concurring.
I differ with the majority’s holding that Appellant’s claim of ineffective assistance of counsel for withdrawing a severance motion is previously litigated on the basis that Appellant pursued a Bruton challenge to the Commonwealth’s use his co-defendant’s statement at the joint trial. See Majority Opinion, op. at 461-62. Although one aspect of the disposition of Appellant’s present claim certainly involves consideration of the Court’s holding on direct appeal, the majority’s alternative merits analysis demonstrates that the claim implicates a broader inquiry into the character of the defenses at issue. See id. at 462-63. As such, I would treat it as materially distinct. Furthermore, although for the most part I agree with the majority’s merits assessment, I would abandon the rhetoric from prior cases to the effect that antagonistic defenses actually favor a joint trial. See Majority Opinion, op. at 462 (citing Commonwealth v. Chester, 526 Pa. 578, 590, 587 A.2d 1367, 1373 (1991)). Instead, I find it preferable to say that antagonistic defenses do not per se require severance; rather, it should be required only where there is a substantia! risk of impingement on the defendants’ trial rights and/or the fact finder’s ability to render a reliable verdict. Accord Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993).
I also disagree with the majority’s approach of discounting Appellant’s efforts to advance legal propositions reflected in Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999) (opinion on reargument), and Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality), on the basis that counsel cannot be deemed ineffective for failing to anticipate those decisions. See Majority Opinion, op. at 462. Ap*685pellant cites these decisions primarily for the fairly well settled propositions that, for Confrontation Clause purposes, particularized guarantees of trustworthiness associated with a hearsay statement are assessed on the basis of the statement itself and the circumstances under which it was made and not on the basis of corroborative evidence produced by the government at trial, see Idaho v. Wright, 497 U.S. 805, 822-23, 110 S.Ct. 3139, 3150-51, 111 L.Ed.2d 638(1990), and co-defendant confessions to authorities are presumptively unreliable to the extent that they tend to shift or spread blame. See Lee v. Illinois, 476 U.S. 530, 545-46, 106 S.Ct. 2056, 2064-65, 90 L.Ed.2d 514 (1986). In the latter respect in particular, I believe that the majority’s statement that, at the time of Appellant’s trial Sixth Amendment jurisprudence did not foreclose the possibility that a recognized hearsay exception could permit the admission into evidence of an unavailable co-defendant’s out-of-court statement, offered against and inculpating the defendant, see Majority Opinion, op. at 464-65, should be substantially qualified. Accord Lee, 476 U.S. at 545, 106 S.Ct. at 2064 (“As we have consistently recognized, a codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.”).
Finally, as to Appellant’s claim of ineffective assistance of counsel in the failure to challenge the penalty-phase waiver colloquy, it should not go unnoticed that relief would be available to Appellant at this juncture, as it was to his co-defendant, if the prevailing law that was in effect at the time that he filed his post-conviction petition (i.e., relaxed waiver) were to be applied. Although I acknowledge that I am bound by the Court’s adherence to the decision to abolish relaxed waiver retroactively, I continue to believe that we should reflect on the wisdom of that decision as we continue to encounter disparities arising by virtue of the application of enhanced requirements on a retrospective basis. Accord Com*686monwealth v. Ford, 570 Pa. 378, 397-400, 809 A.2d 325, 337-38 (2002) (Saylor, J., concurring).