concurring.
Although I agree with the majority that appellant is not entitled to PCRA relief from his death sentence for the murder of Philadelphia Police Officer Daniel Boyle, I do not entirely agree with the majority’s characterization and analysis of appellant’s “layered” claims of counsel ineffectiveness. 1 also write separately to briefly address appellant’s argument that the failure to apply “relaxed waiver” to defeat the PCRA’s statutory waiver provisions would be unconstitutionally retroactive.
The majority holds that those of appellant’s claims sounding primarily in trial court error are either previously litigated (claims I, IV, and VII) or waived (claims II, III, V, VI, VIII, IX, and X). As to the several claims it deems waived, the majority correctly notes that those claims could have been raised on direct appeal, but were not. Op. at 939-40. I agree with the majority as to its previously litigated and waiver holdings and join in its opinion on these issues.
*288The majority also notes that, as to each of the waived claims of trial court error, appellant adds an undeveloped, conclusory argument that trial and appellate counsel were ineffective for failing to raise the claim. The majority summarily holds that the boilerplate allegations of layered ineffectiveness do not prove an entitlement to relief. Op. at 940 n. 4.
Though boilerplate, these nevertheless are distinct, independent Sixth Amendment claims that are cognizable in their own right under the PCRA. See discussion below. Moreover, under this Court’s precedent in Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202 (2000), the boilerplate nature of an argument on ineffectiveness has been held to be an insufficient basis to deem such a claim waived under our appellate rules. Accord Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 525-26 (2001). I would acknowledge the independent, non-waived nature of these layered ineffectiveness claims under Marrero, but I would reject them on the merits for the reasons I explain below involving appellant’s other claims that direct appeal counsel was ineffective.
The remainder of appellant’s substantive: claims are posed primarily as claims of ineffective assistance of counsel. As the majority notes, appellant alleges that both trial and direct appeal counsel (appellant was represented by new counsel on direct appeal) were ineffective with respect to these claims. The majority also accurately notes that the PCRA petition marked appellant’s first opportunity to challenge appellate counsel’s stewardship. Nevertheless, the majority inexplicably proceeds to analyze each of these claims as claims of trial counsel ineffectiveness, not appellate counsel ineffectiveness, apparently viewing the allegations as to appellate counsel as operating to “avoid” the waiver of the underlying claim respecting trial counsel. Op. at 351 & n. 6.1 The majority ultimately rejects the trial counsel ineffectiveness claims on. *289the merits, but it never addresses the constitutionally distinct claims of appellate counsel ineffectiveness.
The claims of trial counsel ineffectiveness unquestionably are waived under the PCRA. An issue is waived under the PCRA “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b) (emphasis supplied).2 See Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390, 395 (1999). This Court has repeatedly recognized that, “[i]n order to preserve claims of ineffectiveness of counsel under the PCRA, the claims must be raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant.” Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161, 1164 (1999), quoting Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167, 1170 (1994). Accord Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998) (“It is well-established that a claim of ineffectiveness must be raised at the earliest possible stage in the proceedings at which counsel whose effectiveness is questioned no longer represents the defendant”) (collecting cases); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977).3
In his direct appeal, appellant properly raised multiple claims of trial counsel ineffectiveness involving both the guilt *290and the penalty phases of trial, claims which were reviewed and rejected on the merits. Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062 (1995). Since the additional claims of trial counsel ineffectiveness that appellant now raises were also available to him on that direct appeal, they are waived. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 212 (2001); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 526 (2001) (“[T]hose claims that were not raised at the earliest opportunity (on direct appeal) would be deemed waived” under 42 Pa.C.S. § 9544); id. at 534 (Castille, J., concurring) (same); Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202, 204 (2000) (Nigro, J., concurring) (pursuant to 42 Pa.C.S. § 9544(b), “Appellant has waived all of his ineffective assistance of trial counsel claims by failing to present them at his first opportunity to do so when his trial counsel no longer represented him, which was on his direct appeal to this Court”).
Those claims which are not waived under the PCRA are appellant’s allegations that his direct appeal counsel was ineffective for failing to raise the claims of trial counsel’ ineffectiveness. Pierce, supra. Claims that appellate counsel was ineffective are distinct, substantive Sixth Amendment claims separate and apart from the underlying claims of trial court error and trial counsel ineffectiveness. See Williams, 782 A.2d at 525 & n. 5 (“competent PCRA counsel must ... undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel”); id. at 534-35 (Castille, J., concurring). Unlike his claims of trial counsel ineffectiveness, which appellant could have raised on direct appeal, the claims that appellate counsel was ineffective could not be raised until this PCRA proceeding, which was appellant’s first opportunity to assail appellate counsel’s performance. Accordingly, the claims are not waived under the PCRA. Moreover, the claims are cognizable under the PCRA, at least in the abstract, because the PCRA explicitly says they are. 42 Pa.C.S. § 9543(a)(2)(h).
