Commonwealth v. Ligons

Chief Justice CASTILLE,

concurring.

I write separately primarily because I respectfully disagree with the Majority’s1 determination to reach claims of PCRA2 counsel ineffectiveness that were not raised below. The Majority’s application of a no-waiver rule to reach those claims negates both judicial issue preservation principles and the explicit terms of the PCRA, and effectively permits the litigation strategy and preferences of volunteer counsel to control whether and when issue preservation and the PCRA should be ignored. The Majority’s ad hoc rule also raises separation of powers concerns to the extent it dismisses the PCRA’s express jurisdictional and serial petition limitations. In addition, the rule, as applied by the Majority, allows favored appellants to avoid this Court’s additional restrictions on serial requests for post-conviction relief. See Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988) (“[A] second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.”). Accordingly, I would not reach the new claims the Court reaches.3 *162Although I disagree on this jurisdictional issue, I ultimately concur in the Court’s mandate, which denies relief on appellant’s guilt phase claims, overturns the PCRA court’s grant of relief respecting the penalty phase (the subject of the Commonwealth’s cross-appeal), and rejects appellant’s additional penalty phase claims. I also write to address some minor, tangential points.

— I —

Appellant was represented in the PCRA court by two experienced court-appointed lawyers, who succeeded in securing him penalty phase relief. Current PCRA appeal counsel, the Defender Association of Philadelphia, Federal Court Division, Capital Habeas Corpus Unit, entered an appearance on behalf of appellant concurrently with filing a notice of appeal on July 25, 2005. The Federal Defender was not appointed by the PCRA court or any other judicial entity. Instead, the organization entered the case on its own accord and then proceeded to attempt to add new claims never raised in the PCRA petition or proceeding which is the only subject of this appeal. The circumstances, detailed more fully below, raise supervisory and jurisdictional concerns.

After the PCRA court had already decided the PCRA petition on June 23, 2005, the counseled appellant presented the court with a pro se motion seeking new court-appointed counsel, which was time-stamped June 30, 2005, but never filed. (Appellant nevertheless appends a copy of this non-record, pro se motion to his brief on appeal.) The pro se request complained that appellant was innocent, that PCRA counsel had not visited him in prison, investigated his case, or spoken to him about his claims, and that he wanted to raise a new claim of racial discrimination in jury selection. Appellant also appends to his brief a non-record letter addressed to the *163PCRA court from the Federal Defender, dated July 7, 2005, purportedly offering to represent appellant in the already-decided case.

The sole record reference to these non-record communications is in the transcript of a post-decisional status hearing before the PCRA court on July 11, 2005. Judge (now Madame Justice) Jane C. Greenspan noted that she had received a letter from the Federal Defender, seeking to enter the case to raise a new claim premised upon supposed racial discrimination in jury selection. The PCRA court also mentioned the pro se motion, and then indicated that there was no reason to appoint new counsel where appellant already had “extremely competent counsel.” However, the court' offered appointed counsel the opportunity to raise the racial discrimination claim, counsel did so, and the court rejected it on the merits. N.T., 7/11/2005, at 5-7. The court did not appoint the Federal Defender at that hearing, or relieve initial counsel. Two weeks later, on July 25, 2005, the Federal Defender filed a Notice of Appeal stating that it was also entering its appearance “[b]y the request and consent of the Petitioner.”

In this Notice of Appeal, the Federal Defender included a Jurisdictional Statement that listed seven issues, six of which were never raised before the PCRA court. Each of the six new claims included a boilerplate allegation that “appointed post-conviction counsel were ineffective in failing to remedy these failures or to properly litigate this claim” and an equally boilerplate allegation that all prior counsel were ineffective for failing to raise the new issues. Of course, this jurisdictional statement did nothing to preserve any of these claims for appeal. Claims must be raised in the trial court; and, when an appeal is filed, preserved claims may be winnowed and renewed in a Statement of Matters Complained of on Appeal, if the trial judge requests such a Statement. See Pa.R.A.P. 1925. The PCRA court then filed an opinion dated August 4, 2005, which addressed appellant’s racial discrimination claim, as well as the other claims actually raised before the PCRA court, but did not address the new, boilerplate issues in the Notice of Appeal.

*164To the extent appellant seeks review of these new claims in his appeal from the partial denial of PCRA relief, he asks this Court to sit not as a reviewing court, but as a trial court passing upon claims that amount to a serial PCRA petition that was not filed within the one-year jurisdictional limitations period mandated by the PCRA. In my view, this Court lacks jurisdiction to grant such an indulgence, and even if we had jurisdiction, I would not approve a litigation strategy that operates to build-in delay in capital cases and to work an end-around the PCRA.

