Commonwealth v. Brooks

*340Justice CASTILLE

concurring.

Although I agree that appellant is entitled to a new trial, I respectfully disagree with the Majority’s approach to the dispositive claim of ineffective assistance of counsel, as well as the apparent per se rule it would promulgate for instances where a lawyer fails to meet with his client face-to-face before trial in a capital murder case.1 In my view, the Majority unquestionably errs in finding that appellant has adequately demonstrated that his counsel was ineffective under the performance and prejudice test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Indeed, the Majority does not purport to find Strickland/Pierce-type prejudice. ■ The germane and more difficult question is whether appellant is entitled to relief without having to show Strickland/Pierce prejudice. I believe that this inquiry is more properly governed by the U.S. Supreme Courts decision in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and its progeny. Although I deem the question here to be close, I would grant relief under Cronic.

Appellant raises a dozen claims of counsel ineffectiveness, but the Majority correctly reaches only his first claim. In that claim, appellant argues that his federal and Pennsylvania constitutional rights to the effective assistance of counsel were denied when his court-appointed attorney failed to prepare “in any manner” for trial, including a failure to meet with him face-to-face, failing to interview witnesses, and failing to conduct any investigation.2 Appellant claims that counsel’s dere*341liction in this regard was so total that it led to “a complete breakdown in the attorney-client relationship [such that appellant] felt constrained to represent himself at the beginning of the trial, with highly prejudicial results.” Brief for Appellant at 35. In appellant’s view, counsel’s “complete abdication of his responsibilities” created a situation where appellant “was, in essence, unrepresented at his capital murder trial.” Id. at 37.

In granting relief, the Majority does not focus upon the entirety of this claim, but solely upon the constituent allegation that trial counsel failed to meet with appellant face-to-face.3 The Majority holds that counsel’s failure in this regard is sufficient to warrant a finding of ineffectiveness under the performance and prejudice standard which governs claims falling under Strickland and Pierce. In reaching this conclusion, the Majority suggests that lawyers in Pennsylvania capital cases are now required to engage in at least one face-to-face meeting with their client prior to trial, stating at one point that, “the very nature of a capital case, typically quite involved and always subjecting the defendant to the possibility of death, clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins.” See Majority op. at 337, 839 A.2d at 249.4 Ultimately, though, the Majority does not apply its rule in the per se fashion this statement suggests. Instead, the Court proceeds to inquire into the proffered basis for counsel’s failure to meet with appellant, deeming that decision to have been unreasonable. *342Id. at 337-38, 839 A.2d at 249. The fact that the Majority actually assesses the objective reasonableness of counsel’s proffered reasons for failing to meet his client in person in advance of trial suggests that there may be instances where such a decision could be deemed objectively reasonable.5

Turning to the Stricklcmd/Pierce prejudice standard, the Majority recognizes that such an analysis requires a determination “that there is a reasonable probability that but for the act or omission in question, the outcome of the proceeding would be different.” Majority op. at 336, 839 A.2d at 248. But the Majority makes no such determination. The Majority does not conclude that under the circumstances of this case there is a reasonable probability that, but for counsel’s failure to meet appellant in person prior to trial, the outcome of the guilt phase of this trial would have been different. Instead, the Majority simply reiterates its earlier, per se conclusion (when discussing arguable merit) that counsel must meet with his client at least one time, face-to-face, prior to trial.6

*343Because the Majority is unable to articulate the “probable effect upon the outcome” type of actual prejudice required under Strickland/Pierce, its unspoken assumption must be that an unreasonable failure to meet with one’s client automatically renders the verdict at trial unreliable. Nevertheless, there is a narrow place in Sixth Amendment jurisprudence for claims of counsel ineffectiveness where prejudice is presumed in this fashion — i.e., where such claims are not subject to the Strickland/Pierce test. The Majority’s failure to come to terms with the Sixth Amendment complexity posed by the issue sub judice has led it to articulate a rule that cannot be squared with existing and controlling jurisprudence.

The universe of potential claims arising from an alleged denial of counsel, or an alleged deficient performance by counsel, is not confined to the circumstances governed by Strickland/Pierce. Indeed, on the very same day that Strickland was decided, the Supreme Court also decided Cronic, a case which addressed situations where it might be appropriate to deem counsel ineffective without inquiring into whether counsel’s dereliction actually prejudiced the defendant at trial. The Court recently summarized the interplay of these two distinct Sixth Amendment doctrines as follows:

The Sixth Amendment provides that a criminal defendant shall have the right to “the Assistance of Counsel for his defence.” This right has been accorded, we have said, “not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). It follows from this that assistance which is ineffective in preserving fairness does not meet the constitutional mandate, see Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and it also follows *344that defects in assistance that have no probable effect upon the trial’s outcome do not establish a constitutional violation. As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694, 466 U.S. 668, 104 S.Ct. 2052.
There is an exception to this general rule. We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. See Cronic, supra, at 658-59, 466 U.S. 648, 104 S.Ct. 2039. But only in “circumstances of that magnitude” do we forgo individual inquiry into whether counsel’s inadequate performance undermined the reliability of the verdict. Cronic, supra, at 659, 466 U.S. 648, 104 S.Ct. 2039.

Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 1240-41, 152 L.Ed.2d 291 (2002) (additional citations omitted). Later that same Term, the Court further elaborated upon the contours of the Cronic exception to Strickland as follows:

In Cronic, we considered whether the Court of Appeals was correct in reversing a defendant’s conviction under the Sixth Amendment without inquiring into counsel’s actual performance or requiring the defendant to show the effect it had on the trial____We determined that the court had erred and remanded to allow the claim to be considered under Strickland’s test____In the course of deciding this question, we identified three situations implicating the right to counsel that involved circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified”----
First and “[m]ost obvious” was the “complete denial of counsel” ____ A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at a critical stage, a phrase we used in Hamilton v. Alabama, *345368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (per curiam), to denote a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused.[FN3] Second, we posited that a similar presumption was warranted if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”----Finally, we said that in cases like Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected....

Bell v. Cone, 535 U.S. 685, 695-96, n. 3, 122 S.Ct. 1843, 1850-51, n. 3, 152 L.Ed.2d 914 (2002) (additional internal citations to Cronic omitted).

Because Cronic spares a criminal defendant the burden of proving prejudice, it is not surprising that much of the decisional law arising in its wake has involved defendants attempting to expand Cronic to encompass claims that more properly *346sound under Strickland. See, e.g., Bell, supra; Mickens, supra. As evidenced by the imprecision of appellant’s own argument, the claim presented here implicates the fine line between Strickland and Cronic as well. As for Strickland/Pierce, appellant argues that he was actually prejudiced in that counsel’s failure to meet with him, among other lapses, led to a complete breakdown in the attorney-client relationship, to the point that appellant elected to represent himself at the outset of trial. This type of argument addressing prejudice at least makes a minimal attempt to tie trial counsel’s pre-trial lapse to the actual conduct of the trial. The argument ultimately fails on the merits, however, because it necessarily assumes that self-representation automatically results in an unreliable verdict, which is simply not so.7

In my view, the true gravamen of appellant’s complaint is that counsel’s failure to so much as meet with him in advance of this capital trial led to a circumstance where he was effectively “unrepresented” by counsel at critical stages of the case. As the Majority notes, appellant represented himself at critical stages of the proceedings (with appointed counsel acting as stand-by counsel), including portions of the suppression hearing, opening statements at trial, and the first day of trial. Although appellant requested permission to represent himself, the record makes clear that he did so only because of the total breakdown in the attorney-client relationship occasioned by counsel’s failure to meet with him, to return phone calls, or to respond to written communications. Majority op. at 334-35 n. 3, 839 A.2d at 247 n. 3 (summarizing appellant’s representations below). Trial counsel’s testimony demonstrated that there was no valid reason for his keeping his client beyond arm’s length and failing to foster even a minimal professional level of attorney/client relationship. Obviously, *347instances of client dissatisfaction with counsel are legion and generally, as a rule, provide no ground for relief. It is not a “denial” of counsel anytime a criminal defendant is dissatisfied with his court-appointed attorney and asks to represent himself as a consequence. But, in this instance, there was a basis in fact for appellant’s dissatisfaction and an objectively reasonable (as opposed to subjective) belief that the attorney-client relationship was not salvageable, a basis stemming from counsel’s failure to meet with appellant at all prior to commencement of the capital trial. In my view, this is one of those rare “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. Accordingly, I would hold that appellant, in this instance, is not required to demonstrate actual prejudice in the sense of proving the unreliability of the guilt-phase verdict.8

There is no precedent supporting adoption of the Majority’s prophylactic constitutional rule; indeed, as I have detailed above, the Strickland/Pierce analysis eschews such a prophylactic approach. Because I do not believe that it is necessary to resolve the prophylactic face-to-face meeting question to properly decide this case, I disagree with the implicit suggestion by the Majority that the Sixth Amendment and/or Article I, Section 9 of the Pennsylvania Constitution impose such a requirement. Although I respectfully dissent from the Majority’s analysis, I concur in the award of a new trial given the circumstances in this capital matter.