*291Claims of appellate counsel ineffectiveness are subject to the same general test applied under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny. Smith v. Robbins, 528 U.S. 259, 285-89, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (petitioner “must satisfy both prongs of the Strickland test in order to prevail-on his claim of ineffective assistance of appellate counsel”). Claims involving appellate counsel ineffectiveness, however, often trigger concerns unique to appellate practice. Commonwealth v. Lambert, 568 Pa. 346, 797 A.2d 232, 238-241 (Pa.2001) (Opinion Announcing the Judgment of Court) (discussing cases); Williams, 782 A.2d at 535-36 (Castille, J., concurring). As the Commonwealth correctly notes (Brief for Appellee at 15-16), the U.S. Supreme Court has recognized that arguably meritorious claims may be omitted in favor of pursuing claims which, in the exercise of appellate counsel’s objectively reasonable professional judgment, offer a greater prospect of securing relief. See Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). “[Ajppellate counsel ... need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Robbins, 528 U.S. at 288, 120 S.Ct. 746 (characterizing Barnes ). Accord Lambert.
Appellant’s claims of appellate counsel ineffectiveness are raised via boilerplate statements at the end of appellant’s arguments concerning trial counsel’s performance, as well as an overriding, but no less boilerplate, claim at the end of appellant’s brief, in which he baldly alleges that “prior counsel” were ineffective for failing to “properly investigate and to make the objections and arguments raised throughout this Brief.” Initial Brief of Appellant at 76 (Claim XVII). Although such a boilerplate argument has been deemed sufficient to require merit review of a claim of ineffectiveness, see Lambert, 797 A.2d at 248; Marrero, 748 A.2d at 203-04 n. 1, the failure to address the Strickland /Robbins standard as it applies to appellate counsel’s performance will warrant rejection of the appellate counsel claims on the merits. See Lambert, 797 A.2d at 243 (collecting cases). Pierce, supra, 786 *292A.2d at 221-22; Commonwealth v. Rivers, 567 Pa. 239, 243, 786 A.2d 923, 925 (2001) (Opinion Announcing Judgment of Court). In any event, the claims respecting appellate counsel independently fail in light of the majority’s determination that the underlying claims of trial counsel ineffectiveness lack merit. See generally Pierce, swpra. Appellate counsel cannot therefore be deemed ineffective for failing to pursue meritless claims. Commonwealth v. Peterkin, 538 Pa. 455,. 649 A.2d 121, 128 (1994), cert. denied, Peterkin v. Pennsylvania, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995); Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438, 438 (1980). In summary, appellant’s claims of appellate counsel ineffectiveness, though not waived in light of Marrero, fail on the merits.
Turning to relaxed waiver, appellant argues that, notwithstanding the PCRA’s waiver provision, and notwithstanding that he has articulated reviewable claims of layered ineffectiveness, the waived versions of his claims cannot be deemed defaulted because of this Court’s relaxed waiver rule. The majority responds to this argument by noting that, in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998), this Court held that the relaxed waiver rule is no longer applicable on PCRA appeal. Appellant argues that the terms of the PCRA and Albrecht cannot be applied to his waived claims because that application would be “unconstitutionally retroactive” and would violate due process. According to appellant, until Albrecht was decided, the law in this Commonwealth supposedly “was that Pennsylvania’s courts should always address the merits of claims brought by a death-sentenced prisoner, and should never use technical ‘waiver’ rules to deny relief in a capital case.” Reply Brief at 1 (emphases supplied). In an argument he fails to develop beyond attaching a footnote consisting of a string citation to cases from the United States Supreme Court, appellant then declares that Albrecht amounts to a “new waiver rule[ ]” which “cannot constitutionally be applied retroactively to appellant.” Id. The majority rejects this argument, citing to cases that have recognized that Albrecht merely enforces the PCRA — a statute, not a “technical waiver rule” — while “clarifying” the *293scope of our practice in relaxing judicial waiver doctrine in capital appeals.
