dissenting.
I join Justice Saylor’s dissenting opinion insofar as he (1) takes issue with the majority’s analysis of Appellant’s claim that trial counsel was ineffective for failing to investigate and challenge Appellant’s competency to stand trial, (2) disagrees with the majority’s treatment of Appellant’s claim with respect to the grave risk aggravator, 42 Pa.C.S. § 9711(d)(7), and instead opines that trial counsel was ineffective for conceding that aggravator under the circumstances of this case, and (3) concludes that the “in perpetration of a felony” aggravator, 42 Pa.C.S. § 9711(d)(6), can only be triggered by one of the six felonies specifically enumerated in Section 2502(d) of the Crimes Code, 18 Pa.C.S. § 2502(d). Moreover, based on the latter two points, like Justice Saylor, I dissent from the majority’s ultimate disposition of Appellant’s penalty phase claims and would grant Appellant a new penalty phase hearing.
In addition, while I recognize that whether an instruction under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), was necessary in this case was an issue litigated on direct appeal and thus, the majority finds it to have been previously litigated, I feel compelled to note that I authored a concurring opinion on direct appeal in which *388I reiterated my view that a Simmons instruction should be given in all capital cases, but nevertheless recognized that a majority of this Court has held otherwise. Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 356 (1998) (Nigro, J., concurring); see also Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 43-44 (1998) (Nigro, J., concurring). My view in that regard remains unchanged.
Justice SAYLOR.I respectfully differ with the majority’s approach relative to a number of Appellant’s claims in this capital, post-conviction appeal, and I am in a dissenting posture with respect to penalty.
As concerns the claim of trial counsel ineffectiveness in failing to investigate and challenge Appellant’s competency to stand trial, I have reservations concerning the degree to which the majority relies on counsel’s review of a mental health evaluation prepared by and at the instance of government representatives to support its conclusion of adequate stewardship. See Majority Opinion, op. at 368-71, 877 A.2d at 439-40. I believe that, in some instances, involvement of a defense expert may be required to assess a capital defendant’s mental status, regardless of the Commonwealth’s independent determination in this regard. I concur in the majority’s disposition on this point because in this case trial counsel did attempt to involve a defense mental health professional in their trial preparations; however, the psychologist’s efforts were rebuffed by Appellant, as were the attempts at clinical evaluation made at the post-conviction stage. Thus, Appellant has failed to adequately demonstrate ineffective assistance in the first instance, or prejudice for purposes of post-conviction review.
With regard to the district attorney’s argumentation in his opening and closing statements predicated on Appellant’s asserted interest in protecting his reputation, see Majority Opinion, op. at 373-74, 877 A.2d at 442, various of the prosecutor’s statements are openly character and propensity-based arguments, which are clearly prohibited under our rules of evidence. Compare Pa.R.E. 404(a) (setting forth the general rule *389that “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion”), with N.T., March 12, 1997, at 273 (reflecting commentary of the district attorney, as follows: “Now there was an image projected here, and it’s that big city image ... Man, I got to carry a gun wherever I go.... This is the image of a kind of person capable of forming the specific intent to kill. This is a lifestyle.” (emphasis added)), and id. at 277 (“a person who wants to project this kind of image, the kind of guy that has to drive into Cumberland County and have guns in his waistband and his home has to have a bullet proof vest, those are the kind of guys I submit to you that say ... disrespect me and you’re going to have to pay.” (emphasis added)). Furthermore, the prosecutor’s references to Appellant’s having been from the “big city” and admonition that “you don’t come up here into this county and shoot a boy and a hard working girl,” are similar (albeit more closely confined to the circumstances at hand in the present case) to the sort of “outsider-based” argumentation that was disapproved by this Court in Commonwealth v. Malloy, 579 Pa. 425, 449-54, 856 A.2d 767, 782-84 (2004). On this claim, I am in alignment with the majority’s assessment only as to its points concerning the availability of an ineffectiveness challenge in connection with the absence of an objection to the district attorney’s opening statement (at which time Appellant was engaged in self-representation), and the reasonable basis and prejudice prongs of the ineffectiveness inquiry relative to the absence of an objection by counsel during the prosecutor’s closing. See Majority Opinion, at 371-74, 877 A.2d at 441-42.
