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Commonwealth v. Brown4/29/2005
rule to negate proper legislative authority.
The Majority's radical and unwise rewriting of the PCRA waiver provision will prove particularly harmful given this Court's recent relaxed waiver decision in Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005). In Roney, this Court was faced with the question of whether a waived penalty phase jury instruction claim, premised upon the new procedural rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2519 (2004), could be reached and decided on the merits on direct appeal. Roney afforded the appellant the retroactive benefit of the new rule, notwithstanding his waiver of the claim, reasoning that "because the challenge to a sentence premised upon Apprendi implicates the legality of that sentence, it cannot be waived on appeal." 866 A.2d at 359 n.32 (citing Commonwealth v. Aponte, 855 A.2d 800, 802 n.1 (Pa. 2004)).
Roney apparently will dictate that all sentencing claims of alleged constitutional dimension now implicate "legality" and therefore need not be preserved in order to be raised on direct appeal. By the logical operation of the Majority's tortured statutory interpretation in the present case, such non-waivable constitutional sentencing claims will also no longer be subject to the PCRA's waiver provision. And so, constitutional sentencing claims, like competency claims, are impervious to waiver. Such claims not only need never be preserved, but they may be raised will-nilly: for the first time in a PCRA petition; or as late as PCRA appeal; or, in light of unfortunate cases such as Fajohn v. Commonwealth, 692 A.2d 1067 (Pa. 1997), anytime in the future when the defendant feels like filing an "illegal sentence" motion nunc pro tunc. Indeed, there is nothing in the ad hoc relaxed waiver review reemerging in cases such as this and Roney to prevent entirely prospective procedural rules of constitutional dimension affecting sentencing to become retroactively enforceable, and thus available to upset a proper final judgment.
Since the waiver in question on direct appeal derives from judicial doctrines, it is certainly within this Court's power to craft such exceptions, as it did in Roney -- albeit unwisely in my view. See 866 A.2d at 362-66 (Castille, J., concurring). But, the waiver at issue on PCRA review is statutory, and this Court does not have the same power of negation or suspension. The presumptively constitutional legislative waiver standard is entitled to deference. Because the Majority refuses to respect the clear mandate of the PCRA statute, I do not join in its treatment of appellant's claim of ineffective assistance of counsel based on mental incompetence.
On the merits of appellant's cognizable and non-waived claim that prior counsel were ineffective for failing to litigate the question of appellant's competency to stand trial, Brief for Appellant, 42-43, I would conclude that appellant's proffer did not establish a claim of even arguable merit. Hence, I agree that appellant is not entitled to PCRA relief, albeit my conclusion is premised upon considering the claim he actually raises.
Turning to the question of "affidavits," the Majority notes that appellant supports a number of his claims by attaching unsworn "declarations" of would-be witnesses, which appellant characterizes as "affidavits" in his brief. The Majority accurately recognizes that these "affidavits" in fact are merely unsworn "declarations."
I realize that this Court has been uniformly lax in recent PCRA appeals and has appeared to accept and adopt defense characterizations of these sorts of attachments as "affidavits." But, in point of fact, these "declarations"
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