holding that to prove a claim of ineffectiveness for failing to request a trial continuance for the purpose of securing an expert rebuttal witness, a petitioner “must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause;” “counsel - 13 - J-S36041-21 cannot be deemed ineffective for failing to request a continuance on an unsupported pretext”
How later courts described this case
- holding that to prove a claim of ineffectiveness for failing to request a trial continuance for the purpose of securing an expert rebuttal witness, a petitioner “must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause;” “counsel - 13 - J-S36041-21 cannot be deemed ineffective for failing to request a continuance on an unsupported pretext”
- holding that “the fact that [the conspirators] all arrived simultaneously leads to the logical inference that their joint appearance was planned.”
- determining that the “precise and deliberate actions of appellant and the two unidentified men establish a concerted conscious decision by all three persons to join together with the purpose of taking the [victim’s] life”
- finding ineffectiveness claim failed - 16 - J-S40033-17 when appellant did not “establish that counsel knew or should have known of the existence” of potential alibi witness
Written by the judges who cited it.
The opinion
*647 NIGRO, Justice,
concurring.
While I join the Majority’s opinion, I write separately to note that I would have also addressed, pursuant to the relaxed waiver rule applicable to direct appeals in capital cases, Appellant’s distinct claim that the trial court erred in charging the jury regarding conspiracy liability as it relates to first degree murder. See Commonwealth v. Zettlemoyer, 500 Pa. 16 , 50 n. 19, 454 A.2d 937 , 955 n. 19 (1982) (under this Court’s practice of relaxing waiver rules in death penalty cases, “significant issues perceived sua sponte by this Court, or raised by the parties, will be addressed and, if possible from the record, resolved”). Appellant raises this claim of underlying error by the trial court in addition to his claim that counsel was ineffective for failing to object to the charge given by the trial court on conspiracy liability. The Majority addressed only the ineffectiveness claim.
When reviewing Appellant’s claim that trial counsel was ineffective for failing to object to the charge on conspiracy liability, the Majority agreed with Appellant that the instruction was erroneous but found that it had not prejudiced Appellant. I agree with this analysis. However, for purposes of reviewing Appellant’s underlying claim of trial court error, I would also find that such error was harmless, given the circumstances of this case, the trial court’s charge to the jury when read as a whole, and most significantly, the jury’s conviction of Appellant for conspiring to kill Mr. Rankine. Thus, in addition to the Majority’s conclusion that Appellant’s ineffectiveness claim fails, I would also find that Appellant is not entitled to relief on the basis of the trial court’s improper instruction on co-conspirator liability. 1
. Likewise, Appellant raises several other underlying claims of trial court error and prosecutorial misconduct and in the alternative, claims that trial counsel was ineffective for failing to object to these alleged errors committed by the trial court or by the prosecutor. While the Majority addresses the merits of some of the underlying claims of error while examining others only as ineffectiveness claims, I would have independently addressed all of Appellant’s distinct claims of trial court error in light of this Court's relaxed waiver rule. However, since I agree with the Majority that these claims are without merit, Appellant *648 would not be entitled to relief on the basis of these claims under either analysis.