Concurring.
¶ 1 I agree with the majority that the second PCRA petition was untimely and Bennett did not plead nor show the applicability of any of the three exceptions to the one-year time bar. I believe that under 42 Pa.C.S.A. § 9545(b)(ii), a defendant has 60 days to file a new PCRA from the time he ascertains or reasonably should have ascertained “the facts” that no brief was filed. However, Bennett did not allege that he knew that no brief was filed within 60 days of the time he filed his PCRA petition.
¶2 I recognize that the 60-day time factor often may be too short, since the defendant usually does not have a lawyer when he first discovers the problem. In this case, our decision well might trigger a federal habeas corpus petition. Be it because of legislation, rules or court decisions, waiver of issues has become more prevalent. However, waiver prevents a review of the basic questions: did the parties receive a fair trial and did the trial court follow the law? Also, a considerable amount of effort is devoted to determining if issues have been waived, when it would be more efficient in some cases to decide the substantive issue. This is particularly true in criminal cases where waiver might lead to a PCRA. However, the majority cited the applicable cases and I agree that we are bound.
¶ 3 I also agree with the majority that our altered administrative practice when no brief is filed to retain jurisdiction and remand to the trial court is a better practice than merely dismissing the appeal.
¶ 4 However, I differ with the majority when it says so clearly that trial counsel was ineffective for failing to object to the erroneous charge by the trial judge. Without being in the courtroom and being in counsel’s shoes, it is hard to understand the reasons behind counsel’s actions. Therefore, I do not think it wise to brand trial counsel as “ineffective” without giving him or her a chance to explain any strategic reason for what was done. There may be many reasons known to trial counsel but not clear from the record that could provide a reasonable explanation.
¶ 5 For example, this is not a case where the death penalty was being sought. Since the defendant could have been held to be an accomplice to the robbery, he could have been found guilty of second-degree murder as an accomplice and been subject to the same life sentence. See Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). The trial lawyer might have preferred a confusing charge rather than having the law more clearly laid out and making it easier for Bennett to be convicted of second degree murder. We should give the lawyer a chance to explain before imposing the stigma of the label of ineffectiveness.