Commonwealth v. Ford

DISSENTING OPINION

Justice EAKIN.

I agree with the analysis of Justice Castille, but write separately in order to summarize my position on the issue of “layered ineffectiveness” claims, hopefully without contributing more splinters to the fractured positions of this Court.

Failure to raise an issue at trial waives the right to raise that issue on appeal. If that failure is shown to constitute ineffectiveness, waiver may be overcome; however, trial counsel’s ineffectiveness must be proved, not merely alleged by boilerplate language. According to the statute, 42 Pa.C.S. § 9543(a)(4), one must “plead and prove” ineffectiveness, namely that counsel’s decisions had no “rational, strategic or tactical” basis. This is also the test under 6th amendment caselaw. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Commonwealth v. [Charles] Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987).

If trial counsel’s ineffectiveness is not raised on appeal, the right to complain about that ineffectiveness is also waived; this second waiver may also be overcome, but only if the second waiver is proved to be, not assumed to be, the result of ineffectiveness by appellate counsel. When we review trial counsel’s actions, we are deferential, indeed highly deferential, to counsel’s chosen course, and we (in theory) look at it without the wisdom of hindsight. Bell v. Cone, 535 U.S. 685, -, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). We understand strategic choices at time of trial do not comprise ineffectiveness merely because there was a guilty verdict— difficult choices must constantly be made during criminal representation. Is appellate representation to be given less careful review and consideration?

Lawyers handling an appeal make strategic decisions about the issues to raise, and the tack to take in addressing those issues. Their stewardship must be appraised with the same consideration given trial counsel. There is an allure to believing appellate counsel is ineffective per se simply because they did not advance an issue of trial’s stewardship which is deemed unreasonable somewhere down the line. Like Rosie Ruiz taking the subway during the New York marathon, this belief allows a shortcut in violation of the rules of the matter. A paragraph simply alleging ineffectiveness of every attorney from the trial to date is not a subway ticket to the finish line. Without proof, it is not sufficient.

The doctrine of “relaxed waiver” was eliminated by Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998). As Justice Saylor aptly notes, retroactive application of the abolition of relaxed waiver puts those who litigated their petition before Albrecht at a disadvantage. These litigants did not prove ineffectiveness of appellate counsel, but under relaxed waiver concepts, they did not have to prove it. Thus, I would afford appellant the opportunity to prove the ineffectiveness of appellate counsel, and would remand for such purposes. If it is proved, a new penalty phase hearing is appropriate; if it is not, the judgment of sentence should stand.

For these reasons, I dissent from the analysis of my learned colleagues.