*1 971A.2d 1216 Pennsylvania, Appellant COMMONWEALTH of REED, Appellee. Adam Supreme Court Pennsylvania. Aug.
Submitted 2008.
Decided June 2009. *2 Breneman, Burns, Jr., A. Phila- Esq., Esq. Debra Hugh J. Office, for of Penn- Attorney’s District Commonwealth delphia sylvania. Strutin, Smarro,
Mitchell Esq., Philadelphia, S. Strutin & for Adam Reed. CASTILLE, C.J., SAYLOR, EAKIN,
BEFORE: BAER, TODD, GREENSPAN, McCAFFERY and JJ.
OPINION Justice TODD.
In this filing we consider whether of a deficient appellate brief constitutes a complete denial counsel so as to warrant a in the context of an case, ineffective assistance of counsel claim. In the instant *3 Superior Court reversed the Appellee PCRA court’s denial of Adam Reed’s for relief under petition the Post Conviction (“PCRA”)1 Relief Act on the basis that the of a deficient filing brief Reed’s direct appeal counsel created a and, therefore, prejudice, that Reed success- fully established he was denied effective assistance of counsel. Accordingly, the Superior Court reinstated Reed’s appellate rights nunc pro tunc. As we conclude that the Superior Court erred in this regard, we reverse. 29, 2002,
On March Reed fatally shot Kenneth 18-year-old Ross on the 2100 block of South 22nd in Philadelphia. Street 16, 2003, April On Reed pled guilty to the crime general (“PIC”). murder and possession of an instrument of crime At degree a of guilt hearing, the presented Commonwealth testimony of two eyewitnesses to the as shooting, well as testimony of the medical examiner. of a support diminish- claim, capacity ed presented the testimony of Dr. Lenae White, a psychiatrist. forensic
The trial court summarized the presented evidence at the degree guilt hearing as follows: §§
1. 42 Pa.C.S.A. 9541-9546. Gill, with on the shooting, Denise who saw the was [Reed] shortly from afternoon until his arrest day question early after the testified that smoked mari- shooting. [Reed] She that he to the juana day, gone hospital earlier and had Gill, According afterward because he had a fever. to Ms. he hospital seeing left the without doctor because [Reed] give p.m., did not want to his name. At about 9:00 [Reed] into an with someone she identified as “the got argument guy.” ignore mafia Gill told this individual to and [Reed] left the area up.” [Reed] was “messed She [Reed] ... went agot bag containing home and duffel [Reed] gun. some clothes and a and Gill then went to her [Reed] changed mother’s house. There clothes and smoked [Reed] “wet,” PCP, some with and her aunt. meaning along Gill Gill testified that then tried to confront “the mafia [Reed] guy,” many people but too were around so he chose not to do so. Gill, midnight, Lyles
Around Elеse and the decedent were inside a take-out Chinese food store at 22nd and McKean Streets. was outside. Ms. testified that [Reed] Gill decedent stated that he was Dece- going “pop” [Reed]. weapon dent had no when he made this comment. allegedly At some ran out of the point, Lyles thought store. Gill what Lyles told the decedent had said. came [Reed] Gill out standing afterward and saw a nearby alley [Reed] with his .9mm gun hand cocked. Gill stated that she thought acting irrationally give [Reed] and asked him to her his handgun hold and to come home with her. [Reed] refused told her to lure the decedent outside so he could *4 refused, shoot him. Gill and told to about forget [Reed] Lyles decedent’s comments. then asked to lure [Reed] [the outside. went back into the Lyles agreed decedent] and store, where accomplished by she her mission to promising have sex with the decedent. later,
A short time Gill saw and the decedent [Reed] near the arguing Snyder intersection 22nd Street and Gill, decedent, According Avenue. to told the “I [Reed] you don’t care whether said it or not.” He then out pulled and five or gun fired six shots. The decedent was about six away to when eight began feet He shooting. [Reed] times____The to but attempted run was struck several fatal shot spinal severed decedent’s cord and penetrated his lungs major and several arteries.
Gill, standing who was in the nearby, grazed leg by one of the immediately shots. She ran to her mother’s house on 23rd disposed street. followed her and [Reed] the gun way. on the changed his clothes while [Reed] inside and told Gill that going he was to flee to Cuba. [Reed], Lyles Gill and then in a got They cab. were apprehended police shortly thereafter. (record 6/30/04, omitted).