Next, I have some difficulty with trial court’s guilt-phase instructions to the jury concerning the offense of first-degree murder, to the extent that the court equated malice with the specific intent to kill. See Majority Opinion, op. at 376-78, 877 A.2d at 444. Whereas in most cases there is considerable overlap in the practical application of these concepts, the two are not the same. For example, a killing with malice but without specific intent to kill constitutes third-degree murder, see Commonwealth v. Thomas, 552 Pa. 621, 643-44, 717 A.2d *390468, 479 (1998); alternatively, depending on the circumstances, a killing with specific intent but without malice may implicate a lesser degree of culpability or complete justification, for example, in the instance of self-defense. See Commonwealth v. Fowlin, 551 Pa. 414, 418, 710 A.2d 1130, 1132 (1998). Given such differences, I believe that this Court should require that the essential distinction between specific intent to kill and malice be more carefully observed in jury charges. Nevertheless, as I do not believe that there is a reasonable likelihood that the jurors empaneled at Appellant’s trial applied the challenged instruction in a way that violates the Constitution, see Middleton v. McNeil, 541 U.S. 433, 436-37, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004), or that Appellant was otherwise prejudiced by the instruction, I concur in the majority’s disposition of this claim.
With respect to the penalty phase, I find several of Appellant’s claims to be of concern, and would award a new penalty hearing as a consequence of at least two.
First, I differ with the majority’s assessment concerning the impact of the incorporation of improperly admitted guilt-phase evidence into the penalty hearing. See Majority Opinion, op. at 380-81, 877 A.2d at 446. In this regard, the majority relies on the analysis from Appellant’s direct appeal, to the effect that the trial court’s errors in admitting the evidence were harmless. See id. at 19. The Court’s determination on direct appeal, however, was clearly tethered to guilt-phase impact, as it was expressly predicated on the overwhelming evidence of Appellant’s guilt. See Commonwealth v. Robinson, 554 Pa. 293, 305-07, 721 A.2d 344, 352 (1998) (discussing the erroneous admission of, inter alia, photographs of Appellant with weapons, a bullet-proof vest, and handgun cartridges). Since overwhelming evidence of criminal liability is not dispositive with regard to a capital sentencing jury’s determination as between the imposition of a fife sentence and a death verdict, I believe that an independent assessment is due concerning the penalty-phase impact of the incorporated, erroneously admitted evidence. In this regard, I believe that the tainted evidence, coupled with the district attorney’s character- and propensity-*391based arguments (i.e., concerning Appellant’s character-based propensity to respond to perceived affronts to his reputation with violence), and express entreaty to the jury to end the violence, N.T., Mar. 14, 1997, at 358 (“And then while he is killing Rashawn another person gets killed. That’s a serious thing that we have to stop[.]” (emphasis added)), raised the prospect of future dangerousness on Appellant’s part that had the potential to color the jurors’ eligibility determination.1
Second, regarding Appellant’s claim of ineffectiveness associated with the jury’s finding of the grave-risk aggravator, see 42 Pa.C.S. § 9711(d)(7), the majority disposes of the issue on the basis that it was previously litigated on direct appeal by virtue of the Court’s sufficiency assessment, and that Appellant has added nothing to this argument in the present, post-conviction proceedings. See Majority Opinion, op. at 368-69, 877 A.2d at 439. To the contrary, however, Appellant presently contends that his penalty-phase counsel was ineffective for affirmatively conceding the existence of the grave-risk aggravator before the jury. See N.T., Mar. 14, 1997, at 367 (reflecting penalty-phase counsel’s statement to the effect that “Lt]he prosecution’s aggravating circumstances are defendant knowingly created a grave risk of death to another person in addition to the victim[;] ... [y]es, he did, and you convicted him of that yesterday.”). This claim was not, in fact, addressed by the Court on direct appeal, nor could it have been, since Appellant was represented in his direct appeal by the *392same attorneys who represented him at trial. See Commonwealth v. Green, 551 Pa. 88, 98, 709 A.2d 382, 384 (1998) (reflecting the general rule that counsel is not permitted to raise his or her own ineffectiveness on appeal).
