Commonwealth v. Thomas

Justice SAYLOR,

dissenting.

At the limited post-conviction hearings, Appellant’s direct-appeal counsel testified that it was not his general practice to conduct an investigation of extra-record claims and that he did not personally pursue an interview with Appellant’s purported alibi witness. See N.T., Sept. 19, 2007, at 28-29. Furthermore, the PCRA court did not reject this testimony as a factual matter. This Court, however, maintains that the requirement to investigate and raise extra-record claims has been well-established since Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). See, e.g., Commonwealth v. Tedford, 598 Pa. 639, 680, 960 A.2d 1, 25 (2008).1

*501Thus, I believe that the analysis of Appellant’s claims should begin with the frank acknowledgement that he was not appropriately represented on direct appeal, according to the requirements this Court enforces. Since the absence of an adequate extra-record investigation colors the judicial analysis and pronouncements on direct appeal, I believe we should be more circumspect about applying the label “previously litigated” to claims that were, in fact, poorly litigated.

For example, on direct appeal, this Court rejected Appellant’s claim of ineffective assistance of trial counsel for failing to present the alibi witness largely based on a failure of proof adduced by direct-appeal counsel. See Commonwealth v. Wayne, 553 Pa. 614, 643, 720 A.2d 456, 470 (1998) (“[Appellant fails to meet his burden of proof that counsel knew of the existence of Mr. Schneider and failed to call him as a witness.”). I do not agree that such a failure of proof on the part of an attorney who did not do the job ascribed to him by this Court should foreclose factual development of a claim on post-conviction review. Thus, I would reject the PCRA’s approach in limiting the evidentiary hearings and would remand for a full hearing and developed factual findings and legal conclusions.

Finally, in terms of the majority’s reference to due process interests in reasonably prompt disposition of post-trial claims, see Majority Opinion, at 491-95,44 A.3d at 20-22,1 believe the analysis may be more complicated in a scheme in which substantial constitutional claims are explicitly, and/or de facto, deferred to post-conviction review.

. I discussed the many difficulties with this position in my dissenting statement in Commonwealth v. Ly, 605 Pa. 261, 989 A.2d 2 (2010) (per curiam). See id. at 262-65, 989 A.2d at 2-4 (Saylor, J., dissenting). Notably, the name of Appellant’s direct-appeal counsel may be added to *501a substantial list of appellate attorneys who have testified to the contrary understanding of their duties as appellate lawyers, including several mainstay capital defense litigators (e.g. Attorneys Gelman, Silverman, Siegel, and Rudenstein).