Trial Court Opinion, at 2-3 citations mother, Collick, Gill’s Mora also testified that she saw Reed her at house between 9:00 and 10:00 p.m. night on the March 2002. She stated that at one point she looked inside Reed’s duffel and saw a bag .9 mm and two handguns. other When Collick her and sister confronted Reed for bringing home, gun into their Reed became angry and threatened Collick, Collick’s sister with the .9 mm. According was “acting crazy” and to kill threatened “the guy” mafia another individual named Kenny. witness,
Another Selina Looney, who was thirteen at the time, was sitting across the street when Reed shot dece- dent and Looney positively identified Reed as the shooter. She testified that Reed continued to shoot at victim even he after had fallen to the ground.
Finally, Reed presented expert testimony Dr. by White to support his claim of diminished capacity, which the trial court summarized as follows:
Dr. White stated effects PCP are both generally immediate long lasting, and that some of the effects of PCP use often paranoia, include aggression impulsive or trial, hostile behavior. Prior Dr. White interviewed [Reed], who her that told the decedent had threatened him in the Dr. past. juvenile White also reviewed [Reed’s] record, background family and considered [Reed’s] medical *5 have could [Reed] that question, in night on the
state upon Based PCP. ingesting as a result of paranoid become definitely PCP use data, that opined [Reed’s] Dr. this White feeling on he have been may any paranoia accentuated in question. night however, using told her stated, that [Reed]
Dr. also White Dr. Finally, depressed. or him feel mellow often made PCP someone prevent not use would testified that PCP White specific out a carry to beginning formulating from to control oneself it more difficult intent, it make but would before stop completing mind and to their change enough action. intended omitted). (record citations
Id. at 4 found the trial court testimony, foregoing on the Based him to life and sentenced murder first-degree Reed guilty murder, a concurrent sentence 2lk plus for imprisonment denied, were motions post-sentence for Reed’s years PIC. issue, single he in which raised he filed a direct at trial admitting erred the trial court namely, whether act prior of a bad evidence unduly prejudicial “irrelevant and accept was unable to [Reed], the сourt such against Commomvealth capacity?” of diminished defense [Reed’s] Reed, memorandum at 5 unpublished No. 2909 EDA I”). 2005) argument Reed’s {“Reed filed (Pa.Super. June he that hours before of evidence was based on the admission go victim, prepared had armed himself and killed ultimate guy” and kill a different individual—“mafia out —but was dissuaded Gill. ly concerning relevant case law forth the setting
After acts, bad prior testimony regarding admission concluded: standards, light of these have examined the record We relief for several entitled to is not [Reed] and conclude developed is not suffi- First, argument reasons. [Reed’s] Fail- review. meaningful appellate for us to conduct ciently author- citation to with argument appropriate to provide ure of the issue. results waiver ity Second, brief refеrs to evidence in the [Reed’s] notes of testimony, but the of testimony *6 Thus, certified record. we are unable to read the testimony and evaluate argument. [Reed’s]
It is an appellant’s duty to ensure that the certified record is complete purposes for of review. We decline to review this record, issue with an incomplete and consider the issue to be waived.
Third, if issue, even [Reed] had not waived the [Reed’s] argument is undermined by that a verdict by judge in a bench trial was not by influenced extrane- prejudicial ous evidence. Jurists’ training and experience them equip to be more critical judicious in their evalua- tions than a jury would be. “The a verdict of judge, sitting without a jury, need not be nullified merely as a conse- quence of exposure to prejudicial evidence.”
Fourth, even if issue, had not [Reed] waived the challenged evidence was admissible under an exception to prohibition against evidence of prior bad acts. The record reflects that had pled guilty [Reed] to murder gener- ally. The hearing was for the purpose of establishing appropriate murder, degree of which depends on a defen- dant’s intent or mens rea. The events leading to the killing were critical to degree of guilt, [Reed’s] particularly light of [Reed’s] defense of diminished capacity his expert’s testimony concerning effects of The PCP use. evidence was, therefore, admissible 404(b)(2), under Pa.R.E. which permits crimes, evidence of other wrongs, or acts for the purpose intent, preparation, of proving plan, or all of which were at Also, issue in this сase. in a general way, evidence was admissible under the exception contained Billa, [Commonwealth v. Pa.
