Commonwealth v. Liston

Justice BAER,

concurring.

I join the Majority Opinion to the extent it holds that the Superior Court erred in mandating that trial courts grant the filing of post-sentence motions nunc pro tune in each case in which a defendant’s direct appeal rights are reinstated. As the Majority recognizes, this holding improperly affords an enumerated class of defendants i.e., those who have had their direct appeal rights reinstated, the opportunity to raise claims of trial counsel ineffectiveness on direct appeal in contravention of our decision in Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002), which held that, generally, such claims should be deferred to collateral review. I write separately, however, to disassociate myself from the Majority’s characterization of the Superior Court’s holding as “attempting] to promulgate a new rule of criminal procedure,” Op. at 19, 27-29, 977 A.2d at 1093, 1099-1100, and to provide counterpoint to Chief Justice Castille’s Concurring Opinion advocating the abrogation of the exception to Grant created in Commonwealth v. Bomar, 573 Pa. 426 , 826 A.2d 831 (2003). I believe the Bomar exception remains good law, and the Superior Court’s decision herein is an attempt, albeit an unwarranted one, to have the instant case fall within that narrow exception.

As to my first point, a fair review of the Superior Court’s opinion reveals that the court was not promulgating a new rule of criminal procedure, but rather was evaluating a previous decision of that court, which addressed the issue of a trial *31 court’s scope of review in a collateral proceeding when one of the remedies sought and granted was the reinstatement of the right to a direct appeal. See Commonwealth v. Liston, 941 A.2d 1279, 1281-83 (Pa.Super.2008) (examining the vitality of the Superior Court’s previous decision in Commonwealth v. Miranda, 296 Pa.Super. 441 , 442 A.2d 1133 (1982), which addressed whether the trial court in a collateral proceeding is precluded from reaching the merits of additional issues raised by the defendant once the trial court grants a direct appeal nunc pro tunc).

Secondly, I note my respectful disagreement with the view taken in Chief Justice Castille’s Concurring Opinion, wherein he asserts that this Court should no longer recognize a “Bomar exception to the rule of Grant,” permitting defendants to raise collateral claims on direct appeal, unless the defendant expressly forfeits his right to PCRA review via the execution of a knowing and voluntary waiver of collateral review. Concurring Opinion at 21-22, 977 A.2d at 1096. While the Chief Justice has previously taken this position in his responsive opinions in Commonwealth v. O’Berg, 584 Pa. 11 , 880 A.2d 597 (2005), and Commonwealth v. Rega, 593 Pa. 659 , 933 A.2d 997 (2007), I feel compelled to highlight that a majority of this Court has never squarely addressed the issue. Further, the Bomar decision itself, which has never been abrogated or modified by this Court, set forth no such forfeiture requirement.

I acknowledge that in footnote 22 of our recent decision in Commonwealth v. Wright, 599 Pa. 270 , 961 A.2d 119 (2008), the Court cited Chief Justice Castille’s Concurring Opinion in Rega , as follows:

Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review, because the PCRA does not afford the right to two collateral attacks.

Id. at 148 n. 22. This statement, however, amounts to nothing more than dicta because Wright was a direct appeal from the imposition of a sentence of death. Thus, the parties had no reason to raise or brief the issue of what review a PCRA petitioner is entitled under circumstances where a trial court, *32 employing the Bomar exception, has addressed a claim of ineffective assistance of counsel on direct appeal.

As I recognized in my Concurring Opinion in Wright :

I agree with the observation that “post-verdict motions should not become an accepted repository for laundry lists of collateral-appropriate complaints....” Maj. Op. at 320, 961 A.2d at 148 , (quoting Commonwealth v. Rega, 593 Pa. 659 , 933 A.2d 997, 1032-33 (Pa.2007) (Castille, J., concurring, joined by Saylor, J. concurring)). Nevertheless, this Court has previously provided an exception to the holding in Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (Pa.2002), delaying claims of counsel ineffectiveness until PCRA review, and allowed review of claims of ineffectiveness on direct appeal that were raised and addressed by the trial court on post-verdict motions, see, Commonwealth v. Bomar, 573 Pa. 426 , 826 A.2d 831 (Pa.2003). The Court, however, has never held that such process would result in waiver of subsequent full PCRA review. To the extent that footnote 22 attempts to change our jurisprudence in dicta supported only by cites to two concurring opinions, I respectfully disagree. I believe our established case law permits the review of claims under the Bomar exception without affecting a defendant’s right to seek PCRA relief. Of course, in accordance with well-established judicial principles, claims that have been previously litigated at the time the PCRA is filed are barred. 42 Pa.C.S. § 9543(a)(3).

961 A.2d at 158-59 .

To be clear, I am not advocating that each PCRA petitioner be afforded two rounds of collateral review. In the vast majority of cases, our decision in Grant clarifies that claims of ineffective assistance of counsel are to be deferred until collateral review proceedings. The Bomar exception is only satisfied where the ineffectiveness claims were presented to the trial court, which, in its sound discretion, chose to address them on direct appeal; the trial court held an evidentiary hearing thereon; and the trial court ultimately ruled on the merits of the ineffectiveness claims in its opinion. Only in a case where all of this occurs, and a petitioner subsequently *33 files a PCRA petition after his judgment of sentence becomes final, will the issue of the proper scope of collateral review under these peculiar circumstances arise. These conditions are simply not present in the matter now before this Court.

Accordingly, I respectfully caution against ruling upon this issue until it is raised, briefed, and argued by the parties in the appropriate case. See Commonwealth v. Dickson, 591 Pa. 364 , 918 A.2d 95 , 108 n. 15 (2007) (holding that “[w]e find it ill-advised, generally, to consider substantial questions not squarely presented and fully argued by the parties below and before this Court.”). Absent a “real world” premise, we cannot begin to anticipate and analyze the peculiar positions advanced by thoughtful parties. Thus, it is inappropriate for this Court to hold that a PCRA petitioner per se forfeits his entire collateral review when a trial court exercises its discretion, for what one may presuppose is an appropriate reason, to dispose of a certain claim(s) of ineffectiveness on direct appeal, while leaving other collateral issues for the more typical post-judgment scrutiny anticipated by Grant . This is an especially important observation when one considers the already significantly limited nature of collateral review, via the one-year jurisdictional time restriction.