the language Strick land: claim so
Convicted defendant’s that counsel’s assistance was ... as to of a require defective reversal conviction has two First, components. the defendant show that must counsel’s requires showing This that performance was deficient. standard, that had not but concurred Buehl established counsel's pursuant Cappy, joined to the standard. Justice ineffectiveness Pierce Justice, Flaherty, by then now Chief Justice dissented on basis that imposes greater PCRA burden on a defendant than the Pierce no test, and that Buehl had established his counsel’s ineffective- /Strickland failing cautionary regarding a request ness for instruction evidence other crimes. was not func- counsel so serious that made errors by the the defendant guaranteed as the “counsel”
tioning that Second, must show the defendant Amendment. Sixth This the defense. prejudiced performance the deficient serious as errors so that counsel’s were requires showing result is trial whose of a fair a defendant deprive the it can- showings, both makes a defendant reliable. Unless from a break- ... resulted that the conviction not be said result that renders the adversary process in the down unreliable. Strickland,
Pierce,
157-58,
(citing
the ultimate focus
inquiry
must be on the fundamental
fairness of the procеeding
result
whose
is being challenged.
In every
case
court
whether,
should be concerned with
despite the strong presumption of reliability, the
result
particular
is
proceeding
unreliable because of a break-
down
process
the adversarial
that our system counts on
produce
just results.
Strickland,
696,
466 U.S.
Thus,
The United States Supreme has empha- reliability results, sized attention to the of the trial’s thereof, the fairness any is essential to evaluating ineffective assistance of counsel claim. As stated Lockhart Fretwell, 506 U.S. S.Ct. L.Ed.2d 180 (1993):
The test formulated in for determining Strickland whether constitutionally counsel has rendered ineffective assistance Strickland, reflects this concern. we two identified the (1) components any ineffective-assistance claim: deficient (2) decisions, performance prejudice. Under our alleging prejudice criminal defendant must show ‘that coun- of a deprive errors were so serious as to the defendant sel’s Thus, ... result is an fair a trial whose reliable.’ determination, analysis focusing mere outcome solely result of the proceeding without attention to whether the unreliable, To set fundamentally unfair defective. solely aside a conviction or sentence because outcome may grant would have different but for been counsel’s error
309 not entitle the law does the a windfall which defendant him. omitted) (footnote (citations 369-70, omit 838
Id. at 113 S.Ct. ted). in majority Lockhart criticized the Although the dissent Lockhart, standard, 506 see following for not Strickland (Stevens, J., 380, 113 majori dissenting), U.S. at S.Ct. 838 it clearly deviating in indicated that was Lockhart ty in that fairness emphasizing standard the Strickland part of the constituted reliability proceeding of the result Id., 370-71, n. at 506 U.S. prejudice prong Strickland. 3, 113 2, n. 538. S.Ct. Lockhart tension thus see in Strickland and
We Stri,ckland in language created principles between two hand, Supreme the one the United States itself. On determining ineffec when counsel’s gives a clear standard for right her Amendment denies a defendant his or Sixth tiveness counsel, probability is a namely, where there “reasonable errors, the result of unprofessional for counsel’s but Strickland, 466 U.S. would been different.” proceeding have 694, defined as probability” 2052. is 104 “Reasonable at S.Ct. in the out confidence probability “a sufficient undermine has from Strickland prejudice come.” Id. This standard represents jurisdictions,6 in gained acceptance many wide ineffective currently employed Pennsylvania the test See appeal. Appel, claims direct assistance Douglas, supra. supra, established
Yet
the same
that the Strickland Court
at
time
test
test,
rejected
quite
prejudice
as “not
appropriаte”
it
con-
that “counsel’s deficient
proving
based on a defendant’s
case.”
than not
the outcome
likely
duct more
altered
693-94,
Moreover,
Strickland,
2052.