(1989)] (the bad acts were part of a chain or sequence events that formed of the history case and were part of its natural Thus, development.) there was no reversible error in the admission prior bad acts evidence. I, Reed omitted). at 7-9 (emphasis original, case citations Reed did not seek permission to appeal with this Court. petition, filed a se PCRA pro Reed May 16, 2006,
On on was filed subsequently petition amended PCRA counseled requested permis- Reed petition, amended behalf. In the his tunc, that the asserting pro nunc appeal file a sion to direct on issues waived have deemed his would not ineffectiveness. counsel’s appeal but for direct appeal direct March on petition 7, 2007, Reed’s court dismissed The PCRA actually or con- he was that Reed failed to establish finding counsel’s conduct. appeal direct structively prejudiced effective that he was denied appealed, arguing of direct as a result of sentence judgment review of ineffectiveness; per se that counsel’s conduct counsel’s denying court thus erred and that the PCRA prejudicial; him relief under PCRA. *7 court’s order dis- reversed the PCRA
The Court The court first determined petition. missing Reed’s PCRA It then con- previously litigated. claim was not that Reed’s adequate appel- file an counsel’s failure to cluded that Reed’s such Reed to a presumption late brief entitled ineffective assis- provided established that counsel that Reed tance. determina Court’s initially
We address The previously litigated. not tion that Reed’s claim was reasoned: Superior Court merits of underlying this Court discussed recognize
We are appeal.... of his direct We disposing issue in [Reed’s] however, as a on the hesitant, ruling to view this discussion by The issue disposed merits of the issue. waived, is used in the as the term “waived” finding it was not to the fact that it was due context of direct with ade- was not supplemented appropriately briefed essence, declined to the Court of record. quate evidence to review. nothing because there was review issue ruled on find the Court reality, we cannot also Given this because, aptly as the Court the merits of [Reed’s] .issue issue, noth- there was considering [Reed’s] concluded before to the that issue. To conclude relative to to review ing untenable. contrary would be
265 Reed, 2007, Commonwealth v. No. 982 EDA unpublished memorandum, 2007) at 4-5 n. 5 (Pa.Super. filed October (“Reed II”).
This explained Court has that a decision on “[w]here rests valid, grounds two or more none equally may relegated be the inferior status of obiter dictum.” Commonwealth v. (1962). 241, 245, Swing, 409 Pa. 186 A.2d In the instant case, while the I Superior Court determined that waived, Reed’s claims were it also determined that even if the waived, merit, claims had not been they were without and the court explained Thus, the basis for its conclusions. the Supe- rior Court’s in Reed I holding that Reed’s claim regarding the admission of bad prior testimony acts was meritless was a valid holding case, constitutes the law of the see Com- Starr, 564, 578, monwealth v. Pa.
(1995) (holding jurisdiction the coordinate rule and all its attendant meanings limitations exрressed previous case law would doctrine),2 be assumed into law of the case con- straining Court Reed II.
However, the issue of whether counsel’s failure to file a
brief
proper
on appeal constitutes a
denial of
complete
right
effective assistance of
obviating
need to
establish actual prejudice, is distinct from the issue considered
Superior Court in Reed I
regard
with
to the underlying
Indeed,
merits of Reed’s evidentiary claim.
a determination
that Reed’s counsel’s actions were presumptively prejudicial
*8
explained
2. This Court in Starr
the law of the case doctrine as follows:
family
This doctrine refers to a
embody
concept
of rules which
the
phases
that a court involved in the
litigated
later
of a
matter should
reopen questions
by
not
judge
decided
another
of that same court or
by
higher
phases
in
Among
court
the earlier
of the matter.
the
up
related but distinct rules which make
the law of the case doctrine
(1) upon
are
proceedings,
that:
remand for
may
further
a trial court
legal question
not alter the
previously
by
resolution of a
decided
the
matter;
(2)
appellate
upon
court in the
appellate
a second
an
may
court
legal question
not alter the resolution
previously
of a
court;
by
(3)
decided
upon
the same
transfer of a
judges
jurisdiction,
matter between trial
of coordinate
the transferee
may
trial
legal question
court
not alter the
previously
resolution of a
decided
the transferor trial court.
574,
Id. at
would render
the
establishing
the
of
purpose
in
I immаterial for
claims Reed
Pierce,
153,
v.
