*1
Decided Dec. *4 Silverman, Philadelphia, for Delores Rivers. Daniel Marshall, for Commonwealth. Catherine Graci,Harris- William Philadelphia, Robert A. Young, G. Attorney for burg, Office of General. CAPPY, FLAHERTY, ZAPPALA, C.J., and
Before N1GR0, SAYLOR, CASTILLE, JJ. NEWMAN THE JUDGMENT ANNOUNCING OPINION OF THE COURT FLAHERTY, Justice. Chief petition of a appeal
This is a
from the denial
direct
degree
first
was convicted of
penalty
a death
case. Rivers
15,
day,
jury deter-
on March
1989. The next
murder
and no
circumstances
aggravating
were two
mined
there
This
penalty
circumstances and fixed the
death.
mitigating
v.
judgment of
at Commonwealth
court affirmed the
sentence
(1994),
Rivers,
394,
To be relief under the evidence: plead prove by preponderance must (1) That of a crime under has been convicted at the relief is laws of this Commonwealth and is time granted:
(i) imprisonment, pro- currently serving a sentence crime; parole bation or (ii) of a of death for the awaiting execution sentence crime; or
(iii) expire must before the serving a sentence which serving disputed sentence. person may commence *5 (2) That or the conviction sentence from resulted one following: more of the
(i) A violation of the Constitution of this Common- wealth or the Constitution or laws of the United States which, case, particular in the of circumstances so truth-determining process undermined the that no reli- adjudication guilt able of or innocence could taken have place.
(ii) Ineffective assistance of counsel which in the cir- case, particular cumstances of the so undermined the truth-determining process adjudication that no reliable of guilt or place. innocence could have taken (iii) plea guilt A unlawfully induced cir- where the likely cumstances make it that the inducement caused the plead guilty petitioner and the is innocent. (iv) improper by government The obstruction officials petitioner’s right appeal where meritorious appealable properly preserved issue existed the trial court.
(v) Deleted.
(vi) unavailability at exculpato- The the time of trial of ry subsequently evidence has become available would if changed have the outcome of the trial it had been introduced.
(vii) imposition greater The of a sentence than the law- ful maximum.
(viii) A in a proceeding jurisdiction. tribunal without (3) That allegation error has not previously been litigated or waived.
(4) litigate That prior the failure the issue to or during trial, unitary during appeal review or on direct could not rational, any have been the result of strategic or tactical decision counsel. 9543(a)(l)-(4). In appeal, Pa.C.S. Rivers raises twen-
ty-two issues. Nine of these allegations issues concern guilt phase; error at allegations ten issues concern phase; penalty error one issue allegation concerns the biased; allegedly that the PCRA court is one issue concerns newly final discovered evidence claim that cumulatively require errors relief.
Fearing that has not requirements she met the of the PCRA claims, to presérve guilt phase her Rivers states: claims The for relief discussed this brief were all presented in proceedings appel- the PCRA below. This is only proceeding. lant’s first and PCRA This has Court reviewed, merits, always by on their claims the raised capital petitioners PCRA who in a posture were similar to that here. appellant’s
All of eligible claims are for relief under the claim, respect appellant PCRA. With to each asserted below and this Court that her conviction sentence result- and/or ed from ineffective assistance counsel and violations of the Constitutions of this Commonwealth and of the United that truth-determining process. States undermined the Furthermore, concept to the extent that the can of waiver properly applied case, be to this capital any waiver by appellant’s allegations overcome prior counsel ineffective the extent that he properly preserve, failed to litigate presented raise and claims herein.
Brief at 13-14.
Rivers’ on reliance this court’s unwillingness apply ordinary principles of waiver to this capital case because it is a misplaced. case is As we stated in Commonwealth v. Al brecht, “Henceforth, petitioner’s a only will waiver be upon excused a demonstration of ineffectiveness of counsel in (1998). waiving the issue.” 554 Pa. misplaced Also is Rivers’ belief that because she has “as- counsel, serted below and in this Court” the constitution, violations of and that such violations under- determining process, mined the truth guilt phase are not waived.
