Justice SAYLOR.
In this capital post-conviction matter, Carolyn Ann King appeals from an order denying guilt-phase relief but granting a new sentencing hearing.
This Court has previously set forth the underlying facts. Briefly, on September 15, 1993, Appellant's co-defendant Bradley Martin received a prison visitation pass that allowed him to leave the Lebanon County prison where he was incarcerated. He met Appellant, with whom he was romantically involved, and failed to return to prison as required. Instead, the two traveled to Palmyra, Lebanon County, where they called upon Guy Goodman, with whom Martin was acquainted. Goodman, who was seventy-four years old, had visited Martin in prison, identifying himself as Martin's friend.
After arriving at Goodman's home, Martin struck Goodman over the head with a vase, and the pair disabled Goodman by tightly binding his wrists, ankles, and neck. They then placed various wrappings around his head, sealing them with duct tape. Finally, they carried Goodman into the basement, tying him even more securely and wrapping him in a bedspread, and then leaving him to suffocate while they stole his checkbook and credit card and fled in his car. During their flight, Appellant and Martin used Goodman's credit card and checks to pay their expenses.
Martin and Appellant were eventually apprehended in Arizona, at which time Appellant was advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and provided a statement to the authorities, inculpating herself and Martin in Goodman's death. Appellant repeated her confession to Lebanon County detectives who were investigating the incident. Martin also inculpated himself to the county detectives after waiving his Miranda rights. Shortly after Appellant was returned to Lebanon County, the common pleas court, per the Honorable Robert J. Eby, appointed M. Jannifer Weiss, Esq., of Lebanon, Pennsylvania, to represent her. Martin was represented by separate counsel.
Appellant and Martin were tried together in the Lebanon County Court of Common Pleas before Judge Eby after their motions for severance were denied. Martin declined to testify at trial, but Appellant testified in her own behalf, and her tape-recorded confession was played for the jury. At the conclusion of the guilt phase, the jury found both defendants guilty of first-degree murder, aggravated assault, robbery, theft by unlawful taking, flight to avoid apprehension, escape, and conspiracy. During the penalty phase, the Commonwealth presented two aggravating factors with respect to Appellant, namely, that the killing was perpetrated during the commission of a felony, and that it was committed by means of torture. See 42 Pa.C.S. § 9711(d)(6), (8). In her mitigation case, Appellant presented evidence concerning her age at the time of the crime, her relatively minor role in the homicide, and the "catch-all" mitigating factor relating to her character and record and the circumstances of the offense. See id. §§ 9711(e)(4), (7), (8). At the conclusion
On February 14, 2000, Appellant filed a timely, pro se petition under the Post Conviction Relief Act ("PCRA"), see 42 Pa.C.S. §§ 9541-9546. Thereafter, she was given permission to file a counseled, amended petition, and her execution was stayed pending final resolution of her claims. See Commonwealth v. King, 561 Pa. 144, 748 A.2d 1232 (2000) (per curiam). New counsel for Appellant filed amended and supplemental petitions, raising numerous claims for collateral relief predicated on trial counsel's alleged ineffectiveness.
Since all such claims relate to an alleged deprivation of the Sixth Amendment right to competent counsel, see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970), Appellant may only obtain relief if she pleads and proves by a preponderance of the evidence that her conviction resulted from ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. § 9543(a)(2)(ii). The Pennsylvania test for ineffectiveness is, in substance, the same as the two-part performance-and-prejudice standard set forth by the United States Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), although this Court has divided the performance element into two sub-parts dealing with arguable merit and reasonable strategy. Thus, to succeed on an ineffectiveness claim, a petitioner must establish that: the underlying legal claim has arguable merit; counsel had no reasonable basis for her action or inaction; and the petitioner suffered prejudice as a result. See Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; accord Commonwealth v. Cox, 603 Pa. 223, 243, 983 A.2d 666, 678 (2009). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. See Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010). No relief is due, however, on any claim that has been waived or previously litigated, as those terms have been construed in the decisions of this Court. See 42 Pa.C.S. § 9543(a)(3).
In her brief to this Court, Appellant raises several issues pertaining to the
Because counsel is presumed to be competent, it is ordinarily the defendant's burden to demonstrate that a constitutional violation has occurred. Cronic affirmed this general precept, but also recognized a narrow category of circumstances that are so likely to cause harm that prejudice should be presumed because the cost of litigating the issue is unjustified. See Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. The Cronic Court explained, for example, that prejudice is assumed where counsel is absent, or "entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 659, 104 S.Ct. at 2047; see, e.g., United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991) (finding per se prejudice under Cronic where counsel conceded that all disputed factual issues were proved beyond a reasonable doubt). As this Court has previously explained, Cronic
Commonwealth v. Cousin, 585 Pa. 287, 299, 888 A.2d 710, 717 (2005) (citing Cronic, 466 U.S. at 660-61, 104 S.Ct. at 2047-48). "Courts have additionally assumed prejudice where counsel is physically present but substantially disabled from performing essential functions." Id. at 299-300, 888 A.2d at 718; see, e.g., Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976) (counsel prohibited from consulting with defendant during a seventeen-hour overnight recess); Javor v. United States, 724 F.2d 831, 834 (9th Cir.1984) (counsel present but asleep); State v. Keller, 57 N.D. 645, 223 N.W. 698, 700 (1929) (counsel present but severely intoxicated). See generally Bell v. Cone, 535 U.S. 685, 695-96 & n. 3, 122 S.Ct. 1843, 1851 & n. 3, 152 L.Ed.2d 914 (2002) (summarizing Cronic categories of presumed prejudice).