515 Pa.
under Commonwealth
prejudice prong
(1987).
we next consider whether
Accordingly,
3. of review in an from the or Our standard ruling requires of the PCRA court is relief us to determine whether legal supported by record and is free from error. See Common- 698, 710-11, (2007). Washington, wealth v.
267
that he
concluding
established
was denied
effective assistance of
Court Reed II
that,
properly noted
in order to obtain relief based on such a
claim,
(1)
petitioner
must establish:
claim
underlying
has
(2)
merit;
arguable
no reasonable basis existed for counsel’s
act;
(3)
actions or failure to
petitioner
suffered
aas
result of counsel’s error such that there is a reasonable
probability that the result of the proceeding would have been
Piеrce,
158-59,
different absent such error.
The Superior Court determined that Reed’s claim was of merit, arguable noting that it previously held “appellate coun- sel’s failure to file an adequate brief on dire'ct appeal consti- tutes a complete deprivation of the constitutional right II, appeal.”5 Reed Johnson, at 6 (citing Commonwealth v. 620, 889 A.2d 623 (Pa.Super.2005)). In finding Reed estab- Pierce, lished second prong under the court stated “[t]he failure to follow the Rules of Appellate Procedure in perfect- an ing appeal is de unreasonable.” Id. Finally, the facto Superior Court held there was question “no that the failure of appellant’s counsel on direct appeal to file an adequate brief highly was prejudicial,” and indeed held that such failure created a “presumption prejudice.” Id.6 arguable 4. The merit and the reasonable basis for counsel's conduct Pierce, prongs, by as set forth this Court are derived from the performance” "deficient component of Strickland. See Commonwealth 16, Mallory, (2008). n. 699 n. 16 guaranteed 5. A right V, defendant is appeal to direct under Article Pennsylvania Section Constitution. Notwithstanding 6. its conclusion that Reed "carried his burden of proving performance insufficient,” his counsel's on direct Court continued: analysis our does not presents conclude there as this case an addi- court, reference, tional facet. The PCRA by and the Commonwealth argue though prejudice
both that even presumed must be in this case is overcome the fact that this Court conducted a *10 of presumption prejudice, entitled to a Reed was holding
In
decision Common-
in
relied on this Court’s
the
Court
Superior
(2005).
795,
173,
801
164,
Halley,
wealth v.
582 Pa.
alia,
murder,
of,
inter
first-degree
was convicted
Halley
filed a
Halley’s counsel
imprisonment.
to life
was sentenced
him to file
the trial court ordered
appeal,
notice of
timely
pursu-
of on
complained
of matters
a concise statement
1925(b)
Pennsylvania
Appellate
the
Rules of
ant to Rule
of
1925(b) statement,
file a Rule
Procedure.
failed to
Counsel
the
opinion addressing only
an
and the trial court
issued
In
Halley’s conviction.
sufficiency
support
of the evidence to
Court,
the
asserted that
Superior
Halley
to the
his brief
the verdict and that
support
was insufficient
evidence
Superior
The
of
evidence.
against
weight
verdict
Commonwealth
Court,
holding
on this Court’s
relying
Lord,
(1998),
that it was
Pa.
Id. at 7. With
First,
Superior
Court's characteriza-
we make two clarifications.
position
and the Commonwealth concern-
tion of the
of
PCRAcourt
entirely
ing
presumption
prejudice in the instant case is not
of
Indeed,
opinion,
"there is no
accurate.
in its
the PCRA court stated
proven
arguable merit
that
question that
has
his claim has
[Reed]
strategic
providing
for not
counsel had no reasonable
basis
and/or
not,
Superior
required
with the
documentation.
has
[Reed]
court
however,
actually
constiTictivelyprejudiced
that he was
or
established
5/29/07,
Opinion,
(emphasis
PCRA Court
at 3
counsel's inaction."
that,
Likewise,
added).
the Commonwealth asserts in its brief
because
counsel,
presume
complete denial of
it was error to
there was not a
Thus,
prejudice.
Brief at 12.
neither the PCRAcourt
Commonwеalth's
presumed.