In my view, it was patent ineffectiveness on the part of counsel to concede the grave-risk aggravator in a situation in which the two victims were shot separately, in different rooms. Accord Commonwealth v. Stokes, 532 Pa. 242, 260, 615 A.2d 704, 713 (1992) (plurality) (explaining that the grave-risk aggravator is limited to “situations where the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim.” (emphasis added)). The effect of counsel’s concession in terms of inappropriately supplanting the jury’s fact-finding function concerning the aggravator seems to me to be little different from the overbroad instruction that was issued by a trial court in Stokes, which had effectively directed the jury to find grave risk in a case in which such finding was not a foregone conclusion, and thus required the striking of the aggravator. See id. at 259-61, 615 A.2d at 713-14. Additionally, the strategy of defending against the (d)(7) aggravator in the present case was not at all inconsistent with counsel’s other apparent strategy, which was to suggest to the jurors that the aggravator should be given less weight than others authorized by the General Assembly, such as the killing of a police officer. See generally N.T., Mar. 18, 2004, at 365-66.
Finally, Appellant argues that the in-perpetration-of-a-felony aggravating circumstance found at Section 9711(d)(6) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(6), should be grounded in the statutory definition of “perpetration of a felony” set forth in Section 2502(d) of the Crimes Code, 18 Pa.C.S. § 2502(d), which limits the scope of the term to six, specific felonies, namely, robbery, rape, deviate intercourse by force or threat of force, arson, burglary, and kidnapping. See id. The majority treats this argument in a fairly cursory fashion, relying on Commonwealth v. Basemore, 525 Pa. 512, 532, 582 A.2d 861, 871 (1990), and Commonwealth v. Walker, 540 Pa. *39380, 101-02, 656 A.2d 90, 101 (1995). In Basemore, however, the felonies underlying the (d)(6) aggravator were burglary and robbery, both of which appear in Section 2506(d), see Basemore, 525 Pa. at 517, 582 A.2d at 863, and therefore, the case obviously did not present the issue that is before the Court here, in which Appellant was not convicted of any of the enumerated felonies. While the argument was touched upon in Walker, the Court’s decision there merely invoked Base-more’s pronouncement and criticized the appellant’s argument because it failed to incorporate the relevant legislative history. See Walker, 540 Pa. at 102, 656 A.2d at 101.
Presently, Appellant has provided an extensive legislative history of Section 9711 of the Sentencing Code (the death penalty statute), and Section 2502 of the Crimes Code (the murder statute), together with a well-developed argument that I believe, at a minimum, warrants explicit treatment. At the outset, Appellant acknowledges that Section 2502(d) delimits that the definitions provided there are to be used in connection with that section. See 18 Pa.C.S. § 2502(d) (“As used in this section the following words and phrases shall have the meanings given to them in this subsection ... ”). Appellant notes, however, that two of the defined terms (“fireman” and “hijacking”) appearing in the same listing as the perpetration-of-a-felony term and definition are not substantively employed in Section 2502, and therefore, that those definitions would be rendered superfluous if Section 2502(d) were not understood as pertinent to the death penalty statute, where all of the terms are expressly used. See 42 Pa.C.S. § 9711(d)(1) (defining as an aggravating circumstance, inter alia, the killing of a firefighter in the performance of his duties or as a result of his official position);2 42 Pa.C.S. § 9711(d)(4) (killing while engaged in hijacking of an aircraft). From a broader frame of reference, Appellant observes that only criminal defendants convicted of first-degree murder may be subjected to the capital sentencing process under Section 9711; however, Section 9711 not itself define first-degree murder. Instead, the *394definition of first-degree murder is found in Section 2502(a) (“A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.”), which conjoins with another definitional provision of Section 2502(d) (defining “intentional killing” as “[kjilling by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.”). Thus, Appellant observes that the most elemental questions concerning Section 9711 lead inexorably to Section 2502(d)’s definitions, where, just like the definitions for an essential element of first-degree murder, of fireman, and of hijacking, the definition of “perpetration of a felony” is also found, corresponding to Section 9711(d)(6)’s perpetration-of-a-felony aggravator.
According to Appellant, the legislative history is also compelling in demonstrating that Section 2502(d)’s “as used in this section” proviso does not reflect a true legislative design to internalize Section 2502(d)’s definitional provisions, but rather, represents a mere artifact of codification. In this regard, Appellant posits that the drafting history reveals that Sections 2502 of the Crimes Code and 9711 of the Sentencing Code were originally components of a single statutory provision, but became uncoupled based on organizational concerns, a reason having nothing to do with the relevant definitions of first-degree murder and intentional killing, fireman, hijacking, and/or perpetration of a felony.3 In particular, Appellant *395notes the relative juxtaposition (through the mid-1970’s) of the substantive offense provisions of Sections 2502 and the sentencing provisions of Section 1311 of the Crimes Code, predecessor to the present Section 9711 of the Sentencing Code.
