# Commonwealth v. Miller > Supreme Court of Pennsylvania · December 28, 2009 · 605 Pa. 1 URL: https://www.frixlaw.com/law-library/cases/9748019 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Dennis MILLER, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 28, 2009 - **Citations:** 605 Pa. 1; 987 A.2d 638; 2009 Pa. LEXIS 2761 - **Precedential status:** Published - **Opinion:** Concurrence by Castille - **Judges:** Castille, Saylor, Eakin, Baer, Todd, McCaffery, Greenspan, Mecaffery - **Cited by:** 151 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/9748019 ## How later opinions describe it (automated extraction) - explaining that Kyles imposed a duty on the prosecution “to provide the defense with exculpatory evidence contained in the files of police agencies of the same government bringing the prosecution, even though [J-28-2020] - 22 the prosecution was unaware of the existence of the… - holding claim that trial counsel was ineffective for failing to obtain and introduce the appellant’s drug records failed for lack of prejudice because the drug records were cumulative of evidence already introduced regarding the appellant’s substance abuse problems - holding that trial counsel was not ineffective for being unable to elicit expert testimony regarding heat of passion because defendant refused to testify, thereby making it "virtually impossible for counsel to convince the trial court" of his defense - finding trial counsel was not ineffective for failing to obtain Appellant's drug records when Appellant did not show these records contained any substantial information different from that already presented to the trial court - stating that the “reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation.” (citations omitted) ## Opinion text Chief Justice CASTILLE, concurring. I join the Majority Opinion, with the exception of the points addressed below. I write separately to express my minor disagreement with the Majority’s analysis of two of appellant’s claims and to address a recurring and important point raised in Mr. Justice Saylor’s dissenting opinion. My reasoning follows: Claim V Claim V faults the PCRA court on procedural grounds, for refusing to permit appellant to amend his PCRA petition in order to present testimony from Dr. Callery at the PCRA hearing related to his changed opinion as to whether a rape occurred. Like Justice Saylor, I disagree with the Majority’s resolution of this claim grounded upon the sufficiency of the evidence and the Majority’s related conclusion that the claim has been previously litigated. Appellant’s claim clearly challenges the PCRA court’s procedural ruling and the related claim of trial counsel ineffectiveness for failing to challenge the competency of Dr. Callery’s testimony, rather than the sufficiency of the evidence supporting the rape conviction. Nevertheless, I concur in the result. I disagree with the Majority’s characterization of the claim as previously litigated, since the substance of appellant’s challenge is to the PCRA court’s ruling that denied his late request to supplement the PCRA petition with Dr. Callery’s changed testimony. This claim has not been previously litigated as it relates to a procedural ruling by the court immediately below. However, I see no abuse of discretion in denying the belated request to supplement the petition, and I do not see why Dr. Callery’s alleged changed opinion (or “elaboration” as appellant would *60 have it) was necessary to the substantive claims which sound in ineffective assistance of counsel. 1 Claim VI In this claim, appellant alleges that trial counsel’s ineffectiveness rendered invalid his waiver of his right to a jury trial and his right to testify. Appellant develops this claim primarily in terms of the jury waiver, faulting counsel’s advice to waive, and then, respecting the right to testify, merely states that “[t]he exact same [sic] reasoning applies to his waiver of the right to testify.” Brief of Appellant, 50. Although I join the Majority Opinion concerning this dual claim, I would also briefly note that in ruling on appellant’s claim of ineffectiveness related to his right to testify, the PCRA court concluded that the claim was without merit, since appellant opted not to testify despite counsel’s advice to the contrary. While the Majority notes this fact in passing, it intimates that we would have to “guess whether counsel’s ineffectiveness interfered with [appellant’s] right to testify” and that we will not engage in such speculation. Respectfully, I see no need to go that far, given that the PCRA court aptly pointed out that counsel cannot be deemed ineffective, since he encouraged appellant to testify, only to have appellant refuse. Thus, in this instance, any complaint regarding appellant’s decision not to testify is placed squarely on appellant’s shoulders and cannot support a claim of trial counsel ineffectiveness. Appellant inexplicably fails to account for this dispositive fact in asserting that his twin claims depend on the same reasoning. Claim VIII I join the Majority on this claim and write only to address two points raised by Justice Saylor’s Dissenting