A cursory reading of the PCRA reveals that PCRA petitioners, relief, must, eligible alia, be plead inter and prove by preponderance their assertions of the evidence. 9543(a). proof require- and pleading Inherent in this
Section what his only must not state issues petitioner ment is that the are, pleadings in his briefs also he must demonstrate but Moreover, allegations of proved. will how the issues be counsel must be or of ineffectiveness of constitutional violation “in circumstances of the case.” Section discussed 9543(a)(2)(i-ii). Additionally, petitioner must establish alleged that because preponderance evidence ineffectiveness, adjudi- “no or reliable constitutional violation place.” could Section guilt cation of or innocence have taken 9543(a)(2)(i-ii). plead prove must Finally, petitioner 9543(a)(3), finally litigated, has not been waived the issue earlier, litigated if issue has not been litigate failure to “could not plead prove must rational, any strategic or tactical the result of have been 9543(a)(4). by counsel.” Section decision *7 Moreover, in of Rivers’ claims is couched because each counsel, prove, by a she must also terms of ineffectiveness evidence, following: of the the preponderance claim; (2) (1) that underlying to the that there merit or had no reasonable basis for his her course counsel (3) that, conduct; probability that is a and there reasonable challenged, the outcome of the but for the act or omission v. different. Commonwealth proceeding would have been (1996). Jones, 161, 175, 1181, 683 A.2d Coun- 546 Pa. Appellant to and has the burden presumed sel is be effective Marshall, v. 534 Pa. Commonwealth proving otherwise. (1993). Additionally, counsel cannot be 633 A.2d failing for to raise a claim that considered ineffective Peterkin, Pa. without merit. Commonwealth (1994).... A.2d 121 1039, 1044 Holloway,
Commonwealth v. (1999). claims couched guilt phase all of Rivers’ are
Although that has been constitutional boilerplate language in the there properly failed to [counsel] and “to the extent error claim, litigate pi-ior counsel was preserve, raise of counsel under- and such ineffective assistance ineffective proceeding,” in the no mines confidence outcome in proof the circum- guilt-phase claim does Rivers offer case, adjudication guilt no reliable inno- stances of the place; present does she have taken nowhere cence could above, and in no analysis set out three-part the ineffectiveness waived, claims not that her are case does Rivers establish 9543(a)(8), litigate or that the failure to issue earlier rational, any strategic or “could not have been the result of 9543(a)(4).1 counsel,” tactical decision Section in Discussion of of the case claims of the circumstances particularly important require- of counsel is a totality only ment of the PCRA. Circumstances include not trial, may that was but the evidence introduced include prosecution also facts concerning the the case with Riv- appellant’s lawyer. interactions Nowhere does ers discuss in her ineffectiveness claims the circumstances of crucial, at trial.2 the evidence This is for courts need to be (1) guilt-phase failing 1. are Rivers’ the trial court erred in (2) life-qualify jury qualified improperly the trial court death (3) jury; challenges peremptory exercised that were Commonwealth (4) racially discriminatory; failing trial in counsel was ineffective request cautionary concerning appellant's instructions evidence of the acts; (5) preventing other crimes and bad the trial court erred in witness; (6) impeaching defense from a Commonwealth the court erred instructing jury concerning prior of Commonwealth convictions witnesses; (7) failing request trial counsel was inefiective in caution- ary respect inflammatory photographs with instructions of the de- ceased; (8) lading guilt the irial court erred to record the conferences; (9) penalty phase charge trial counsel was ineffective by multiple the defense that the victim was killed perpetrators appellant’s under circumstances which cast doubt on *8 participation. trial, part, employed 2. Evidence introduced at in is that Rivers was victim, amputee 74-year-old kept the nurse caretaker of the a who night in in several thousand dollars cash her home. On the of the murder, smoking was cocaine at the of a friend located Rivers house evening approximately two blocks from the That Rivers victim's house. money buy rarr out of to cocaine and left the home of her friend about p.m. neighbor p.rtr. or A 7:30 8:00 was with the victim until 9:00 Rivers p.m. evening returned to the crack house about 10:30 or 11:00 that with large fifty a number of dollar bills stuffed in her shirt. Rivers offered to pay people say two of the to had been at the that she crack day night. house all and Rivers also told a wonran at the crack house case, why, considering totality peti- of the told when making establish that the trial tioner believes the she reliably adjudicated or inno- guilt court could not' have her cence.
Consider, trial court example, for Rivers’ claim that preserving and was in not the issue erred counsel ineffective improperly disquali- of the venire were certain members above, in all claims of fied. As stated violated, counsel or that the law or constitution was required plead prove by preponderance and appellant case, that in of her the court evidence the circumstances reliably adjudicated guilt could not have or innocence. The totality circumstances each case include the of the evidence respect appellant’s guilt. at trial with The established appellant smoking facts trial are that was established two night cocaine on the of the murder blocks from the house, cocaine, money crack buy victim’s ran out of left the blood, reappeared spattered and a short time with house later knife, possession large fifty of a shirt stuffed with bills, had claiming dollar she stabbed and robbed someone testify asking persons present she had been victim, day night, all an invalid in there when the the care had appellant, during period been stabbed ánd robbed persons and no other stabbed and robbed in this time were someone, money beating stabbing that the came from and she dispose asked this woman to of a knife for her. A witness at the crack pants white house testified that she saw blood