— II —

Initially, I will address the supervisory issue implicated by a PCRA petitioner’s pro se request to replace court-appointed counsel. There is no right — constitutional or otherwise — to hybrid representation. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993) (court should not entertain pro se brief on appeal where defendant is represented and counsel also files brief); see also Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223, 224 (1994) (Superior Court may prohibit filing of pro se briefs by appellants represented by counsel on appeal). In Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999), this Court made clear that Ellis applies to PCRA proceedings:

The rationale of our decisions in Ellis and Rogers applies equally to PCRA proceedings in the Court of Common Pleas. We will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represent those defendants.

Id.4 Thus, it is abundantly clear that motions from represented PCRA petitioners — -including motions for replacement of court-appointed counsel- — should be accepted and entertained only when filed by counsel.

*165Furthermore, where a right to counsel exists (in this case, it is a non-constitutional, Pennsylvania Criminal Rule-based right to counsel), a criminal defendant is not entitled to free counsel of his own choosing. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 617 (2008); Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497, 507 n. 3 (1978). The standard for replacing counsel requires some substantive showing, not mere generalized dissatisfaction:

Pennsylvania Rule of Criminal Procedure 122(C) provides that “[a] motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C)(2). “To satisfy this standard, a defendant must demonstrate that he has an irreconcilable difference with counsel that precludes counsel from representing him.” Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1150 (2000).

Cook, 952 A.2d at 617.

Then-Judge Greenspan discussed the pro se motion and the Federal Defender’s offer to be appointed in open court, observed that appellant was already represented by able counsel, permitted counsel to raise the single new claim appellant had faulted them for failing to raise, and ruled on the new claim. For purposes of hybrid representation concerns, the PCRA court’s action was streamlined and in substantial compliance with the Ellis model: i.e., at a single hearing, the court essentially forwarded the pro se motion to counsel, counsel added the claim his client faulted him for failing to raise, and the case was timely disposed of.5

— Ill —

The second issue arising from the post-decision defense maneuverings below is more substantial. By entertaining *166appellant’s post-decisional complaint, and allowing counsel to adopt it, the PCRA court in essence approved a second collateral attack, this one focusing on initial PCRA counsel, and granted appellant partial relief by allowing initial PCRA counsel to add the claim. The PCRA court did not consider whether this circumstance implicated the time and serial petition restrictions of the PCRA or the Lawson miscarriage of justice standard. Today’s Majority goes farther, as the Court approves of a no-waiver/extra-PCRA practice of entertaining what amounts to a third collateral attack, initiated on direct PCRA appeal, in the form of additional complaints concerning initial PCRA counsel. The Majority thus deems reviewable as of right claims of ineffective assistance of initial PCRA counsel that were never raised in a PCRA petition, or in the proceedings below, including the proceeding where appellant was permitted to air his complaints concerning initial PCRA counsel. For purposes of this Concurrence, I ■will assume that the PCRA court acted properly in entertaining an additional claim post-decision. My greater concern is with the broader implication in the Majority’s reaching the additional claims of PCRA counsel ineffectiveness raised for the first time on this appeal. Respectfully, I believe these claims are waived and are subject to the time and serial petition provisions of the PCRA, as well as this Court’s serial petition jurisprudence.

— A —

This Court does not sit as a court of original jurisdiction on PCRA appeals, see 42 Pa.C.S. § 9545(a), but as an appellate court whose duty is to review the trial-level proceedings below. It is a settled and salutary principle of appellate review that we will not reach claims that were not raised below. See Pa.R.A.P. 302(a); Commonwealth v. Wharton, 584 Pa. 576, 886 A.2d 1120, 1126 (2005); Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 761 (2005). The issue preservation principle applies no less on PCRA appeals. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 601 (2007) (claim raised for first time on motion for reconsidera*167tion of PCRA court’s dismissal of PCRA petition is waived); Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 226 (2007) (claims not raised in PCRA petition are waived); Commonivealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006) (same). Moreover, this Court abrogated the discretionary “relaxed waiver” rule — a rule formulated before legislative adoption of PCRA time and serial petition restrictions — that formerly applied in capital PCRA appeals. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). We did so because, inter alia, the doctrine could be abused to foreclose finality in capital cases, and because it conflicted with the PCRA’s clear waiver provision. Id. at 700. Independently of the tension between the PCRA and a discretionary judicial doctrine that would permit courts to ignore waiver, experience has revealed multiple deficiencies in relaxed waiver as a jurisprudential matter. This Court outlined some of those difficulties in the direct appeal context in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), and many of those difficulties are no less troubling in the PCRA appeal context:

