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Commonwealth v. Brown4/29/2005
edged or realized that: (1) Tyson and Marshall involved direct appeals; (2) Nelson was a non-binding plurality opinion; (3) in any event, the language quoted from Nelson did not reflect the Nelson Court's disposition, which considered the defaulted competency claim to be reviewable only as an ineffectiveness claim; (4) Fernandez was recent, unanimous precedential authority which took a different, statutorily-based approach to the PCHA waiver question; and (5) the Nelson plurality had recognized that Marshall and Tyson were direct appeal cases, not PCHA cases. To further add to the confusion on the Court in these cases, Giknis then went on to analyze the competency question both as a direct review matter and as an ineffectiveness matter, ultimately citing to the PCHA testimony of trial counsel as justifying his decision not to challenge competency: " s counsel would best be in a position to judge the ability of a client to communicate to aid in a defense and the ability to comprehend the nature of the charges, we cannot find that counsel was ineffective . ." Giknis, 420 A.2d at 421-22.
I would avoid reliance upon these quarter-century old PCHA cases because, to put it mildly, they are uneven. No less than three distinct and conflicting approaches to PCHA waiver can be gleaned from the cases, and yet, the Court which issued all three rulings closely in time made no attempt to harmonize the divergent rulings. Moreover, the cases involved a very different statutory waiver standard, and thus, they are not relevant to the inquiry under the PCRA. And finally, the cases are frankly useless as a jurisprudential matter because they never explain or justify the crucial separation of powers issue of how it is that a Court faced with unambiguous statutory language may simply manufacture a judicial exception to that explicit language.
It is obvious that some Justices feel very strongly about mental competency claims, and would prefer that the General Assembly had afforded special relaxed waiver status to claims sounding in competency to be tried. But, the General Assembly clearly did not do that, and I would not rewrite the statute to indulge a different judicial preference. Moreover, I would not conclude that this Court has existing rational precedent which acts to prohibit the General Assembly from deeming defaulted competency claims to be unavailable for review under the PCRA. None of the cases cited by the Majority purport to hold that the General Assembly lacks constitutional authority to deem claims sounding in competency to be waivable, just like the vast majority of claims of constitutional and non-constitutional dimension. Moreover, the PCRA's review paradigm is not irrational. A defaulted competency claim can be litigated in a far more rational fashion through the lens of a claim sounding in counsel ineffectiveness -- counsel, after all, is in the best "position to judge the ability of a client to communicate to aid in a defense and the ability to comprehend the nature of the charges . ." Giknis, 420 A.2d at 422.
In a system of separated powers, the only theoretically legitimate question which could arise from the sua sponte concern of the Santiago plurality and today's Majority is whether application of the PCRA waiver provision to claims sounding in competency to be tried would be unconstitutional. Such an argument -- which itself would pose a distinct (and presumably waivable) procedural claim of constitutional dimension -- is not before us. If the question of constitutionality is the Majority's true concern, it should await the case where the claim is raised directly, and decide it then. In the absence of a finding of unconstitutionality, we should not resurrect the PCRA relaxed waiver
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