# Commonwealth v. Brown > Supreme Court of Pennsylvania · July 6, 2005 · 582 Pa. 461 URL: https://www.frixlaw.com/law-library/cases/9648684 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. John Wesley BROWN, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** July 6, 2005 - **Citations:** 582 Pa. 461; 872 A.2d 1139 - **Precedential status:** Published - **Opinion:** Concurring in part by Nigro - **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer - **Cited by:** 120 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648684 ## How later opinions describe it (automated extraction) - holding counsel was not ineffective for failing to have handgun fingerprinted where the detective “testified at trial that the handgun was supposed to be submitted for fingerprints, but was not because of a mistake made by the police department;” thus, “trial counsel had nothi… - reasoning that Appellant was not prejudiced by trial counsel's performance during the penalty phase because "the jury found the mitigating circumstance that Appellant acted under extreme mental or emotional disturbance and the catchall mitigating circumstance of other evidence… - holding that the PCRA court did not err in denying PCRA relief on a claim alleging that trial counsel was ineffective for not presenting mental health evidence where the defendant failed to establish that he suffered from the alleged mental ailment at the time of the crime - finding that doctor’s “significant questions” about the appellant’s capacity to assist trial counsel was not a statement that appellant was incompetent at trial and therefore did not satisfy appellant’s burden - holding that the Commonwealth has no obligation to (Footnote Continued Next Page ## Opinion text Justice NIGRO, concurring and dissenting. 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 at 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 faffing 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 *515 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. 1 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, 574 Pa. 574, 590-91 , 832 A.2d 1014, 1024 (2003), remand the matter to allow Appellant the opportunity to do so. . In his concurring opinion, Justice Castille makes much of the fact that the attorneys' statements at issue here, in which both trial counsel and associate counsel all but concede that trial counsel was ineffective at the penalty phase, were not sworn to and therefore cannot be labeled, nor carry the weight of, “affidavits.” While there is no indication that the statements were notarized, I cannot agree with Justice Castille that this omission relegates the statements to a status that is more akin to “irrelevant chatter.” Indeed, such an assessment lends little import to the fact that the statements were submitted by attorneys, who, unlike other lay witnesses, are bound by the Rules of Professional Conduct and who function with a unique understanding of the consequences, both criminal and disciplinary, that may result from submitting false evidence to a court. See Pa.R.P.C. 8.4 (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); 18 Pa.C.S. § 4904 (person commits misdemeanor of second degree if, with intent to mislead a public servant in performing his official function, he makes any written false statement which he does not believe to be true). And while Justice Castille insinuates that the attorneys here sought to escape these consequences by deliberately choosing the form of declaration they submitted in this case, this accusation seems unfounded in light of the Rules of Professional Conduct's general prohibition against engaging in dishonest conduct—in whatever form—and the attorneys' own certification that the information contained in their self-titled “affidavits/declarations” "is true and correct to the best of their personal knowledge, information and belief, pursuant to 28 U.S.C. § 1746 and 18 Pa.C.S. § 4904.” (emphasis added). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648684. Public record. Not legal advice.