Commonwealth v. Fowler , 447 Pa. Super. 534 ( 1996 )

JOHNSON, Judge,

concurring:

I agree with my distinguished colleagues that each of James Michael Fowler’s ineffectiveness claims are without merit. However, I am unable to join with so much of the Majority Opinion as discusses the prospective application of Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), as later analyzed in Commonwealth v. Metis, — Pa.Super. -, 669 A.2d 346 (1995).

In examining a claim of ineffectiveness, we cannot impose upon trial counsel the qualities of a seer and fault him for not foreseeing a change in the law. Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). Instead, “we examine counsel’s stewardship under the standards as they existed at the time of his action.” Id. “[Cjounsel will not be deemed ineffective for failing to predict future developments in the law.” Id. As the Majority points out, at the time of Fowler’s trial, relevant case law pertaining to surreptitious recordings in one’s home was settled. Neither the fact that the Pennsylvania Supreme Court reversed this Court’s holding in Brion some three years after Fowler’s trial, nor this Court’s consideration of the retroactive effect of that decision, have any bearing on counsel’s stewardship in 1991 during Fowler’s trial. Triplett, supra.

Further, I believe that this Court is without authority to engage in a retroactivity analysis of a decision declared by the Supreme Court of Pennsylvania where that effect can be determined under rules clearly laid down by the Supreme Court. See Metis, supra (Concurring and Dissenting Opinion, Johnson, J.). I am unable, therefore, to join my esteemed colleagues in their declaration that the rule set forth by our supreme court in Brion, supra, does not have retroactive application.

FORD ELLIOTT, J., joins.