In light of the above, we do not agree with Appellant that Weiss's inexperience with capital cases, or the county court's counsel and investigative fee caps, resulted in a constructive denial of counsel so as to give rise to structural error. Indeed, this Court rejected a similar argument in Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008), a matter in which trial counsel was subject to a $3,500 fee ceiling
Id. at 140, 950 A.2d at 313 (citing Cronic, 466 U.S. at 663-66, 104 S.Ct. at 2049-51); see also Avery v. Alabama, 308 U.S. 444, 450, 60 S.Ct. 321, 324, 84 L.Ed. 377 (1940) (holding that capital counsel appointed three days before trial were not per se ineffective, where they "performed their full duty intelligently and well" and presented the accused's defense at trial); Com. ex rel. Crosby v. Rundle, 415 Pa. 81, 87, 202 A.2d 299, 303 (1964) (refusing to presume ineffectiveness where counsel had experience in various areas of the law but had never tried a murder case, and elaborating that "absence of effective representation means representation so lacking in competence that it becomes the duty of court or prosecution to correct it, so as to prevent a mockery of justice"). The Williams Court ultimately concluded that "trial counsel's voluntary acceptance of full responsibility for the representation subject to the [fee] limitation does not fall within the narrow category of cases reflecting a breakdown in the adversary process as discussed in Cronic." Williams, 597 Pa. at 141, 950 A.2d at 313. Likewise, the Court regarded the $500 limitation on investigative services as a "component of a layered ineffectiveness claim subject to the requirement to prove prejudice." Id. The present case, as noted, is substantially similar to Williams.
Appellant proffers that Williams is distinguishable on the basis that trial counsel there voluntarily accepted the fee, expense, and time limitations, whereas Weiss objected to her appointment due to her lack of experience in trying murder cases. See Brief for Appellant at 22. However, Weiss never lodged an objection as of record. According to her PCRA testimony, she had substantial misgivings which she expressed over the phone to Judge Eby when he called to inform her that he wanted her to represent Appellant. In spite of Weiss's uncertainties, Judge Eby expressed confidence in her and, eventually, entered an order appointing her as Appellant's counsel. As explained, once this occurred, Weiss accepted the assignment on the basis of her belief that it would have been improper for a lawyer to question a court order to this effect. Therefore, Appellant's contention that Weiss "objected" is only true in the colloquial sense that she initially expressed reluctance while speaking with Judge Eby over the phone.
We are not unsympathetic to the plight of a court-appointed defense attorney laboring under minimal funding and a dearth of relevant experience in a capital case — and even more significantly, to such an attorney's client, who has the most to lose from such a circumstance.
As regards Appellant's assertion that Weiss would not have met the criteria embodied in Rule 801, Appellant again primarily highlights counsel's lack of experience in handling capital cases. The question of whether counsel's inexperience in such matters, in itself, compels a finding of per se prejudice, is addressed above. We do not consider the fact that Rule 801 contains experiential criteria to add substantially to the argument, primarily because the rule went into effect a decade after Appellant's trial. See Pa.R.Crim.P. 801, Note (reflecting an effective date of November 1, 2004).
It is true that the character of the interests at stake — a capital defendant's life and liberty — did not change during the intervening ten years. That being the case, it is understandable that Appellant would highlight the Rule's requirements and argue that Weiss did not satisfy them. In considering the legal issue raised, however, the timing of the events is germane. Simply put, Rule 801 does not apply to Appellant's trial since it was meant to be applied prospectively only.
Finally, Appellant contends that prejudice should be presumed under Cronic because the ceiling imposed on Weiss's attorney fees created a conflict of interest between Weiss and Appellant. Relying largely on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), Appellant's theory appears to be that, beyond a certain point, Ms. Weiss would essentially have to work for free, and thus, would incur the opportunity cost of foregoing work on cases for more remunerative clients. This argument seems to represent another approach to claiming structural error due to funding deficiencies. Because, however, the Supreme Court has treated actual conflicts of interest as potentially resulting in presumed prejudice, we will evaluate the claim on its terms.
The Supreme Court has found a constructive denial of the constitutional right to the assistance of non-conflicted counsel where a lawyer is required, over objection, to undertake simultaneous representation of two co-defendants with antagonistic defenses. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). After Holloway, the Court clarified that multiple representation, in itself, does not give rise to presumed denial of counsel. Rather, the burden remains on the defendant to demonstrate that the asserted conflict adversely affected his lawyer's performance. See Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718; Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; accord Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 1245, 152 L.Ed.2d 291 (2002); Smith v. Robbins, 528 U.S. 259, 287, 120 S.Ct. 746, 765,
The primary difficulty with Appellant's conflict-of-interest-based per-se prejudice claim is that the conflict-of-interest framework, as it has been developed for purposes of Cronic-style presumed prejudice in the Holloway/Sullivan line of cases, pertains only to dual representation, that is, representation of more than one client, where the clients have diverging interests. See, e.g., Commonwealth v. Tedford, 598 Pa. 639, 728, 960 A.2d 1, 54 (2008) ("An actual conflict of interest is evidenced whenever during the course of representation, the interests of appellant — and the interests of another client towards whom counsel bears obligations — diverge with respect to a material factual or legal issue or to a course of action." (internal quotation marks omitted)). The Supreme Court has characterized these situations as subsuming an "active representation" of conflicting interests, see, e.g., Mickens, 535 U.S. at 166, 122 S.Ct. at 1241 (reciting that the Court has foregone inquiry into actual prejudice where "the defendant's attorney actively represented conflicting interests"), which it has recognized as being inherently suspect. See id. at 168, 122 S.Ct. at 1241 (quoting Holloway, 435 U.S. at 489-90, 98 S.Ct. at 1181). In this respect, i.e., in focusing on the "active" nature of the conflict, the Court's concern centers primarily on the potential for an attorney to alter his trial strategy due to extrinsic considerations stemming from other loyalties, thereby distorting counsel's strategic or tactical decisions in a manner that would not occur if counsel's sole loyalty were to the defendant. See, e.g., Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103-04, 67 L.Ed.2d 220 (1981) (remanding for a determination of adverse effect where the Supreme Court could not be certain whether the defense attorney was "influenced in his basic strategic decisions by the interests of the employer who hired him"). In this vein, courts sometimes assess adverse effect by questioning whether the record shows that counsel "pulled his punches," i.e., failed to represent the defendant as vigorously as he might have done had there been no conflict. See, e.g., United States v. Nicholson, 475 F.3d 241, 251 (4th Cir.2007); United States v. Martinez, 630 F.2d 361, 362-63 (5th Cir.1980); People v. Clark, 52 Cal.4th 856, 131 Cal.Rptr.3d 225, 261 P.3d 243, 344 (2011); Beard v. Commonwealth, 302 S.W.3d 643, 647 (Ky.2010); Davis v. State, 897 So.2d 960, 970 (Miss.2004). Here, however, Appellant is arguing for assumed prejudice on the theory that Weiss's representation of Appellant conflicted with her own interest in obtaining monetary compensation from work she could otherwise have performed for other clients. Appellant has thus shifted the focus to the attorney's private interests as the basis for the conflict — and hence, presumed prejudice — as opposed to centering her contention on the difficulties that arise when an attorney
