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Commonwealth v. Brown4/29/2005
unsel deriving from counsels' failure, at trial and on direct appeal, to challenge his mental competence to be tried. See Majority slip op. at 21-28. I respectfully disagree with the Majority's conversion of this ineffectiveness claim into the underlying and waived claim of competency itself, based upon the Majority's conclusion that competency claims are not subject to the waiver provision of the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. In so doing, the Majority has ignored relevant legislation by creating a judicial relaxed waiver rule that defeats the PCRA's waiver provision and assures that there will never be finality in appeals from criminal convictions. I also write separately to address a concern I have with the proper characterization and effect of unsworn witness statements which appellant proffers to this Court as if they were the "affidavits" of those witnesses.
Following the approach taken in the recent plurality opinion in Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004) (plurality opinion by Cappy, C.J.), the Majority dismisses the fact that appellant's claim is posed as one sounding in the layered ineffective assistance of his previous counsel, see Brief for Appellant, 42-43; converts and reviews the claim as the underlying waived claim of incompetency itself; holds that such claims are immune from the PCRA's waiver provision; and then proceeds to evaluate the merits of the waived claim as if this appeal were appellant's second direct appeal, rather than a collateral attack upon his final judgment. In my Concurring Opinion in Santiago, I addressed the propriety of the Court approaching a competency/ineffectiveness claim in such a fashion and I rely upon that Concurring Opinion as the primary basis for my disagreement with the Majority's approach in the case sub judice. See Santiago, 855 A.2d at 704-11 (Castille, J., joined by Eakin, J., concurring). The Majority, however, has articulated on appellant's behalf new theories in support of the Santiago plurality's conclusion that claims deriving from a defendant's alleged mental incompetence to stand trial are exempt from the PCRA waiver provision. I write to address the new theories the Majority poses.
The Santiago plurality declared that mental competency claims are an exception to the statutory command that issues not raised at trial or on appeal are waived under the PCRA, citing as sole support a 1970s-era judicial non-waiver doctrine crafted by this Court in direct appeal cases. See 855 A.2d at 691-92 & n.9. The Majority in the case sub judice takes a step forward from the Santiago plurality and at least acknowledges that PCRA matters are not the same as direct appeals. The Majority nevertheless "reaffirms" the unexplained position in the Santiago plurality, putting forth two new theories to support the plurality's assumption that competency to stand trial claims are forever subject to relaxed waiver treatment. First, the Majority argues that, as a matter of statutory construction, the PCRA waiver provision was not intended by the General Assembly to apply to defaulted claims of mental competency to be tried. Second, the Majority argues that a trio of 1980 decisions from this Court under the Post Conviction Hearing Act ("PCHA"), the statutory predecessor of the PCRA, empowers and requires this Court to craft a judicial "relaxed waiver" exception despite the PCRA's explicit waiver provision. In my view, neither of these new-found theories remotely supports the judicial usurpation represented by the Majority's relaxed waiver holding and its conversion of the layered ineffective assistance of counsel claim actually posed here.
The most basic tenet of Pennsylvania statutory interpretation is that
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