This Court often is required to decide such issues without the benefit of a trial court opinion or other indication of the trial judge’s view....
At the same time this Court, of necessity, is frequently obliged to consider matters outside of the record when reaching a claim under relaxed waiver. When a claim has not been raised in the trial court there is often a scant or insufficient record for appellate review.... The record will be devoid of relevant, contemporaneous arguments from the ... attorneys, who were in the best position to advocate the merits of the matter when it arose — particularly with respect to the harmfulness or curability of an objectionable event, a matter which appears in a very different light before a verdict has been returned. After-the-fact reconstructions, non-record sources, and averments in appellate briefs are distinctly inferior to review of record objections, *168arguments, and remedial requests actually and timely forwarded and decided by the trial court.
In a similar vein, relaxed waiver practice often requires the Court to engage in speculation concerning the reasons for the trial judge’s action or inaction — or, to put it more accurately, to speculate as to what the judge would have done if an objection had been made — without benefit of the jurist’s actual ruling or thinking in the context of the trial as it was unfolding.... Explanations proffered in after-the-fact opinions, appellate briefs, or affidavits are hardly an adequate substitute for such a contemporaneous record.
The relaxed waiver rule also presents its own unique jurisprudential problems. The doctrine obliges this Court to view many claims in an academic, artificial, or misleading fashion....

Id. at 394-96.

With cases such as Albrecht, Freeman, and Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), this Court has ensured a more rational review process, one which also respects the restrictions and purpose of the PCRA. The review paradigm now in place recognizes the centrality of the PCRA trial proceeding as the proper initial repository for collateral claims, and restores appellate courts to their role as courts of review, not as courts of original jurisdiction for claims never raised below. Serial PCRA petitions should be rare and limited to extraordinary situations, such as are contemplated as the statute’s time-bar exceptions. Because appellant’s boilerplate, hindsight claims sounding in the ineffectiveness of PCRA counsel were not raised below, they clearly are waived and unavailable on this appeal.

Such new claims are also beyond this Court’s jurisdiction. The PCRA time-bar plainly provides that: “(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final,” unless the petitioner proves one or more of three narrow exceptions to the time-bar. 42 Pa.C.S. § 9543(b)(1). Notably, there is no exception devoted to claims *169of PCRA counsel ineffectiveness, and this Court has consistently held that claims of ineffectiveness of PCRA counsel will not overcome the timeliness requirements of the PCRA because defense counsel are not “government officials.” See Commonwealth v. Wharton, 584 Pa. 576, 886 A.2d 1120, 1127 (2005) (citing Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915-16 (2000); Commonwealth v. Gamboar-Taylor, 562 Pa. 70, 753 A.2d 780, 785-86 (2000); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000)).

The PCRA time-bar is jurisdictional and this Court has emphasized the consequences of that fact:

“This Court has repeatedly stated that the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.” [Commonwealth v.] Rienzi, 573 Pa. 503, 827 A.2d [369,] 371 [ (2003) ]. See also [Commonwealth v.] Hall, 565 Pa. 92, 771 A.2d [1232,] 1234 [ (2001) ] (“Pennsylvania courts lack jurisdiction to entertain untimely PCRA petitions”). In addition, we have noted that “[t]he PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act.” [Commonwealth v.] Eller, 569 Pa. 622, 807 A.2d [838,] 845 [ (2002) ]. See also [Commonwealth v.] Fahy, 558 Pa. 313, 737 A.2d [214,] 222 [ (1999) ] (“a court has no authority to extend filing periods except as the statute permits”). We have also recognized that the PCRA’s time restriction is constitutionally valid. Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 642-43 (1998).

Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1161 (2003). In PCRA terms (and this is a PCRA appeal), the new claims appellant would raise comprise a serial PCRA petition. The claims were not raised in the initial or amended petition, nor were they raised in the post-decision proceeding where the PCRA court permitted appellant to challenge the performance of his PCRA counsel. The new claims therefore must be subject to the strictures of the PCRA, and this Court lacks authority to ignore the statute, or to fashion ad hoc extra-statutory exceptions to defeat it. See Commonwealth v. Bond, *170572 Pa. 588, 819 A.2d 33, 52 (2002) (“Permitting a PCRA petitioner to append new claims to the appeal already on review would wrongly subvert the time limitation and serial petition restrictions of the PCRA.”) (citing Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 587-88 (2000)); accord Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1182 (2005) (“[PJursuant to [Albrecht,] the relaxed waiver rule is no longer applicable to PCRA appeals, and therefore, any claims that have been waived by Appellant are beyond the power of this Court to review under the terms of the PCRA.”) (emphasis supplied).

