Commonwealth v. Elliott

Justice EAKIN,

concurring.

I join the majority; however, I write separately to reiterate my disfavor of a rule evaluating counsel’s performance which applies only to capital defendants. See Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245, 255-56 (2003) (Eakin, J., concurring). This case, and future failure-to-meet cases, may be properly analyzed under the long-standing framework announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987); therefore, it is unnecessary to afford capital defendants — based solely on their status as a capital defendant — the ability to bypass the requirement of demonstrating actual prejudice. See Brooks, at 255 (Eakin, J., concurring) (“[T]he constitution does not afford some lesser right to effective counsel on those charged with noncap-ital crimes. The right to counsel inures to the capital defendant, the felon, and the misdemeanant alike.”). Thus, I agree with the majority that appellee failed to demonstrate he was prejudiced by counsel’s failure to meet with him face-to-face prior to trial. However, to the extent the majority would “save for another day the issue of whether, in a post-Brooks case, a new trial would be warranted [in a similar factual scenario,]” Majority Op. at 431 n.6,1 would analyze that case based solely on the defendant’s ability to demonstrate actual prejudice under Pierce and its progeny.