Commonwealth v. Buehl

CAPPY, Justice,

dissenting.

I am compelled to dissent from the conclusion of the Majority that although Appellant received ineffective assistance of counsel at trial when counsel failed to request a cautionary instruction regarding evidence of other crimes, such ineffectiveness provides Appellant no relief. Majority op. at 507.

I must take issue with the Majority’s interpretation and application of the language of the relevant section of the Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S. § 9548(a)(2)(ii), which the Majority concludes imposes a higher burden for the defendant in a PCRA proceeding when raising an ineffectiveness challenge than that for an ineffectiveness challenge on direct appeal. On direct appeal, the long-standing and well-established rule is that a defendant is required to show (1) there is merit to the underlying claim; (2) counsel had no reasonable basis for his course of conduct; and (3) that there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Under the PCRA, the defendant must show that counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or *517innocence1 could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

In applying these two standards, the Majority determines that the PCRA imposes a “higher” standard, and concludes that

while we are able to say that due to the prejudicial nature of the evidence in question the outcome of appellant’s trial may have been different ... we are unable to say that due to this omission the adjudication of guilt is unreliable----

Maj. op. at 507. This conclusion is based on the Majority’s finding that all the evidence in the case “created overwhelming evidence of appellant’s guilt.” Id. It is the Majority’s conclusions that the PCRA effectively imposes a higher standard, and further that that standard has not been met here, with which I disagree.

I recognize that it was the intent of the legislature to “redefine” ineffectiveness of counsel when it passed the amendments to the Post-Conviction Hearing Act, which created the PCRA, in 1988.2 During the legislative session at which the amendments were voted upon, Representative Hag-erty stated:

What [the amendment] does is it attempts to redefine ineffective assistance of counsel so that defendants cannot continually get new procedures. It seeks to look more towards is there a possibility that an innocent person is incarcerated rather than simply is there a technical violation that was performed that we are going to allow him to litigate for years and years.

*518See Legislative Journal — House, February 24, 1988, at 324. Thus, the insertion of the language “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” was meant to be a limiter on the ability of a defendant to obtain relief from a Sixth Amendment violation. However, notwithstanding the legislature’s motives, I do not find that it had a constitutional basis for doing so, nor do I believe that it effectuated what it intended.

First, no matter how laudatory the legislature’s effort to reduce the number of ineffective assistance of counsel claims which inundate the courts, a reduction cannot be secured by violating a defendant’s Sixth Amendment constitutional right to the effective assistance of counsel. A legislative attempt to limit such claims by focusing its attention on the popular concept that too many criminals are freed by reason of “technicalities,” is more than misguided, it is simply 'wrong. The Sixth Amendment right to counsel, through decades of jurisprudence beginning with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), has been held to be a fundamental right. Moreover, the right to counsel has been held to be meaningless unless the counsel provided is competent and effective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). If an accused person does not receive effective assistance of counsel, that is not a technicality, it is a violation of a fundamental constitutional right; insuring that a conviction is not a product of ineffective assistance is more than an exercise in determining whether there is a “technical” violation, it is an exercise in determining whether there has been a constitutional violation.

What constitutes a violation of an accused’s Sixth Amendment right has already been defined by this Court in Pierce and by the United States Supreme Court in Strickland v. Washington. In that Pierce and Strickland clearly define that which will afford a defendant relief — to wit, that the defendant was prejudiced by counsel’s actions to the effect that the outcome of the trial “would have been different,”— *519little more can be said. If the outcome of the trial, that is the verdict, would be different because of the prejudice resulting from ineffective assistance of counsel, the defendant has not been afforded his Sixth Amendment right of effective counsel and he is entitled to appropriate relief.

Second, I find it logically impossible to articulate what higher standard could be imposed; that is, what the language “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” means, if it in fact means something more than the Pierce/Strickland test. In Strickland, the United States Supreme Court offered its interpretation on the meaning of the constitutional requirement of effective assistance of counsel:

The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. ******
Unless a defendant [shows deficient performance and prejudice], it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
******
An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable....

466 U.S. at 686-687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 692-693, 697. I find this language to be startlingly similar to the language which the legislature included in the PCRA. Clearly, the United States Supreme Court recognized that a “reliable” verdict cannot exist when a defendant has received ineffective assistance of counsel. How then is it possible to say that there is yet some “higher” burden that a defendant must overcome to be entitled to relief?3

*520I believe the Majority’s opinion reflects the inability to articulate what the “higher” standard could be. The Majority does not explain why the adjudication of guilt is reliable if the outcome would have been different. Does not the conclusion that the defendant could have been found “not guilty” render the adjudication of guilt unreliable? The Majority appears to equate the “no reliable adjudication of guilt” standard of the PCRA to either a sufficiency of the evidence analysis or a harmless error analysis. The Majority’s application of either analysis is, to my mind, incorrect.