S.Ct. When presented with question the of whether the standard for a evaluating claim of ineffective assistance of counsel under
the is PCRA more than stringent the Pierce standard for ineffectiveness direct appeal, we must determine whether the difference language represents difference meaning. words, In other does thе “so phrase undermined the truth- process determining adjudication no reliable of guilt or innocence could have taken place” greater create burden to prevail on a claim of ineffective assistance of counsel than we in Pierce articulated when we stated that Pennsylvania’s stan- dard and Strickland the “constitute identical rule of law” in Pierce, Commonwealth? Pa. at A.2d at 977. find that language
We the of the does PCRA not higher create a burden on a defendant to show ineffective assistance of counsel than for proving the standard ineffective appeal. ness on direct Both the PCRA and Pierce language reflect aspects two of the same standard: Strickland’s test for determining when prejudiced counsel’s ineffectiveness the Pierce and progeny adopted defendant. its “reasonable the errors, probability but for counsel’s unprofessional the result have proceeding of the would been different” definition prejudice largely ignored other in Strickland language concerning scope of the ineffectiveness as deter inquiry reliability mination of fundamental fairness and the definition, however, The PCRA proceeding. results of the Strickland, reliability-of-the-result mirrors facet of which its in favor of progeny de-emphasized Pierce and have test. ad easily apprehended “prejudice” more Strickland’s the court concerned every “[i]n monition that case should be the particular with whether.. .the result of is proceeding process,” of a unreliable because breakdown the adversarial echo in Strickland, finds its 104 S.Ct. 466 U.S. at PCRA: language following from one or (2) resulted conviction sentence [t]hat following: more which, in the circum-
(ii) of counsel ineffective assistance case, the truth- so particular undermined stances of the adjudication that no reliable determining process place. could have taken or innocence added). (emphasis §9543 42 Pa.C.S. is equivalent standard must PCRA conclude
We assistance of ineffective appeal claims standard for direct us to counsel, require hold would because to otherwise of counsel test the ineffective assistance recognize that stringent than Strickland actually less adopted Pierce do, do, given we should This refuse standard. for ineffective our standard recognition that express Pierce’s is “identical” to appeal on direct of counsel claims assistance ineffective evaluating If the standard PCRA Strickland’s. *11 Strickland, must, as it with comports of counsel assistance Strickland, then to we standard is “identical” our Pierce a defen- burden on places greater hold that the one a cannot than the other. dant for inef- of same standard applying
The reasonableness as in appeal of counsel claims on direct fective assistance of from an examination proceedings apparent PCRA is also raise claims. typically a defendant would ineffectiveness how a of or her trial counsel’s only A defendant will raise claim his appeal on if he or she obtains new direct ineffectiveness сounsel expect on it is “unrealistic to trial appeal, counsel since to his own ineffectiveness.” Common- appeal direct raise (1975). Dancer, Pa. 331 A.2d wealth motions, counsel, through post-sentencing of filing New provide able create record trial court to will be to before of his or her client’s claims of meaningful appellate review However,, the defendant whose trial counsel’s ineffectiveness.7 Indeed, appellate review note that this need for a record for of we Appeals prompted Court of ineffectiveness claims the Third Circuit trial represents counsel him or her on appeal would not raise the ineffective claim, assistance of counsel nor develop a record in of support that claim. That defendant is left with no to present avenue an ineffectiveness except claim through a PCRA proceeding. Were to recognize we a more stringent standard, PCRA we would reward a defendant whose counsel enough skilled recognize substantial question of his or her own ineffectiveness and who recommends new counsel on appeal so that his or may her client benefit the more standard, lenient penalize we would a defendant whose counsel does not identify a substantial question his- own ineffectiveness thus subjecting his or her client to a heavier to prove burden that ineffectiveness the PCRA proceeding. holding that
By the PCRA standard not impose does more burden on onerous a defendant than that required by Pierce, we do rewrite the PCRA nor alter the test for proving ineffective assistance counsel in a PCRA petition. show, The petitioner must still a preponderance of the evidence, which, ineffective assistance the circum case, stances of so particular undermined the truth-deter mining process adjudication guilt that no or reliable inno place. requires petitioner could have taken This cence (1) (2) merit; show: the claim arguable is of that counsel had no reasonable basis for his or her action strategic (3) inaction; and, that, but for the errors and omissions of counsel, is a probability there reasonable outcome of proceedings would have been different. What we hold today is where the has demonstrated that petitioner probability counsel’s created a reasonable ineffectiveness has would have been differ proceedings the outcome ent, adjudication or innocence could then no reliable *12 ordinarily adopt policy that it will entertain of ineffective claims must be raised appeal, assistance of counsel on direct these claims Headley, proceedings. See United 923 F.2d in federal collateral States v. Cir.1991). (3d exception policy The to is when the 1079 narrow permit appellate record is to effective review make sufficient evidentiary proceedings unnecessary. Virgin further See Government of (3d Cir.1984). Zepp, 748 F.2d