In 1977, this Court determined that the revised capital sentencing scheme was unconstitutional, because it limited the jury’s consideration of mitigation to three prescribed circumstances. See Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977). In response, the General Assembly amended Section 1311 of the Crimes Code by adding several mitigating circumstances, including the catch-all mitigator, as well as adding a clause requiring imposition of a death sentence if the jury finds at least one aggravating circumstance and no mitigating circumstances or if the aggravating circumstances outweigh the mitigating circumstances, and the return of a life sentence in all other cases. See Act of Sep. 13, 1978, P.L. 756, No. 141, § 1. The 1978 amendments thus brought the capital sentencing scheme into essentially its present-day form. In *3961980, however, the provisions of Section 1311 of the Crimes Code were transferred to their current location at Section 9711. See Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a). Appellant observes that none of these post-Moody amendments were in any manner substantively related to the in-perpetration-of-a-felony aggravator or its meaning.
Appellant also argues that a construction of the in-perpetration-of-a-felony aggravator that permits it to be grounded on any felony is in tension with the Eighth and Fourteenth Amendments to the United States Constitution, as they have been interpreted by this United States Supreme Court to require a narrowing process to determine death eligibility. See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983) (holding that, to satisfy the constitutional standard derived from Furman, an aggravating circumstance “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant as compared to others found guilty of murder.”). In this regard, Appellant highlights that all other states having a capital sentencing system in which the sentencer is permitted to consider commission of the killing during the perpetration of a felony in aggravation specifically limit the relevant to discrete, explicitly enumerated groups of felony offenses.4
*398The Commonwealth, on the other hand, relies substantially on this Court’s Basemore and Walker decisions. The Commonwealth also advocates a strict, plain meaning approach to Section 2502(d), but gives no account for the fact that an wholly internal treatment of the provision renders several of the defined terms superfluous. According to the Commonwealth, the legislative history is irrelevant. The Commonwealth also notes that several other terms used in Section 9711 contain express cross-references to definitional provisions, thus suggesting that if the Legislature had intended to incorporate Section 2502(d)’s definitions, it would have done so expressly.
In my view, the absence of any substantive import of several of Section 2502(d)’s definitions within Section 2502(d) itself renders the statute ambiguous, see 1 Pa.C.S. § 1922(2) (setting forth the presumption that the General Assembly intends the entire statute to be effective and certain), and thus implicates principles of statutory construction, such as reference to the legislative history. See 1 Pa.C.S. § 1921(c)(7). In review of that history, it is apparent that, in fashioning the Pennsylvania death penalty statute the General Assembly was responding to constitutional requirements as explained in decisions of the United States Supreme Court dictating the maintenance of carefully defined, narrowing criteria as the threshold to death eligibility. See Legis. J.—Senate at 721-23 (June 26, 1978) (setting forth a formal statement of the legislative history surrounding former Section 1311 of the Crimes Code); see also Zant, 462 U.S. at 877, 103 S.Ct. at 2742 (elaborating on Furman’s dictates). Section 2502(d)’s narrowing definition of perpetration of a felony aligns precisely with this approach, and I agree with Appellant that the provision gains full meaning only when read in conjunction *399with the death penalty statute. The approach of reading Sections 2502 and 9711 in conjunction also comports with this Court’s obligation to construe the death penalty statute narrowly. See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Stallworth, 566 Pa. 349, 373-74 & n. 7, 781 A.2d 110, 124 & n. 7 (2001). Finally, reading Section 9711 independent of Section 2502(d) also creates the apparent anomaly that the limitation upon felonies eligible for perpetration-of-a-felony status applies to second-degree murder (the definition of which is found within Section 2502), but not to capital sentencing, in which setting the narrowing function is most critical.
Since Appellant was not convicted of a felony enumerated within the statutory definition of perpetration of a felony, I would direct that the (d)(6) aggravator be stricken.5 Although under my analysis there is a defect connected with both aggravators returned by the jury, I believe that a new penalty hearing is appropriate given the Court’s previous finding of sufficient evidence supporting the (d)(7) aggravator (and as the only defect that I have found relative to that aggravator pertains to counsel’s deficient stewardship in conceding it).