stains on Rivers' yellow jacket hysterical and that Rivers became about the blood and help wiping asked for it The Commonwealth established that for off.. victim, geographic area the crack house and the there were no near beatings stabbings night reported on the of the murder from 4:00 through p.m. midnight day. Additionally, next of the when Rivers’ employer death, anything asked her whether she knew about the victim's anything lady,” replied Rivers "I didn't do to that and when victim, anything replied asked whether she knew about the Rivers "It's your none of and left the office. business” sum, review, In as we found on direct the Commonwealth established home; vicinity that Rivers had access to the victim’s was in the on the murder; night shortly possession seen after murder money, having large boasting amount of blood stained and stabbed someone; guilt and robbed and acted in a manner consistent with after the homicide. *9 light In of these city during period of time. part of the facts, any disqualifying said that fairly can it be error trial court unable to the venire rendered the members of guilt or innocence? That is what reliably adjudicate plead prove by preponderance must and a appellant PCRA Accord, Pa. Holloway, evidence. Commonwealth (1999)(failure that counsel’s prove to truth-determining that no process errors “so undermined the guilt or innocence could have taken adjudication reliable counsel). fatal to a claim of place” is PCRA ineffectiveness merely appeal claims are not direct claims in a stage proceedings, made at a later of the cloaked are essence, of counsel’s In boilerplate assertion ineffectiveness. they extraordinary system assertions that the broke down. are constitutional or To establish claims of error ineffectiveness counsel, plead by preponder must and prove system that the failed lor an ineffective ance of evidence claim, that in the circumstances of ness or constitutional error trial, case, guilt facts at or including his established adjudicated reliably), that his innocence could not have been waived, previously litigated or and where claim has not been stage proceedings, not raised at an earlier claim was strategic not had a rational or tactical that counsel could have litigate claims earlier. reason for these to be requirements Rivers has failed to meet these Hearing Act with eligible for relief under the Post-Conviction claims, guilt-phase petition, respect any of her therefore, properly respect dismissed with to these claims.3 guilt phase length only respect
3. We have with discussed claim of coun- Rivers' ineffectiveness of counsel because ineffectiveness commonly petitions. All of Rivers’ claims are so raised in PCRA sel 9543(a)(3) guilt phase pursuant are dismissed well (4), prove finally litigated plead and that the claims are not or failure to litigate plead prove counsel’s failure to waived and failure to any strategic have been the rational the claim earlier cannot result any boilerplate waiver is overcome tactical decision. Her assertion that raising of counsel in not the claim earlier is insuffi- ineffectiveness cient, pleading proof every claim is for the deficient. claims, Remaining penalty phase are Rivers’ her claim of evidence, after-discovered her claim that the PCRA court was biased, and her claim of cumulative error. *10 Chester, explained
As
we
Commonwealth v.
557
358,
(1999),
Pa.
(1)
(2)
claim;
that
underlying
there is merit
to the
had no
counsel
reasonable basis for his or her course of
(3)
conduct;
that,
and
probability
there is a reasonable
challenged,
but for the act or omission
outcome
proceeding would have been different. Commonwealth v.
Jones,
161, 175,
(1996).
1181,
546 Pa.
1188
Coun-
presumed
appellant
sel is
to be
and
effective
has the burden
proving
Marshall,
otherwise. Commonwealth v.
534 Pa.
488,
(1993).
4.
In Commonwealth v.
As an illustration phase, consider penalty claim the counsel claim, that counsel penalty phase strongest Rivers’ first jury to the investigate was ineffective abuse, her mental physical history of sexual and appellant’s abuse, as drug long-term and the effects disturbances night of the drugs on the ingesting of her as the effects well hearing, defense penalty phase At the time murder. paranoid from suffered that Rivers counsel had information abuse, drug and alcohol traits as well chronic explosive challenged or threat when prone overreact that she assaultive potentially should be considered and that she ened pre-sentence came from the dangerous. diagnosis This *11 who conclud by psychologist, a court health evaluation mental but that she disorder personality had a mixed that Rivers ed major from mental illness. did not suffer to the pages of her brief devotes thirteen Rivers abuse, alcohol her abuse history drug and of Rivers’ details condition, although this treat child, and as a and her mental circumstances of the out the adequately of the issue sets ment claim, required this as is purposes of our review of ease for 9543(a)(2)(ii), suggest that “counsel does even § nowhere she conduct,” basis for his or her course had no reasonable she, for counsel nor could Holloway, supra, v. Commonwealth aspects of emphasizing these Rivers’ good had reason for not a Rivers as five who described character. He called witnesses jobs down two hard-working person who held caring and nursing assistant. through school to way worked her become Thus, positive aspects emphasize counsel chose to defense nega than the background and character rather of Rivers’ unpredictable drug addict who was she was a tive—that designed to strategy assaultive —and this was reasonable Laird, See, Commonwealth effect his client’s interests. (1999)(Counsel A.2d, 346, not was ineffective Pa. phase penalty at the failing present mitigating to evidence lor childhood and abusive concerning mental state petitioner’s presented when he instead evidence that was a family devoted and loving man. will “Counsel not be deemed pursuing ineffective for a particular strategy, long as as reasonable.”)' claim, course therefore, chosen was The properly dismissed for failure in pleadings demonstrate her prove by brief how she would a preponderance of evidence that counsel “had no reasonable basis for his or her course of conduct.” Holloway, supra.
