Commonwealth v. Walter ( 2015 )

Chief Justice SAYLOR,

dissenting.

Six years after the conclusion of Appellant’s direct appeal from her judgment of sentence, the majority undertakes to consider a serial direct appeal, which was authorized by a PCRA court based upon the agreement of Appellant and the Commonwealth. Appellate jurisdiction, however, cannot be created by agreement or consent. See Commonwealth v. Saunders, 483 Pa. 29, 32, 394 A.2d 522, 524 (1978).¹ What is required, in the absence of an affirmative demonstration of prejudice, is a supported judicial finding that Appellant suffered a deprivation of her right to appellate counsel so severe as to be tantamount to a complete denial of counsel. Accord Commonwealth v. Halley, 582 Pa. 164, 171-73, 870 A.2d 795, 800-01 (2005); cf. United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 2047 & n. 25, 80 L.Ed.2d 657 (1984). The PCRA court, however, entertained no evidence and made no comparison between the claims resolved six years ago and those which she sought to raise in this serial appeal. Instead, the court merely alluded to circumstances which were well known to this Court at the time of Appellant’s initial appeal, namely, that such appeal had been poorly presented and that the claims raised during its course were waived and/or meritless. See Commonwealth v. Walter, 600 Pa. 392, 392-406, 966 A.2d 560, 560-68 (2009).² Although I have repeatedly expressed my grave concerns about the quality of the attorney stewardship in capital cases in this Commonwealth, see, e.g., Commonwealth v. Rivera, — Pa. —, —, 108 A.3d 779, 820 (2014) (Saylor, J., dissenting), I do not support consideration of serial direct appeals by agreement as a solution.³

Ten years have passed since Appellant’s trial, and glaring post-conviction issues remain concerning the adequacy of her attorneys’ stewardship at her capital trial. In this regard, Appellant’s guilt-phase counsel made no opening statement to the jurors, presented no evidence, and delivered a rambling series of closing remarks in which he repeatedly conceded Appellant’s guilt,⁴ while focusing more upon his own circumstances and idiosyncrasies than upon her representation.⁵ Appellant has already filed a developed post-conviction petition challenging that stewardship. Accordingly, I would dismiss this serial direct appeal and remand for a post-conviction hearing, factual finding?, and legal conclusions on Appellant’s broader post-conviction claims so that the state-level review finally may be concluded. In this regard, I would also direct the common pleas court to proceed with a sense of urgency, which, obviously, has been lacking previously:

1 . The Court has also indicated that, where appellate jurisdiction is lacking but the litigants do not raise this concern, it should be considered sua sponte. See Commonwealth ex rel. Ransom Twp. v. Mascheska, 429 Pa. 168, 170, 239 A.2d 386, 387 (1968).

2 . Notably, in this regard, the majority finds that Appellant’s present claims also are un-preserved and/or meritless.

3 . According to the majority, my position "conflates the rationale for the PCRA court’s order with its jurisdiction to grant relief— here, the reinstatement of direct appeal rights." Majority Opinion, at 261 n. 5 (emphasis adjusted). In point of fact, my remarks go to the jurisdiction of this Court to consider the merits of a serial direct appeal. A post-conviction court's award of nunc pro tunc relief in a form that gives rise to jurisdiction in another court — which jurisdiction simply would not exist in absence of the relief — is obviously a unique and multi-faceted subject. I believe that jurisdiction in this Court which does not otherwise exist simply cannot be created by agreement and without a proper, supported substantive basis. While the majority criticizes my position as being contrary to "longstanding principles of order finality and appellate jurisdiction,” Majority Opinion, at 261 n. 5, the majority cites to no principles or cases in which this Court has previously, on any sort of developed reasoning, recognized jurisdiction on its own part to consider a serial direct appeal grounded upon mere agreement by the litigants. Indeed, I find the majority’s position in this regard to be extraordinary.

4 . See, e.g., N.T., Apr. 18, 2005, at 6 (reflecting the following comments to the jury by Appellant’s guilt-phase trial counsel: "How could you defend a woman who gives a man 66 whacks with a hatchet? That is my duty.”); id. at 8 ("When I was appointed, I told [Appellant] there is no way I am going to argue that you should be found not guilty.”); id. at 10-13 (reflecting counsel's repeated characterization of his client as "the low hanging fruit”); id. at 14 ("We conceded all [of the Commonwealth's] bad facts because they are inescapable; and we look at them with that ineluctable sense that only comes to you, wow, am I looking at a train wreck as a defense attorney?”).

5 .See, e.g., N.T., Apr. 18, 2005, at 2 ("The fact that I can speak to a small group or a large group and put sentences together and not— don't have a speech impediment is nice; but it’s more a reflection of the fact that I almost became a Methodist minister and then realized that the Methodist church didn’t need an Elmer Gantry.”); id. at 3 ("[M]y sister and I thought it would be really neat to dance like the little kids on [a] t.v. show ... but my father was a World War II fighter pilot and was then in the Korean War and flying jets. And he picked me up with his Air Force jacket with the wings and Captain bars and blah, blah, blah.”); id. at 9 ("[A]nd as you’ve noticed in my voir dire to you — and I can’t change. I wish I could. No, I don't wish I could. The hell with that. I am who I am. I do have a rather bizarre sense of humor. And I can find something — if you wanted something nice, witty, or I thought was witty, or funny.”); id. at 12 (“[I]f the District Attorney wants to wave the hatchet, he is more than welcome to because were I in his shoes, I would be running around like I was playing cowboys and Indians and I had a real prop.”); id. at 15 ("And I do want to tell you, and I'm not blowing smoke, but when they asked me [to represent Appellant], as I've said somewhat facetiously, I was everybody’s favorite 14th choice.”); id. at 15 (asserting that the prosecutor “is the kind of advocate like the British have where one day you're the prosecutor and next week they show up and the regiment says, hey, Joe, you're to go over and defend such and such. You’re not prosecuting. We can work either sides. We’re not whores.... They did it when John Adams defended people who were guilty as sin, and you'll do it again. Thank you.”).