concurring and dissenting.
I agree with the lead opinion that: (1) this PCRA petition must be deemed to be appellant’s first PCRA petition (a point the Commonwealth does not dispute); (2) those of appellant’s claims which were previously litigated are not cognizable under the PCRA; and (3) appellant is not entitled to PCRA relief. However, I respectfully disagree with the lead’s approach to several of appellant’s claims which have not been previously litigated but which the lead opinion reviews on the merits since these claims are indisputably waived under the PCRA. By reviewing those claims, the lead opinion ignores the PCRA waiver provision, and thereby resurrects the discretionary relaxed waiver doctrine that this Court abrogated on PCRA review in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998). Furthermore, in light of this Court’s recent, inconsistent treatment of waived claims under the PCRA, I find myself in sufficient disagreement with the lead *578opinion’s relaxed waiver approach as to warrant a dissenting posture.
My concern with the Court’s approach to claims which are waived under the terms of the PCRA is not confined to this case. In its treatment of appellant’s waived claims, the lead opinion here merely continues a hushed but steady erosion of Albrecht, and a return to PCRA relaxed waiver, which is also reflected in this Court’s majority decisions in Commonwealth v. Marrero, 561 Pa. 100, 748 A.2d 202 (2000), Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (2001), and Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312 (2001). Notwithstanding repeated statements by clear majorities of the Court that Albrecht is sound decisional law, see, e.g., Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 940-41 (2001); Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292, 296 (2001), as well as the Court’s unanimous holdings that applica- ' tion of Albrecht, and fidelity to the PCRA waiver provision, is not unlawfully retroactive, e.g., Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 725-26 (2000); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999), the Court, in practice, is still reluctant to abandon pre-Albrecht practice and actually enforce the PCRA’s unequivocal and duly-enacted waiver provision. Accordingly, shifting and unpredictable majorities of the Court have continued to reach select waived claims — albeit usually without ever acknowledging the fact of waiver — and have thereby reinstituted a form of relaxed waiver practice on PCRA review. The result is the most dire circumstance that can characterize a high Court’s appellate jurisprudence:, an inconsistent approach to similarly-situated litigants. Indeed, cases decided on the very same day, December 31, 2001, and in the same posture respecting PCRA waiver, were accorded fundamentally different treatment by this Court on the question of how to approach waived claims. See, e.g., Bracey; Meadows; Commonwealth v. Lambert, 568 Pa. 346, 797 A.2d,232 (2001) (Opinion Announcing Judgment of Court); Commonwealth v. Gorby, 567 Pa. 370, 787 A.2d 367 (2001) (Opinion Announcing Judgment of Court). Also, additional approaches to waived claims were employed in opinions *579decided shortly before that day. See Commonwealth v. Rivers, 567 Pa. 289, 786 A.2d 923 (2001) (Opinion Announcing Judgment of Court); Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786 A.2d 203 (2001); Williams. In one instance, a majority of the Court essentially ignored the holding in Albrecht and granted relief in the form of a remand for a second ineffectiveness hearing upon a claim of ineffective assistance of trial counsel that was obviously waived under the PCRA, since the appellant had been represented by new counsel on direct appeal and, thus, had a previous opportunity to raise the claim. Gorby.1 See id., 787 A.2d at 373-74 (Castille, J., concurring and dissenting).2 Most recently, the Court’s struggles with Albrecht led it to refuse to review a waived claim — a position consistent with Albrecht but squarely inconsistent with today’s lead opinion — but then to relax the substantive constitutional standard applicable to the non-waived version of that claim, in order to justify the summary grant of relief in a case where the non-waived claim (sounding in appellate counsel ineffectiveness) was raised in boilerplate fashion. See Commonwealth v. Ford, 809 A.2d 325 (Pa.2002) (Opinion Announcing Judgment of Court), 2002 WL 31398628 (Pa. Oct. 25, 2002).
1 strongly believe that the course followed today, which would effectively overrule Albrecht and reinstitute full-blown relaxed waiver on PCRA review, is erroneous. On the question of relaxed waiver, Albrecht was absolutely correct; the decision merely enforced the unequivocal terms of the PCRA and discontinued an inadvertent judicial negation of those statutory terms by use of the discretionary relaxed waiver *580doctrine. See Bracey, 795 A.2d at 951-57 (Castille, J., concurring). I do not believe this Court has the power to refuse to apply duly-enacted legislation — at least not unless there is some constitutional basis for doing so. But, if the Court is truly determined to return to the days of judicial negation of the PCRA’s waiver provision — this time deliberately — it would be better that we do so forthrightly and overrule Albrecht.
I suspect, however, that the unspoken concern that animates the Court’s fitful and unacknowledged returns to relaxed waiver has less to do with what Albrecht said about relaxed waiver generally and more to do with an understandable discomfort with the necessary and unavoidable consequences of applying the PCRA waiver provision to petitions that were litigated in the lower courts before Albrecht was decided; The breadth and depth of these concerns may not have been fully foreseeable at the time we decided Albrecht or even at the time of our initial decisions on Albrecht retroactivity. See, e.g., Williams, 782 A.2d at 524-25 (discussing task for PCRA counsel in light of recent PCRA legislation and judicial decisions, including Albrecht’s enforcement of PCRA waiver provision). See also Ford, 809 A.2d at 337 (Saylor, J. concurring), (Eakin, J. dissenting), at 347-48. If that is the case, i.e., if the Court simply finds itself unwilling in practice to apply the PCRA waiver provision to cases where the PCRA petition was dismissed before Albrecht was decided, then the Court should 'face the problem squarely, overrule the unanimous decisions in Pursell and Basemore on the question of Albrecht retroactivity, and adopt a cogent and consistent position on this narrow class of cases.