— B —

The Majority justifies overlooking the waiver of certain claims and ignoring the PCRA by declaring that “a defendant in a capital case may challenge the stewardship of PCRA counsel on appeal to this Court because it is his only opportunity to do so,” Majority Op. at 126, 971 A.2d at 1138 (citing to Hall, supra, Pursell, supra, and Albrecht, supra), and noting that Albrecht “recognized that Pa.R.Crim.P. 904 embodies an enforceable right to effective PCRA counsel in a first PCRA petition and therefore we must permit claims challenging PCRA counsel’s stewardship in an appeal to this Court.” Id. I do not believe these broad statements are sufficient justification to ignore waiver and enjoin the PCRA, particularly given that developments in our case law since Albrecht have squared judicial doctrine with a rational collateral review scheme and thereby come to recognize the legitimacy of the PCRA.

First, and most fundamentally, nothing in the text of the PCRA suggests that it may be ignored to indulge new appellate claims sounding in PCRA counsel ineffectiveness, which amount to a serial petition. Indeed, it would be perverse to enjoin the statute to address claims of collateral counsel ineffectiveness, since no constitutional right is implicated.

Second, in evaluating the legitimacy and persuasiveness of the Albrecht dictum, which was repeated in Hall, the context in which those assumptions were announced must be considered. Albrecht and Pursell were decided, and Hall was *171litigated below and briefed here, before Commonwealth v. Grant was decided. Before Grant, the prevailing judicial rule under Commomvealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) and its progeny commanded that claims of ineffective assistance of counsel had to be raised, upon pain of waiver, at the first opportunity when new counsel entered a case — including when new counsel entered on PCRA collateral appeal. The comments in the pre-Grant cases must be understood in light of that reality.

I first questioned the effect of Hubbard upon the PCRA’s jurisdictional restrictions in my Opinion Announcing the Judgment of the Court (“OAJC”) in Commonwealth v. Jones, 572 Pa. 343, 815 A.2d 598 (2002) (Castille, J., joined by Eakin, J.). In Jones, the capital appellant included in his brief to this Court a second, non-record amended PCRA petition that included claims not raised before the PCRA court. In my OAJC, I cited Pursell and Albrecht and noted the Hubbard-based reason why, as a matter of judicial issue preservation, we permitted claims of ineffectiveness to be raised outside the confines of the PCRA: *172Jones, 815 A.2d at 609. I went on to note that there was an “obvious tension” between that judicial doctrine and the PCRA’s new jurisdictional limitations:

*171This exception to the general rule of issue preservation is a necessary consequence of this Court’s requirement that “claims of ineffectiveness must be raised at the earliest possible stage in the proceedings at which counsel whose effectiveness is questioned no longer represents the defendant.” Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998); see also Commonwealth v. Kenney, 557 Pa. 195, 732 A.2d 1161, 1164 (1999); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977). Obviously, if new counsel is required to raise claims of predecessor counsel ineffectiveness upon appeal, upon pain of judicial waiver, the appellate court must be prepared to entertain those claims. Thus, as a matter of this Court’s appellate jurisprudence, “a properly layered claim challenging PCRA counsel’s ineffectiveness would not be waived, and can be reviewed on appeal from the denial of the PCRA petition.” Pursell I, 724 A.2d at 303 & n. 7 (characterizing Albrecht, supra).
*172The claims of PCRA counsel ineffectiveness here, which are properly subject to review as a matter of judicial issue preservation under the Hubbard doctrine, were, with but two exceptions, not raised in the original or amended PCRA petition that is the subject of this appeal. Nor are the new claims elaborations, extensions, or derivations of those raised in the petitions below. Instead, appellant’s new and distinct claims were first raised in an appellate brief filed on November 8, 1999, well over a year after appellant’s conviction became final in 1996. As a PCRA matter, then, these issues, not having been raised in the initial and amended petitions below, should properly be the subject of a second PCRA petition, which would be subject to the time limitation and serial petition restrictions contained in § 9545(b) of the PCRA. By reaching the merits of brand new claims never presented in the PCRA petition that was actually filed and is at issue in this appeal, this Court arguably employs the Hubbard doctrine in an unintended and improper fashion — ie., to provide an end-around the General Assembly’s unequivocal and jurisdictional restrictions upon serial post-conviction petitions.

