Commonwealth v. Stollar

Chief Justice CASTILLE,

concurring.

I join the Majority Opinion in full, writing solely to supplement the Court’s discussion of our recent decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa.2013).1

As relevant here, Holmes: (1) reaffirmed the general rule established in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), that claims of ineffective assistance of counsel are to be deferred to collateral review under the PCRA2; (2) disapproved of expansion of the so-called “Bomar exception”3 to Grant: (3) “limit[ed] Bomar, a case litigated in the trial court before Grant was decided and at a time when new counsel entering a case upon post-verdict motions was required to raise ineffectiveness claims at the first opportunity, to its pre-Grant facts”; and (4) recognized two exceptions to the Grant deferral rule, both falling within the discretion of the trial court. First, trial courts retain discretion, in extraordinary circumstances, to entertain a discrete claim (or claims) of trial counsel ineffectiveness if the claim is both apparent from the record and meritorious, such that immediate consideration best serves the in*654terests of justice. Second, trial courts also have discretion to entertain prolix claims of ineffectiveness (such as those entertained in Bomar), but only if there is good cause shown and the unitary review thus permitted is accompanied by a knowing and express waiver by the defendant of the right to pursue a first PCRA petition. 79 A.3d at 563-64. Holmes explained, at length, the reasons for each of these points of law, and stressed the particular importance of the exceptions in capturing collateral claims in short-sentence cases.

Here, the Majority correctly defers appellant’s two ineffectiveness claims to the collateral stage. The trial court made clear that it entertained appellant’s ineffectiveness claims strictly pursuant to Bomar:

In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the Pennsylvania Supreme Court directed that all claims of the ineffectiveness of counsel should be raised in a collateral postconviction relief proceeding. This directive recognized that a defendant had the option under Pa.R.Crim.P. 720, to either file post-sentencing motions and then file a direct appeal to an Appellate Court if those motions were denied, or file a direct appeal to the Appellate Court. In filing a direct appeal alleging the ineffectiveness of counsel, a reviewing Court is deprived of a record on those alleged issues, accordingly, the Supreme Court declined to review those issues until such time as a record was developed. In Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), an exception to this rule was recognized. If a defendant has filed post-sentencing motions raising the questions of the ineffectiveness of his counsel that would permit the Trial Court to hold a hearing on those issues and generate a record which would permit meaningful appellate review.

Tr. Ct. Op. at 43 n. 8. Put another way, the trial court addressed the merits of appellant’s ineffectiveness claims, but not on the basis of what Holmes now recognizes as valid exceptions to the rule of deferral expressed in Grant. To wit, the court did not find appellant’s ineffectiveness claims to be so meritorious and apparent from the record as to require immediate vindication (to the contrary, the court rejected all of appellant’s ineffectiveness claims as essentially meritless); nor did the court reach the merits of these claims because appellant validly waived his right to PCRA review. Athough the trial court proceeded under Bomar, Holmes’s express disapproval of extensions of Bomar, and its limiting of Bomar to that case’s pre-Grant facts, requires that these claims be deferred to PCRA review, where appellant will be free to better develop them.

Notably, even if Holmes had not expressly limited Bomar, deferral would still be the proper course here. New counsel raised a number of ineffectiveness claims post-verdict, but all such claims appear to have derived solely from the trial record, without supplementation by an external post-trial investigation. Thus, this case is not like Bomar, where new counsel marshaled a full and complete collateral attack. Furthermore, on appeal, appellant pursues but two of the claims he raised below, both of which are based upon the existing record, supplemented only by trial counsel’s testimony at the hearing on appellant’s post-verdict motions. It appears that the second claim is waived in whole or in part: the claim has morphed from alleging a failure to request a penalty phase jury charge on emotional disturbance mitigation (as argued below) into a broader challenge (now argued on appeal) alleging a failure to make use of guilt phase testimony to pursue mental health mitigation during the penalty phase. Given the importance of mitigation-based claims of inef*655fectiveness, and the fact that it is apparent that appellant suffers from some mental impairment or instability, it is better to afford him a full chance to develop this collateral claim — and any others he may have — under the PCRA.

. This case was held internally pending Holmes.

. Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 853-55 (2003).