I make this suggestion even though I continue to believe that we have decided the question of Albrecht retroactivity correctly, given the true discretionary scope of the relaxed waiver doctrine, and given the fact that this Court cannot simply ignore that the PCRA deems waived claims unreviewable. See Bracey, 795 A.2d at 951-57 (Castille, J., concurring); accord Ford, 809 A.2d at 345 & n. 8 (Castille, J., dissenting). I continue to believe that we should enforce — indeed, we should deem ourselves required to enforce — the PCRA waiver provi*581sion. But if the Court is set on another course in this narrow class of cases involving PCRA petitions decided before Albrecht, I would prefer that it announce that course openly and apply the new doctrine evenly — rather than giving the impression that Albrecht,- Pursell, and Basemore are good law, while ignoring what those decisions command. Such a course, unlike the present one, at least would have the virtue of being knowable and even-handed.
My specific disagreement with the lead opinion’s approach in this particular case is identical to the concern that led me to write separately in Meadows: The lead opinion reviews, on the merits, claims that are indisputably waived under the PCRA and, in so doing, fails to comment on those claims that actually are cognizable under the PCRA. More specifically, an issue is waived under the PCRA “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” Id. § 9544(b). Appellant here was represented by new counsel on post-trial motions, and again on direct appeal to this Court. Appellant was thus provided a full opportunity to litigate claims of alleged trial court error and trial counsel ineffectiveness on his direct appeal to this Court. Appellant seized that opportunity on direct appeal, raising claims sounding both in trial court error and in ineffective assistance of trial counsel. See Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993). As the Commonwealth here correctly argues, appellant’s substantive claims, which are framed and developed as claims sounding in trial court error or trial counsel’s alleged ineffectiveness, are waived under the PCRA.
Despite the fact that all of appellant’s claims sounding in trial court error or trial counsel ineffectiveness are waived under the PCRA, the lead opinion reviews the waived claims on the merits. Although the lead opinion never invokes the term “relaxed waiver,” it obviously can reach the claims only by ignoring, or “relaxing,” the PCRA’s waiver provision. I do not believe we have this power. Consistently with the actual, plain language of the governing legislation, Albrecht and its progeny, and our decisions on Albrecht retroactivity, I dissent *582from this unacknowledged resurrection of the relaxed waiver doctrine on PCRA review.
I recognize that the lead opinion’s silent relaxed waiver approach here is consistent, with the approach taken in Meadows, which was a majority decision of this Court, as well as the cases pre-dating Albrecht. But it is decidedly inconsistent with the very terms of the PCRA, with the majority decision in Albrecht abrogating relaxed waiver, with our majority decisions on Albrecht retroactivity {Pursell; Basemore; Bracey), and with other majority decisions of this Court. See Bracey; Commonwealth v. Abdul-Salaam, 808 A.2d 558, 2001 WL 34041795 (2002); (Michael) Pierce; Williams. Until this Court settles on a clear and comprehensible view of the question of applying the PCRA waiver provision to cases that were pending when Albrecht was decided, which it is willing to enforce, or until it overrules the competing lines of majority decisions that conflict with today’s decision, I am compelled to respectfully voice my dissent. In short, so long as Albrecht; Pursell, and Basemore are deemed to be sound law, as I believe they are, it is my position that we should enforce those decisions, which merely vindicate the actual, plain language of the PCRA. Such is my position even though I recognize that there are now competing lines of authority that squarely undermine Albrecht; Pursell, and Basemore, in cases involving petitions that were pending when Albrecht was decided.
Here, as in Meadows, the only non-waived claims available to appellant on PCRA review are those that would sound in the ineffective assistance of his direct appeal counsel. In his initial brief and his supplemental brief, appellant forwards only boilerplate assertions of appellate counsel ineffectiveness. As I have noted at length in other cases, see, e.g., Ford, 809 A.2d at 344-45 (Castille, J., dissenting), Commonwealth v. Moore, 805 A.2d 1212, 1229-31 (Pa.2002) (Castille, J., joined by Newman and Eakin, JJ., concurring and dissenting); Meadows, 787 A.2d at 324-26 (Castille, J., concurring), since the test for counsel ineffectiveness is not a per se one, such a boilerplate argument fails to prove an entitlement to relief under the test for ineffectiveness established in Strickland v. Wash*583ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny, including Smith v. Robbins, 528 U.S. 259, 285-89, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) and Commonwealth v. (Charles) Pierce, 515 Pa.153, 527 A.2d 973 (1987), and in the PCRA itself. See 42 Pa.C.S. § 9543(a)(4) (petitioner must plead and prove, inter alia, “[tjhat the failure to litigate the issue prior to or during trial ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel”). Because appellant’s claims sounding in trial court error and ineffectiveness of trial counsel are waived under the PCRA, and because appellant has failed to sustain his burden of rebutting the presumption that his appellate counsel was effective, I concur in the mandate, but only in the mandate, affirming the denial of PCRA relief.
Justice EAKIN joins this concurring and dissenting opinion.. The portion of former Chief Justice Flaherty's lead opinion which remanded on the claim of irial counsel ineffectiveness was joined only by Mr. Justice Cappy and Mr. Justice Saylor. Now-Chief Justice Zappala, Mr. Justice Nigro and Madame Justice Newman all concurred in that result without explanation.
. The fact that Gorby, like so many recent decisions in the capital PCRA arena, resulted in a non-precedential lead opinion aggravates, rather than mitigates, the situation. In Gorby, a majority of the Court agreed to reach and remand upon an obviously waived claim without even attempting to square the decision with Albrecht. Bu1 this Court’s practice of ignoring the cases with which a decision is obviously inconsistent does no1 make the inconsistency disappear.