Of course, the fact that this Court has called Albrecht a “clarifying” rule is not much of a response to the question of retroactivity. Whether clarifying or not, if Albrecht altered settled expectations, there are obvious implications which this Court should more squarely address. Furthermore, the answer to the question is a matter of some consequence since this case will, in all likelihood, proceed to federal habeas review where the question of the adequacy of this Court’s procedural rulings in light of Albrecht and relaxed waiver will be a central issue. Accordingly, I offer the following response to appellant’s argument regarding relaxed waiver and the supposed unlawfully retroactive application of Albrecht.
Appellant’s portrayal of the relaxed waiver rule as an absolute — i.e., as a rule that meant until Albrecht, that this Court would always address waived claims — is a mischaracterization of our cases. Nor does appellant’s misrepresentation of the law in this regard even begin to account for the history, purpose, and scope of the relaxed waiver rule. See Williams, 782 A.2d at 533 n. 1 (Castille, J., concurring).
The statutory waiver enacted under the terms of the PCRA, which limits the types of claims deemed cognizable on collateral attack, and which is the bar to review of many of appellant’s claims here, is not, and never properly was, subject to the “relaxed waiver” practice this Court has employed in capital direct appeal cases to reach certain claims that would otherwise have been unreviewable pursuant to judicial waiver doctrines. Our discretionary practice of “relaxing” judicial waiver doctrines in direct capital appeals has its genesis in this Court’s opinions in Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978), and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See Albrecht, 720 A.2d at 700.
The McKenna decision involved unique circumstances impossible to divorce from their time. In 1972, the United *294States Supreme Court issued its landmark decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which held that death penalty statutes cannot leave unbridled discretion in the sentencing body to determine whether a sentence of death should be imposed in a particular case. See 408 U.S. at 256-57, 92 S.Ct. 2726 (Douglas, J. concurring); McKenna, 383 A.2d at 177. In response to Furman, this Court struck down the Pennsylvania death penalty statute then in effect as violative of the Eighth and Fourteenth Amendments of the United States Constitution. See Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). That capital provision, which had been enacted in 1939, left to the jury the sole determination as to whether a sentence of either death or life imprisonment was appropriate for a first degree murder conviction, subject to very general procedural considerations. 18 P.S. § 4701 (repealed).
The Pennsylvania legislature responded by enacting, as part of the Crimes Code of 1972, a death penalty provision that the McKenna Court noted “was distinguished by a complete lack of direction as to the circumstances that would warrant imposition of the' death penalty.” McKenna, 383 A.2d at 178.4 McKenna was tried under the 1972 provision, was convicted of first degree murder and rape, and was sentenced to death by the jury.
The McKenna Court held that the 1972 death penalty statute was unconstitutional on its face because it left totally unbridled discretion in the finder of fact to determine the penalty. Indeed, that the 1972 statute was facially unconstitutional under Furman and Bradley was indisputable. The more difficult question was a question of appellate jurisprudence, i.e., whether to reach the obviously meritorious constitutional issue under Furman/Bradley, which was raised only by an amicus brief, in light of the “procedural peculiarity” that McKenna, who himself preferred a sentence of death to life *295imprisonment, expressly refused to challenge the statute and refused to let his lawyer do so.5 Although this Court recognized that our waiver doctrine was indispensable to the orderly functioning of the appellate judicial process, we nevertheless held that, in “occasional rare situations,” the interests of society as a whole in seeing justice done outweighed the doctrine. The unique nature of the death penalty, which is “irrevocable in its finality,” combined with the patent unconstitutionality of the entire capital sentencing scheme at issue in McKenna, was deemed to be one of those rare situations where the Court had “a duty to uphold the mandates of the constitution over the countervailing considerations of normal appellate procedure.” 383 A.2d at 179-81. “[Wjhere an overwhelming public interest is involved but is not addressed by the parties, this Court has a duty to transcend procedural rules which are not, in spirit, applicable, to the end that the public interest may be vindicated.” Id. at 181. See also Albrecht, 720 A.2d at 700 (“Relaxed waiver, as an operating principle, was created to prevent this court from being instrumental in an unconstitutional execution”).
