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Commonwealth v. Brown4/29/2005
t the time of trial does not constitute a waiver of that claim for purposes of the PCRA. However, unlike the majority, I believe that Appellant is entitled to relief on one of his ineffectiveness claims relating to his penalty phase.
Here, Appellant contends that his trial counsel was ineffective for failing to present certain evidence of mitigation, including evidence of Appellant's mental illness and traumatic childhood, at his penalty phase hearing and, much like Justice Saylor, I believe that Appellant is entitled to a remand on this claim. However, unlike Justice Saylor, who would remand for an evidentiary hearing on this claim, I would find that Appellant has already demonstrated, based primarily on the statements affixed to his PCRA petition from his trial and associate counsel, that his claim of trial counsel's ineffectiveness has arguable merit, that counsel had no reasonable basis for his inactions here and that, given the circumstances of this case, he was prejudiced by counsel's deficient representation. Thus, Appellant has, in my view, demonstrated that trial counsel was ineffective and there is therefore no need for the evidentiary hearing that Justice Saylor would require.
Nonetheless, as Appellant has failed to adequately develop his argument that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in this regard, I would, pursuant to this Court's decision in Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003), remand the matter to allow Appellant the opportunity to do so.
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