We do not foreclose the possibility that a conflict of interest may arise apart from dual representation — such as where an attorney is somehow beholden to the interests of another, antagonistic party without actually functioning as that party's attorney. Cf. Goforth v. Commonwealth, 2009 WL 1110400, *8 (Ky. April 23, 2009) (considering, albeit ultimately rejecting, a defendant's allegation of a conflict of interest where his attorney was paid by the same entity that provided counsel for his co-defendant). Nor do we deny that an attorney's financial interests can conflict with those of his client under some circumstances, see, e.g., In re Vioxx Prods. Liab. Litig., 650 F.Supp.2d 549, 560 (E.D.La. 2009) (positing that, in a civil lawsuit where the amount of a contingency fee is at issue, a conflict may exist between the claimant and his attorney who both seek to maximize their own percentage of an award), or that a conflict with the attorney's private interests may adversely affect the attorney's representation of his client, such as where defense counsel is himself under criminal investigation. See Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir.1992) (noting that a conflict may arise in such a circumstance since counsel may fear that an acquittal will anger the district attorney's office, which might then retaliate); see also United States v. Fulton, 5 F.3d 605, 610 (2d Cir.1993) (finding a conflict of interest where a government witness alleged that counsel engaged in criminal conduct related to the charges for which the defendant was on trial); United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir.1986) (finding a conflict where pursuit of the client's interests would lead to evidence of counsel's malpractice). Thus, we credit Appellant's argument to the degree it proposes that it is possible for an underpaid attorney's financial interest in undertaking other, more remunerative work, to impinge on his or her full devotion to the interests of the client at issue — at least in the sense that the attorney may be incentivized to spend less time and fewer resources representing that client as a result of such extrinsic financial pressures. See generally Fulton, 5 F.3d at 609 ("A situation in which the attorney's own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney's fealty to the client is compromised.").
In spite of the above, we remain doubtful that the asserted conflict here can reasonably fit within the contours of the conflict-of-interest framework for Sixth-Amendment presumptive prejudice, at least as the Supreme Court has developed that doctrine, as it is of a different nature qualitatively from the other conflicts that the Court has recognized. In this regard, we are guided by the Supreme Court's own analysis of its Holloway/Sullivan line, in which it has criticized a tendency among the lower federal courts to apply Sullivan "unblinkingly to all kinds of alleged attorney ethical conflicts." Mickens, 535 U.S. at 174, 122 S.Ct. at 1245 (internal quotation marks and citation omitted). Even more pointedly, the Mickens Court explained that such tribunals
Id. at 174-75, 122 S.Ct. at 1245 (quoting Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719) (emphasis altered; citations omitted). Thus, because Mickens expressly disapproved extending the Holloway/Sullivan conflict analysis to a broad category that it couched in terms of "counsel's personal or financial interests," we are not at liberty, absent further material guidance from that Court, to apply Sullivan so as to find structural error grounded on the fee ceiling imposed by the county court in the present case. Accordingly, Appellant cannot prevail on her claim that she was constructively denied counsel due to the asserted conflict grounded on Weiss's financial interest in working on cases for more remunerative clients during the relevant time period.
Appellant next claims that she is entitled to a new trial because counsel was ineffective in failing to present expert psychiatric or other mental health testimony to support the defenses of duress and diminished capacity. Addressing the duress issue first, Appellant contends that Weiss initially intended to present the affirmative defense of duress, see infra note 14, which would have absolved Appellant of all criminal liability for killing Goodman, see Commonwealth v. Markman, 591 Pa. 249, 284, 916 A.2d 586, 607 (2007) ("Duress is a defense to criminal culpability."), but that she ultimately opted not to pursue that defense, as is evident from the fact that Weiss never asked the jury to acquit King of criminal homicide. Appellant suggests that this was a critical mistake, since Weiss was aware of Appellant's history of physical and sexual abuse, and that the introduction of expert mental health testimony could have persuaded the jury to find that Appellant acted under duress. In this latter regard, Appellant highlights a passage from the PCRA testimony of Dr. Harry Krop, a licensed psychologist, which Appellant states "could have assisted the lay jury in understanding how the perpetration of sexual and physical abuse upon [Appellant] by the males in her life ... could have left her susceptible to coercion by Martin[.]" Brief for Appellant at 25.
The difficulty with Appellant's argument is that, although Dr. Krop discussed Appellant's history of sexual abuse and the possibility that she was suffering from post-traumatic stress disorder, depression, and/or low self-esteem at the time of the killing, he clarified that this resulted in an emotional dependency upon Martin and a concomitant fear of abandonment. There is no indication in the portion of Dr. Krop's testimony on which Appellant relies that he concluded that Appellant was coerced by the use or threat of force.
N.T., Feb. 23, 2009, at 86, quoted in Brief for Appellant at 26; see also id. at 102 (reflecting Dr. Krop's testimony that Appellant "feared rejection" but was not "physically afraid" of Martin); id. at 84 ("I don't think she was physically afraid of Mr. Martin.").
Turning to the portion of Appellant's ineffectiveness claim based on a foregone defense of diminished capacity, we note initially that, under this Court's prevailing precedent, such a defense to first-degree murder is only available to defendants who admit that they killed the victim, but contest the degree of guilt based on an inability, at the time of the offense, to formulate a specific intent to kill due to a mental defect or voluntary intoxication. See Commonwealth v. Hutchinson, 611 Pa. 280, ___, 25 A.3d 277, 312 (2011); Commonwealth v. Rainey, 593 Pa. 67, 103, 928 A.2d 215, 237 (2007); Commonwealth v. Laird, 555 Pa. 629, 645, 726 A.2d 346, 353 (1999).
