Commonwealth v. Pierce

CONCURRING OPINION

CASTILLE, Justice.

I join the majority opinion. I write separately only to further address appellant’s claims that his direct appeal counsel was ineffective.

As the majority notes, appellant’s claims of trial court error, as well as his claims alleging that trial counsel was ineffective, are waived under the PCRA since appellant, who was represented by counsel other than trial counsel on post-verdict motions and direct appeal, could have raised these claims on that appeal. Thus, the only claims available to appellant on this pro se appeal are his “layered” claims sounding in ineffective assistance of direct appeal counsel, as well as his claims alleging that PCRA counsel was ineffective. In my recent concurring opinion in Commonwealth v. Williams, 782 A.2d 517 (Pa.2001), I addressed at some length the “substantive contours of claims of appellate counsel ineffectiveness.” Id. at 534-37 (Castille, J. concurring). Here, the majority properly concludes that appellant’s underlying claims lack substantive merit. Appellate counsel cannot be deemed ineffective for failing to raise these meritless claims in addition to, or instead of, the claims counsel forwarded to this Court. 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). Accordingly, I join fully in the majority’s determination that appellant is not entitled to PCRA relief.