Commonwealth v. Roney

Justice SAYLOR,

dissenting.

As to the treatment of guilt-phase claims, I favor evidentiary development, consistent with my position expressed elsewhere. See, e.g., Commonwealth v. Keaton, 615 Pa. 675, 749-50, 45 A.3d 1050, 1095 (2012) (Saylor, J., concurring and dissenting). I continue to believe that “the absence of an adequate factual foundation for consideration of capital post-conviction claims encourages unwarranted analytical shortcuts in the appellate review.” Id.

For example, Appellant challenges his trial counsel’s stewardship in failing to investigate the involvement of another man, Travis Hall, in the robbery/murder, who shared similar physical characteristics with Appellant. In part, the PCRA court and the majority respond to this claim by pronouncing that “trial counsel’s strategy in not attempting to blame the murder on Hall was reasonable!)]” Majority Opinion, at 605 (summarizing the post-conviction court’s reasoning); id. at 606 (crediting such reasoning). As Appellant points out, however, we know nothing of counsel’s strategy pertaining to Hall, since the PCRA court refused to permit Appellant to make an evidentiary record. See, e.g., Initial Brief of Appellant at 31 (“There is no reason to believe that trial counsel had any ‘strategy’ concerning Hall.”). In this regard, the reviewing courts appear to be engaging in the practice of inferring, or extra-record “gleaning” of, the content of a defense strategy, a practice which I thought we had eschewed. See, e.g., Commonwealth v. Duffey, 579 Pa. 186, 205, 855 A.2d 764, 775 (2004); cf. Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S.Ct. 2527, 2538,156 L.Ed.2d 471 (2003) (admonishing that courts are to avoid “post hoc rationalization of counsel’s conduct”).1 Moreover, since counsel are charged .with the obligation to conduct a reasonable investigation in the first instance to support their strategic choices, it is axiomatic that some assessment of the underlying investigation must be made before a strategic choice reasonably can be credited..by a reviewing court. See, e.g., Commonwealth v. Williams, 597 Pa. 109, 125, 950 A.2d 294, 304 (2008) (“Strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation.” (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984))).2

*648The majority offers another reason for rejecting Appellant’s claim, which might seem to obviate the otherwise-essential inquiry into the adequacy of counsel’s investigation, namely, Appellant’s failure to produce an affidavit or other evidence concerning the extent of counsel’s inquiry. See Majority Opinion, at 606-07. The majority, however, does not discuss the requirement for post-conviction courts to issue reasonable pre-dismissal notice of the reasons why claims are being summarily dismissed, thus providing a reasonable opportunity to’ amend or supplement (or request leave to do so where necessary). See Pa.R.Crim.P. 909(B); see also Commonwealth v. Smith, 609 Pa. 605, 679, 17 A.3d 873, 916 (2011) (Saylor, J., dissenting) (“In my view, the Court must require uniform, strict adherence to the requirement of pre-dismissal notice containing reasonably specific notice of pleading deficiencies or other reasons for summary dismissal and uniformly dispense hearings where credibility matters are materially in issue.”). See generally Commonwealth v. Williams, 566 Pa. 553, 568-69, 782 A.2d 517, 526-27 (2001). Here, the PCRA court did not afford Appellant pre-dismissal notice that his petition was lacking by virtue of his failure to tender an affidavit from counsel. Therefore, I fail to see that such omission is an available basis, on appellate review, to now bolster the post-conviction court’s summary dismissal of the claim. Accord id. (refusing to credit a basis for dismissal of a PCRA petition which was not fairly subsumed, on a reasonably developed basis, within the pre-dismissal notice).3 inappropriate

Furthermore, we have very good cause for circumspection about the performance of Philadelphia-based capital defense counsel, at least, given our exercise of extraordinary jurisdiction and appointment of a special master to consider a petition challenging Philadelphia’s compensation system for such counsel. After a hearing, our special master reported his findings that such system, in effect at the time of Appellant’s trial, was “grossly inadequate,” “completely inconsistent with how competent trial attorneys 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. McGarrel, 77 EM 2011, CP-51-CR-0014623-2009 (C.P.Phila.Feb.21, 2012); cf. Commonwealth v. King, — Pa. -, -, 57 A.3d 607, 633-38 (2012) (Saylor, J., concurring specially) (cataloguing anecdotal evidence of systemic deficiencies in the scheme of defense for indigent capital defendants). While this Court has not formally reviewed these findings, at the very least they suggest against sanctioning the use of summary dismissals skirting governing law and procedural protections at the post-conviction stage.4

*649As to the penalty, I also have difficulty with the PCRA court’s analysis, see, e.g., supra note 2, credited by the majority. Moreover, I incorporate previous comments I have made about the troublesome nature of affirming on the basis that a hypothetical trial, at which a defendant is assumed to have been represented by competent counsel, would have led to the same result. See, e.g., Commonwealth v. Koehler, 614 Pa. 159, 227-28, 36 A.3d 121, 162 (2012) (Saylor, J., concurring). In any event, one matter we seem to agree on here, at least, is that Appellant was atrociously underrepresented relative to the penalty portion of his actual capital trial. See PCRA Court Op., slip op. at 22 (acknowledging that Appellant’s trial counsel “did not conduct an investigation for mitigation purposes”).

. Notably, Appellant’s trial counsel, by his own admission, performed no pre-trial investigation relative to a central aspect of the defense case in one critical phase of trial, i.e., the penalty phase. See PCRA Court Op., slip op. at 22 (acknowledging that Appellant's trial counsel "did not conduct an investigation for mitigation purposes”). Accordingly, I believe the reviewing courts should be more circumspect concerning the extra-record assumption that counsel acted appropriately with regard to the other critical phase. Cf. Commonwealth v. Sneed, 616 Pa. 1, 38, 45 A.3d 1096, 1118 (2012) (Saylor, X, dissenting) ("Given the extent of the patent ineffectiveness we have seen in a fair number of these cases (including this one relative to the penalty phase at least), I maintain that such claims should be decided on a reasonably developed record.” (citation omitted)). Indeed, with regard to summary dismissals, inferences should be made most favorably to the non-moving party.

. With regard to the penalty phase, the PCRA court again overtly disregarded the requirement of an adequate investigation to support a finding of reasonable strategy. See Majority Opinion, at 630 ("The PCRA court concluded that counsel 'did not conduct an investigation for mitigation purposes, but he did have a *648coherent strategy]) to wit,] emphasizing [Appellant's] good character.” (citation omitted)).

. I also have difficulty with the practice of requiring an affidavit or declaration of counsel in the post-conviction process. Obviously, since counsel’s stewardship is generally under attack by the petitioner on collateral review, counsel may not be cooperative, and, thus, the petitioner may be relegated to adducing proof through what effectively amounts to cross-examination.

. I have further noted my concern with the disparities in the way summary dismissals are administered amongst the various post-conviction courts. See, e.g., Commonwealth v. Simpson, - Pa. -, -, 66 A.3d 253, 286 (2013) (Saylor, J., dissenting) ("I dissent in favor of requiring reasonable compliance, in our post-conviction courts, with the rules and principles which are supposed to govern their review.”).