Nevertheless, to support a diminished capacity defense, Appellant would have had to present "extensive psychiatric testimony establishing [that she] suffered from one or more mental disorders which prevented [her] from formulating the specific intent to kill." Commonwealth v. Cuevas, 574 Pa. 409, 418, 832 A.2d 388, 393 (2003). Appellant alludes to having suffered from post-traumatic stress disorder as a result of her history of being the victim of sexual abuse and domestic violence. See Brief for Appellant at 29. While those circumstances are unfortunate, Appellant does not explain how they could have interfered with her ability to form a specific intent to kill, nor does she identify any witness who might have been helpful in making such a connection or in otherwise establishing a diminished capacity defense. Furthermore, our own review of the PCRA record does not reveal any expert testimony suggesting that Appellant's mental and emotional difficulties stemming from her dysfunctional childhood resulted in an inability to form a specific intent to kill. Thus, Appellant has not demonstrated that any evidence existed at the time of trial that could have supported a defense to first-degree murder based on diminished capacity.
Appellant next contends that Weiss was ineffective based on seven distinct aspects of the trial to which counsel failed to object. Six of these pertain to trial testimony that Appellant alleges was improper, and one relates to the consolidation of charges. All of these claims raise underlying issues that were addressed on the merits in Appellant's direct appeal. Nevertheless,
First, Appellant criticizes Weiss for failing to object to evidence that Appellant had applied for government housing assistance using a form that revealed she was married to someone other than Martin. Appellant's theory is that this form was irrelevant to the issue of guilt or innocence, and it "stereotyped this indigent African American woman as a promiscuous person who lived off the public dole." Brief for Appellant at 33. In this same claim, Appellant complains of counsel's failure to object to evidence showing that she checked into a motel under the name of "Anna" King. During Appellant's direct appeal this Court affirmatively held that these items of evidence were properly introduced at trial. See King, 554 Pa. at 355-56, 721 A.2d at 775 (finding that Appellant's signature on the government form was appropriately used as a handwriting exemplar to compare to the signatures on the checks drawn on Goodman's account, and that testimony concerning the use of the name "Anna" King when checking into a motel near the prison was probative of Appellant's knowledge that Martin would be improperly absent from prison and of her desire to facilitate his escape). That being the case, counsel cannot have been ineffective for failing to object to their admission. See Commonwealth v. Paddy, 609 Pa. 272, 317, 15 A.3d 431, 458 (2011) (indicating that where evidence is properly introduced at trial, a derivative claim of ineffective assistance of counsel for failing to object to such evidence cannot succeed).
Second, Appellant contends that counsel was ineffective for failing to object to certain aspects of the trial testimony referencing Appellant's use or possession of marijuana, and failing to request a cautionary instruction in connection with such references.
Third, Appellant maintains that counsel was ineffective for failing to object to the Commonwealth's introduction of certain additional testimony that Appellant considers irrelevant, improper, and inflammatory. This evidence subsumes Appellant's own testimony on cross-examination, which included her admission that she was legally married to Carl William King rather than Bradley Martin, as well as testimony elicited by the Commonwealth in its rebuttal case, including that of a corrections officer who expressed her view that Appellant was a leader among her fellow inmates, and stated that she overheard Appellant indicate that if Martin pled guilty, Appellant would only receive a two-year sentence. This claim parallels an argument that was rejected on direct appeal. Addressing the same proofs, this Court explained that
King, 554 Pa. at 356-57, 721 A.2d at 775-76. Again, since this testimony was properly admitted, counsel cannot have been ineffective for failing to object to its admission.
Fourth, Appellant claims that both the trial court and the Commonwealth improperly vouched for the credibility of prosecution witness Barbara Charles by pointing out that she was the wife of the prosecuting attorney. Appellant emphasizes that vouching for a witness's veracity is improper because it places the prestige of the government behind the witness through personal assurances that the witness is believable, and it indicates that information unknown to the jury supports the witness's testimony. See Unites States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985); see also Commonwealth v. Cousar, 593 Pa. 204, 232, 928 A.2d 1025, 1041 (2007) ("Improper bolstering or vouching for a government witness occurs where the prosecutor assures the jury that the witness is credible, and such assurance is based on either the prosecutor's personal knowledge
There is no indication in any of the portions of the record to which Appellant refers that the trial court or the prosecutor sought to assure the jury that Mrs. Charles was more believable than any other witness based on information known to the court or the Commonwealth, or based on the fact of her marriage to the prosecutor. Notably, when Appellant complained about these same aspects of the trial on direct appeal, this Court concluded that "the comments made by the trial court and the prosecutor concerning the fact that Mrs. Charles happened to be the district attorney's wife were merely passing references that were not seized upon by the Commonwealth in order to bolster her veracity." King, 554 Pa. at 356, 721 A.2d at 775. Since the references to Mrs. Charles being married to the prosecutor were not utilized to vouch for Mrs. Charles' credibility, Appellant's underlying issue lacks arguable merit.
Fifth, Appellant asserts that counsel was ineffective because she failed to object to the trial court's decision to consolidate for trial the charges against her relating to murder and escape or conspiracy to commit escape. When this Court considered the same underlying issue during Appellant's direct appeal, it held that the trial court had acted within its discretion in consolidating the charges for trial. See King, 554 Pa. at 349-50, 721 A.2d at 772. Since the trial court acted appropriately, counsel's failure to object could not have deprived Appellant of her constitutional right to effective representation.
Sixth, Appellant complains that evidence of Martin's uncharged prison visitation-release and work-release violations was admitted at trial. She states that counsel was ineffective for failing to object to such evidence, which, she suggests, resulted in prejudice "because of the taint of her association with Martin and the fact that she was charged with escape in connection with Martin's violation of his prison-release privileges[.]" Brief for Appellant at 44. Although Appellant fails to specify the particular evidence she views as prejudicial, she appears to be referring to proofs concerning Martin's visits with Goodman while on a work-release pass. Here again, however, during Appellant's direct appeal this Court found that such proofs were introduced at trial for a legitimate purpose, namely, to establish that there was a relationship between Martin and Goodman prior to the murder, and that an appropriate cautionary instruction was given. See King, 554 Pa. at 349-50, 721 A.2d at 772. Therefore, to the degree this is the evidence that Appellant is seeking to portray as improper, her underlying claim of trial error lacks arguable merit.
Seventh, Appellant claims that counsel was ineffective for failing to object to the introduction of testimony regarding Goodman's personal characteristics. She states that testimony regarding such personal qualities may only be admitted if relevant to an issue at trial. In particular, Appellant contends that counsel erred in failing to object to Goodman's "testimony from beyond the grave, read into the record by Detective Radwanski," as well as "victim impact testimony provided by [Goodman]'s daughter ... and Lebanon Daily News photographer James Zengerle." Brief for Appellant at 45. Appellant appears to be referring to certain evidence that was brought to this Court's attention on direct appeal. Concerning such proofs, this Court expressed that
King, 554 Pa. at 352-53, 721 A.2d at 773-74. Accordingly, this Court has held that all of the evidence of which Appellant presently complains was properly admitted at trial. That being the case, Appellant's ineffectiveness claim based on counsel's failure to object to this evidence cannot afford her a basis for relief.