In-
agrees
that
must be
nor the Commonwealth
deed,
presumption
preju-
entitled to a
the issue of whether Reed is
Second,
suggestion
clearly
dispute.
that
dice
is in
Court's
prejudice may
"overcome" is also erroneous.
presumption
a
Indeed,
be
it cannot be
presumption
a
is that
the crux of
supra.
rebutted. See
counsel,
After obtaining new
Halley sought reinstatement of
his
appeal rights
direct
under the
PCRA.
he
petition,
alleged
prior
counsel was ineffective for
to file
failing
1925(b) statement,
Rule
resulting
waiver of his claims on
direct
The
appeal.
PCRA court
Halley’s
dismissed
PCRA
petition,
that his
concluding
claims were meritless.
On
Halley argued that trial counsel’s failure
protect
“to
his appel-
rights
late
amounted to an actual or constructive dеnial of
such,
and as
was entitled to a
[he]
Halley, 582 Pa. at
prejudice.”
In reversing Superior Court’s holding concluding 1925(b) that counsel’s failure to file a court-ordered Rule statement constituted the type actual or constructive denial of assistance of counsel under which prejudice is legally presumed, opined: we Lantzy
[Extension of from the situation entailing fail- ure to file a requested dirеct appeal to the circumstance involving 1925(b) the failure to file a Rule statement repre- sents but a Indeed, modest and step. incremental while certainly the holding any decision is to be against read facts, Lantzy’s reasoning expressly subsumed not only the unjustified failure to file a requested direct but also, the perfect failure to the appeal. Since Lord estab- lishes that 1925(b) the submission of a court-ordered Rule statement is a prerequisite review, to appellate merits 1925(b) (when directed) Rule statement is elemental to an Thus, effective perfection of the appeal. Lantzy’s reasoning applies terms case, its to counsel’s in dereliction this which left Appellant without an ability challenge conviction and sentence by means of the direct appeal. (case citations and at 800 Pa. at 870 A.2d
Halley, 582 omitted). footnotes rejected Superior Court’s
Additionally, we a court- the failure to file suggestion Commonwealth’s 1925(b) ato situation equivalent statement is ordered Rule 1925(b) statement, meri- but omits a Rule where counsel files torious issues: to presume whether established that the decision is well
[I]t actual to demonstrate appellant an require or to of the of the magnitude deprivation “turns on the we of counsel.” As observed to effective assistance right is direct perfect requested the failure to Lantzy, all. at having representation no equivalent the functional completely failures that degree The difference in between review, may those which result foreclose ambit, justifies presumption nаrrowing application its Furthermore, limiting in the more extreme instance. difference in recognition from the of such principle arising concern that Court’s degree addresses every not extend to circumstance should claim effective may appeal. which a defendant no omitted). (case Finally, at 801 citations Id. at immaterial, the fact that the PCRA we but found recognized, (on review) collateral had con- court and the claims and Halley’s underlying review of ducted a merits merit. Id. at n. 5.7 found them to be without *12 case, argues In the the Commonwealth instant to in that Reed was entitled determining Court erred and instead Halley, a based on Reaves, in that this decision Commonwealth argues Court’s case, (2007), In that controlling. is following judgment imposed Reaves of sentence appealed (1) (“VOP”) hearing, asserting a violation of probation in of the range a sentence excess imposing VOP court erred stating without its sentencing guidelines recommended Halley’s reviewed ineffectiveness claims under 7. The Court Pierce, required Halley which three-part the traditional test set forth prejudice. to establish actual (2) record, reasons for doing so on the the sentence was excessive. The Superior Court affirmed the judgment of sentence, that the noting sentencing guidelines apply do not and, therefore, VOP sentences the VOP court did not err to state failing its reasons for departing therefrom. It also held that Reaves’ excessive sentence claim was waived because he failed to for petition reconsideration or otherwise rаise the issue before the court. sentencing
Subsequently, Reaves filed PCRA petition, asserting a layered (1) ineffectiveness claim on the that: basis VOP hearing provided counsel ineffective assistance by failing to (2) sentence, file a motion for modification of VOP appeal counsel was ineffective failing for to claim that VOP hearing- counsel was ineffective in waiving his sentencing issues. The Commonwealth filed a motion to dismiss on the ground that Reaves was not entitled to relief because he failed to demon- strate that he prejudiced by was counsel’s failure to seek modification of sentence. The rejected PCRA court Reaves’ argument that VOP counsel’s failure to file a motion for reconsideration the equivalent of failing to file a direct and, therefоre, that prejudice should presumed. be The PCRA court further determined that Reaves failed to establish actual prejudice as a result of conduct, VOP counsel’s and thus dismissed Reaves’ PCRA petition.