Notwithstanding that McKenna involved the unique, “rare” circumstance of a defendant who intentionally refused to challenge the facially unconstitutional death penalty statute under which he was sentenced, McKenna has been carried over to and expanded under the current death penalty statute, a statute which has survived multiple constitutional challenges. The first case to so employ McKenna was Zettlemoyer. Zettlemoyer relied upon McKenna to reach, not a claim that the then-new death penalty statute was unconstitutional on its face, but a routine evidentiary claim which had been waived because it was not raised in post-verdict motions. We justified overlooking our procedural waiver rule with the following analysis:
[F]or the reasons stated in Commonwealth v. McKenna ... and because this Court has an independent, statutory obligation to determine whether a sentence of death was the *296product of passion, prejudice or some other arbitrary factor, whether the sentence is excessive or disproportionate to that imposed in similar cases, and to review the record for the sufficiency of the evidence to support aggravating circumstances, we will not adhere strictly to our normal rules of waiver. The primaiy reason for this limited relaxation of waiver rules is that, due to the final and irrevocable nature of the death penalty, the appellant will have no opportunity for post-conviction relief wherein he could raise, say, an assertion of ineffectiveness of counsel for failure to preserve an issue or some other reason that might qualify as an extraordinary circumstance for failure to raise an issue. 19 P.S. § 1180-4(2). Accordingly, significant issues perceived sua sponte by this Court, or raised by the parties, will be addressed and, if possible from the record, resolved.
454 A.2d at 955 n. 19 (emphasis added). The dissenting opinion reflected a similar perceived concern that the situation of death-sentenced defendants was unique because, unlike prisoners receiving lesser sentences, they were unable to seek statutory post-conviction review:
If this were a conventional case, in which a judgment of sentence other than death were imposed, appellant would be able to challenge the. effectiveness of counsel in subsequent proceedings initiated pursuant to the Post Conviction Hearing Act [PCHA]. Here, the sentence imposed forecloses the availability of those subsequent proceedings. See 42 Pa.C.S. § 9711(i) (record to be transmitted to Governor at close of this Court’s review).
Id. at 970 (Roberts, J., dissenting). The perceived unavailability of PCHA review in capital cases led the dissent to conclude that the Court should fashion its own procedure for entertaining claims of counsel ineffectiveness. Absent such a procedure, the dissent believed that the Court could not discharge its statutory duty to review thoroughly the judgment of sentence of death. Id. at 971.
In the very next opinion from this Court discussing the relaxed waiver rationale, the Court realized that the “primary *297reason” leading to Zettlemoyer’s approval of the practice, ie., the perception that PCHA review was unavailable in capital cases, was mistaken. In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), then Chief Justice Roberts again dissented, reiterating his view that, until new counsel was appointed and a hearing was held on possible claims of ineffectiveness, the Court could not discharge its duty to review the death penalty judgment. Id. at 307 (Roberts, C.J., dissenting). In response, Mr. Justice Zappala, writing for a majority of the Court which included the author of Zettlemoyer, explained that the notion of the unavailability of PCHA review in capital cases was simply mistaken. Section 9711(i) of the Judicial Code, the only authority cited for the proposition that PCHA review was unavailable in death cases, stated only that a full and complete record must be forwarded to the Governor following affirmance of a death sentence. “[T]he statute does not require that the official record be transmitted to the Governor. Nor does the statute in any other way, either expressly or impliedly, remove the case from the jurisdiction of the courts to prevent further action by the courts.” Justice Zappala went on to note that the language in the Zettlemoyer majority opinion suggesting the unavailability of PCHA relief, in addition to being mistaken, was dicta. 467 A.2d at 304 n. 5.
Further experience with state collateral review, of course, has shown that Justice Zappala was correct. Death-sentenced prisoners have been afforded an opportunity for full post-conviction review under the PCHA and its successor, the PCRA. Thus, the “primary reason” for relaxing our procedural waiver rules in death penalty direct appeals proved to be an illusion.
Nevertheless, the practice of relaxing waiver became common in direct appeals in capital cases. The practice has often been justified with no more than a bare reference to the Zettlemoyer dicta. E.g., Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 40 (1998); Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243, 1252 n. 21 (1997); Commonwealth v. Speight, 544 Pa. 451, 677 A.2d 317, 326 n. 15 (1996); Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 707 n. 4 (1984). On other *298occasions, the Court has repeated the erroneous fear of the unavailability of PCHA review as a basis for ignoring our appellate procedure-based waiver rules. E.g., Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833, 837 n. 6 (1985); Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714, 720-21 (1984).6
The relaxed waiver practice, however, was never the absolute appellant portrays it as being. Even at its broadest, relaxed waiver was a discretionary doctrine encompassing only “significant” issues that were “technically” waived, but which could be resolved on the basis of the record generated. E.g., Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 842 (1989). Thus, from the very beginning, this Court declined to relax *299waiver in many instances — for example, in situations where the failure to raise the claim below might have fallen within the realm of defense trial strategy, or where the absence of a contemporaneous objection made it difficult to resolve the issue on the limited record presented. See, e.g., Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426, 434-35 (1997) (suppression issue waived where defendant withdrew pre-trial motion to suppress, thereby depriving Commonwealth of opportunity to meet burden of proving that evidence was lawfully seized); Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719, 725 (1989) (claim that court erred in failing to issue cautionary instruction waived where court offered to give charge and counsel failed to “take a stand” on issue and failed to object when cautionary charge was not forthcoming); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 378 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987) (claim that two prospective jurors were improperly excluded for cause waived where trial defense counsel indicated he had no objection to challenges for cause); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365, 1379-80 (1984) (claim that prospective jurors were improperly excluded waived where counsel’s decision not to raise claim or attempt to rehabilitate jurors must be viewed as tactical and where that decision resulted in record that made it difficult to resolve claim). Appellant’s brief argument is notable in its failure to cite any of these cases.
