Commonwealth v. Buehl

NIX, Chief Justice,

concurring.

Although I am in agreement with the criticisms expressed in Mr. Justice Gappy’s dissenting opinion concerning the plurality’s interpretation of the test for ineffectiveness of counsel, I am nonetheless constrained to concur in the denial of Appellant’s petition for relief under the Post Conviction Relief Act. The plurality states that “where a claim of ineffective assistance [of counsel] is advanced on collateral attack, the PCRA renders more stringent the prejudice requirement which must be satisfied before relief can be granted.” Majority op. at 505. For the reasons more fully articulated in Mr. Justice Gappy’s dissenting opinion, I do not believe there exists a substantive distinction between the prejudice prong of the test for ineffectiveness of counsel and the language contained in 42 Pa.C.S. § 9543(a)(2)(ii), which requires the defendant to prove that counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” In my view, this language merely reiterates the standard in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), and its progeny, that “a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness.” Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1308 (1994).

In light of the foregoing, I do not believe that counsel was ineffective for failing to request a cautionary instruction regarding the admission of other crimes evidence. The plurality holds otherwise, but then concludes that counsel’s ineffectiveness did not undermine the truth determining process such that there was no reliable adjudication of Appellant’s guilt or innocence. This conclusion is based upon the circumstantial *516evidence presented by the Commonwealth which provided overwhelming proof of Appellant’s guilt. It is precisely this evidence which leads me to conclude that Appellant has not met his burden of establishing that he was prejudiced by counsel’s failure to request a cautionary instruction. Thus, the other evidence of Appellant’s guilt renders counsel’s omission harmless, and therefore, does not entitle him to relief due to counsel’s ineffectiveness. Accordingly, I concur in the result as I believe that the plurality’s attempt to deny relief on the basis of a heightened prejudice standard under in the Post Conviction Relief Act is unwarranted and unnecessary.