Id. at 610.

The legal landscape has changed since my observations in Jones. Most importantly, this Court overruled Hubbard in Grant, thereby relieving new counsel of the obligation to raise ineffective assistance claims at the first opportunity. Grant, 813 A.2d at 738. In light of Grant, no judicial waiver results from a failure to raise ineffectiveness claims at the first opportunity. What remains is the normal appellate review/issue preservation paradigm, and the strictures of the PCRA. The Hubbard-based “only opportunity to do so” rationale for entertaining new claims outside the strictures of the PCRA having been corrected, it is time for this Court to permit the PCRA to operate as it is clearly intended.

*173— C —

Of course, there was more to Albrecht than a Hubbard concern; there was, also, a sentiment that there must be some safeguard of the “enforceable” right to PCRA counsel. But, that avenue cannot be creation of an extra-statutory, “as-of-right” ability to litigate a new, unlimited, and essentially serial PCRA petition on PCRA appeal, merely because new counsel time their appearance into the case that way. Again, the PCRA does not provide such an exception. Moreover, the “avenue” deriving from the Albrecht dictum is arbitrary. Not all capital PCRA petitioners, and very few non-capital petitioners, want new counsel, secure new counsel or have new counsel volunteer so as to permit PCRA appeal “vindication” of their right to PCRA counsel. Instead, it is only the well-to-do petitioner or the indigent petitioner favored by an organization such as the Federal Defender who will be able to avail himself of this ad hoc exception.

The Majority responds by arguing that its rule- — allowing for as-of-right review of an untimely, serial PCRA petition initiated on direct appeal in those select cases where new counsel has entered the case — is “the only way” (“there is no viable alternative”) to vindicate the right to effective PCRA counsel, is “the only way to bring final resolution to these casefs],” “is essential to preserve an enforceable right to effective PCRA counsel,” and keeps the Court from “perpetrating little more than a myth that the right to effective PCRA counsel exists.” But the Majority overlooks how arbitrary the rule is. The rule does nothing to vindicate the right to effective PCRA counsel for the overwhelming majority of defendants, in capital and non-capital cases alike, who do not have new counsel on PCRA appeal. If those defendants believe their PCRA counsel were ineffective, they are faced with the time and serial petition restrictions of the PCRA, as well as the Lawson standard.

There is an obvious course that would allow for full, rather than select, vindication of the right to effective PCRA counsel: (1) permit all defendants to pursue a second PCRA petition as *174of right. But the PCRA does not authorize that path. If the Court were to authorize such a course explicitly, the question squarely would arise: by what power could (or should) the Court essentially rewrite the PCRA? The Majority’s half-measure allows the Court to maintain the pretense that it is not flouting the statute, when in fact we are flouting it, but in an incomplete and arbitrary way. Ultimately, the Majority’s embrace of a select reinstitution of relaxed waiver, to indulge the pretense that we are not flouting statutory command, avoids the harder separation of powers question.

In my view, Hubbard having been corrected, there is no legitimate reason to ignore waiver principles and the PCRA’s restrictions on serial petitions. Moreover, the notion that there must be some formalized, PCRA-like procedure for vindication of claims of PCRA counsel ineffectiveness, if taken to its logical conclusion, would require approval of an infinite series of collateral attacks. After all, how can the right to PCRA counsel be deemed vindicated if PCRA appeal counsel himself was incompetent, unless there is an easy avenue to attack PCRA appeal counsel? As this case reveals, where one collateral attack fails in whole or in part in a capital case, a motivated lawyer always seems to materialize who is willing to blame all preceding counsel for failing to raise some other claim or claims.

Furthermore, this Court would be naive not to recognize that allowing volunteer counsel to self-time their entry into a case so as to trigger a judicially-created “exception” to a statutory jurisdictional bar creates an incentive for those who may be inclined to employ a delay-oriented litigation strategy. See, e.g., Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565, 577 (2008). Even aside from the prospect of the delay that would attend any remand that the new claims may require, it takes a great expenditure of time and judicial resources to brief and decide a case when new claims are raised and there is no record, nor is there a lower court decision to review. Moreover, if an additional layer of collateral review truly is of-right, as the Majority now says is the case when new counsel volunteers on appeal, then there is no defense downside in *175volunteer counsel waiting until the PCRA appeal stage to enter the case: all issues properly litigated below will still be available, but counsel can secure the added benefit of the additional review, and ineluctable delay, litigation of the new claims will entail. Nor would there be a downside for volunteer counsel to parcel out, piecemeal, a single claim or many claims time after time.