In an attempt escape a determination that she relief, is not eligible for PCRA Rivers states at the end of each penalty phase claims: These errors Pennsylvania violated the and United States Constitutions, and not beyond were harmless a reasonable doubt. To the extent that he failed to properly preserve, claim, and litigate prior raise counsel was ineffective dissent, Saylor, 5. Mr. Justice would hold that Rivers is entitled to an post hearing additional conviction because defense counsel was ineffec- illness, tive in present evidence of past the defendant’s mental abuse, effect, drug and alcohol and unfortunate childhood. In he per would create what amounts to a se rule that whenever the defen- dant is able to evidence of mental disturbance and an unfortu- life, nate counsel will be ineffective if he fails introduce this evidence support of the claim that the defendant was unable to conform her conduct to the law because of extreme mental or' emotional distur- 9711(e)(2),(3). bance. 42 many intangibles'are Pa.C.S. Because so involved, always our law has been second-guess that we will not trial tactics, long counsel's trial so as there ais reasonable basis for what trial counsel did did Saylor not do. While Mr. Justice cites two federal cases and one state psychiatric case which evidence is treated exceptionally important, the federal courts Illinois notwithstand- ing, it certainty persons is not a scientific may who have suffered *12 incapable mental illness are conforming their conduct to the law. In fact, equally plausible it many that people there are personal with equivalent spend histories to Rivers' who conformity their entire lives in may upon hearing with the law. It be that appall- evidence of Rivers’ ing background, jurors might decide that incapable she is of rehabilita- tion, deserving punishment of the harshest available. On the other hand, jurors might person also feel that a who help has made efforts to event, deserving any herself is of another chance. In lynchpin view, disturbance, Saylor's history Mr. Justice record, is, that the of mental on this itself, passport mitigated in and of penalty, to a by no certainty, means a position and we are in no judgment to substitute our for that of likely trial counsel as to what promote is most his client’s best interest. confi- and such ineffective assistance of counsel undermines proceeding. in the outcome of the dence something Merely stating that there is Rivers’ brief at 66. did, action with what counsel that his violated the wrong error, not meet and that it was not harmless does constitution Instead, claim. requirements will prove and demonstrate how she petitioner must state had no preponderance of evidence “that counsel reasonable In Holloway, supra. basis for his or her course of conduct.” words, enough say something it that there was other is not did; petitioner with what must also demon- wrong counsel for act. strate that there was no reasonable basis counsel’s this penalty phase Nowhere in the case does Rivers prove will that counsel could have had demonstrate how she did, eligible basis for what and she is not no reasonable he therefore, relief, any on this claim or on of her remain- phase ing penalty claims. sum,
In we hold that the ineffectiveness of counsel and constitutional error claims dismissed are either because case, they do not claims in discuss the the circumstances 9543(a)(2)(i-ii), they § or because do not demonstrate that can no his counsel have had reasonable basis for action. Further, all claims the case are dismissed for the additional petitioner that that reasons nowhere demonstrates the claims making finally litigated, she is have not been waived or 9543(a)(3),6 § plead and also she does not and demon how prove strate she will counsel can have had no rational strategic failing tactical reason for to raise 9543(a)(4).7 earlier. Section boilerplate
A6. assertion that no claim is waived because counsel was ineffective to raise all of the claims now made is insufficient how, claim, where fails to demonstrate for each she will prove counsel's ineffectiveness. hearing 7. Rivers claims also that she is entitled to a new PCRA because judge the PCRA was biased and because cumulative error entitles her to Finally, proceeding relief. she claims that racial bias “infected” this claim, and that this evidence was not available at trial. She does not 9543(a)(2)(vi), required pursuant new she is 1o do evi- changed dence would have the outcome had it been available at the *13 254 years in
Twenty
ago,
Watlington,
Commonwealth v.
(1980),
struggled
problem
time of trial and she does not of her claim. previously That Rivers has filed a motion with this court for remand change pleading proof require- based on this claim not does Thus, ments of the PCRA. the racial claim is bias dismissed for failure 9543(a)(2)(vi), requirements meet and all three claims are litigation dismissed for failure to establish lack of waiver or final strategic failure to establish that there can have no rational been tactical reason for failure to at an earlier time. raise issues J., (Flaherty, dissenting, empha- 251-52, A.2d at 437 Id. original). sis in *14 from different Wat- analysis here must be somewhat
Our post-conviction number of that the PCRA limits the lington filed, filing of and so the endless may which be appeals case, analysis is similar to of this but the petitions part is not post-conviction dealing in that with a Watlmgton we are primarily prevent is where our concern proceeding, why require- persons. of innocent That incarceration discussing claims the context ments of ineffectiveness case, demonstrating that the claim is not circumstances of the waived, demonstrating that can finally litigated or counsel strategic or tactical reason for have had no rational stage proceedings claim at are so raise the an earlier of the to ensure that the important. requirements These are devices If being person. claims made are the claims of an innocent may particular, have in some but the counsel been ineffective alleged independent facts of the case ineffectiveness doubt, guilt beyond a the ineffectiveness establish reasonable so no determining process cannot have affected the truth could And adjudication guilt reliable or innocence be made. petitioner in order to that is what the must demonstrate be eligible for relief under the If the claim has been PCRA. litigated, finally petitioner has received the review he enti- waived, may eligible petitioner tled to. If the claim is still be review, only complies pleading proof for but if he with the again, claims. And once requirements pleading proof requirements for ineffectiveness claims will involve, least, a statement of the facts established at trial evidence, that, turn, implicates peti- independent earlier, Finally, if claim was not raised tioner’s innocence. only to a of that claim if he is entitled review that there can have been no rational tactical or establishes strategic raising for not it If those extraordi- reason earlier. established, nary facts are we will review the claim because of petitioner may actually be innocent. concern twenty years, It has but we have come full taken which longer circle. will no address the merits We do not comply requirements with the of the PCRA.8
Affirmed. ZAPPALA concurring opinion.
Justice files a Justice CASTILLE files a concurring opinion.
Justice concurs in NIGRO the result. a dissenting opinion joined by
Justice SAYLOR files Justice CAPPY.