. In direct capital appeals such as this, this Court traditionally undertakes its own review of the sufficiency of the evidence to support the first degree murder verdict. E.g. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 839-40 (2003). Although the Majority awards a new trial, a finding that the evidence was insufficient, of course, would afford appellant greater relief in the form of a discharge. Upon review, I am satisfied that the evidence amply supported appellant's conviction of first degree murder.

. Although appellant invokes both the federal and state constitutional charters, he does not argue that the right to counsel implicated by his *341claim differs under the two charters. Accordingly, appellant’s claim is subject to a unitary analysis.

. I agree with the Majority that appellant’s claim of counsel ineffectiveness is reviewable on this direct appeal, as it falls within the Bomar exception to the general rule set forth in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which expressed a preference for deferring such claims to collateral review. I would note, however, that it is not simply the fact that the court below addressed the collateral claim which warrants review; rather, it is also essential that there was a hearing on the claim at which counsel testified.

. Although the Majority’s analysis focuses upon the capital nature of this case, it later suggests that the face-to-face requirement obtains in all cases charging first degree murder. Majority op. at 339, 839 A.2d at 250.

. For reasons I shall discuss below, I too would leave open the prospect that such a decision might be deemed reasonable under certain circumstances, such as where the defendant refuses to meet with counsel or where counsel employs other technological means satisfying the same purpose as a face-to-face meeting.

. In granting relief in the instant case, the Majority relies primarily upon Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705 (1994). However, Peny is distinguishable. For one thing, the dereliction in that case did not involve a mere failure to meet with the client but also "failure to investigate a potential eyewitness, gross inattention to the capital nature of [the] client’s plight, failure to prepare for the penalty phase of trial, failure to present known character witnesses, and presentation of such a pitiful parody of a defense case at the penalty phase hearing----” Id. at 709. Moreover, the Court in Peny, unlike the Majority here, explained how those derelictions affected the reliability of the outcome:

This is a case where the evidence might have supported a lesser degree of homicide than first degree murder; it is also a case in which a death penalty jury might have rendered a verdict of life imprisonment if appellant’s counsel had presented- character witnesses and other mitigating factors____It therefore seems quite clear that the result of the trial might have been different were it not for counsel’s errors.

Id.

In any event, if Peny stood for the proposition that the Strickr land/Pierce rubric permits a conclusion of ineffectiveness without a *343showing of actual prejudice, i.e., that the outcome of the proceeding would have been different but for counsel's ineffectiveness, it would be mistaken. It is also worth noting that Perry was decided after the trial in this case. To the extent that the Majority reads Perry as establishing a face-to-face meeting requirement, counsel cannot be deemed ineffective for failing to anticipate that decision. Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485, 500 n. 18 (1999).

. In a footnote, we also cited other cases besides Hamilton v. Alabama and White v. Maryland where we found a Sixth Amendment error without requiring a showing of prejudice. Each involved criminal defendants who had actually or constructively been denied counsel by government action. See [Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039] (citing Geders v. United States, 425 U.S. 80, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (order preventing defendant from consulting his counsel “about anything” during a 17-hour overnight recess impinged upon his Sixth Amendment right to the assistance of counsel); Herring v. New York, 422 U.S. 853, 865, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (trial judge's order denying counsel the opportunity to make a summation at close of bench trial denied defendant assistance of counsel); Brooks v. Tennessee, 406 U.S. 605, 612-13, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (law requiring defendant to testify first at trial or not at all deprived accused of "the ‘guiding hand of counsel’ in the timing of this critical element of his defense,” i.e., when and whether to take the stand); Ferguson v. Georgia, 365 U.S. 570, 596, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (statute retaining common-law incompetency rule for criminal defendants, which denied the accused the right to have his counsel question him to elicit his statements before the jury, was inconsistent with Fourteenth Amendment); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945) (allegation that petitioner requested counsel but did not receive one at the time he was convicted and sentenced stated case for denial of due process)).

. I recognize that appellant does allege, as separate claims of ineffectiveness, many specific instances where counsel’s performance at trial was deficient. But, in forwarding his broad argument premised upon counsel's failure to meet with him in person and failure to adequately prepare, appellant does not rely upon those or other instances at trial as proof of Strickland/Pierce prejudice. Nor, in actually finding counsel to be ineffective, does the Majority cite any instance of actually deficient and prejudicial performance at trial.

. The Majority's per se rule seems to require the actual physical presence between the lawyer and client and overlooks the reality tha1 there may be other adequate methods by which to accomplish the goals of a "face-to-face” meeting through evolving telecommunication methodologies or by intermediaries. I would not foreclose the use of such technology or intermediaries to satisfy that which the Majority attempts to mandate by a per se rule. In addition, there may be instances where the defendant himself refuses to meet with counsel.