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Commonwealth v. Brown4/29/2005
and no relief is available as a matter of law). Under the clear import of the rules, and in light of the above perspective, the assessment concerning counsels' truthfulness in conceding deficient stewardship in terms of penalty-phase preparation, as well as the credibility and weight of Appellant's post-conviction proffer of mitigating evidence, should be made based on an evidentiary record.
I also note my disagreement with several other aspects of the majority's articulation and application of relevant legal precepts controlling the treatment of Appellant's claims. For example, the majority suggests a very broad application of the previous litigation doctrine to bar Appellant's claim that his trial and direct appeal counsel were ineffective for failing to challenge the legal availability of the sole aggravator on grounds of statutory construction, based on the Court's disposition on direct appeal of a claim of prosecutorial misconduct in the Commonwealth's underlying evidentiary presentation. See Majority Opinion, slip op. at 4-5 (citing Commonwealth v. Brown, 538 Pa. 410, 427-28, 648 A.2d 1177, 1185 (1994)). Apparently not fully comfortable with this application of previous litigation, the majority alternatively invokes the doctrine of waiver, based on the claim not having been raised on direct appeal. See id. at 5. This, however, simply overlooks Appellant's separate assertion of ineffective assistance on the part of his direct-appeal counsel in failing to raise and preserve the claim; but it is well settled that if such a separate claim is proved, it may be relied upon to overcome waiver of an underlying claim. See, e.g., Commonwealth v. McGill, 574 Pa. 574, 586-87, 832 A.2d 1014, 1021-22 (2003). While the majority might fault Appellant's present counsel for insufficiently developing such ineffectiveness claim, this Court has acknowledged the shortcomings of the jurisprudence that prevailed during the time frame in which this case was briefed, see id. at 584, 832 A.2d at 1020, and thus determined that the proper treatment of claims along these lines is not outright rejection on grounds of waiver, but rather, a remand for adequate development of the claim in accordance with the framework articulated in McGill. See id. at 591, 832 A.2d at 1024.
The majority also articulates the exception to McGill's remand rule by indicating that a petitioner must have pled, presented, and proved his underlying claim in order to be eligible for the remand. See Majority Opinion, slip op. at 9-10. McGill, however, does not require actual proof of the claim as a prerequisite to a mere remand in all circumstances -- to the contrary, it states a general preference in favor of remand, and the logical and fair import of the exception that it recognizes is that it should apply only in circumstances in which the underlying claim is facially defective or capable of being deemed meritless on the state of the record presented. See McGill, 574 Pa. at 591-92, 832 A.2d at 1024-25. Indeed, in circumstances where (as here) the petitioner has been afforded no opportunity to prove his claims, as he was denied a post-conviction hearing, it is manifestly unfair to suggest that the availability of a McGill remand should depend upon some failure of the petitioner's proofs.
CONCURRING AND DISSENTING OPINION
MR. JUSTICE NIGRO
I agree with the majority that Appellant is not entitled to relief on any of his claims relating to the guilt phase of his trial. I note my specific agreement with the majority's treatment of Appellant's claim that he was not competent to stand trial, including its holding that a post-conviction petitioner's failure to raise a claim on direct appeal that he was incompetent a
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