ZAPPALA, Justice, Concurring. I Although agree Appellant’s request post-convic- denied, tion relief should be I separately write to disassociate myself ancillary Opinion from few issues the Announcing the Judgment of the Court addresses that are essential to a *15 proper disposition of a petition. PCRA
First, Opinion Announcing Judgment the the of the Court commingles the “pleading” “proving” appears terms and to petitioner required hold that a is to prove her case in the in pleadings order for the court to address the claims on the my merits. As I noted in concurring opinion in Commonwealth Williams, (Pa.2001), 782 A.2d effectively turns the statute on proceeding its' head and renders a PCRA merely paper a petitioner shuffle where the is denied the opportunity to eligibility demonstrate for This relief. is not statutory consistent with language the Act or the criminal applicable rules to proceedings. PCRA Williams,
As I in stated Act, Section 9543 of “plead where the prove” language originates, solely refers to “Eligibility for [post-conviction] relief.” The section does not speak any to prerequisites petitioner in satisfy must to order have a claim by long considered the court. As petitioner has holding 8. There no holding conflict between our in this case and our Marrero, in Commonwealth v. 2000 Pa. Lexis (decided 2-22-2000). required get This case concerns what is to PCRA; relief under the pleading required Matrero concerns what in order for us to consider whether relief is due. ground upon support forth relied in of the relief set “each (Content 1502(b) in requested,” as forth set Pa.R.Cr.P. Relief; Request for Petition Post-Conviction Collateral Discovery), any and attaches relevant affidavits other (or in support grounds why evidence for relief states attached) they not in with Pa.R.Cr.P. are accordance 1502(d), petitioner is entitled to review of the claim say precluded the trial court. This is not to that our Court is from dismissing appeal a claim on from denial grounds adequately on to relief failed develop argument support (e.g., an in to thereof failed demonstrate that the claim was not waived or that counsel conduct). did not for his have reasonable basis This however, principle, unique petitions, is not to PCRA but may any appeals appellant arise context where fails support authority argument. a claim with or sufficient (footnote omitted). Id. at 528-529 Here, Appellant claims that trial counsel was ineffective in investigate penalty phase at the ade- quate mitigation regarding Appellant’s history evidence of physical young extensive sexual and as a child and abuse adult, psychological drug disorders and the effects of past night Appellant’s abuse and on the of the murder. alleged mitigation great brief describes the evidence detail supporting refers affidavits and exhibits that were court, petition attached the amended filed in the PCRA including psychiatrist1 family affidavits of a licensed and two members. *16 determining Appellant
Tn to whether is entitled relief on claim, we must consider improp- whether the PCRA court erly opportunity prove allegations denied to her the her at an evidentiary hearing. Pennsylvania Pursuant to Rules of (Disposition Hearing) Criminal Procedure 1507 Without psychiatrist opined Appellant's “post-traumatic 1. The tha1 stress disor- der, disorder, together depression, paranoid personality with her possible learning impairments, constitute an extreme emotional distur- substantially impair capacity bance and to conform her conduct requirements Appellant's citing the of the law.” Brief at affidavit of Kessel, M.D., paragraph Julie 16. (Procedures Cases; Penalty for Petitions in Death Hear- may a ing; Disposition), petition a be dismissed without hearing judge genuine if the is satisfied that there are no concerning any petitioner fact and that is issues material the post-conviction not collateral relief. In other entitled words, alleged, proven, facts if would not a where the entitle relief, evidentiary hearing an is petitioner to then not re- quired. alleged Appellant’s facts
Although the substantial PCRA claim, to her ineffectiveness of counsel petition were relevant not, true, if they accepted would even entitle her to relief. agree Opinion Announcing Judgment I with the of the Appellant Court failed demonstrate counsel’s chosen course of action was unreasonable. As noted court, strategic regarding counsel made a clear decision at type penalty of character evidence be introduced phase. Appellant portrayed was as a woman who led a life, by obtaining difficult but who herself an bettered edu- becoming nursing cation and assistant. This tactic is not considering Appellant’s prior unreasonable mental health eval- by a court that an psychologist uations conducted indicated major “underlying pathology clinically was not evident.” Thus, Opinion citing at Exhibit 2. PCRA Court Defense evidentiary hearing required, strategy is not as a reasonable apparent from the record.
My
point
Opinion Announcing
final
of contention with the
Judgment
of the Court is its extensive reference to a
petitioner’s
petition.
innocence in the context of a PCRA
Its
language
dissenting opinion
reliance on
Common
(1980),
Watlington,
wealth v.
CASTILLE, Concurring. I not to PCRA relief and agree appellant I that entitled agreement opinion’s analysis with the lead generally am however, I to address presented. separately, claims write the concerning substantive differ- my further views the essential and claims recast as ence between waived claims waived PCRA, claims under as well as the consti- ineffectiveness tutional claims. nature contours notes, first opinion correctly
As the lead
nineteen
are,
part,
allegations
for
most
briefed as
appellant’s
trial,
guilt
penalty phases
accompanied
error
by boilerplate
prior
assertion that
counsel was ineffective
failing
preserve,
litigate
raise and
this claim.”
“properly
(he
Moreover,
only
eligibility provisions
reference to innocence in the
2.
9543(A)(2)(iii), regarding
of the Act is contained in Section
an unlawful-
ly
guilty plea
likely
induced
"where the circumstances make it
that the
petitioner
plead guilty
inducement
caused
and the
innocent.”
