Commonwealth v. Ford

Justice NEWMAN

concurring.

I agree with the Majority’s disposition of this matter. I write separately to set forth my understanding of what our Court requires in layered ineffective assistance of counsel claims.

To the extent that a petitioner raises properly layered claims of ineffective assistance of counsel that were not previously litigated, the petitioner is entitled to review of those claims. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302(Pa.), cert. denied, 528 U.S. 975, 120 S.Ct. 422, 145 L.Ed.2d 330 (1999). Also, I agree with the Majority that several of the claims that Kenneth Ford (Appellant) presents to us had been previously litigated and, therefore, such claims are not cognizable under the PCRA. See Majority Op. at 328-29; 42 Pa.C.S. §§ 9543(a)(3) & 9544(a). As noted by the Majority, recasting these previously litigated claims as ones of ineffective assistance of counsel does not revive the claims and make them reviewable. Majority Op. at 329 n. 3; see also Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242, 1251 (1999).

As for his remaining issues, Appellant raises claims of trial court error, violations of constitutional rights, prosecutorial misconduct, and ineffective assistance of trial counsel.1 Because all of these claims could have been raised on direct appeal, they are waived. 42 Pa.C.S. §§ 9543(a)(3) & 9544(b); Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 212 (2001). Appellant asserts during the discussion of each of the above-mentioned issues that all prior counsel acted ineffectively by failing to raise the claims. Appellant also includes a paragraph on page ninety-five of his brief, which states:

*395All prior counsels’ failure to properly investigate and present each and all of the issues presented in Appellant’s PCRA proceedings and in this appeal were ineffective. Each of these claims is of arguable merit; counsel’s failures had no reasonable strategic basis; and the errors, individually and collectively, undermined the confidence in the outcome of the trial and sentencing, establishing prejudice. Appellant is entitled to a new trial. Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76 (1987); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(Appellant’s Brief at p. 95). Appellant’s boilerplate tag lines and paragraph2 raise separate and cognizable claims of ineffective assistance of appellate counsel for each issue addressed in the brief. I disagree with the conclusion of the Majority that these ineffectiveness claims are waived. See Majority Op. at p. 328. After much reflection upon, and study of, our precedent in this area, I believe that Appellant, through tag lines and boilerplate language, has sufficiently presented all of these claims for our review, despite framing some as trial court error, constitutional violations, prosecutorial misconduct, and trial counsel ineffectiveness. See Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292 (2001) (reviewing merits of claims of ineffectiveness of PCRA counsel for failing to raise prior counsel’s ineffectiveness); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 525 (2001) (“a majority of this Court *396would presently continue to allow a degree of latitude” in developing layered ineffective assistance of counsel claims in briefs); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 598 n. 3 (2000) (noting that “these ineffectiveness claims are properly layered because appellant argues that all of his prior counsel were ineffective for failing to assert the claims of trial court error”); Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202, 204 n. 1 (2000) (claims of trial counsel ineffectiveness accompanied by claims of appellate counsel ineffectiveness for failing to raise trial counsel ineffectiveness claims are “properly layered”); but see Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939-40 (2001) (claims of trial court error, constitutional error, and prosecutorial misconduct are waived despite being accompanied by tag line asserting ineffectiveness of prior counsel for failing to raise such claims); Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560 (Pa.2001) (same). While I disagree with the Majority that these claims are waived, I join in the disposition of the Majority of these issues because I believe that Appellant is not entitled to relief for these claims.3

Finally, I agree with the Majority that appellate counsel acted ineffectively by neglecting to raise trial counsel’s ineffectiveness for failing to investigate and present evidence during the penalty phase of Appellant’s history of abuse and mental illness. Appellant discusses this claim in his brief as one of trial counsel ineffectiveness and argues all three prongs of our ineffectiveness standard. (Appellant’s Brief at pp. 8-40). Then, as he did with the other above-referenced issues, Appellant asserts that appellate counsel acted ineffectively in failing to raise this matter on direct appeal. As I understand our precedent in this matter, Appellant’s presentation of this claim was sufficient to garner our review, see Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312 (2001) (reviewing merits *397of underlying claims of trial counsel ineffectiveness in layered ineffective assistance of counsel claims); Bracey, 795 A.2d at 941-49 (same); Marrero, 748 A.2d at 204 (same), and the post-conviction record in this case supports the award of relief. See generally Williams, 782 A.2d at 525 n. 5 (noting “a primary avenue of proving appellate counsel’s lack of stewardship frequently lies in establishing the strength and obviousness of the underlying claim” of trial counsel ineffectiveness). Therefore, I join the Majority in reversing the PCRA court and remanding for a new penalty phase hearing.

Justice SAYLOR joins in this concurring opinion.

. New counsel represented appellant on direct appeal. Appellant had the opportunity to challenge the effectiveness of trial counsel, and was obligated to do so, with the assistance of his new attorney on direct appeal. See Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998).

. I use "tag line” and "boilerplate” to refer to the one or two sentence allegations of the ineffectiveness of counsel that Appellant repeats at the end of each of his claims for relief. Following most of his discussions of trial court error, prosecutorial misconduct, constitutional error, or trial counsel ineffectiveness, Appellant tacks on one sentence, which states that prior counsel was ineffective for failing to litigate his claim. In most cases, this is the only argument regarding ineffectiveness that Appellant makes for these claims. Appellant makes no attempt to discuss the application of the three-prong test for ineffectiveness, see, e.g., Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999), or deal with the particular facts of these claims. In addition to his first two claims of error in which he sets forth a detailed discussion of the ineffectiveness of trial counsel, the greater part of Appellant’s argument regarding the ineffectiveness of trial and appellate counsel is contained in a paragraph on page ninety-five of his brief. See Concurring Opinion, Newman, J., at 335.

. My conclusion that Appellant is not entitled to relief on his claims of ineffective assistance of counsel does not extend to two of the claims; namely, that prior counsel acted ineffectively by failing to investigate and present evidence during the penalty phase of Appellant’s history of abuse and mental illness and for neglecting to submit any proof in support of Appellant’s claim that the court crier improperly interfered with jury deliberations.