Citation Numbers： 30 A.3d 426, 612 Pa. 183, 2011 Pa. LEXIS 2520
Judges： Baer, Castille, Eakin, McCaffery, Melvin, Saylor, Todd
Filed Date： 10/19/2011
Status： Precedential
Modified Date： 11/13/2024
dissenting.
According to the majority opinion, it is undisputed that trial counsel performed incompetently relative to one of the two phases of Appellant’s capital trial (ie., penalty). See Majority Opinion, op. at 438. As to the other phase, Appellant reports that counsel has been uncooperative in the post-conviction investigation. Nevertheless, the case is being disposed of without a factual hearing.
In approving such treatment, the majority applies the review standard subsuming consideration of whether the disposition is supported by the record. See Majority Opinion, op. at 438. It bears repeating, however, that there simply is no evidentia-ry record concerning Appellant’s extra-record claims, such as those of deficient attorney stewardship, since he was denied a post-conviction hearing.
My thoughts concerning the appropriate treatment and frame of reference for appellate review of these dismissals have been set out at length elsewhere. See, e.g., Commonwealth v. Smith, — Pa. -, -, 17 A.3d 873, 915-17 (2011) (Saylor, J., dissenting). I respectfully dissent here, as well, in favor of an evidentiary hearing.