Reaves appealed
Court,
to the Superior
which reversed the
PCRA court’s denial of PCRA relief. The court determined
that Reaves’ claim had arguable merit because VOP courts are
required to state the
for
reasons
the overall sentence imposed,
and there was no reasonable basis for VOP counsel’s failure to
object to the court’s failure to do so. The Court further
determined that counsel’s inaction “caused
[Reaves]
”
because counsel ‘effectively waived
right’
[Reaves’]
chal-
lenge the discretionary
aspect
his sentence on аppeal, and
concluded that Reaves “successfully
an
established
ineffective
assistance of counsel claim.” Id. at
272 of wherein appeal, allowance for petition
the Commonwealth’s erred the that argued the Commonwealth counsel assistance VOP on ineffective relief based granting he suffered actual did not demonstrate Reaves where prejudice. the two between first noted the distinction we appeal,
On
test, a
for ineffectiveness. Under
tests
Strickland/Pierce
However, pur-
actual prejudice.
must demonstrate
defendant
“that are so
Cronic,
circumstances
there are some
suant to
their
the сost of litigating
the accused that
likely
prejudice
bemay
unjustified,”
prejudice
case
effect in a
is
particular
658,
2039.
circum-
at
104 S.Ct.
Such
466 U.S.
presumed.
an actual or constructive
there was
stances include “where
counsel’s assis-
interfered with
the state
denial
Reaves,
tance,
conflict of interest.”
or counsel had an actual
considering
presumed
at 1128. In
(2008), this Court considered whether the presumed prejudice
exception to
should
wherе
apply
a defen-
Strickland/'Pierce
dant’s right
jury
to a
trial is waived as a result of counsel’s
failure to challenge the
validity
defendant’s oral waiver
Therein,
of that right.
Mallory and two co-defendants were
aggravated assault,
murder,
convicted of
attempted
and lesser
crimes at a bench trial. Following unsuccessful direct ap-
peals, each appellant
alia,
filed a
petition
PCRA
inter
alleging,
that trial counsel was
ineffective
failing
challenge
knowing, voluntary, and intelligent nature of his waiver of a
trial
jury
where the trial court failed to conduct an on-the-
record oral jury waiver colloquy pursuant
to Rule 620 of the
Pennsylvania Rules of Criminal Procedure. The PCRA court
granted relief in the form of new trials. The Commonwealth
appealed, and the Superiоr
reversed,
holding that the
defendants failed to
i.e.,
establish actual prejudice,
that the
joint
outcome of their
trial would have been more
if
favorable
conducted before
jury.
a
This Court granted review “to
consider the proper approach to
prejudice
the present
ineffective assistance of counsel context.” Mallory,
Although this Court reversed the Superior Court’s decision that, based on our conclusion in order to prove preju- actual dice, a defendant asserting waiver jury was unknow- ing due to involuntary counsel’s ineffectiveness need only demonstrate a reasonable probability that the result of absent counsel’s have been different would proceeding
waiver (as that the outcome demonstrating opposed ineffectiveness more favorable than bench trial have been jury of a would trial), rejected argument the appellants’ we stating: presumed, should be line, within the Strickland squarely claim at issue falls
[T]he
circum-
present
The
exception.
and not
limited
Cronic’s
the assistance of
with
appellants,
stances-where
jury
of-record written
waivers-is
signed,
executed explicit
in Lantzy
scenarios found
unlike the presumed
caused the
lapse
complete
counsel’s
Halley,
where
*15
the client. This
appeals requested
default of direct
executed,
situation,
written
waivers were
jury
where valid
of
“complete
not
the
failure”
counsel
represent
does
presumption.
trigger
would
Cronic
197-98,
[I]n
[543
recently reaffirmed the narrow
Supreme
the U.S.
