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Commonwealth v. Brown4/29/2005
d under the PCRA -- it is a simple matter to remove the statement from the realm of rumor by having it sworn-to and certified before an appropriate officer. The fact that a witness would refuse or decline to so certify his account and subject the witness to sanctions may say volumes about its reliability. Moreover, it should be particularly easy to secure a statement in affidavit form from members of the bar of this Court.
The Majority does not address the relevance or value of appellant's declarations, instead finding that, even assuming their truth, they do not warrant substantive relief or an evidentiary hearing. Like the Majority, Mr. Justice Saylor recognizes that appellant's affidavits in fact are mere declarations and would conclude that the declarations of lead trial counsel and his associate counsel, along with other witness "affidavits" and defense proffers in this case, are enough to warrant an evidentiary hearing. Mr. Justice Nigro, on the other hand, concludes that the purported declarations of lead and associate counsel establish trial counsel's ineffectiveness as a matter of law as to one issue, thus negating the need for an evidentiary hearing and cross-examination on that question. In my view, where a contested claim for PCRA relief is premised upon the sworn affidavits of witnesses and the truth of those accounts is a necessary element to the success of the claim, the greatest relief available is the award of an evidentiary hearing. A mere affidavit cannot possibly prove the ultimate merit of a contested matter which may turn upon a faulty memory or a credibility assessment. This is so even where the putative witnesses are members of the bar: in a system of laws and not men, no witness's memory, analysis, and credibility is beyond prodding and challenge and even manipulation. Absent concession or stipulation of the material point by the Commonwealth, the most that an affidavit can demonstrate is an issue of material fact warranting an evidentiary hearing and ultimate judicial determination.
Unwitnessed and unsworn non-affidavits, such as are at issue in the case sub judice, are of considerably less value than sworn affidavits. In addition to being insufficient to prove the ultimate merit of a claim, it is questionable, in my view, whether such pleadings should even be deemed relevant to the question of an entitlement to a PCRA evidentiary hearing. Criminal Rule 902, which governs the content of PCRA petitions, directs that " he defendant shall attach to the petition any affidavits, records, documents, or other evidence which show the facts stated in support of the grounds for relief, or the petition shall state why they are not attached." Pa.R.Crim.P. 902(D) (emphasis added). Arguably, when the account of a witness is the basis for the "facts stated," the only sufficient proffer which could warrant an evidentiary hearing is an affidavit; unsworn declarations "show" nothing. Having said this, I nevertheless recognize that there is considerable discretionary authority vested in the PCRA trial judge to determine what sort of proffer may warrant an evidentiary hearing. Although the PCRA judge would certainly be warranted in requiring reliability in the form of a sworn affidavit, it may well be that, in an appropriate case, the court could order an evidentiary hearing based upon mere unsworn declarations and, perhaps, that course might be acceptable if the declarant is a member of the bar.
Ultimately, for purposes of decision in this case, I am prepared to assume the truth of appellant's witnesses' "declarations" (as the PCRA court did and as the Majority does) and I join in the Majority's substantive analysis, which rejects the claims dependent upon those declarations as a
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