X,
only
presentation
exception
1. The
to this manner of
is Claim number
failing
investigate
alleging
trial counsel was ineffective for
present mitigation
penalty phase.
evidence
Unlike the other
claims,
perceived inadequacies
this claim
on
of counsel. Nev-
focuses
ertheless,
recognizes,
opinion
lead
fails
as the
the claim still
on
merits,
appellant
summarily
mitiga-
since
dismisses the actual case in
counsel,
presented by
positive light,
portrayed appellant
tion
in a
which
failing
and instead faults counsel
lor
a different and contra-
dictory
mitigation,
portrayed
case in
which
have
in a
would
negative light.
hindsight analysis
prove
Such
does
ineffectiveness.
not
See,
Hardcastle,
450,
541,
e.g., Commonwealth v.
(1997) (where complaint
investigate
is not
that counsel
failed to
evidence,
present, mitigation
presented
he
have
but that
should
different
mitigation,
part upon
contradictory
case
based in
evidence
to that
reasonable).
presented,
strategy
plainly
counsel's
Contrast
Taylor,
records”). appellant only The claim also fails because states alleged mitiga- counsel "knew or should have known” of the additional subsequent speculative tion counsel evidence has discovered. Such allegation, unaccompanied by so much as an affidavit from trial counsel undertook, investigation actually as to what trial counsel and what he discovered, does not raise a colorable claim of ineffectiveness. Nor evidentiary hearing. does the claim warrant See Commonwealth v. Scott, 871, (2000) ("An evidentiary 561 Pa. 877 n. 8 hearing fishing expedition any ... is not meant to function as a for may support possible speculative evidence that some claim of ineffec- tiveness"). provides obtaining the PCRA the sole means state collater- relief’); Peterkin, al Commonwealth A.2d (1998) (same). claims, Accordingly, constitutional PCRA, might cognizable which otherwise be under the are Thus, if simply they contrary unavailable are waived. apparent appellant’s misunderstanding, boilerplate allega- tions of ineffectiveness of trial counsel do not “revive” her error, claims of trial they waived nor do “excuse” her waiver those, claims. significance appellant’s allegations The of ineffectiveness stand-alone, substantive, is that those are constitutional claims, PCRA, decidedly cognizable which are under the be- explicitly they Pa,C.S. cause the PCRA states are. 42 9543(a)(2)(ii). Although often “derivative” from waived *19 error, Williams, claims of trial Commonwealth v.
517,
(Pa.2001),
526 n. 5
claims of counsel ineffectiveness are
analytically
nevertheless
constitutionally
distinct from the
underlying
they
claims to which
They
relate.
are assessed
Supreme
under
U.S.
Court’s settled construct as outlined
v. Washington,
Strickland
466 U.S.
104 S.Ct.
(1984)
Moreover,
L.Ed.2d 674
progeny.2
and its
appellant’s
ineffectiveness claims are not waived under the PCRA be-
cause, appellant having
represented by
been
the same counsel
trial,
appeal
on direct
as at
this PCRA proceeding is deemed
represent appellant’s
opportunity
first
to raise claims re-
specting the stewardship
appeal
of
counsel. See 42
trial/direct
9544(b) (issue
Pa.C.S.
only
waived under PCRA
if peti-
tioner could
trial,
have raised it but failed to do so before
at
trial,
appeal,
prior
postconviction
on
or in
proceeding).3
state
Pierce,
(1987),
In Commonwealth v.
263 question analyzing of substantive standards for claims of assistance). notes, opinion correctly As ineffective the lead appellant’s cognizable subject ineffectiveness claims are specific requirements under the and under the PCRA settled boilerplate Sixth Amendment test for ineffectiveness. Mere assertions, here, by appellant such as those made are inade- quate prove right effective denial counsel necessary to warrant PCRA relief.
This is as true under the constitutional standard as under requirements provisions regard the PCRA. The PCRA ing no that require ineffectiveness more than which a constitu always analysis tional required, regardless ineffectiveness has posed of whether the claim is or at an under the PCRA earlier appropriate stage litigation, e.g., where new counsel appearance enters an on appeal. always direct Counsel is effective; presumed unshifting prove burden to ineffec defendant; always upon tiveness rests and the defendant always plead prove must performance both counsel’s (the arguable was deficient and lack of merit reasonable basis test), prongs prejudice of our and that actual resulted from performance. Boilerplate allegations the deficient have never discharge been sufficient to this affirmative burden to rebut presumption Pettus, of effectiveness. Commonwealth v. (court 558, 1332, (1981) 492 Pa. 424 A.2d will not consider assistance). boilerplate claims of ineffective also See Com Morris, (1996) 296, 1037, monwealth v. 546 Pa. 684 A.2d (speculative summarily claim of rejected; ineffectiveness inef vacuum) cases); claims cannot (citing fectiveness be raised in Hutchinson, 482, 370, Commonwealth 521 Pa. 556 A.2d (defendant (1989) bears of proving allegations burden of inef fective assistance submission of proofs); relevant Common Hentosh, (1989) 20, (same). wealth v. 520 Pa. 554 A.2d Accord Ragan, Commonwealth v.
(1994) (boilerplate allegation is no basis for in capital relief appeal).