Nixon,
presumed prejudice exception.
limits of Cronic’s
that a
of actual
High
showing
Court held
where the defendant claimed that counsel was
required
capital
at the
of a
conceding guilt
guilt phase
ineffective for
of
infrequency
trial. The Nixon Court also described the
rise to the
and
giving
presumption,
circumstances
Cronic
is limited to situations where coun-
reiterated
Cronic
i.e.,
entirely
“counsel
sel’s failure is
where
has
complete,
as the client’s advocate.”
failed to function
(citations
195-96,
Most in Commonwealth (2008), was not appellant this Court held that A.2d under Cronic where entitled to a mere- during penalty phase argument, aрpellant’s then out verdict and walked ly jury’s guilt-phase attacked courtroom, never to return. Distinguishing the circum- presumed stances Steele from “the prejudice scenarios found in Lantzy Halley, where counsel’s caused the lapse client,” default complete appeals of direct we requested by noted that Steele’s attorney presented testimony of two in support witnesses elicited mitigation, testimony favorable Steele, and conducted a penalty-phase closing argument. Thus, Id. at 812. despite jury’s counsel’s failure to focus the attention on applicable mitigating factors and his act of leaving courtroom, we declined to conclude that Steele’s counsel “entirely failed to function as advocate.” Id. Appellant’s mind,
theWith
afоrementioned cases in
we likewise
brief,
conclude that the
of an
filing
deficient in some
another,
or
aspect
does not constitute a
failure to
complete
function as a client’s advocate so as to warrant a presumption
of prejudice under Cronic. Unlike the case in Lantzy, Halley,
Liebel,
contrary
to the Superior Court’s conclusion
herein, Reed’s direct
appeal counsel’s conduct
the instant
case did not deprive Reed of his
right
constitutional
to appeal.
Significantly, Reed’s
direct
counsel
a timely
filed
notice
of appeal, which was docketed with the prothonotary. Al
though the
Superior Court
Reed I opined that counsel’s
failure to provide appropriate
authority
citation to
and a copy
of the notes
testimony
resulted in waiver of Reed’s argu
*16
ment, the court did not quash
Indeed,
Reed’s appeal.
issues apparently were sufficiently presented to allow the
court to address the merits of Reed’s arguments, as the court
indicated that it reviewed the evidence and the record. See
I,
most,
Reed
at 9. At
the Superior Court’s review of Reed’s
arguments on the
may
record before it
be viewed as a
Reaves,
of the
“nan-owing
ambit” of
appeal.
Reed’s
See
Pa. at
Moreover,
For the reasons set forth we hold the Superior Court in erred Reed concluding was entitled to a nunc pro tunc appeal on the basis that appeal his direct counsel was ineffec- that, under the law, we conclude
tive as a matter of because case, is not entitled to the benefit of this circumstances prejudice. of a a we would vacate and remand for determination
Ordinarily, actual un- Reed nonetheless established whether for an ineffective assistance of three-prong der Pierce’s test noted, However, previously Superior claim. as counsel I, evidentiary finding in Reed in addition to Reed’s Court waived, prior further that evidence of Reed’s claim determined was, fact, admissible, this determination is bad acts on remand under doctrine binding on result, unable, Reed will be as a of law of the case. As a law, to establish that he suffered actual matter of a deficient brief. filing based on trial counsel’s Collins, 45, 61, See Commonwealth v. (2005) ineffectiveness claims raised (holding are distinct from those claims raised on direct petition
PCRA three-prong and must be reviewed under the test of Pierce, the claim recognizing many may but instances merit or for ultimately arguable prejudice prong fail on the Accordingly, on under appeal). the reasons discussed direct case, a remand would serve the circumstances of instant purpose, no and so we reverse order Court. reversed.
Order
CASTILLE,
EAKIN,
BAER and
Chief Justice
Justice
join
opinion.
GREENSPAN
McCAFFERY
Justice
files a dissenting opinion.
Justice SAYLOR
SAYLOR, dissenting.
Justice
dissent,
I
as I
counsel
respectfully
regard representation
effective merits review of all
whose dereliction forecloses
equivalent
on
to be the functional
appeal
claims raised
at all.
I do not see a material difference
having no counsel
untimely filing;
the entire
based on
forfeiting
between
and failure to file a brief which
perfect
appeal;
failure to
event, can
on the merits.
In each
client
be considered
*17
any
merits review of
issue.
garners
appellate
no effective
The
majority
concern
expresses
extending
to a defect
appellate
in an
brief
rule,
“essentially would transform the
into a
exception
as
many
contain
arguable
briefs
at least one
defect.”
Majority Opinion,
However,
at
For the above I would affirm the order of the Superior Court.
Appeal America, of I.U. North Inc.
Supreme Court Pennsylvania.
Argued Dec. 2008.
Decided June 2009. notes are not included in the