holding that if trial counsel was not ineffective with respect to claim underlying allegation of ineffectiveness, then appellate counsel cannot be deemed ineffective for failing to raise claim of trial counsel’s ineffectiveness
How later courts described this case
- holding that if trial counsel was not ineffective with respect to claim underlying allegation of ineffectiveness, then appellate counsel cannot be deemed ineffective for failing to raise claim of trial counsel’s ineffectiveness
- holding that evidence of the same type of non-charged conduct was admissible to show the :full extent and scope of the conspiracy
- stating that a jury is presumed to follow the trial court’s instructions
- “It is settled that the test for counsel ineffectiveness is the same under both the Pennsylvania and Federal Constitutions: it is the performance and prejudice test set forth in Strickland v. Washington (quoting Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 460 (2004
Written by the judges who cited it.
The opinion
Justice EAKIN,
concurring and dissenting.
I respectfully dissent from the majority’s affirmance of the PCRA court’s conclusion that this Court would have reversed appellee’s PaCOA conviction on direct appeal, had appellate counsel raised Commonwealth v. Besch, 544 Pa. 1 , 674 A.2d 655 (1996) (PaCOA not applicable to wholly illegitimate organizations).
Trial counsel could not be found ineffective for failing to anticipate Besch , which was not decided at the time of trial. At the time of trial, the PaCOA had been held to apply to both legitimate and illegitimate enterprises. See Commonwealth v. Yacoubian, 339 Pa.Super. 413 , 489 A.2d 228 (1985). Thus, trial counsel cannot be deemed ineffective, and any layered claim of appellate counsel’s ineffectiveness premised on this underlying claim necessarily fails.
The ineffectiveness inquiry here is whether appellate counsel was ineffective for failing to argue, on direct appeal, that Besch should apply retroactively, rendering appellee’s PaCOA conviction a nullity. The relevant period for assessing appellate counsel’s stewardship is during appellee’s direct appeal. See Commonwealth v. Bond, 572 Pa. 588 , 819 A.2d 33, 51 (2002) (fair assessment of attorney performance requires evaluation of conduct from counsel’s perspective at time).
At the time appellate counsel filed his appellate brief in this case, the legislature had amended the PaCOA in immediate *409 response to Besch , 1 making clear that the statute encompassed both legitimate and illegitimate organizations; Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840 (1999) (holding Besch applies retroactively to date of PaCOA’s enactment) had not been decided. Appellate counsel should not be deemed ineffective for failing to anticipate the holding in Shaffer. Therefore, I cannot agree with the majority’s conclusion that appellate counsel was per se ineffective for failing to challenge appellee’s PaCOA conviction when the law at the time of trial and direct appeal supported the conviction.
Accordingly, I would reverse the order of the PCRA court vacating appellee’s PaCOA conviction; in all other respects, I join the majority’s disposition.
. Besch was decided April 17, 1996, and the PaCOA was amended June 19, 1996, effective immediately. I am of the view that Besch , although now of limited applicability since the 1996 amendments, incorrectly interpreted the prior version of § 911(h)(3) of the PaCOA in the first place. Appellate counsel filed his brief March 31, 1997; Shaffer was not decided until 1999.