Islands v. 125 or adjudication Reliability of taken place. have counsel’s ineffectiveness probability that innocence and the concepts so are proceedings different outcome caused a in Strickland commonly-rooted intertwined and closely to them. separate we refuse heightened create a PCRA does not
Having held that the of counsel than assistance for claims of ineffective standard we appeal, for those claims on direct employed the standard turn Kimball’s claims. to Shorlridge
Cross-Examination of failing for that trial counsel was ineffective alleges Kimball mate, concerning his Shortridge, to his cell cross-examine agreed, The Superior bias. potential pro-prosecution Evans, A.2d relying on Commonwealth (1986). counsel,
Evans did not involve ineffective assistance but Evans, In the principal trial court error. murder in for prosecution charged participation witness was as as crimes murder issue well other unrelated to county. The trial court allowed defense cross-examine promised leniency respect him with to about whether he was issue, concerning questions any the crimes at but disallowed pending promise charges. lenient treatment for the other disallowing appeal, On we held that the trial court erred defense the the witness concern- opportunity cross-examine ing charges. ruling the other In that the trial court commit- error, must jury ted reversible we stated that the be informed accurately possible bias order assess the witness’ if credibility. explained prosecution that even made We witness, no pending any to the either case promises jurisdiction, pending other criminal matter in the the witness favorably may hope testifying for favorable treatment prosecution.8 Evans, completely the Commonwealth based its case almost on the testimony question. testimony only of the witness in His was the Therefore, linking evidence the defendants the crime scene. trial restricting court’s error in cross-examination of the witness for bias was *13 314
Assuming that disclosure of the Commonwealth’s promise would have undermined Shortridge’s credibility, we agree with the Superior Court that Evans establishes the arguable merit of Kimball’s contention that counsel erred in fаiling to impeach Shortridge on this basis. omission, For this trial counsel offered no reasonable explanation. Although counsel’s arguably serious error is unexplained, this does not end our ineffectiveness inquiry. Turning to the element of prejudice, we cannot conclude that counsel’s omission ren dered the verdict unreliable because Shortridge’s testimony was not critical to the prosecution’s case; trial counsel did elicit certain favorable testimony him; im peached his credibility grounds. on other
This case
distinguishable
from Commonwealth v. Mur
phy,
(1991),
Pa.
wealth
Here, however, that Kimball question there was no degree guilt. was Kimball’s Victim; only question Kimball confided testified at trial that Although Shortridge *14 wrapped manually strangled Victim him that he neck, Novem- Testimony, around her Notes of telephone cord 138, 28, 1989, testimony not critical to at was ber presented case. The Commonwealth substantial prosecution’s of manual independent strangulation. Specifically, evidence testimony of Isidore Miha- presented the Commonwealth lakis, M.D., autopsy pathologist, performed a forensic who Dr. that the victim died of the Victim. Mihalakis concluded 237, strangulation. at 244. The doctor manual N.T. 11/28/89 victim not die of a karate gave why also four reasons did (1) throat was not swollen chop the throat: the Victim’s (2) blow; activity from a her heart was affected (3) nerves; any vital the center the Victim’s compression (4) fractured; hyoid Adam’s was not Victim’s apple fractured, from unlikely anything which is to occur bone Also, N.T. at 237-39. strangulation. other than 11/28/89 Wecht, M.D., acknowledged on cross- expert, Cyril Kimball’s injuries, particularly that the Victim’s neck examination fractures, strangulation are consistent with manual bone more Dr. also than to the neck. N.T. at 574. Wecht blows 11/28/89 injuries produced by been stated her neck could not have N.T. at single chop, alleged by karate as Kimball. 11/28/89 Further, 578. the Victim’s John Edward upstairs neighbor, Strausser, murder, night testified on the he awoke screaming, “Help at about 1:45 a.m. when he heard Victim either, choking “they’re choking me” and “he is me” or me.” at 98-99. N.T. 11/28/89 trial
Additionally,
Shortridge
counsel elicited
cross-examination that Kimball
the Victim initiated
claimed
argument.
