Commonwealth v. Wharton

Justice SAYLOR,

concurring.

Particularly in light of the retroactive treatment of the abolition of relaxed waiver,1 I believe that the Court should more vigorously, and more consistently, enforce the requirements of the criminal procedural rules pertaining to post-conviction cases, and, in particular, that of Rule of Criminal *108Procedure 909(B)(2)(a), calling for adequate pre-dismissal notice of reasons for dismissal. See Commonwealth v. Williams, 566 Pa. 558, 568, 782 A.2d 517, 526 (2001).2 As I have previously noted, a salutary effect of such rule is the timely exposure of ineffective assistance of counsel in the framing of post-conviction claims, providing some reasonable assurance that the single opportunity for review left available to a post-conviction petitioner in the courts of this Commonwealth may be a meaningful one. See Commonwealth v. Lambert, 568 Pa. 346, 376-77, 797 A.2d 232, 250 (2001) (Saylor, J., dissenting).

Here, the pre-dismissal notice provided by the PCRA court was, in all material respects, identical to that which was deemed insufficient in Williams, 566 Pa. at 569, 782 A.2d at 527, in which the Court remanded for, inter alia, “disposition in accordance with our rules.” Although I therefore believe that the better course would be also to remand in this case, I am constrained in this regard, since subsequent to Williams a majority of the Court deemed Rule 909(B)(2)(a) an insufficient basis for such relief in a case such as this, where a previous remand has been effectuated for preparation of a PCRA court opinion. See Lambert, 568 Pa. at 369 n. 13, 797 A.2d at 246 n. 13 (opinion announcing the judgment of the court); id. at 373, 797 A.2d at 248 (Zappala, C.J., concurring); id. at 376, 797 A.2d at 250 (Cappy, J., concurring).

Additionally, and aside from the difficulties attendant to the retroactive abolition of relaxed waiver, see supra note 1, I remain uncomfortable with the manner in which the Court is administering waiver principles based on underdevelopment in the appellate briefing, see, e.g., Commonwealth v. Bond, — Pa. -,-A.2d-, 2002 WL 1958492, at *16 (Aug. 23, 2002) (Saylor, J., concurring), particularly since the construct that the Court is applying permits it to decline review without so much as a cursory examination of the strength and/or obviousness of the underlying claims of error and the PCRA *109record. I acknowledge that where the same attorney represented the capital petitioner at trial and on direct appeal, the Court’s recent decision in Bond now controls. Still, I note that, notwithstanding the relatively broad language presently employed by the majority, see Majority Opinion at 986-87, in cases where a post-conviction petitioner obtained new counsel for purposes of direct appeal, the Court has not yet retreated from its expressed decision to afford a degree of latitude relative to layered claims of ineffectiveness. See Williams, 566 Pa. at 567, 782 A.2d at 525.

. In this case, Appellant's PCRA petition, amended petition, and initial brief to this Court were filed prior to the abrogation of the relaxed waiver doctrine in the PCRA context. See Commonwealth v. Albrecht, 554 Pa. 31, 45, 720 A.2d 693, 700 (1998). As such doctrine had been generally extended in this area and permitted review of the underlying allegations on their merits, without the necessity of establishing ineffectiveness, Appellant's focus in his PCRA petitions and in his initial brief to this Court was consistent with the then-existing standards governing the presentation of post-conviction claims. Thus, as I expressed in Commonwealth v. Ford,-Pa.-, 809 A.2d 325, 2002 WL 31398623 (2002) (plurality opinion), left to my own devices I would not penalize a post-conviction petitioner for failing to frame and develop claims consistent with the more stringent standards subsequently adopted by the Court. See id. at 337-38, 2002 WL 31398623 at *9 (Saylor, J., concurring).

. Rule 909(B)(2)(a) mandates that a PCRA court "state in the notice the reasons for the dismissal." Rule 909(B)(2) also requires the opportunity for response and consideration of the possibility for curative amendment. .See Pa.R.Crim.P. 909(B)(2)(b), (c).