concurring.
I join the Majority Opinion with the exception of the three points set forth below.
First, the Majority addresses the merits of appellant’s claim of trial court error premised upon Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (1994), as well as appellant’s claim of trial court error premised upon a failure to issue a jury charge based on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as if they were preserved claims of trial court error available on PCRA review. See Majority, 585 Pa. at 516-19, 517-21, 889 A.2d at 70-71, 71-72. Neither DeHart nor Simmons was decided at the time the trial court instructed the jury in this case, and appellant did not anticipate them. As claims of trial court error, these belated contentions are waived and unavailable under the PCRA. To the extent appellant raises derivative claims of ineffective assistance of counsel, the claims fail because they clearly lack even arguable merit.
Second, with respect to the claim premised upon DeHart, in a footnote (though not in its substantive analysis) the Majority appears to recognize that the claim may be viewed through the guise of ineffective assistance of counsel. The Majority then suggests that an ineffectiveness claim premised upon DeHati is available to appellant even though the DeHart case did not exist at the time when counsel would have had to raise the objection because there is a distinction between failures to anticipate a change in the law and failures to vindicate statutory rights. See Majority op., 585 Pa. at 517 & n. 12, 889 A.2d at 70 & n. 12 (citing Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 795 n. 36 (2004)). The footnote in Hughes which the Majority invokes in support of this rather simplistic view was written as a responsive repudiation of a point I made in my separate opinion in that case. See id. at 818-19 (Castille, J., joined by Eakin, J., concurring and dissenting). Hughes, however, does not stand for the broad proposition that counsel *524may always be faulted for failing to anticipate any and all future judicial interpretations of a statute. Even accepting Hughes ’ responsive proposition as a starting point, the analysis in any particular case must depend upon considerations including the clarity and lack of ambiguity in the statutory provision; previous interpretations (if any) of the provision; and the mode of analysis set forth in the subsequent opinion/interpretation the defendant invokes — i.e. a first interpretation, unanimous plain language reading is more likely to provide a basis for finding an ineffective “failure to vindicate” than is a reading which is bottomed upon statutory construction, over a dissenting opinion, and disapproving a prior construction. In short, whether counsel can be deemed ineffective in such an instance depends upon the circumstances; it is not an absolute.
As an example of the necessity for judicial construction of a statute before its proper interpretation may be deemed knowable and enforceable, one need only consider the Third Circuit’s refusal to honor the state procedural default arising from the plain language of the PCRA’s jurisdictional time-bar provision. The time-bar was adopted by the General Assembly in 1995 (taking effect in January 1996) and in the very first case in which this Court considered the new bar, we held that the plain language of the statute made clear that it was jurisdictional. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998). However, despite recognizing that the time-bar appeared “on its face to impose a one-year deadline in all cases except those falling within three categories,” the Third Circuit subsequently found that the statute could not be deemed to mean what it plainly said (for purposes of deferring to the time-bar as an adequate and independent state procedural default) until this Court had passed upon it a few more times and made clear that we would enforce its plain terms. See Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir.2005) (applying Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001)). The Third Circuit experience proves the error of the simplistic approach to statutory interpretation suggested by the Majority-
*525Third, with respect to appellant’s claim of defective proportionality review on direct appeal, I write separately to make some additional points. At the outset, it is important to emphasize that this is not a claim rising to either federal or state constitutional dimension. Indeed, at least since the U.S. Supreme Court’s decision in Pulley v. Harris, 465 U.S. 37, 49-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), it has been clear that proportionality review was not a constitutional requirement, but instead was a “constitutionally superfluous” exercise deriving from a statute which was drafted by the General Assembly in understandable concern that such review might be constitutionally required by the U.S. Supreme Court in its mercurial capital jurisprudence. Unfortunately, proportionality review was not timely removed from the Pennsylvania death penalty statute following the decision in Pulley. Thus, assuming that a claim of defective proportionality review has not been waived or previously litigated, it is cognizable under the version of the PCRA which governs this appeal only as a state-law claim deriving from a statute. See 42 Pa.C.S. § 9543(a)(2) (subsequently amended and replaced).1
It is also unclear whether this claim has been waived. The predicate for the claim is that this Court’s opinion on direct appeal misapprehended the facts relevant to proportionality review. Under the version of the PCRA which governs here, an issue was deemed waived “if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior [PCRA] proceeding.” See 42 Pa.C.S. § 9544(b) (subsequently amended and replaced). If this Court misapprehended the governing facts for purposes of proportionality review, appellant had an opportunity to seek timely relief, and accurate proportionality review, via a rear*526gument petition. See Pa.R.A.P. 2543 (setting forth considerations governing allowance of reargument; and specifically included as an example of “the character of the reasons which will be considered: ... Where the court has overlooked or misapprehended a fact of record material to the outcome of the case.”). That appellant did not do so suggests, at a minimum, that his appeal counsel, who was in the best position to assess the accuracy of this Court’s review, was satisfied with the result.
Finally, and on a related note, to the extent that the record is unclear these many years later concerning whether this Court relied upon erroneous information in conducting its proportionality review, that ambiguity weighs against appellant, as he bears the burden under the PCRA. In addition, appellant must show that the supposed factual error on direct review “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place” and that the sentence of death “resulted from” this error. 42 Pa.C.S. § 9543(a)(2)®. Thus, the PCRA rationally presumes the validity of concluded proceedings, and it rightly places the burden squarely upon the petitioner to demonstrate his entitlement to relief, which includes a prejudice component. Because appellant has not proven that his sentence was in fact disproportionate, and would have been found so upon the facts he prefers, he is entitled to no relief. Given these circumstances, I believe that the supplemental proportionality review engaged in by the Majority affords appellant more than his due.
Justice EAKIN joins this concurring opinion.. In 1995, the General Assembly amended the PCRA cognizability provisions; it no longer authorizes review of state law claims which are not of constitutional dimension. See 42 Pa.C.S. § 9543(a)(2)(i) (PCRA now recognizes claims involving "[a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”).