contact
the course
their
N.T.
physical
151,
Further,
elicited from
counsel
Shor-
11/28/89
tridge that Kimball did not plan to kill the Victim. N.T.
at 164-65. This testimony
11/28/89
is not inconsistent with
Kimball’s version of
Moreover,
the incident.
trial counsel did
cross-examine
Shortridge concerning his prior felony
criminal
record involving burglary and robbery charges. N.T.
at 149.
Perdue,
See Commonwealth v.
11/28/89
387 Pa.Su-
6,
per.
487 n.
(1989),
A.2d
496 n. 6
allocatur
denied,
(1990)(counsel’s
Testimony Reverend Kimball Kimball next argues trial counsel was ineffective for presenting damaging testimony father,' of his adoptive Reverend Kimball. Although appears it in retrospect *15 Kimball’s testimony was not helpful, we cannot Reverend conclude that trial strategy presenting counsel’s this testi was or mony unreasonable so undermined the truth-determin ing that no process adjudication reliable or innocence place. could have taken allegation
Kimball’s is similar to that at issue in Common- (1992). Savage, wealth v. 602 A.2d Savage, disclosed, a prosecution, murder defense counsel open- his statement, ing prior the defendant’s criminal record involving attempted burglary drug convictions for and and weapons strategy offenses. Counsel’s was to the defen- demonstrate willingness past. Following dant’s to be honest about his conviction, assis- appealed alleging the defendant ineffective tance of counsel. held that the introduction of the defen- We prior credibility dant’s crimes to vouch for his was not unrea- sonable, unsuccessful, if even under the circumstances.
Here, that, in explained trial counsel order to reduce Kim- ball’s for him degree guilt, attempted sympathy she elicit *16 the “fa- Kimball did not have why asked Reverend When had with his with Kimball that he relationship ther-child” children, “Including May adoptive responded, [an he other friends, things do congenial. They daughter], we’re we’re please me. I think cannot time when did Daniel some- thing that pleased me.” N.T. at 399. Concerning 11/28/89 adoption, Kimball’s Reverend Kimball provided following testimony:
Q. you Did talk about the fact that adopted? Daniel was A. I tried to.
Q. him you adopted? When did tell he was A. I think at a conscious of four or age five. So,
Q. him you age told four or five that he was adopted?
A. Yes. And,
Q. him you did talk to about that? A. in any meaningful way. Not Q. it? inquisitive happy Was he about it? Was he about saw, what his to that? you Was he—as reaction say expressed any A. I can’t that he ever emotion or curiosity or— he the fact that he was
Q. bring up what context would with him? adopted your discussions is, I angry, A. All I could think the mood was either say have further discussions would been at some moment when the car to the house impossible, running like rain; just beyond any opportunity it was driving when or discussion. development at 402.