Furthermore, this Court has expressly warned that the relaxed waiver doctrine was not to be used, and abused, as a litigation tool:
This Court does not countenance trial counsel intentionally sitting by silently at trial only later to complain of trial errors on appeal after an unfavorable verdict. That a matter is a death penalty in no way relieves trial counsel of the duty to raise appropriate contemporaneous objections at trial to allow the trial court to cure any alleged error as well as preserve issues for appellate review.
Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d 1152, 1161 n. 17 (1997); Commonwealth v. Williams, 541 Pa. 85, 660 A.2d *3001316, 1319-20 (1995). See also Commonwealth v. O’Donnell, 559 Pa. 320, 740 A.2d 198, 204 (1999) (relaxed waiver “was never meant to serve as an invitation to appellate counsel to appear before the Court carte blanche and expect that we will resolve a litany of newly developed challenges not raised or objected to before the lower court”). In addition, we have noted our concern that misuse of the practice “sabotages” the trial court’s ability to correct errors and encourages defense attorneys to withhold objection for tactical reasons. Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 455-56 (1998).
The final, essential point in any consideration of this Court’s relaxed waiver rule is that the waivers it relaxes or excuses are waivers arising from our appellate procedural rules and practices. The appellate procedure waiver relaxed in McKenna was a doctrine of our creation, designed to ensure “the orderly functioning of the judicial process.” McKenna, 383 A.2d at 180. It is a doctrine that addresses and is limited to jurisprudential concerns. This Court, which is responsible for creating that waiver doctrine, is certainly empowered to modify or excuse it when other, weightier jurisprudential concerns are at issue. Cf. Craig Williams, 782 A.2d at 533-34 (Castille, J., concurring). That is what happened in McKenna.
The same jurisprudential concern justifies, as a matter of judicial power, a decision to relax our waiver rules on direct capital appeals. The waiver doctrine that we relax on a direct capital appeal is the same one at issue in McKenna. But the calculus is entirely different when the waiver at issue arises from a non-judicial source such as the legislative commands of the PCRA. When an issue is waived under the PCRA, it is not because of our appellate preservation/waiver doctrine, but because a legislative judgment has been made as to what types of claims should be available at all on collateral review. We cannot simply ignore that legislative judgment as if it were a judicial concern subject to weighing against other judicial concerns. The judicial “relaxed waiver” doctrine devised in McKenna, Zettlemoyer and their progeny simply cannot be employed to “rescue” claims that are waived, and hence not cognizable, under the'PCRA. See Craig Williams, 782 A.2d at *301534 (Castille, J., concurring) (noting distinction between waiver under PCRA and waiver as question of appellate jurisprudence).
Nevertheless, this Court erroneously employed our relaxed waiver rule to overcome the legislative waiver provision on occasion before Albrecht. Albrecht represents the inevitable recognition that the relaxed waiver rule cannot apply in the context of PCRA-based waivers at all. Albrecht returned the rule to its judicial moorings not only because a contrary practice would prevent finality in capital cases, but also because of separation of powers concerns: “application of the doctrine of relaxed waiver in a PCRA proceeding runs afoul of the very terms of the [PCRA,] which excludes waived issues from the class of cognizable PCRA claims.” Albrecht, 720 A.2d at 700.
Such is the actual history of the rule that, appellant contends, absolutely entitles him to consideration of his claims on the merits, even if the claims are waived under the PCRA. In my view, enforcement of the statutory terms does not retroactively deprive appellant of any settled right to which he could lay claim. The rule is not, and never was, absolute. The analysis was always case by case: whether a claim would be reviewed on the merits depended upon this Court’s assessment of the nature of the particular claim, the waiver at issue, and the record.