The Federal Defender apparently is not answerable to this Court, or to any other Pennsylvania Commonwealth entity, concerning whether and when it will volunteer itself into a state court capital litigation proceeding. The Federal Defender also apparently has sufficient resources to pick and choose which cases to enter and when.6 Thus, the Federal Defender’s Capital Habeas Unit frequently represents capital defendants at the PCRA trial level and on PCRA appeal. However, this Court has also seen the Federal Defender’s lawyers, or those lawyers when affiliated with predecessor organizations, initiate a PCRA proceeding without the request or consent of the defendant, see Commomvealth v. Sam, supra; file a PCRA appeal against a former client’s express directive, see Commonwealth v. Saranchak, 570 Pa. 521, 810 A.2d 1197 (2002); render substantial or controlling assistance to PCRA counsel of record, see Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 835-38 (2008) (Castille, C.J., joined by McCaffery, J., concurring); and, as here, enter a case upon PCRA appeal and then attempt to assert new claims sounding in PCRA counsel ineffectiveness. See, e.g., Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292, 296 (2001); id. at 309 (Castille, J., concurring). I would not turn askance and allow the Federal Defender’s litigation strategy to determine the availability, timing, conditions, and scope of extra-statutory, serial collateral capital review in Pennsylvania. No statute, rule, constitutional provision, or jurisprudential precept commands that indulgence; and the PCRA requires otherwise. If *176the Federal Defender “wants in” in state capital litigation, it should timely “volunteer” itself at the PCRA trial level.

Even aside from these general concerns, this case is an inappropriate one to invoke the Albrecht “only opportunity” dictum. This is so because appellant was permitted to collaterally attack his PCRA counsel at the status listing in July 2005, where the PCRA court permitted him to add a claim, even though his petition had already been decided. The new claims appellant now seeks to litigate on this appeal amounts to a second attack upon initial PCRA counsel, and a third PCRA petition overall. Nothing in the dictum in the Albrecht line requires this sort of indulgence and flouting of the PCRA.

— D —

Finally, with respect to the residual question of how the right to effective PCRA counsel can be “enforced” short of the end-around the PCRA the Majority approves, I offer the following. Capital PCRA proceedings generally are presided over by careful, trained, experienced trial judges. Oftentimes it is the same judge who presided over the petitioner’s trial, with an intimate knowledge of the facts of the petitioner’s case, as well as the best view of the performance of the petitioner’s various lawyers. The Rules of Criminal Procedure now also require that PCRA counsel meet exacting-educational and experiential requirements. See Pa.R.Crim.P. 801 (Qualifications for Defense Counsel in Capital Cases); Pa.R.Crim.P. 904, cmt. An involved PCRA judge is well-positioned to assess whether PCRA counsel is performing competently; just as Judge Greenspan was called upon to do in this case. The PCRA judge can direct counsel to amend or further develop claims, can conduct colloquies with the defendant, and can easily assess whether counsel is adequately discharging his duty. Denials of relief in capital PCRA cases are then appealable as of right to this Court, which is also in a position, although from a different perspective, to assess the sort of effort counsel has made, and to take corrective action where it appears counsel has not competently discharged his duties. This role for the courts is not unusual: in the context *177of counsel withdrawal, the courts are routinely called upon to assess counsel’s discharge of his duties to criminal defendants. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commomvealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).

Unlike the Sixth Amendment trial right to counsel or the right to counsel on a direct appeal as of right, which are usually the focus of a first collateral attack, the Rule-based right to counsel at the PCRA stage does not have a constitutional dimension. See Albrecht, 720 A.2d at 699; Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927, 927-28 (1988). Thus, for example, appointed counsel on collateral attack “possesses the prerogative of declining to litigate a meritless petition,” Albrecht, and may "withdraw via “a procedure which is less cumbersome” than the Anders procedure applicable on direct review, see Turner, 544 A.2d at 927, albeit “counsel’s decision in this regard is subject to exacting judicial review.” Albrecht. There is no requirement or need to afford a procedure for the sort of prolix, “everything-and-the-kitchen-sink” pleadings that we see in an of-right first capital PCRA petition. PCRA counsel are permitted to bring their professional judgment to bear as to which potential claims to pursue in light of the limitations attending any collateral attack, and an “enforceable” right to PCRA counsel does not require affording a second, full-blown avenue of review, in order to indulge a second (or a third, a fourth, etc.) list of complaints.

