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Commonwealth v. Brown4/29/2005
ss appellant's argument that claims implicating competency cannot be deemed waived); Commonwealth v. Breakiron, 729 A.2d 1088, 1098-99 (Pa. 1999) (per Newman, J.) (claim of ineffectiveness for failing to litigate competency issue reviewed as ineffectiveness claim, not as unwaivable underlying claim of incompetency itself); Commonwealth v. Albrecht, 720 A.2d at 706 & n.13 (per Cappy, J.) (PCRA claim sounding in ineffective assistance of counsel for failing to "determine whether the defendant's competency to assist in his own defense was affected by the heavy medication he was receiving during the trial" was waived for want of development); Commonwealth v. Cross, 634 A.2d 173, 176 (Pa. 1993) (per Montemuro, J.) (claim of ineffectiveness for failing to adequately investigate appellant's competence evaluated as ineffectiveness claim, not converted into underlying competency claim).
Equally unpersuasive is the Majority's reliance upon three 1980 decisions from this Court decided under the PCHA -- Commonwealth v. Fernandez, 410 A.2d 296 (Pa. 1980), Nelson, 414 A.2d 998, and Commonwealth v. Giknis, 420 A.2d 419 (Pa. 1980). Indeed, these cases are so problematic as a jurisprudential matter -- in their failure to account for one another despite being decided within months of each other, while outlining no less than three distinct approaches to the waiver question under the PCHA -- that it is unwise in the extreme to hold them up as if they established some harmonious PCHA precedent, much less to suggest that they operated prospectively to preempt the waiver options available to the General Assembly when it adopted the PCRA.
The Majority is mistaken in deeming these three cases to inform, much less control, the waiver question under the PCRA. The Majority declares that the PCHA and PCRA statutory waiver paradigms "are nearly identical." This is not so. The PCHA waiver provision at issue in Fernandez, Nelson, and Giknis provided that an issue was waived under that Act only if " he petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal," etc. See Fernandez, 410 A.2d at 297-98 (quoting 19 P.S. § 1180-4(b)(1)) (now repealed by PCRA) (emphasis supplied). Even if an issue was knowingly and understandingly waived, the PCHA permitted the petitioner to negate the waiver if he could "prove the existence of extraordinary circumstances to justify his failure to raise the issue." Fernandez, 410 A.2d at 298 (quoting 19 P.S. § 1180-4(b)(2)). In contrast, the PCRA waiver provision contains no requirement whatsoever that the failure to raise a claim must be knowing and understanding, nor does it allow a waiver of an issue to be negated by proof of extraordinary circumstances. This Court's precedent under the distinctly different waiver language of the PCHA simply cannot control the question of how properly to interpret the far different language of the PCRA. Perhaps this fact explains why this Court in practice has not previously treated mental competency claims as if they were impervious to PCRA waiver.
This distinction in the PCHA's waiver standard as opposed to that found in the PCRA is not merely academic; indeed, it was essential to the unanimous decision in Fernandez, the first-in-time of the trio of cases cited by the Majority. As a matter of statutory interpretation, the Fernandez case is the only one of the three 1980 cases that makes any remote sense, since it is the only one which purports to apply the language of the statute, and thereby to recognize that the General Assembly is permitted a role in post-conviction matters. In holding that the defaulted competency claim in Fernandez could be reviewable under the PCHA, the
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