Appellant next maintains that Weiss was ineffective because she failed to challenge the manner by which Lebanon County selected its jurors, which was allegedly based on a per capita tax roll. Appellant argues that the jury selection process denied her a fair cross-section of the community in violation of the Sixth Amendment because "the elderly, the disabled, and women who are housewives" are exempt from paying these taxes. Brief for Appellant at 47. She additionally contends that the jury selection process contravened Section 4501(3) of the Judicial Code, which states that citizens "shall not be excluded from service as a juror on the basis of race, color, religion, sex, national origin or economic status." 42 Pa.C.S. § 4501(3).
A majority of this Court recently rejected a virtually identical claim raised by Appellant's codefendant Martin in his appeal from the denial of guilt-phase relief on collateral review. In his claim, Martin had challenged the exclusion from the venire of individuals over 65, housewives, and persons making less than $5,000 per year, as those individuals are exempt from paying per capita taxes. This Court concluded that Martin had failed to make out a prima facie case that he was denied a jury selected from a fair cross-section of the community. We observed as a general matter that Martin was required, first, to demonstrate the arguable merit of the underlying claim — i.e., that the method of jury selection was improper as violating the Constitution's fair-cross-section requirement. To do so, he would have to show that: (1) the group allegedly excluded is a distinctive group in the community; (2) representation of this group in the pool from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) the under-representation is due to systematic exclusion of the group in the jury-selection process. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Martin, 607 Pa. at 194, 5 A.3d at 194. However, this Court determined that Martin failed to satisfy this standard because he simply asserted that the above groups were disproportionately excluded, but did not allege how their absence was unfair or unreasonable compared to the number of those individuals in the community. Additionally, Martin
Likewise, here, Appellant does not make out a prima facie case that she was denied a jury selected from a fair cross-section of the community. For example, while Appellant alleges that certain groups were excluded from the venire panel, she fails to explain how such groups are constitutionally "distinctive," how their representation was unfair and unreasonable in relation to the number of such persons in the community as a whole, or how the alleged underrepresentation was due to systematic exclusion.
More fundamentally, it is not clear that such groups were, in fact, excluded from jury service. Appellant alleged in her pleadings that Lebanon County utilized its per capita tax rolls to determine jury service eligibility as of the date of her trial. She clarified, however, that she was uncertain whether the exemptions from tax liability had any effect on the list of prospective jurors drawn from those rolls. She indicated that the matter was subject to ongoing investigation by counsel and that "Petitioner will supplement this claim as necessary based upon the results of that investigation." Preliminary Amended Petition for Habeas Corpus Relief, at 124 n. 47. In her supplemental pleadings, however, Appellant did not revisit the issue or otherwise clarify how the tax rolls were used. Moreover, Appellant did not adduce any evidence in support of this claim at the hearing, the scope of which does not appear to have been limited by the PCRA court. Furthermore, in addressing the question in its opinion denying guilt-phase relief to Martin, the common pleas court stated:
Commonwealth v. Martin, Nos. 1993-10899, 1993-11079, slip op. at 43 (C.P.Lebanon, January 3, 2002) (emphasis added), reproduced in Commonwealth's Motion to Dismiss, at Exh. 2. Thus, Appellant's admission that an overarching factual issue subsisted relative to this claim was subsequently confirmed by the common pleas court in disposing of Martin's PCRA petition. As noted, Appellant alleged that the question was subject to continued investigation by counsel, but she did not ultimately resolve the issue. On this basis as well, we conclude that she failed to make out a prima facie case of constitutional error under Duren v. Missouri.
In her PCRA petition, Appellant did not supply names or other proofs concerning the six jurors in question, noting her intention to supplement the petition with further information at a later date. See Preliminary Amended Petition for Habeas Corpus Relief, at 125 & n. 48. As with the prior claim, she did not return to the issue in subsequent pleadings, nor did she proffer evidence to support the claim at the PCRA hearing. It does not appear that Appellant was precluded from developing this claim at the hearing, or that she requested an extension of time to do so.
Finally, Appellant indicates that she is entitled to a new trial due to the cumulative effect of the guilt-phase errors she identifies above. In Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009), this Court recited the general rule that no amount of failed ineffectiveness claims may collectively attain merit if they could not do so individually, see id. at 344, 966 A.2d at 532; accord Commonwealth v. Laird, 605 Pa. 137, 186, 988 A.2d 618, 647 (2010), but clarified that, where multiple guilt-phase errors are "intertwined" — for example, where they relate to various components of a single defense to criminal culpability — they may be considered together. See Johnson, 600 Pa. at 344-45, 966 A.2d at 532. Further, "if multiple instances of deficient performance are found, the assessment of prejudice properly may be premised upon cumulation." Id. at 345, 966 A.2d at 532 (citing Commonwealth v. Perry, 537 Pa. 385, 393, 644 A.2d 705, 709 (1994) (finding that multiple instances of ineffectiveness, "in combination," prejudiced the defendant)).
The only claim for which we have assumed, for the sake of decision, that counsel provided deficient stewardship pertains to Weiss's failure to object to the references at trial to Appellant's drug use. We have also expressed our view that the funding limitations under which Weiss labored amounted to a troubling circumstance although they did not result in
Accordingly, because none of the issues Appellant raises entitles her to a new trial, the order of the Court of Common Pleas is affirmed.
Justice ORIE MELVIN did not participate in the consideration or decision of this case.
Chief Justice CASTILLE, Justices EAKIN, BAER, TODD and McCAFFERY join the opinion.
Chief Justice CASTILLE files a concurring opinion.
Justice SAYLOR files a special concurring opinion.
Justice EAKIN files a concurring opinion.
Chief Justice CASTILLE, concurring.