This matter is not the sort of case where relaxed waiver would have been appropriate. Appellant invokes relaxed waiver as if of absolute right, and apparently as a litigation strategy. I say “litigation strategy” because a non-waived version of each of appellant’s claims was available to him and actually pursued by him; thus, his alternative invocation of relaxed waiver would appear to be strategy-based. Appellant had no settled expectation that this Court would entertain his waived claims instead of, or in addition to, his preserved claims upon mere demand in a PCRA appeal. Furthermore, since appellant mischaracterizes the rule as an absolute, he advances no relevant argument as to why any of his particular claims would have been subject to the discretionary applica*302tion of our relaxed waiver rule, such that the majority’s application of the holding in Albrecht could be deemed “retroactive” as to him. This Court, of course, is not obliged to make appellant’s argument for him. Since non-waived versions of appellant’s claim were available to, and actually pursued by him, he is not “entitled” to have the waiver of his preferred versions of the claims ignored.
. In my view, the majority's statement that an allegation of ineffectiveness suffices to "avoid waiver” misperceives the inquiry under the Sixth Amendment and the PCRA. An allegation of ineffectiveness does not "avoid” waiver of a claim under the PCRA; rather, it is itself a distinct and cognizable claim under the PCRA. As with any other substantive constitutional claim under the PCRA, a claim of ineffectiveness is available only if it has not been waived, i.e., only if the petitioner did *289not have a previous opportunity to raise it. Focusing in this manner recognizes the constitutional nature of claims of ineffective assistance of counsel, respects the terms of the PCRA, and ensures that like claims are treated similarly. In this case, as I explain more fully in the text, the only non-waived claims are the claims sounding in appellate counsel's ineffectiveness. The other versions of appellant’s claims, i.e., those sounding in trial court error and ineffective assistance of trial counsel, are waived under the PCRA because they could have been raised on direct appeal, but were not.
. By order dated August 11, 1997, this Court suspended § 9544(b) insofar as it references "unitary review.” That suspension is not pertinent here.
. This Court recently granted allocatur to determine whether this Court's practice of requiring counsel to raise claims of ineffectiveness at the first opportunity where new counsel enters the case, which began with the footnote in Hubbard, should be reconsidered. See Commonwealth v. Grant, 566 Pa. 231, 780 A.2d 601 (2001)
. The 1972 statute provided only that, "A person who has been convicted of a murder in the first degree shall be sentenced to death or to a term of life imprisonment.” 18 Pa.C.S. § 1102. The statute provided less guidance than the 1939 provision that was struck down in Bradley. McKenna, 383 A.2d at 178.
. McKenna sought only a new trial, raising nine claims of trial court error, errors that this Court summarily rejected as meritless.
. Given this history, there is much to be said for reconsidering relaxed waiver in the context of direct capital appeals. The fact of the matter is that PCRA review does exist, and .ineffectiveness claims are cognizable under the PCRA. Abolition of relaxed waiver, or restriction of the doctrine to fundamental constitutional claims, relating to the capital nature of the case, which are apparent on the face of the record, would be a much more realistic and principled approach than what has come into being. Through direct appeal relaxed waiver, this Court reviews a claim in an analytical vacuum, for example, passing on whether something, not objected to, was objectionable, or whether a cautionary charge, not asked for, should have been issued if it had been asked for. The trial judge is in the best position to evaluate these matters in the first instance; the relaxed waiver practice, however, erases the trial judge and his discretionary authority from the picture. Also, there are often specific, tactical reasons why counsel deliberately chooses not to raise an issue. Failing to consider the waived claim for what it really is excludes both the trial judge and trial counsel from the analysis, and leaves this Court to review what amounts to a theoretical claim. Review under the PCRA, on the other hand, allows for consideration of claims in light of what actually happened, and also provides a mechanism by which a record, when necessary, can be generated for review. Also, the substantive advantage that the relaxed waiver doctrine creates for capital defendants raises concerns. Unlike capital defendants, non-capital defendants may raise waived claims only under the rubric of ineffectiveness, which places a burden of proof upon them, including the requirement of proving prejudice, rather than requiring the Commonwealth to prove harmless error. Whether a claim is subject to harmless error or Strickland píejudice can be outcome-determinative. See Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300 (1994). Since the claims subject to relaxed waiver are not limited to the penalty phase, the capital nature of a case cannot rationally justify such a preferential, substantive treatment of otherwise identically situated defendants.