concurring.
I join' the majority opinion, subject only to the following perspectives:
With respect to the majority’s treatment of Appellant’s layered due process claim centered on a testimonial reference by the Commonwealth’s expert witness to Appellant’s silence during the course of a psychiatric examination, I would only add that the claim touches on a complex area of the law that the briefing presented in this appeal has failed to capture, involving the contingent, limited waiver that may accrue on a criminal defendant’s proffer of a defense dependent on his own presentation of mental health evidence, and the Commonwealth’s concomitant ability to conduct its own compelled psychiatric examination on a pre-trial basis in conjunction with such a proffer. See generally Estelle v. Smith, 451 U.S. 454, 465-66, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981). Because there are a good many nuances and open issues in this arena, I believe that the Court’s holding is best read in light of the Commonwealth’s expert’s unusual statement to Appellant, during the course of what appears to have been a compelled psychiatric examination,1 to the effect that Appellant retained an ability to withhold his cooperation on a question-by-question basis without penalty. See Majority Opinion, op. at 198-200, 855 A.2d at 772. Particularly as this unusual commitment renders the case amenable to resolution under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), without reference to the limited waiver principle and decisions, see Majority Opinion, op. at 202-05, 855 A.2d at 774-75 (quoting id. at 618 n. 9, 96 S.Ct. at 2245 n. 9 (“[Bjecause the privilege has been granted, even if erroneously, ‘the requirements of fair trial’ made it error for the trial court to permit comment upon the defendant’s silence.”)), I read the majority’s holding in this regard as being fairly narrow.
*207Second, although the majority finds that trial counsel failed to object to a constitutionally impermissible reference to Appellant’s silence that substantially undermined confidence in the reliability of the penalty verdict, it holds that the case must nonetheless be remanded for determination of whether counsel may have had a reasonable basis for permitting this taint to occur unopposed (and go unpreserved). As the majority observes, this approach represents the prevailing consensus of the Court, and was devised as a means of compromising the various views of Justices concerning the proper disposition of a layered claim involving counsel’s forfeiture of a meritorious issue.2
While the Court has thus implemented a general approach, the answers to some fundamental questions remain undeveloped, such that additional attention undoubtedly will be required at least at some point. For example, it would not seem fair to state as a general proposition that a post-conviction petitioner who cannot present testimony from counsel who is (or are) unavailable at the post-conviction stage simply cannot prevail, although the petitioner is nevertheless able to establish the arguable merit and prejudice components of his claim, as well as the absence of any reasonable strategy appearing on the face of the record. To the contrary, at least in some cases; the inference of ineffectiveness arising from such circumstances should prevail over the countervailing presumption that counsel’s stewardship was constitutionally adequate, despite the absence of counsel’s testimony, but depending on the strength of the inference. Cf. Commonwealth v. Grant, 572 Pa. 48, 62-63 & nn. 12-13, 813 A.2d 726, 734-35 & nn. 12-13 (2002). The reality is simply that it is not possible to devise a single approach to these sorts of matters that will fairly accommodate all circumstances—there will remain cases that can and must be decided without the benefit of the testimony *208of counsel; cases in which the inference of ineffectiveness arising from the record is so weak that it will be incumbent upon the petitioner to present credible testimony of counsel that his actions were bereft of strategy if he is to prevail; and cases in which the inferences are so strong as to overcome the presumption of effectiveness, such that it should be incumbent upon the Commonwealth to present counsel’s testimony as to strategy if it is to prevail.
In light of the above, I would frame the remand in the present case somewhat more generally than the Court’s present mandate. Rather than specifically charging Appellant with the responsibility to present testimony from his trial and appellate counsel, I would merely indicate that the hearing is to be afforded to allow the opportunity for either party to elicit the testimony, in support of their respective cases. I would also indicate that, just as the PCRA court would be free to discern a reasonable strategy if one were readily apparent from the record,3 it is also free to consider fair inferences arising from an absence of any reasonable strategy appearing as of record, as well as the now-established arguable merit and prejudice associated with Appellant’s claim.
. The docket sheet does not contain a reference to a court order requiring the examination, but transcripts of the pre-trial proceedings contain trial counsel’s admonition that Appellant would not be made available for examination in the absence of such an order.
. See, e.g., Commonwealth v. Ford, 570 Pa. 378, 392-93, 809 A.2d 325, 334 (2002) (opinion announcing the judgment of the Court); id. at 400-14, 809 A.2d at 338-47 (Castille, J., dissenting); id. at 394-97, 809 A.2d at 335-37 (Newman, J., concurring); id. at 397-400, 809 A.2d at 337-38 (Saylor, J., concurring); id. at 414-16, 809 A.2d at 347-48 (Eakin, J., dissenting).
. Implicit in the Court’s present decision, however, is that there is no such strategy apparent from the record in this case.