I join the thorough Majority Opinion, subject to the following reservations concerning appellant's sub-claim premised upon a novel conflict of interest theory purportedly sounding under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Appellant's theory posits that court-appointed trial counsel labored under an actual conflict of interest due to the allegedly low-capped fee paid to counsel at the time of trial in 1994; the fact of the supposedly inadequate fee alone, appellant says, is enough to prove the actual conflict, thus sparing appellant the necessity of proving either actual deficient performance by counsel or resulting prejudice. Appellant cites no controlling case from this Court or from the U.S. Supreme Court — for there are none — that holds, or even suggests, that a cognizable Sixth Amendment conflict of interest, establishing an entitlement to Cronic/Sullivan relief, can arise solely from the level of remuneration provided to court-appointed counsel.
The Majority accurately notes that appellant's theory seems to seek recognition
I write separately only to express my personal and perhaps greater skepticism concerning appellant's novel theory where, as here, it is offered in a collateral attack upon counsel as a basis for "automatic reversal." Brief for Appellant at 14, 21. In my recent Concurring Statement in Commonwealth v. Lopez, 51 A.3d 195, 196-201 (Pa.2012), I addressed a different, but no less novel, claim of attorney conflict arising from counsel's personal or financial interests, the interest being a pending disciplinary investigation into trial counsel's handling of an unrelated matter. My concurrence noted:
Id. at 200-01. In this case, appellant's trial counsel did not perceive or pursue a claim that the circumstances of her appointment, and the fee paid to her, created a conflict with her client. As in Lopez, I believe that the novel conflict theory appellant poses must be deemed a non-starter on a collateral attack.
The Majority explains that this Court is not at liberty, absent further guidance from the U.S. Supreme Court, to apply Sullivan to find structural error premised upon appellant's novel theory of conflict of interest. Majority Op. at 621. I agree. I would merely add that, given that questions alleging a violation of the Sixth Amendment right to counsel require us to view counsel's conduct under standards in existence when counsel acted, I view it as unlikely that the High Court would embrace this sort of novel theory of actual
Of course, there are a multitude of personal and financial circumstances which might impede any lawyer's trial performance, and in extreme cases, those circumstances may operate to render an attorney actually ineffective. See, e.g., Commonwealth v. Duffy, 483 Pa. 170, 394 A.2d 965, 967 & n. 5 (1978) (potential prejudice to defendant if allegation was elicited at trial that trial counsel was to receive stolen guns (fruits of the crime) as payment for representation created insurmountable conflict of interest). More prosaically, as this Court sees on its Miscellaneous docket, attorney lapses from such circumstances can extend to simple matters such as filing deadlines. But, as the Majority explains, the High Court's decisional law in the Sullivan/Sixth Amendment conflict of interest area has focused narrowly on dual representation of clients with diverging interests, a circumstance the Court has deemed "inherently suspect." Until the Court provides otherwise, I view conflict claims arising from counsel's personal circumstances differently, and as sounding under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a claim-specific showing of deficient performance and actual prejudice, rather than the application of the per se rule appellant asks us to innovate and retroactively enforce, premised upon a fee-cap and her broad assumptions and assertions about the "inevitable" effect of such a cap.
There are aspects of appellant's broad and per se theory of conflict with which I take particular issue, to wit, the theory assumes that the fee here was inadequate and that low fees mean counsel performed incompetently. But, whether a capped fee from decades ago is inadequate or not is a subjective matter, requiring consideration of the time, the place, the professional expectations and devotion of the attorney involved, and even the attorney's personal financial situation. In this case, it may be possible to compare the fee to counsel's ordinary fee in other matters, but we have no basis to comment upon its objective adequacy or inadequacy for the time or the place or the task. I suspect that in many counties in Pennsylvania in 1994, assistant district attorneys and public defenders earned comparably modest hourly wages.
But, that difficulty is less important than the difficulty that the theory seeks recognition of a controlling
Finally, I emphasize that my circumspection regarding appellant's per se Sixth Amendment conflict theory as a basis to automatically negate her conviction does not mean that I fail to recognize the importance of the issue of adequate compensation for indigent criminal defense. The fact that most appointed counsel meet the challenge does not mean that compensation levels are, or have been, appropriate or reasonable. Nor does it mean that there have not been cases where attorney compensation and support for defense investigative services have compromised counsel's ability to mount a constitutionally adequate defense. The issue of compensation is a systemic one implicating the executive branch, which is obliged to fund indigent defense services, the courts, and the criminal defense bar. As criminal defense funding is left to individual counties in Pennsylvania, and the circumstances in individual counties vary considerably, there is no easy solution to the problem; but nobody with experience in these matters would dispute that the problem exists. For purposes of the collateral review decision here, however, and for the reasons I have stated, I simply do not believe that the Sixth Amendment, as construed by the High Court, embraces the absolutist conflict theory forwarded here.
Justice SAYLOR, concurring.
I wish, unconstrained by majority authorship, to respond to the points raised by the Chief Justice in his concurring opinion.
In the first instance, in terms of the legal analysis of Appellant's attempt to invoke presumed prejudice, there seems to be little if any difference between the majority opinion and the concurrence. Indeed, the only substantive legal difference which I see between the expressions of the majority and the Chief Justice pertains to the hypothetical circumstance in which a defendant might prove through credited evidence (say, direct testimony from his attorney) that counsel prioritized his own financial interests above the interests of his client and, as a result, rendered deficient stewardship prejudicing the defense. The majority opinion refuses to rule out that a conflict claim might be stated in such a scenario, whereas, the concurrence seems largely to represent the Chief Justice's reaction to such reservation.
Like the Chief Justice, I have no wish to condemn anyone. Indeed, I find trial counsel's circumstances in this case to be sympathetic. Having been charged by the trial judge to perform, effectively on a shoestring, a task for which she was plainly unprepared and unqualified, I have no doubt that this lawyer did what she was able to do while also managing her regular practice.
For such purpose — and this purpose only — I observe that trial counsel's performance in this case in no way comports with the Chief Justice's vision of attorney stewardship which is "a credit to the profession as a whole." Concurring Opinion at 632-33. Counsel failed entirely to conduct what any competent attorney should recognize to be an indispensable centerpiece of a capital defense case (particularly where, as here, there is very strong evidence of guilt) — namely, a mitigation investigation. See Commonwealth v. King, No. CP-38-CR-10898-1993, slip op. at 25 (C.P. Lebanon July 23, 2010) ("[T]here was highly compelling mitigation evidence available for presentation to the jury if only counsel had conducted a sentencing phase investigation.").
