Commonwealth v. Dougherty

Justice SAYLOR,

concurring and dissenting.

I support the decision to remand, albeit I would require an evidentiary hearing. As to the review of the PCRA court’s denial of the recusal motion, I join Mr. Justice Baer’s concurring statement, save for footnote 3 (in light of differences between the positions Justice Baer and I took in Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006)).

*213In terms of the proceedings on remand, I would instruct the PCRA court to conduct a timely hearing and implement a timely resolution of all disputed issues of material fact via the essential fact-finding process. Appellant has clearly proffered evidence that his trial counsel rendered deficient stewardship at the guilt and penalty stages of his capital trial. See, e.g., Affidavit of Trial Counsel at 4 (“I have no excuse for the manner in which I handled preparation and representation for this trial. My only explanation, which is not meant as an excuse, is two-fold: First, I was experiencing substantial personal health and family problems during this period, and I was unable to give the kind of attention to this client that he deserved; and second, I honestly never believed that my client could be convicted of first-degree murder and that realistically he would have to face a possible death penalty.”). Although this attorney is now deceased, Appellant has included supporting proffers in any event, and I believe a hearing is required. Notably, the Commonwealth has no objection to such a hearing. See Brief for Appellee at 3 (“[T]he Commonwealth submits that a remand for an evidentiary hearing would not be inappropriate if this Court so prefers, and might enhance further review”).