. Indeed, the prosecutor made the reference to the need to stop Appellant's behavior in connection with his discussion of a specific eligibility criterion, namely, the grave-risk aggravator. See id.
Concerning the requirement of an instruction under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the Court on direct appeal relied upon authority from this Court to the effect that future dangerous must be expressly implicated by the prosecution to mandate the instruction. See Robinson, 554 Pa. at 313-14, 721 A.2d at 355. , It should be noted, however, that the Court's precedent in this regard has since been qualified, if not rejected, by the United States Supreme Court in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (“Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.” (emphasis added)).
. The statute was amended in 1995 to update the term "fireman” to "firefighter.” See 42 Pa.C.S. § 9711, historical and statutory notes.
. Appellant notes that the perpetration-of-a-felony criteria were originally designed as elements of first-degree murder, but, in the course of amending and codifying the statute in response to the landmark decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny, the scheme of codification was altered, and the.criteria were dubbed as aggravating circumstances and moved from the substantive offense provision (Section 2502) to a newly proposed section (Section 1311 of the Crimes Code), which was later recodified within Section 9711 of the Sentencing Code. However, the definitions of the terms appearing in those aggravating circumstances—including "fireman,” "hijacking” and "perpetration of a felony”—were left behind in Section 2502. Appellant provides a series of examples from the statutory drafting reflecting the evolution of the provisions. See HB 884, Session of 1971, Printer’s No. 3324, pp. 2-3 (reflecting a proposed mandatory death penalty for any first degree murder that was accompanied by one or more of seven statutory aggravating circumstances, including ones involving the *395perpetration-of-a-felony criteria); HB 700, Session of 1973, Printer’s No. 954, at 306 (proposing a mandatory death sentence for all first-degree murders, but defining the offense by reference, inter alia, to killing of a fireman, during a hijacking, or in perpetration of a felony, and enumerating the definitions for "fireman,” "hijacking” and "perpetration of a felony”); HB 1060, Session of 1973, Printer's No. 1265, at 3-5 (proposing a mandatory death sentence for any first-degree murder conviction, but incorporating into the definition of first-degree murder the types of provisions that are now codified as aggravating circumstances); HB 1060, Session of 1973, Printers No.1958 (proposing a mandatory death penalty for first-degree murder and again incorporating the perpetration-of-a-felony criteria into the definition of the offense of first degree murder, but establishing for the first time mitigating circumstances and detailed provisions for their evaluation in relation to aggravation in capital sentencing, coupled with Senate amendments proposing a bifurcated proceeding in death penalty cases); HB 1060, Session of 1973, Printer's No. 2578 (proposing bifurcation of the procedure for capital sentencing into two phases, and, mechanically, dividing the substantive elements of murder and the sentencing procedure between Sections 2502 and 1311 of the Crimes Code); Act of March 26, 1974, P.L. 213, No. 46 (reflecting the final version of the death penalty statute that was signed into law, embodying Section 2502’s prescription for first-degree murder and the definitions of "intentional killing,” "fireman,” "hijacking,” and "perpetration of a felony” as well as Section 131 l’s separate prescription for aggravating circumstances, including those associated with Section 2502's definitions).