Similarly, the PCRA’s requirements case,” claims be considered “in the circumstances of the performance show that counsel’s deficient *21 264 innocence, adjudication guilt or
resulted in an unreliable analysis under simply mirror the constitutional ineffectiveness v. prejudice requirement. See Commonwealth Strickland’s 214, 564, (1999); n. 6 558 Pa. 736 A.2d 570 & Com Lantzy, (1999). Kimball, 326, v. 333 monwealth that, determining prejudice, in The Strickland Court noted totality “must the of the evidence before the court consider Indeed, 695, 104 2052. judge jury.” 466 U.S. at S.Ct. the impossible it is recognized, Courts have the Federal Circuit considering prejudice without determine Strickland of, Buehl v. 166 F.3d Vaughn, circumstances the trial. See (since (3d Cir.1999) prejudice prong Strickland’s prob- court to whether there is reasonable requires determine error, that, trial ability but for counsel’s result of would have different, simply prejudice court cannot make determina- been strength against considering tion “without the evidence accused;” furthermore, “every recog- circuit has also other that, a court analyzing prejudice prong, Strickland’s nized against magnitude must consider the of the evidence defendant”). specifically prejudice Strickland also defined Strickland, 466 at reliability terms of the of the verdict. U.S. (prejudice prong “requires showing S.Ct. deprive so as to the defendant counsel’s errors were serious reliable”). trial, a trial also a fair whose result See (same). 390-91, 120 S.Ct. 1495 Taylor, Williams U.S. PCRA, Obviously, drafting Assembly the General required prove what was ineffectiveness under the aware of largely mirrors the constitu Sixth Amendment. The PCRA tional framework. short, governing
In
standards
review of ineffectiveness
claims,
are
including
pleading
proof requirements,
familiar and
Consistent with both the terms
well-settled.
authority,
opin-
the PCRA and settled constitutional
the lead
boilerplate
properly
appellant’s
ion has'
held that
assertions
under
PCRA.
ineffectiveness do not entitle her
relief
stating that this
opinion
lead
concludes with dicta
Court
The
of claims which do not
longer
“will no
address the merits
But, as I under-
comply
requirements
with the
of the PCRA.”
Marrero,
it
opinion, including its distinction
stand the lead
*22
here, conclud-
appellant’s
has
merits of
claims
addressed the
necessary
ing
appellant’s
failure to address
elements
requirements of
and the constitution-
governing
the
the PCRA
rejection. More-
requires
al ineffectiveness standard
their
over,
as
although
agree
Nigro’s position
I still
with Justice
Marrero,
joined,
accept
in
in
which I
I
stated
his concurrence
majority
decisis. As I
the force of stare
understand
Marrero,
majority
in
which
author of the
opinion
opinion joined,
interpreting
and this
recent dicta
Court’s more
Williams,
to
Marrero in
we must continue
entertain the
claims,
boilerplate
notwithstanding
that the
merits
these
presentation inevitably
prove
will
fatal.
deficiencies
their
claim,
that,
an
simply
any legal
I would
add
like
ineffective-
may
indepen-
ness claim
fail on the
for a number of
merits
dently
jurisdictional
long
valid reasons. So
as there
no
(i.e.,
filed),
timely
question
petition
the PCRA
court
rejecting
particular
required
prefer
not
to
PCRA claim is
Marrero,
proper ground
disposition
one
In
over another.
layered,
this
rejected
boilerplate
appellate
Court
claims of
underlying
counsel ineffectiveness because it deemed the
meritless,
claims of
to
than
counsel ineffectiveness
be
rather
other,
focusing on
failure of
to
appellant
address
equally necessary elements of the ineffectiveness standards.
I
disposition
appropriate,
view the Marrero
as an available and
exclusive,
required
but not a
approach to the merits of a
so
reviewable ineffectiveness claim. This is
because both the
Supreme
U.S.
Court and this Court have made clear that a
court is
to
required
analyze
not
of an
elements
ineffective-
instead,
any particular
priority;
ness claim in
if a
order
any
test,
claim fails
necessary
under
element of the Strickland
may
the court
to
proceed
that element first. See Smith v.
Robbins,
746,
286 n.
120
U.S.
S.Ct.
145 L.Ed.2d
(2000),
Strickland,
2052;
citing
at
U.S.
S.Ct.
Albrecht,
The more difficult is what sort of a petitioners sends to practitioners by Court choos- ing, preferring, disposition one method of available over case, arguments in this like the non- Appellant’s
another. Marrero, may as argument forwarded best be construed arguable underlying of her attempting to establish the merit simply waived claims while she then assumes the failure per such claims renders counsel se ineffective. This pursue fails to establish either the per approach se basis) (i.e., prong lack of reasonable or the performance prong Accordingly, of the Strickland test. prejudice must, inevitably, advantage discussing fail. The on that it deficiency argument fatal such the merits is petitioners practitioners reinforces for PCRA alike the necessity they necessary all address substantive elements it, actually opposed a claim in obtain on order relief decidedly Pyrrhic victory that will result when a claim is *23 undeveloped only and survives waiver as a matter of this in grace. At least cases where the substantive defi- Court’s case, ciency in is in this I think argument pervasive, as we deficiencies, by focusing on those better serve substantive majority has done here. Justice, SAYLOR, Dissenting.