Because the right to counsel at this stage is both attenuated and not constitutionally commanded, it is also problematic to simply assume, as appellant and some of this Court’s prior cases have,7 that PCRA counsel’s conduct is measured by the Sixth Amendment standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), rather than a less exacting test. On the question of an appropriate standard to enforce this Court’s Rule-based right to counsel, *178Mr. Justice Saylor’s discussion in Commonwealth v. Priovolos, 552 Pa. 364, 715 A.2d 420 (1998), is instructive:

It is generally true that a petitioner has no federal constitutional right to counsel in a state collateral proceeding ____Moreover, in accordance with decisions of the United States Supreme Court, it follows that an asserted deprivation of effective assistance of counsel on state collateral review does not generally state a claim for relief under the United States Constitution.... This Court, however, has not decided whether a right to effective assistance of post-conviction counsel would accrue under the Pennsylvania Constitution....
Even if Priovolos’ assertion of a right to effective counsel lacks a constitutional dimension, the right to counsel at issue is accorded by Pennsylvania Rule of Criminal Procedure 1504(a) [now renumbered Rule 904] to an indigent petitioner who, like Priovolos, is proceeding on his first PCRA petition. This Court has recognized both that appointed counsel must discharge the responsibilities under the rule and that a remedy may be fashioned where counsel fails to do so. See, e.g., Commonwealth v. Sangricco, 490 Pa. 126, 133, 415 A.2d 65, 68-69 (1980).

715 A.2d at 421-22 (additional citations and footnote omitted) (emphasis added). This more flexible formulation, tied to the purpose of the Rule that creates the right to counsel, seems like the appropriate test and squares with the notion of a vigilant court, as outlined above.

The Majority dismisses this approach as “inadequate.” Instead, the Majority assumes that full-blown, Sixth Amendment Strickland review of claims of PCRA ineffectiveness is required. Even if that were so, the Majority’s rule overlooks this Court’s jurisprudence concerning serial post-conviction requests for relief. In Commonwealth v. Lawson, this Court, in an effort to short-circuit abusive, serial PCRA petitions and to promote finality, held that “a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” 549 A.2d at *179112 (emphasis supplied). The new claims raised in this appeal obviously comprise a second or subsequent post-conviction request for relief. A meritorious Strickland showing alone would not necessarily be grounds for relief under Lawson.

In any event, it cannot be enough to simply allege, as appellant does here, that PCRA counsel should be deemed per se ineffective merely because he did not raise a claim that current counsel feels has merit. See Hawkins, 787 A.2d at 310 (Castille, J., concurring) (addressing burden to actually prove ineffectiveness). As the Lawson Court recognized, there must be finality and I, for one, believe the review scheme approved by the PCRA, combined with the vigilance of the courts, suffices to draw the line fairly.

— IV —

I write next concerning appellant’s belated Raison-derivative claim. I join the Majority’s analysis, and add the following observations. First, I note that the Court of Appeals for the Third Circuit has come to agree with this Court that the nature of a Batson claim requires a contemporaneous objection, if the defendant is to enjoy the Batson prima facie case standard and burden-shifting formula. See Abu-Jamal v. Horn, 520 F.3d 272, 283-84 (3d Cir.2008). Thus, as the Majority notes, a petitioner on collateral attack, assailing trial counsel, must prove actual, purposeful discrimination. Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 87 (2004) (“[I]n order to succeed on an unpreserved claim of racial discrimination in jury selection ... a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence in addition to all other requirements essential to overcome the waiver of the underlying claim.”) (citation omitted). See also Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 259 (2008).

Second, on the merits, it bears emphasis that appellant used at least fifteen of his twenty peremptory challenges to exclude white venirepersons — a pattern of strikes that might raise an *180inference of his own discriminatory intent. This Court is routinely presented with collateral Batson claims where the defense argues the Commonwealth’s supposedly revealing “strike rate” without accounting for the skewing of the jury pool resulting from the defendant’s own pattern of strikes. “A true assessment of strikes must account for the composition of the panel as a whole, and the conduct of other lawyers exercising strikes. It must be remembered that Batson works both ways: the right of jurors being at issue, neither the defense nor the prosecution may discriminate, and discriminating actions of one side, if unaccounted for, result in an incomplete picture.” Commonwealth v. Hackett, 598 Pa. 850, 956 A.2d 978, 991 (2008) (Castille, C.J., concurring). This reality, as borne out by the possibly discriminatory defense strikes here, underscores the propriety and common sense of this Court’s holding in Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182 (1993), that Batson review requires a consideration of the totality of the circumstances. It also exposes the limitations of the Third Circuit decision in Holloway v. Horn, 355 F.3d 707 (3rd Cir.2004), cert. denied, Beard v. Holloway, 543 U.S. 976, 125 S.Ct. 410, 160 L.Ed.2d 352 (2004), which criticized our requirement that a defendant raising a Batson claim present a record identifying the race of the venirepersons struck by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the jury selected. See Uderra, 862 A.2d at 83.

