Commonwealth v. Robinson

Justice TODD,

concurring.

I join the Majority Opinion, with the following exceptions.

First, regarding the majority’s rejection of Appellant’s ineffectiveness claim concerning counsel’s mitigation presentation, I share the concern expressed by Justice Saylor in his Concurring Opinion that penalty-phase counsel’s elicitation of evidence that, inter alia, his client is a sociopath, may not have constituted a reasonable defense strategy. See Concurring Opinion (Saylor, J.) at 1022-28. Nevertheless, for the reasons ably expressed by the majority, I agree that Appellant was not prejudiced by any error in this regard. See Majority Opinion at 1016-17.

Next, I do not join footnote 5 of the Majority Opinion, and in particular the dicta concerning the federal court’s authority to appoint federally-financed counsel to litigate the instant Post Conviction Relief Act (“PCRA”) petition.

Finally, I agree with the majority that, as a general matter, collateral proceedings are not the forum in which to seek innovation of principles of constitutional law; and that, rather, such claims must be brought on direct appeal. See Majority Opinion at 1021-22. Accordingly, I join the majority’s pronouncement and its application to Appellant’s present claim under the Eighth Amendment. Critically, however, I would highlight the majority’s caveat to this general rule regarding certain exceptional claims. See id. at 1022 n.12. Moreover, I agree with a second caveat, identified by Justice Saylor in his Concurring Opinion, concerning the impact of our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and its progeny, wherein we have largely prohibited the raising of claims of counsel ineffectiveness on direct appeal. See Concurring Opinion (Saylor, J.) at 1022-23. As a result of Grant, we have limited direct appeals as a forum for the innovation of federal or state constitutional law regarding the right to counsel; yet, our no-innovation construction of the PCRA would prohibit the raising of such claims collaterally as well. Accordingly, in the appropriate case, this conundrum may warrant modulation of our Grant line of decisions, or adjustments to our construction of the PCRA.