Appellant’s post-conviction by claims were dismissed evidentiary hearing. opinion court without an The lead summary Appellant’s affirms the dismissal of claim that trial for an investigate present counsel was ineffective and trial, adequate mitigation penalty phase case of at the finding Appellant’s suggest brief does not trial a counsel lacked reasonable basis for his course of conduct. pertinent Appellant’s opens The section of brief as follows: unprecedented disregard obligations In an of his as a death penalty lawyer, investigate pres- trial failed to and counsel overwhelmingly powerful mitigating ent abundant and evi- dence. trial, penalty phase briefly pre-
At the defense counsel mitigating appellant good sented evidence that was a moth- struggled er and hard worker who had to overcome her in problems provide earlier order to a better life herself. testimony jury That inform completely failed to appellant on and abuse inflicted physical sexual horrific abuse on lifelong effects of that parents, or of the own her totally failed to functioning. It her mental emotional appellant’s nightmare of the jury the full extent tell appellant’s about jury nothing at all life. It told the prior well-documented, dis- mental and emotional mitigating readily mitigating .... TUI information of this turbances minimally a had counsel conducted available to counsel an such Counsel’s failure conduct adequate investigation. miti- compelling investigation present the available justified cannot be unsupportable and gation simply is analysis. through any hindsight proceeds to describe the original). in The brief (emphasis detail, with refer- substantial alleged mitigation evidence attached affidavits and exhibits that were supporting ences court, including petition filed the PCRA to the amended daughter, and psychiatrist, Appellant’s affidavits of licensed join I in the lead’s common-law husband. While Appellant’s aspects appellate regarding certain expressed concern cases, given capital in this and other advocacy demonstrated Appellant I do not believe that presentation, the described framing appro- an fairly faulted for not counsel claim. priate argument particular on this Appel opinion announcing judgment of the court deems The irrelevant, mitigation proffer lant’s alternate case theory at trial. present mitigation trial did since counsel made, Yet, our adequate proffer in which an cases *24 requires comparison assessment and precedent some within aspects strategies of the alternative the qualitative v. See particular circumstances of the case. Commonwealth (1996) 1178, Brown, 406, 425, (allowing 676 A.2d 1187 544 Pa. conclud relief if “it can be possibility post-conviction for the potential not chosen a that an alternative offered ed actually pur than course substantially greater the success 59, Pirela, 43, Pa. 507 v. 510 sued”)(quoting Commonwealth 614, (1986)), denied, 1043, 23, 117 S.Ct. 31 cert. 519 U.S. A.2d Williams, (1996); v. L.Ed.2d 538 see also Commonwealth 136 (1999). 245-49, 1167, In 207, the Pa. 1187-90 557 268 intentional, first-degree involving murder case the elderly care,
brutal
an
killing
Appellant’s
woman who was in
Appellant’s
appears
claim
to be that the effort to invoke the
mitigator by casting
general
catch-all
positive light upon
some
life,
salutary,
substantially
weight
while
carried
less
with
than
jury
the
would
demonstration that
she suffered
had
serious,
subject
been the
affective environmental abnormali-
Significantly, Appellant
ties and mental illness.1
contends that
pursuit
strategy
of the latter
would have established the
specific mitigating
involving
circumstances
extreme mental or
disturbance,
substantially
emotional
impaired capacity to
appreciate
criminality of
the
her conduct and to conform her
See
conduct with
requirements
of the law.2
42
Pa.C.S.
(3). Where,
9711(e)(2),
§
as
supported
such
claim is
here,
documentation,
requisite
affidavits and
I
permit
would
proceed
with the
to
attempt
establish both
strategy
alternative
and its relative
weight
comparison
strategy actually
pursued
post-conviction
at a
hearing.3
that,
circumstances,
Many jurisdictions recognize
1.
in some
substantial
See,
weight may
e.g.,
attach to the latter form of evidence.
United States
Barnette,
803,
(4th
v.
Cir.2000)(stating
"psychiatric
211 F.3d
Thomas,
trials”);
important part many
evidence is an
Baxter v.
1501,
(11th Cir.1995)("[p]sychiatric mitigating
F.3d
evidence 'has
”)
potential
totally change
evidentiary picture’
(quoting
Mid
491,
(11th
1988));
Coleman,
Dugger,
People
dleton v.
849 F.2d
Cir.
(1995)(“[t]his
168 Ill.2d
214 Ill.Dec.
this Court conducted), (in post-conviction a or in hearing which more (in found in the which this Court error Williams hearing). a post-conviction court’s failure to conduct Lastly, join announcing judgment I opinion opinions emphasizing post-convic- and concurring court absolutely plead support must and the essen- petitioners tion Post Relief tial claim under the Conviction Act elements claims, on hearing to be to a their must in order entitled eligibility those elements to demonstrate establish essential petitioners subject judgment are to a final for relief. Since appeal and have benefit of available direct sentence had the hurdles; they ultimately, face substantial the avail- process, depend upon will often factual ability post-conviction relief legal findings by post-conviction entailing court credibili- weight ty judgments concerning assessments Basemore, Pa. at presented. generally 293- evidence See (remanding post-conviction A.2d at 737 to a court for credibility performance judg- such assessments evidence). Nevertheless, concerning alleged mitigating ments I proffer by Appellant, face of a such as that do made process not believe such should be circumvented Williams, summary dismissal. Accord Commonwealth v. (2001). A.2d Pa. joins dissenting opinion.
Justice CAPPY