Third, the Majority correctly rejects appellant’s reliance on Hardcastle v. Horn, 521 F.Supp.2d 388 (E.D.Pa.2007), a case from which appellant constructs an ad hominem attack on the integrity of the trial prosecutor in this case. The trial prosecutor in Hardcastle did nothing improper under the law in existence when that jury was selected in 1982. Batson changed the law four years later. Batson relief was granted to Hardcastle because the federal courts felt that he had anticipated Batson and preserved a Batson-type objection. Hardcastle’s windfall says nothing of the trial prosecutor’s adherence to Batson once that case actually came into exis*181tence, much less does the case support appellant’s counsel’s current intemperate accusations.

— V —

With respect to the penalty phase (Parts V through VIII of the Majority Opinion), I join the first half of Part V (see Majority Op. at 143-54, 971 A.2d at 1148-55), which is the subject of the Commonwealth’s cross-appeal. (The second half addresses appellant’s waived new argument sounding in PCRA counsel ineffectiveness.) Part V involves the alleged ineffectiveness of trial counsel respecting preparation and presentation of mitigation evidence. I write merely to reiterate my view regarding the limited applicability of decisions such as Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), to trials concluded before those decisions were announced. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1152-55 (2008) (Castille, C.J., concurring). Finally, I join the first half of Part VII, involving alleged prosecutorial misconduct, see Majority Op. at 155-58, 971 A.2d at 1156-57, but not the second half, which considers another waived claim.

Justice EAKIN and McCAFFERY join this opinion.

. Although Mr. Justice Baer's lead opinion is not a majority expression respecting the points of concurrence I outline below, it is a majority expression with respect to the points of joinder I indicate, as well as the mandate. Thus, it is properly referred to as a majority opinion.

. Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

. The waived claims at issue, which are deemed cognizable by the Majority as sounding in the ineffective assistance of initial PCRA counsel, are discussed in the following Parts of the Majority Opinion: Part III; Part IV; the second half of Part V (see Majority Op. at 153-55, 971 A.2d at 1154-56); Part VI; the second half of Part VII (id., at 157— 59, 971 A.2d at 1157-58); and Part VIII. I do not join any of those discussions for jurisdictional and waiver reasons.

Part II of the Majority Opinion also involves a claim the Majority deems cognizable as layered ineffectiveness of PCRA counsel, deriving from a waived claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As I explain below, that claim was entertained by the PCRA court, under unusual circumstances, and since *162the court essentially permitted PCRA counsel to adopt the claim post-decision, for purposes of discussion I would view it as sounding in trial counsel ineffectiveness, not PCRA counsel (layered) ineffectiveness. To the extent I join the Majority Opinion on properly reviewable claims, I will make my joinder clear below.

. The absence of the pro se motion from the docket and the record may reflect the clerk's vigilance in complying with Ellis and its progeny. Further, the PCRA court's discussion with appointed PCRA counsel at the July 11, 2005 hearing indicates counsel was aware of both the motion and the Federal Defender's offer to represent appellant.

. Rule 576(A)(4) of the Rules of Criminal Procedure requires the clerk of courts to forward a pro se pre-trial filing by a defendant who is represented by counsel to the defendant’s counsel and the attorney for the Commonwealth within ten days of receipt of the filing. While appellant’s pro se motion in this instance was not a pre-trial filing, the PCRA court essentially followed the principle embraced in Rule 576(A)(4) by addressing the motion with appellant's counsel.

. According to a recent article in The Legal Intelligencer, the size of the Federal Defender's capital habeas unit has ballooned from three lawyers in 1996 to "to 36 lawyers and an overall staff of 83" today. Shannon P. Duffy, Skipper is New Chief Federal Defender, The Legal Intelligencer, Dec. 2, 2008, at 1.

. See, e.g., Hawkins, 787 A.2d at 296; Pursell, 724 A.2d at 304.