A sufficiency of the evidence analysis is typically used to determine whether the Commonwealth proved beyond a reasonable doubt all of the elements of the crime charged. It is not used to determine whether an error in the trial harmed the defendant such that a new trial is warranted. Similarly, the PCRA “no reliable adjudication of guilt” standard cannot be the same as a “harmless error” standard. An error is determined to be harmless when (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990). Once there is a determination that the defendant suffered prejudice under the Pierce test which could lead to a different result (verdict); it would not make sense to essentially “back up” and argue that the defendant was in fact not *521prejudiced under a harmless error analysis.4

The only remaining articulation of what the language “so undermined the truth determining process such that no reliable adjudication of guilt or innocence could have taken place” could mean is that an “actual innocence” test must be applied. However, our system of justice requires that there be articula-ble standards for determining guilt and for determining when a trial comports with due process and other constitutional guarantees. Guilt is determined by the Commonwealth proving beyond a reasonable doubt all of the elements of the crime charged, in a trial that is deemed to comply with the requisite constitutional guarantees, not by the defendant proving his innocence. Due process, and the Sixth Amendment, mandate that a defendant must be afforded effective counsel. Accordingly, if the conviction passes a sufficiency of the evidence test, but the defendant received ineffective assistance of counsel became he was prejudiced by counsel’s stewardship, how can we then say that Appellant has no recourse because we believe he was not innocent? What is the articulable standard for determining when someone is not innocent after applying a sufficiency of the evidence test and the Pierce/Strickland test?

Finally, notions of fundamental due process would make it questionable that § 9543(a)(2)(ii) can impose a higher burden on a PCRA petitioner. The effective result of the Majority’s holding is that if you have very bad counsel, ie., counsel that neglects to raise a meritorious issue at trial or in post-trial *522motions or on direct appeal, you have no recourse. Thus, the defendant is being “punished” for the very error that left him with only the PCRA as an avenue of relief. That conclusion appears to me to unjust and arguably violative of due process. Once a system of appeal is instituted, that system must operate fairly for everyone. To conclude that a defendant, making what is essentially a collateral attack on direct appeal,5 can obtain relief but another defendant who has the unfortunate luck of having ineffective counsel at trial and on direct appeal has no recourse, creates a bizarre system.

Accordingly, I cannot agree with the Majority’s conclusion that the PCRA imposes a higher standard, and that such standard was not met here. Contrary to my colleagues, I would hold that the verbiage set forth in § 9543(a)(2)(h) is by constitutional mandate and logical application, nothing more than a recitation of the Pierce standard of prejudice. To do otherwise leads to the absurd result, as evidenced by the case sub judice where the defendant suffered a conviction while receiving the services of ineffective counsel, whose ineffectiveness admittedly prejudiced the defendant to a point where the “outcome of the trial (the verdict) would have been different,” yet the defendant is offered no recourse because he has failed to show that the prejudice relates to the “truth-determining process,” whatever that may be. To me, the truth-determining process is obliterated in an instance where an accused suffered ineffectiveness of counsel which so prejudiced him so as to lead to a conclusion that the verdict would have been different. Accordingly, I dissent.

FLAHERTY, J., joins this dissenting opinion.

. The inclusion of the word "innocence” here is confusing, inasmuch as a criminal defendant is never adjudicated to be “innocent.”

. I also acknowledge that the Superior Court has been unanimous in finding that the PCRA does in fact impose a higher burden on a defendant seeking relief under the PCRA. See, e.g., Commonwealth v. Korb, 421 Pa.Super. 44, 617 A.2d 715 (1992). However, I am not aware of a case where the Superior Court has actually found prejudice under the Pierce test yet then declined to afford relief under the PCRA. The Superior Court did find prejudice, and subsequently concluded that the ineffectiveness undermined the "truth-determining process,” in Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990).

. As recently as 1993, this Court appeared to view the PCRA standard as consistent with a Pierce prejudice test. In Commonwealth v. Szu-chon, 534 Pa. 483, 633 A.2d 1098 (1993), we held that in order for a *520defendant to establish a claim of ineffective assistance of counsel in a PCRA proceeding

... he must first demonstrate that the underlying claim is of merit; that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his interest; and that the commission or omission so undermined the trial that the verdict is unreliable. Commonwealth v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (1992); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

534 Pa. at 486, 633 A.2d at 1099 (emphasis added).

. To reiterate, the Pierce and Strickland tests set forth a three-part analysis for determining whether counsel has been ineffective, and thus whether a defendant’s Sixth Amendment rights have been violated. Part of that test is whether the defendant suffered prejudice as a result of counsel’s ineffectiveness. How is it possible to conclude that a defendant was prejudiced, and thus received ineffective assistance of counsel, but then find that that violation was somehow "harmless”?

Moreover, a "harmless error” test is essentially a burden on the Commonwealth to show that the error could not have contributed to the verdict beyond a reasonable doubt. The prejudice prong in an ineffectiveness test is a burden on the defendant to show that the outcome "would have been different.” As such, the prejudice test is a higher standard that a defendant must meet in order to obtain relief than a harmless error test. Again, I cannot see how a finding of prejudice can thus ever be “harmless.”

. In Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300 (1994), we noted that an attack on the effectiveness of counsel is in essence a collateral attack even though it is raised in a direct appeal.