Commonwealth v. Rosendary

CONCURRING OPINION BY

GRACI, J.:

¶ 11 concur in the result.

¶ 2 I agree with the majority that Appellant’s judgment of sentence should be affirmed and that his claims of ineffective assistance of trial counsel, raised for the first time on appeal, must be dismissed without prejudice to Appellant’s right to raise them in a PCRA petition as directed by our Supreme Court in Commonwealth v. Grant, - Pa. -, 818 A.2d 726 (2002). As the majority notes, Majority Op. at 530, Grant is applicable to this case. Id. at 788-39. I would go no further.

¶3 While I do not disagree with the majority’s general explanation of Grant, I do not agree with sentiments expressed in dicta in its second footnote. Majority Op. at 530 n. 2. Different from the majority, I believe that presently the rule announced in Grant is absolute.

¶ 4 In Grant, the Supreme Court identified two “limited circumstances” where “[that] court may choose to create an exception to the general rule [which it had just announced] and review those claims on direct appeal.” Grant, 813 A.2d at 738 n. 14. Those “limited circumstances” were specifically identified as involving “an allegation [1] that there has been a complete or constructive denial of counsel or [2] that counsel has breached his or her duty of loyalty.” Id. The Supreme Court reserved unto itself the choice to create exceptions to the general rule it announced. It did not grant this Court any license to create any exceptions to its general rule. As an intermediate appellate court, it is our role to effectuate the decisional law of the Supreme Court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985). If these or any exceptions to the general rule are to be created, they are for the Supreme Court and that Court alone.

¶ 5 I am also concerned with the majority’s statement that “the new rule [announced in Grant] leaves open the issue regarding the propriety of raising a claim on direct appeal of trial counsel’s ineffectiveness which is apparent of record” suggesting that “where counsel’s ineffectiveness is established by the existing record, it would appear that the new rule would not prohibit this court from reviewing and determining the issue on direct appeal, if raised.” Majority Op. at 530 n. 2. The majority’s statement implies that there are some claims of ineffective assistance of trial counsel that can be resolved when raised for the first time on appeal. Such a conclusion is directly at odds with the rule announced in Grant. Grant does not admit of any such exception. I believe that the Court considered such an exception but rejected it. I draw this conclusion from the fact that the Grant Court, in cataloging the cases from the federal courts and the other states, observed that some of them had such an exception. Grant, 813 A.2d at 736 nn. 12-13. Those courts also recognized exceptions under certain exceptional circumstances characterized by United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (discussing actual or constructive denial of counsel), and United States v. Gambino, 788 F.2d 938 (3rd Cir.1986) (discussing actual conflicts of interest that are clear on the record). Grant, 813 A.2d at 735. Though the Court later would suggest two possible limited exceptions to the general rule it announced, id. at 738 n. 14, *532it did not mention the exception suggested by the majority.

¶ 6 Moreover, in reaching the conclusion to abandon the prior rule, the Court said “even presuming the merit of the claim is apparent on the existing record, oftentimes, demonstrating trial counsel’s ineffectiveness will involve facts that will not be available on the record.” Grant, 818 A.2d at 737. In making this statement, I cannot believe that the Court was allowing this Court to attempt to resolve claims we thought were apparent on the existing record. It seemed to imply the exact opposite.

¶ 7 Grant provides no exception for claims that may be resolved, either for or against an appellant, based on the record forwarded to the appellate court on direct appeal.3 The Supreme Court has yet to announce any exceptions to the rule it announced in Grant.

¶ 8 If, as the majority implies, there are some claims of ineffective assistance of trial counsel that may be resolved on direct appeal, then new counsel representing an appellant on direct appeal will be required to raise every such arguable claim on direct appeal, Grant notwithstanding. Otherwise, when a claim of trial counsel’s ineffectiveness is raised for the first time in a PCRA petition it will be subject to a legitimate waiver argument for dismissal since “the petitioner could have raised it but failed to do so ... on appeal...” 42 Pa.C.S.A. § 9544(b). The PCRA courts in the first instance, and this Court on appeal, will then be required to determine if “trial counsel’s ineffectiveness [wasjappar-ent of record.” PCRA counsel in every instance will again be required to layer the ineffective assistance of appellate counsel in order to avoid any possible PCRA waiver claim. That is exactly the situation which Grant intended to eliminate. Grant, 813 A.2d at 739. We will have turned a rule that was intended to curb such litigation into one that spawns it. We avoid such a result by applying what I believe is the clear dictate of Grant: dismiss claims of ineffective assistance of trial counsel that are raised for the first time on direct appeal.4

*533¶ 9 Accordingly, I join the opinion to the extent it affirms Appellant’s judgment of sentence. Since the majority properly applies the rule of Grant as I understand it, I concur in the result.

. Of course, if an appellant obtained new counsel after verdict, new counsel could seek a new trial based on the ineffective assistance of trial counsel in a timely-filed post-sentence motion under Pennsylvania Rule of Criminal Procedure 720(B)(l)(a)(iv). Pa.R.Crim.P. 720(B)(l)(a)(iv). The trial court would then have to determine if a hearing was required or if the claim could be resolved on the existing record. Pa.R.Crim.P. 720(B)(2)(b). Thereafter, the trial court could resolve the ineffectiveness claim in the time frame established by the rule. Pa.R.Crim.P. 720(B)(3). If that issue was then raised on direct appeal, this court could resolve it. That situation is different from the one governed by Grant where the issue of trial counsel's ineffectiveness was not raised in a timely post-sentence motion but was, instead, raised for the first time on appeal. Grant simply has no application where the issue was properly raised and decided by the trial court before the direct appeal process started. I note in this regard that while Grant specified that there would be no claim of waiver under the PCRA where new appellate counsel did not raise trial counsel’s ineffective assistance for the first time on direct appeal, id., at 738, the same may not be true if new counsel represented the defendant at a time when he or she could have raised and preserved this issue in a post-sentence motion. See Pa.R.Crim.P. 720 Comment (MISCELLANEOUS). Like many of the implications of Grant, resolution of that situation must await another day.

. I view Grant as a natural and logical extension of the body of case law developed by the Supreme Court over the last several years in which the "Court has consistently, repeatedly and unequivocally recognized ... the exclusivity of the PCRA in the arena in which it operates.” Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838, 842 (2002), citing Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 570 (1999). Clearly claims of ineffectiveness of trial counsel are recognized under the *533PCRA. 42 Pa.C.S.A § 9543(a)(2)(ii). Such claims are regularly brought under the PCRA. It is in keeping with this body of case law that claims of trial counsel's ineffective assistance should be funneled through the PCRA.