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Commonwealth v. Brown4/29/2005
partial appellate tribunal because Justice Castille was the District Attorney at the time Appellant was criminally charged (Argument XIX). This claim was not presented in Appellant's PCRA petition and therefore is not reviewable.
We turn next to Appellant's claims of ineffective assistance of counsel. In Commonwealth v. McGill, 832 A.2d 1014, 1020-26 (Pa. 2003), this Court recently clarified the procedure to be followed in preserving and proving a PCRA claim challenging the effectiveness of counsel other than immediate appellate counsel. In the context of this case, McGill, explains that "in order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove" the ineffectiveness of direct appellate counsel, which necessarily relates back to the actions of trial counsel. Id. at 1022 (emphasis in original). Therefore, to preserve a claim that direct appellate counsel was ineffective, the petitioner must: (1) plead, in his PCRA petition, that direct appellate counsel was ineffective for failing to allege that trial counsel was ineffective; and (2) present argument and develop all three prongs of the Pierce test regarding the ineffectiveness of direct appellate counsel. Id.
As we explained in McGill and expounded upon in Commonwealth v. Rush, 838 A.2d 651 (Pa. 2003), review of the issue of ineffectiveness of trial counsel is merely a component of the claim at issue -- that challenging the effectiveness of appellate counsel. Therefore, to demonstrate that a "layered" claim of appellate counsel's ineffectiveness has arguable merit, the petitioner must develop all three prongs of the Pierce test as to the ineffectiveness of trial counsel. McGill, 832 A.2d at 1022; Rush, 838 A.2d at 656. Stated differently, if the petitioner fails to develop any of the three Pierce prongs regarding the underlying issue of trial counsel ineffectiveness, he or she will have failed to establish the arguable merit prong of the claim of appellate counsel's ineffectiveness. McGill, 832 A.2d at 1023; Rush, 838 A.2d at 656. Only when the petitioner has adequately pled and presented the ineffectiveness of trial counsel pursuant to the Pierce test will this Court proceed to review the layered claim to determine whether he or she has proven appellate counsel's ineffectiveness. McGill, 838 A.2d at 1023.
Pursuant to the mandate of McGill, where the petitioner has pled, presented, and proved the underlying issue of trial counsel ineffectiveness, a remand may be necessary to allow the petitioner an opportunity to correct any errors with regard to the pleading and presentation of his or her claim of appellate counsel ineffectiveness.
McGill, 838 A.2d at 1024. Where the petitioner fails to plead and prove all three prongs of the Pierce test regarding the underlying issue of trial counsel's ineffectiveness, however, a remand is unnecessary because the petitioner cannot establish the arguable merit prong of the Pierce test regarding the ineffectiveness of appellate counsel. Id.; Rush, 838 A.2d at 656.
Therefore, as a threshold matter, we must determine whether Appellant has properly preserved his remaining claims of appellate counsel ineffectiveness as required by McGill and Rush. We find that Appellant properly pled these layered ineffectiveness claims in a manner sufficient to warrant merits review. In his Brief to this Court, Appellant also adequately addressed the Pierce standard regarding the ineffectiveness of trial counsel. However, as detailed below, Appellant has failed to prove all three prongs of the Pierce test as it relates to each underlying issue of trial counsel's ineffectiveness. Havin
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