N.T. 11/28/89 Kimball, embarrass his son would According Reverend occasions. family to include him social- him when he tried recalled, in his niece’s particular, He at 408. N.T. 11/28/89 at 409. N.T. got Kimball drunk. wedding, at which 11/28/89 tree, Kimball, he “climbed a son According to Reverend Sarah, cried, the attention and demanded sobbed and at 409-10. bride, of him.” N.T. had to take care who 11/28/89 “scene,” Kimball drove him Reverend Kimball made this After at 410. him there. N.T. and left to a bus station 11/28/89 Id. Kimball saw his son. time Reverend That was the last *17 evidence, involuntary an gave court on this Based may While counsel jury.9 to the instruction manslaughter Kim- Reverend presenting course than chosen a wiser have mere guilt, degree Kimball’s to reduce testimony ball’s not successful of action was course counsel’s chosen fact that the circumstances. under it unreasonable does not render Savage, supra. Kimball’s
Moreover, that Reverend we cannot conclude As Kimball notes unreliable. the verdict testimony rendered Court, establishing the to “[ijmportant this in his brief to con- jury’s and the credibility his own claim was defendant’s Kleinsmith had the death of Ms. defense that sideration had her he had with fight and violent resulted from a sudden deliberate and by any not caused in her death was which at 26. Rever- Brief of part.” Appellee, on his intentional act problems that Kimball had behavioral testimony Kimball’s end not inconsis- and violence is anger with prone and was react agree we cannot Accordingly, with Kimball’s defense. tent testimony preju- so admission of with Kimball that the him to the verdict unreliable. diced as render conclusion, his coun- failed to establish because Kimball in set forth to the standard pursuant sel’s inеffectiveness 9543(a)(2)(ii) PCRA, the Order of we reverse Section and Order of the Opinion reinstate the Superior Court and court, Kimball relief. denying PCRA concurring file ZAPPALA and Justice CASTILLE Justice opinions.
ZAPPALA, Justice, concurring:
I
that the standard to
majority opinion
agree
I
in
as
join
equally
should
appeal
on direct
counsel’s effectiveness
evaluate
Post
counsel claims under the
Conviction
to ineffective
apply
provides:
The Crimes Code
involuntary manslaughter
as
result
person
guilty of
when
a direct
A
negligent
grossly
doing
act
a reckless or
of the
manner,
of an unlawful
in
negligent
doing
grossly
in a reckless or
or the
of a lawful act
manner,
person.
he causes the death of another
§2504.
18 Pa.C.S.
joined
Relief Act.
I
Although
opinion
Justice Montemuro’s
Buehl,
(1995),
Commonwealth v.
540 Pa.
At the
it is
state
appeal
to collateral
at
constitutional entitlement
if
level,
to counsel
a state
and no constitutional entitlement
right
appeal.
to a collateral
to furnish
statute the
elects
1990,
551, 557, 107 S.Ct.
Finley,
v.
481 U.S.
Pennsylvania
(1987).
underlying
is no
Since there
In full requiring counsel without assistance of prisoners re- the Constitution protections procedural panoply fundamentally who are to defendants given be quires right. first as of appeal trial and on position—at different
321 the State to context, put does not the Constitution this counsel whatsoever affording no choice between the difficult procedural guidelines.... ... strict following at 1995. Id. at 107 S.Ct. Cappy in by Mr. Justice the concern voiced
Consequently,
(1995),
Buehl,
493,
(a) this sub- eligible for relief under be General rule.—To *19 by prepon- a plead prove must petitioner the chapter, following: the of the evidence all of derance (2) from one or sentence resulted That the conviction following: more of the which,
(ii) in cir- the assistance of counsel Ineffective case, the so undermined particular of the cumstances adjudication that no reliable truth-determining process taken place. or innocence could have guilt of issue, Thus, Legisla- of the statute at the by the words plain in which the to confine relief to those instances ture intended reliability of of counsel undermined the ineffective assistance determined, final is such that the process by the which truth is unreliable. Howev- adjudication or innocence itself er, majority the concludes relief is warranted in any in which probability” instance a “reasonable exists that the outcome of proceedings the would have been but different for Op. By counsel’s ineffectiveness. at 333. forth putting standard, the deviates from majority the words of the statute in significant two and insupportable ways.