No presumption or platitude can sweep aside this attorney's intolerably poor performance or the damage it has caused. Of greatest concern, these sorts of exceptionally costly failures, particularly as manifested across the wider body of cases, diminish the State's credibility in terms of its ability to administer capital punishment and tarnish the justice system, which is an essential component of such administration.
Attached as an appendix is a partial list of cases in which sentencing relief has been granted over the last ten years in the Pennsylvania state courts based on deficient stewardship of capital defense attorneys.
In summary, I share in the Chief Justice's praise and gratitude for pro bono attorneys and attorneys who are able to undertake representation of indigent capital defendants without compromising their practices. Nevertheless, I am unable to agree with the suggestion that the presumption of effectiveness by and large reflects the actual state of capital defense representation in Pennsylvania. I would submit that, in fact, we have seen more than enough instances of deficient stewardship to raise very serious questions concerning the presumption's accuracy. It is my considered position, like that of many others, that a contributing factor may be the pervasive underfunding of indigent defense. See, e.g., supra note 5 (citing REPORT OF THE NATIONAL RIGHT TO COUNSEL COMMITTEE, JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL (Apr.2009)). Against such a background, I do not believe that courts can justly foreclose defendants from asserting that inadequate compensation has impacted their counsel's performance.
As a postscript, very recently, this Court exercised its extraordinary jurisdiction to consider a petition challenging Philadelphia's compensation system for counsel representing indigent capital defendants. This Court appointed a special master, who reported his findings that such system is "grossly inadequate," "completely inconsistent with how competent trial lawyers work," "punishes counsel for handling these cases correctly," and "unacceptably increases the risk of ineffective assistance of counsel in individual cases." Report and Recommendations in Commonwealth v. McGarrell, 77 EM 2011, CP-51-CR-0014623-2009 (C.P.Phila. Feb. 21, 2012). While this Court has not yet formally reviewed these findings, they certainly are in tension with the aspirational notions fostered by the Chief Justice's concurrence, as applied in the capital arena, particularly since Philadelphia is far and away the largest contributor to Pennsylvania's death row.
• Commonwealth v. King, ___ Pa. ___, ___ A.3d ___ (2012) (reflecting the
• Commonwealth v. Keaton, ___ Pa. ___, 45 A.3d 1050, 1091-93 (2012) (new penalty award affirmed, where trial counsel maintained a "myopic focus only on the guilt phase"; failed to obtain life-history and mental-health records or otherwise conduct an adequate mitigation investigation; and ignored the advice of a mental-health expert he had engaged that further mental-health testing was implicated)
• Commonwealth v. Walker, ___ Pa. ___, 36 A.3d 1, 5 (2011) (reflecting an unappealed new penalty hearing award based on ineffectiveness of trial counsel)
• Commonwealth v. Smith, 609 Pa. 605, 621, 17 A.3d 873, 882 (2011) (stipulated penalty relief based on deficient attorney stewardship)
• Commonwealth v. Martin, 607 Pa. 165, 207-08, 5 A.3d 177, 202-03 (2010) (new penalty award affirmed where the counsel's deficient investigation "was the result of lack of attention," and his failure to present mental-health mitigation was "unreasonable as a matter of law")
• Commonwealth v. Smith, 606 Pa. 127, 178, 995 A.2d 1143, 1173 (2010) ("Counsel cannot meet his obligation by relying on `only rudimentary knowledge of [the defendant's] history from a narrow set of sources,' which is exactly what [the defendant's attorney] did[;] [t]his is the type of case ... where `potentially powerful mitigating evidence ... would have been apparent from documents any reasonable attorney would have obtained'" (citations omitted))
• Commonwealth v. Williams, 602 Pa. 360, 371, 980 A.2d 510, 517 (2009) (reflecting the Commonwealth's eventual concession, some twenty years post-trial, that a new penalty hearing was warranted)
• Commonwealth v. Beasley, 600 Pa. 458, 462-63, 967 A.2d 376, 379 (2009) (reflecting a remand where trial counsel attested that he was not aware that he could adduce life-history and mental-health information in penalty proceedings and that he conducted no investigation along such lines)
• Commonwealth v. Johnson, 600 Pa. 329, 342, 966 A.2d 523, 531 (2009) (reflecting a PCRA court's determination that a trial attorney "completely abrogated his duty to [the defendant]," in a matter remanded for a determination of prejudice)
• Commonwealth v. Collins, 598 Pa. 397, 408, 957 A.2d 237, 243 (2008) (unappealed award of new penalty hearing)
• Commonwealth v. Sattazahn, 597 Pa. 648, 664, 952 A.2d 640, 649 (2008) (new penalty hearing awarded where, as recounted by the PCRA court, trial counsel "failed to adequately investigate substantial mitigating factors, even though the record was replete with `red flags' of brain damage that indicated the need for neuropsychological evaluations," and "did not conduct a thorough investigation of his client's background" (citation omitted))
• Commonwealth v. Williams, 597 Pa. 109, 127, 950 A.2d 294, 305 (2008) (new penalty award affirmed, where "the omission from consideration by the sentencing jurors of the diagnosis of Axis I major mental-health disorders and recent psychiatric hospitalizations occurred ... in the absence of a sufficient investigation and without strategic or tactical justification")
• Commonwealth v. Cooper, 596 Pa. 119, 145, 941 A.2d 655, 671 (2007) (Castille, J., concurring) (new penalty hearing due where, in the words of a concurring Justice,
• Commonwealth v. Gorby, 589 Pa. 364, 390-91, 909 A.2d 775, 791 (2006) (denial of new penalty hearing overturned, where trial counsel failed to explore well-travelled avenues of mitigation investigation, presented a "remarkably weak" penalty defense, and failed even to secure a jury instruction by which jurors could give effect to the only category of mitigation evidence which he did present)
• Commonwealth v. Sneed, 587 Pa. 318, 345, 899 A.2d 1067, 1083 (2006) (new penalty award sustained where counsel "failed to conduct even a cursory investigation into [the defendant's] background")
• Commonwealth v. May, 587 Pa. 184, 213, 898 A.2d 559, 576 (2006) (OAJC) (denial of new penalty hearing overturned, where trial counsel failed to adequately address unreasonable trial-court refusal to admit relevant mitigation)
• Commonwealth v. Collins, 585 Pa. 45, 75-76, 888 A.2d 564, 582 (2005) (new penalty hearing award sustained where trial counsel failed to obtain life-history records or otherwise conduct a reasonable investigation)
• Commonwealth v. Zook, 585 Pa. 11, 38, 887 A.2d 1218, 1235 (2005) (new penalty hearing required where inadequate penalty presentation "simply was a result of inattention to the mitigating evidence that was known, or should have been known, to counsel")
• Commonwealth v. Jones, 583 Pa. 130, 135, 876 A.2d 380, 384 (2005) (reflecting an unchallenged award of penalty relief where "trial counsel failed to investigate and develop mitigating evidence")
• Commonwealth v. Gribble, 580 Pa. 647, 684, 863 A.2d 455, 477 (2004) (reflecting vacation of a PCRA court's summary award of a new penalty hearing and remand; however, new penalty proceeding awarded following a hearing as recounted in Brief for Appellee in Commonwealth v. Gribble, No. 1042 EDA 2009, 2010 WL 4338675 (June 21, 2010), at *8).