. See Brief of Appellant, at 75-77 n. 57 (citing Ala.Code § 13A-5-49 (2002) felony aggravators limited to rape, robbery, burglary, kidnapping); A.R.S. § 13-1105 (2002) (felony aggravators limited to sexual conduct with a minor, sexual assault, child molestation, dangerous drug offense, narcotics offense, kidnapping, burglary, arson, robbery, escape, child abuse, unlawful flight from a pursuing law enforcement vehicle, and terrorism); A.C.A. § 5-10-101 (2001) (enumerated violent and/or drag related offenses); Cal.Penal Code § 190.2 (2002) (robbery, kidnapping, rape, sodomy, lewd act upon a child, oral copulation, burglary, arson, train wrecking, mayhem, rape by instrument, carjacking); 11 Del. C. § 4209 (2002) (rape, unlawful sexual intercourse, arson, kidnapping, robbery, sodomy, or burglary); Fla. Stat. § 921.141 (2002), (robbery, sexual battery, aggravated child abuse, abuse of an elderly person or disabled adult, arson, burglary, kidnapping, aircraft piracy, unlawful throwing, placing or discharging of a destructive device or bomb); O.C.G.A. § 17-10-30 (2002) (rape, armed robbery, kidnapping, burglary, arson, aggravated battery); Id. St. § 18-4003 (2002) (aggravated battery of a child under 12 years of age, arson, rape, robbery, burglary, *397kidnapping, mayhem or terrorism); 720 ILCS 5/9-1 (2002) (armed robbery, armed violence, robbery, predatory criminal sexual assault of a child, aggravated criminal sexual assault, aggravated kidnapping, aggravated vehicular hijacking, forcible detention, arson, aggravated arson, aggravated stalking, burglary, residential burglary, home invasion, calculated criminal drug conspiracy); Ind Code § 35-50-2-9 (2002) (arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, robbery, carjacking, criminal gang activity, drug dealing); K.S.A. § 21-3401 (2002) (flight from an inherently dangerous felony, kidnapping, aggravated kidnapping, robbery, aggravated robbery, rape, aggravated criminal sodomy, abuse of a child, felony theft, burglary, aggravated burglary, arson, aggravated arson, treason, drug felony offenses and criminal discharge of a firearm at a building or vehicle, murder, voluntary manslaughter, aggravated assault, aggravated battery); KRS § 532.025 (2002) (arson, robbery, burglary, rape, sodomy); LaC.Cr.P. art 905.4 (2002) (aggravated rape, forcible rape, aggravated kidnapping, second degree kidnapping, aggravated burglary, aggravated arson, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, or simple robbery); Md. Ann. 2-202 (2002) (carjacking, robbery, arson, rape, sexual offense); Mass. St. 279 § 69 (2002) (aggravated rape, rape, assault on a child under 16 years of age with intent to rape, kidnapping for ransom, kidnapping, robbery, breaking and entering with intent to commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise harming another for the purpose of stealing from depositories, or possession of a sawed-off shotgun or machine gun); Miss.Code Ann. § 99-19-101(2002) (rape, sodomy, burglary, robbery, kidnapping, or felony drug offense); Mt. St § 46-18-303 (2002) (sexual assault and that the victim of the sexual assault was less than 18 years of age, kidnapping); Nev Rev.Stat Ann. § 200.033 (2002) (robbery, arson, burglary, invasion of the home or kidnapping, felonies involving the use or threat of violence to the person of another); N.J.S.A. 2C:ll-3 (2002) (robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape, or terrorism); N.C. Gen Stat § 15A-2000 (2002) (homicide, robbery, rape, sex offense, arson, burglary, kidnapping, aircraft piracy, unlawful throwing, placing or discharging of a destructive bomb or device); Oh. St 2929.04 (2002) (kidnapping, rape, arson, robbery, burglary); 21 Okl St Ann § 701.7 (2002) (enumerated violent and drug related felonies, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, firstdegree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs); S.C. Code § 16-3-20 (2002) (criminal sexual conduct, kidnapping, burglary, robbery, larceny, poison, drug trafficking, torture); TennCode § 39-13-204 (2002) (murder, arson, rape, robbery, burglary, theft, kidnapping, aircraft piracy, unlawful use of bomb); V.T.C.A., Penal Code § 19.03 (2002) (kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation); Utah Code Ann § 76-5-202 (2002) (aggravated robbery, robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child abuse, aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping, kidnapping, child kidnapping); *398Va.Code § 18.2-31 (2002) (possession of a deadly weapon, attempted forcible sodomy, forcible sodomy, robbery, attempted robbery, rape, attempted rape, or object sexual penetration); West's RCWA 9A.32.030 *399(2002) (robbery, rape, burglary, arson, or kidnapping); Wyo Stat. § 6-2-102 (2002) (robbery, sexual assault, arson, burglary, kidnapping, or abuse of a child).
. I realize that the claim reaches the Court via the overlay of ineffective assistance of Appellant’s trial/direct-appeal counsel for failing to litigate it previously, and I acknowledge the principle that counsel generally are not deemed ineffective for following existing law. As noted, however, the existing law identified a material and curable defect in the arguments that had previously been presented (i.e., the failure to present legislative history), and, I believe that post-conviction counsel has now demonstrated that such history was both available and persuasive.