First, majority’s invocation of a mere “reasonable proba- in bility” plain standard stands contravention to the more stringent Legislature standard which the enacted section 9543(a), requires unreliability adjudication which of the ineffectiveness, to be guilt, stemming from counsel’s demon- It by “preponderance certainly strated a of the evidence.” a possible probability to demonstrate there is reasonable without able to demonstrate its something being is true Thus, the standard by preponderance truth evidence. than that majority exacting degree is less imposed by by Legislature. imposed
However, majority fact that the by I am less concerned from that degree proof required has lowered the altered the majority than I am that has statute itself proven facts which must be as nature of the qualitative majority exclusively focuses predicate for relief. The would have been proceedings outcome of the whether the ineffectiveness, the fact overlooking different but for counsel’s reliability focuses on whether that the statute itself Although at compromised. truth-determining process coterminous, the concepts might two seem first blush these out that properly pointed has Supreme Court United States ineffectiveness would in which counsel’s instances there are rising without proceedings outcome of the have affected the integrity affected the it would have the level where Fretwell, 506 U.S. Lockhart truth-determining process. (1993), the United States L.Ed.2d 180 113 S.Ct. had trial counsel which a situation Court examined Supreme case object capital failing ineffective been deemed *20 the murder circumstance aggravating to the use The facts which robbery. in the course of committed was already been had circumstance aggravating substantiated underlying the guilt at the defendant’s used to establish felony guilt on a predicated had prosecutor in which the was committed fact that the murder due to the theory murder time, of an “double-counting” such robbery. At the during a when it had penalty phase at the circumstance aggravating of the crime the an element been used establish already Eighth the unconstitutional had been deemed guilt phase that a counsel established Accordingly, collateral Circuit.1 sentencing pro- in the would have obtained different result raise failing to but for trial counsel’s ineffectiveness ceeding issue, cir- only aggravating since one “double-counting” the established, aggravator and since that had been cumstance sentencing proceeding. of invalid at the time legally was relief, Nevertheless, denied Supreme the United States Court as follows: stating decisions, alleging prejudice our a criminal defendant
Under so serious as to that counsel’s errors were must show trial, a whose result is of a fair trial deprive the defendant Thus, on mere analysis focusing solely ... an reliable determination, without attention whether outcome or unre- fundamentally was proceeding result unfair of liable, conviction or sentence To set aside a defective. been different but the outcome would have solely because a windfall may grant for error the defendant counsel’s does not entitle him. which the law added). 369, 113 (emphasis at 842-43 Id. at S.Ct.
Thus, provided has clear Supreme States the United reliability determination and the instruction that outcome concepts two and should adjudication separate are such of a claim ineffective purposes be treated as Nevertheless, overlooking this clear assistance of counsel. admonition, adjudica- majority “Reliability asserts: Supreme By appeal advanced to the United States the time had Court, Eighth had reversed and held that "double- Circuit itself penalty phase consti- counting” aggravating an circumstance at the However, tutionally permissible. Supreme Court the United States Lockhart, hearing sentencing at the assumed time double-counting on the defendant would have been entitled to relief applicable under the issue law.