• Commonwealth v. Malloy, 579 Pa. 425, 456, 856 A.2d 767, 786 (2004) (new penalty hearing awarded where "[i]t is apparent from this record that counsel undertook little or no affirmative effort aimed at the penalty phase of trial")
• Commonwealth v. Harris, 578 Pa. 377, 383 n. 6, 852 A.2d 1168, 1171 n. 6 (2004) (new penalty hearing awarded by a PCRA court based on deficient stewardship, which the Commonwealth did not appeal)
• Commonwealth v. Brooks, 576 Pa. 332, 337 839 A.2d 245, 249 (2003) (new trial awarded, where the defense attorney "never once met with [his client] before his trial on capital charges")
• Commonwealth v. Chambers, 570 Pa. 3, 22, 807 A.2d 872, 883 (2002) (new penalty hearing where trial counsel unreasonably failed to object to confusing jury instruction concerning mitigating circumstances)
• Commonwealth v. O'Donnell, 559 Pa. 320, 347 n. 13, 740 A.2d 198, 214 n. 13 (2002 [1999]) (new penalty hearing granted on other grounds; however, the majority expressed "serious doubts regarding counsel's effectiveness," where the attorney "presented virtually no evidence of [the defendant's] upbringing or background" and "did not call a single witness on [the defendant's] behalf")
I join Chief Justice Castille's Concurring Opinion, and its joinder of the Majority Opinion. If fee caps may create a "conflict of interest," then, a fortiori, pro bono representation creates a conflict — if too little payment can do so, no payment at all would almost certainly do so. Of course, the truth is that countless attorneys handle countless legal matters for people with little or no compensation. This does not mean evidence "that counsel prioritized his own financial interests above the interests of his client and, as a result, rendered deficient stewardship prejudicing the defense" would not allow for a claim of ineffectiveness. Concurring Op., at 633-34 (Saylor, J., concurring). Such would be an admission of ineffectiveness, contrary to "prevailing professional norms," and counsel's reasoning for his ineffectiveness would be inconsequential to the determination. See id., at 617-18 (citing Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009)). However, it would not be based on a conflict of interest. The love of money may be the root of all evil and some ineffectiveness, but by itself, it does not create a legal conflict of interest.
Here, Weiss represented Appellant both at trial and on direct appeal. If she had been Appellant's only appellate counsel, layering would clearly not be required for the reasons explained above. The matter is complicated somewhat, though, because Weiss was joined by Robert Brett Dunham, Esq., during the direct appeal, and this Court has not addressed whether claims of trial counsel ineffectiveness must be preserved on direct appeal when trial counsel obtained co-counsel for the appeal prior to Grant. Still, the Court has often articulated the pre-Grant framework by expressing that the litigant's first opportunity to raise trial counsels' ineffectiveness arises when trial counsel "no longer represents" the litigant. See, e.g., Commonwealth v. Lesko, 609 Pa. 128, 154, 15 A.3d 345, 360 (2011); Commonwealth v. Tilley, 566 Pa. 312, 319 n. 9, 780 A.2d 649, 653 n. 9 (2001); Commonwealth v. Kenney, 557 Pa. 195, 201, 732 A.2d 1161, 1164 (1999); Commonwealth v. Green, 551 Pa. 88, 92, 709 A.2d 382, 384 (1998); Commonwealth v. Chmiel, 536 Pa. 244, 251, 639 A.2d 9, 12 (1994); Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994); Commonwealth v. Shannon, 530 Pa. 279, 285, 608 A.2d 1020, 1023 (1992); Commonwealth v. Hubbard, 472 Pa. 259, 276, 372 A.2d 687, 695 (1977). Because the PCRA stage was when Weiss first no longer represented Appellant, absent any argument to the contrary we conclude that the present claims of trial counsel ineffectiveness did not need to be preserved on direct appeal, and hence, McGill-style layering is not required in this case.
18 Pa.C.S. § 309(a).
I recognize that a mere association of this type — between better compensation and better outcomes (from a defense point of view at least) — does not establish an actual cause-and-effect relationship, since there may be other variables at work. At the very least, however, such a stark association raises cause for close study, particularly where there is evidence that indigent defense systems are impaired. See, e.g., REPORT OF THE NATIONAL RIGHT TO COUNSEL COMMITTEE, JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL (Apr.2009) (embodying the analysis of a bipartisan committee of independent experts representing all segments of the Nation's justice system identifying systemic deficiencies — including pervasive underfunding of defense attorney services — and recommending reform measures); id. at 31 (stating that "it is totally unrealistic to expect that effective representation will be delivered unless systems of public defense are adequately funded").
N.T., Nov. 21, 2006, at 111.
Of course, the finding of waiver in many of these instances simply reflects another manifestation of attorney dereliction. As I have previously observed in a post-conviction setting:
Commonwealth v. Gwynn, 596 Pa. 398, 421 n. 2, 943 A.2d 940, 954 n. 2 (2008) (Saylor, J., dissenting).
Parenthetically, my own perspective in each of these cases is reflected in my dissents. See Romero, 595 Pa. at 335-39, 938 A.2d at 398-400 (Saylor, J., dissenting); Brown, 582 Pa. at 516-26, 872 A.2d at 1171-77 (Saylor, J., dissenting).
