Commonwealth v. Fears

DISSENTING OPINION

Justice SAYLOR.

For purposes of the summary dismissal of Appellant’s post-conviction claims, we are required to accept, as fact, the aver-ments in trial counsel’s declaration that: he lacked any training or experience whatsoever in capital litigation; he had no investigative resources available to him; and his caseload as a public defender interfered with his ability to prepare a defense, as reflected, inter alia, in his speaking with the government witness he selected to present in the defense penalty case for “a single time for less than ten minutes before calling her as a witness at [Appellant’s] sentencing.” Affidavit/Declaration of Trial Counsel at 1-3.

Consistent with the majority disposition of claims of deficient stewardship on direct appeal, the majority’s present response to this disturbing state of affairs appears to accept that trial counsel made the best of a problematic situation. See, e.g., Majority Opinion, at 811 (“Because the Public Defender’s Office lacked funds for an expert, and trial counsel believed Dr. Martone would provide helpful expert testimony, we found he acted reasonably.”). The State, however, has an obligation to provide an indigent capital defendant with essential resources necessary to his defense. Whether the responsibility for underrepre-sentation lies directly at the feet of the State or is attributable to errors or omissions on the part of the attorney the State has provided, the practical result to the indigent capital defendant will be the same: he will have been denied his constitutional right to an adequate defense.1

The averments of Appellant’s PCRA petition and the accompanying proffers raise very serious questions in this regard,2 as *829well as in terms of the derivative claims involving the stewardship of Appellant’s counsel on direct appeal.3 Thus, the matter should be addressed on a developed post-conviction record, with Appellant being afforded the single post-conviction hearing to which he is entitled. See Pa. R.Crim.P. 909(B).

. It is particularly troubling to me that trial counsel's efforts, at each critical stage, appear to reflect the path of least resistance. He advocated a plea to first-degree murder (although he did not apprehend that prevailing law at the time did not recognize such a plea); he favored the waiver of Appellant's jury-trial right relative to penalty, thus foregoing the chance of gaining a life sentence by persuading only one of twelve jurors; without training or experience, counsel did so based on the dubious assumption that the trial judge would be impressed with Appellant’s decision to plead guilty and/or the very mixed information deriving from a pre-sentence report (whereas, predictably, the court was not impressed); counsel did nothing to approximate a reasonable life-history and mental health investigation; and he did not so much as ask the trial court for funding to secure a mental-health evaluation of his client.

. The abjectly deficient stewardship reflected on the face of trial counsel's declaration is consistent with a pattern of underrepresentation we are seeing in the Pennsylvania death-penalty cases. See generally Commonwealth v. King, 618 Pa. 405,-, 57 A.3d 607, 633-*82939 (2012) (Saylor, J., concurring specially) (cataloguing anecdotal evidence of systemic deficiencies in the scheme of defense for indigent capital defendants). For this reason, as well, I favor close consideration of this type of case on a developed evidentiary record, consistent with my expressions in the past. See, e.g., id.; Commonwealth v. Sneed, 616 Pa. 1, 38, 45 A.3d 1096, 1118 (2012) (Saylor, J„ 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)).

. In terms of the representation provided by counsel on direct-appeal, the majority appears to fault Appellant for failing to provide an affidavit or declaration from his attorney explaining her strategy. See Majority Opinion at 816. The majority otherwise appears to recognize, however, that such procedural omissions should not be relied in support of a summaty dismissal, where the petitioner was not afforded pre-dismissal notice of the asserted inadequacy. See id. at 805.