tion of and the guilt probability innocence that counsel’s of proceedings ineffectiveness caused different outcome the are so in concepts closely commonly-rooted intertwined separate Op. Strickland we refuse them.” I in believe addition to the situation which confronted Lockhart, in Supreme majority the United States the in great potential overlooks a number of other situations which of not implicate the ineffectiveness trial counsel would the determined, which truth is reliability process by of the even a different verdict would have obtained but for that though For a situation could arise which example, ineffectiveness. evidence, of whiсh piece inculpatory central prosecutor’s accused all reasonable beyond demonstrated the of the doubt, of an broad through overly execution was obtained situation, if neglected trial counsel search warrant. such evidence, an appellate for the of such suppression to move that the outcome of the trial would easily court could conclude for trial counsel’s ineffectiveness have been different but However, the evidence. failing suppress to move to would not be that suppressed would be reason such evidence reliability of the evidence undermined the admission determined, rather truth is but by which process an broad through overly obtained of evidence admission In- privacy rights. the defendant’s warrant implicated search highly probative such deed, at trial of the admission to enhance the reliabili- actually would serve relevant evidence determined, it though even which truth is by ty process of the reasons unconnected excludible for be deemed properly would process. truth-determination reliability of the to the Legislature our foregoing hypothetical, of the In the context judgment attack on a collateral determined plainly has the vindication vehicle for appropriate an is not sentence ineffective- counsel’s by implicated which are rights privacy have resulted would rights of those ness, if the violation even suppress motion timely had charges in dismissal of where counsel’s circumstances in the narrow Only filed. been process of the reliability undermined ineffectiveness of collateral proponent does the the truth is ascertained which under the PCRA. to such relief establish an entitlement relief manner, Legis- claims ineffectiveness By limiting of convicted defen- carefully has balanced the interests lature The Commonwealth with those Commonwealth. dants in criminal achieving closure compelling has a interest has been affirmed judgment matters sentence once resources preserves precious as such closure aрpeal, direct arm, and also judicial its arm and its of both law enforcement never-ending their specter victims and families spares *22 do technicalities that procedural based on collateral attacks At the actual or innocence. implicate the defendant’s time, has that convicted Legislature ensured same to a forum in which demonstrate always provided defendant an resulted in the conviction of that counsel’s ineffectiveness person.2 innocent sum, narrowly Legislature I that elected to believe review, on collateral
confine ineffectiveness claims so, province by doing its both Legislature acted well within I policy. also a matter of Because as constitutionally ne- proper by this Court has exceeded its role believe that Legis- I believe the the standard which glecting implement context, I concur in the employ only in this lature chose to majority.3 result reached important again Legislature that the did not have to It is note 2. tampering provide By with the conditions that such a forum all. review, statutory Legislature placed right Court collateral this possibility right altogether. will Legislature risks the eliminate the Legislature easily misap- I note that the could cure prehension laboring by amending which I it is under believe section 9543(a)(2)(ii) only provide for collateral relief in those cases in which likely it is more than not assistance of ineffective actually resulted the conviction of an individual who is innocent misinterpreting clearly expressed fact. There be no such a could standard, and, explained Concurring Opinion, as at the outset any problems. not pose such standard would constitutional Notes of his environment. product him be the showing 31, 1994, thought jury at 47-48. She Testimony, May than a villain “nothing as more Kimball would see Reverend at 47. N.T. himself.” 5/31/94 Kimball, testified that he priest, an Episcopal Reverend months old when he was two Kimball adopted his first wife since his problems behavioral and that he had manifested 28, 1989, at 393-94. November Testimony, Notes of infancy. school; fought he difficulties that his son had explained He N.T. at 397. authority. children defied with other 11/28/89 old, his years parents thirteen or fourteen When Kimball was him. custody of N.T. divorced; Kimball retained Reverend Florida and mother moved to at 394. Kimball’s 11/28/89 at 395. After N.T. family. contact with the ceased 11/28/89 problems serious divorce, more experienced Kimball classes, but the education special referred to school. He was He re- N.T. at 398. rejected him. schools special 11/28/89 school, rejected also school public but public turned to old, years Kimball was fifteen sixteen Id. When him. him to have voluntary petition signed Reverend Kimball at 400. Kimball was N.T. adjudicated delinquent. 11/28/89 at boys. N.T. delinquent to an institution sent 11/28/89 after several the institution away ran 400-01. He Reverend finally 401. He left N.T. at months. 11/28/89 at 404. N.T. age at seventeen. Kimball’s household 11/28/89 Id. One of then, drinking problem. developed he had By son, he asked Kimball saw his that Reverend the last times home, at to a train night him him and drove to leave his at 405. him. N.T. he left in Norristown where station 11/28/89 had a mental Navy, in the Kimball he was Eventually, when breakdown, N.T. hospitalized. for which he 11/28/89 murder, Kimball told after the Reverend Shortly others, bully tends to manipulative, son is detective that his at 415. and violence. N.T. prone anger and is 11/28/89