Opinion. First is the role of recent decisions from the U.S. Supreme Court rendered on federal habeas review of state court convic *61 tions, such as Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (1999), Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005). I have explicated in much greater detail elsewhere that, by definition, these decisions cannot be interpreted as establishing any new federal constitutional rule or standard. See Commonwealth v. Gibson, 597 Pa. 402 , 951 A.2d 1110, 1148 (2008) (Castille, C.J., concurring). Rather, the High Court in these decisions merely “applied” the governing ineffectiveness standard that was set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to the facts of cases tried after Strickland became the law of the land. Indeed, the High Court most recently confirmed that this was the case in a unanimous per curiam opinion rendered in Bobby v. Van Hook, 558 U.S. -, 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009), when it applied the Strickland “effective assistance of counsel” standard in reviewing an ineffectiveness claim based upon counsel’s alleged failure to prepare adequately for the penalty phase. Notably, the Court emphasized both the flexibility of the Strickland standard as well as Strickland’s teaching that counsel’s conduct must be judged according to standards in place at the time counsel acted: The Sixth Amendment entitles criminal defendants to the “effective assistance of counsel” — that is, representation that does not fall “below an objective standard of reasonableness” in light of “prevailing professional norms.” That standard is necessarily a general one. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Restatements of professional standards, we have recognized, can be useful as “guides” to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. Van Hook , 558 U.S. at-, 130 S.Ct. at 16 . 2 Furthermore, the Van Hook opinion stressed that reasonableness can only *62 be assessed in light of the prevailing professional norms at the time of trial by making clear that a court should not look to ABA guidelines that were announced eighteen years after the trial. Indeed, the Court made it abundantly clear that ABA guidelines should not be treated as “inexorable commands” with which all capital defense counsel must fully comply, but are “ ‘only guides’ to what reasonableness means, not its definition.” Id. at-, 130 S.Ct. at 17 . Additionally, the Court’s review in Wiggins, Williams and Rompilla was specifically circumscribed by the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA), which authorizes federal courts to upset final state judgments only if the state court analysis of a federal claim is contrary to, or involves an unreasonable application of, existing, binding precedent from the High Court. Observers can and do debate whether the court majorities in Wiggins, Williams and Rompilla were faithful to AEDPA’s deference standard — notably all of these decisions, involving a controlling question of whether a state court judgment was objectively reasonable, were sharply divided. What cannot be debated is that: (1) the cases did not purport to break new constitutional ground; and (2) the decisions bind us, and they are important because those cases, like the more recent pre-AEDPA decision in Van Hook , stand as the High Court’s directive as to what was commanded by Strickland itself. See also Porter v. McCollum, 558 U.S.-,-, 130 S.Ct. 447, 452 , 175 L.Ed.2d 398 , -(2009) (confirming capital defendant only entitled to relief if he can establish that the state court’s rejection of his ineffectiveness claim was “contrary to or involved an unreasonable application of’ Strickland). Obviously, any court addressing a case posing materially identical circumstances would be hard-pressed to deviate from the holding in a Strickland-application case decided under *63 AEDPA. See Porter, supra (explaining that relief was warranted because the case was similar to Wiggins as “counsel did not even take the first step of interviewing witnesses or requesting records”). But, quite frankly, there is no easy answer to the question of what to do with good faith decisions rendered by courts in the long years between when the Court announced Strickland in 1984, and then announced what it necessarily meant in cases such as Wiggins, Williams, Rompilla, and now Van Hook and Porter . In that long interregnum, courts operating in perfectly good faith may have rendered decisions that now seem to be in tension with some of the Court’s later Strickland-application decisions. Theoretically, since the Strickland-application decisions by definition purport to establish no new law, the continuing validity of a pre-Wiggins decision should be measurable by comparison to Strickland itself. In point of fact, the High Court signaled as much when commenting on its Wiggins and Rompilla decisions in light of the Strickland standard in Van Hook by stating: This is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525 , 123 S.Ct. 2527 , or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-93 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005). It is instead a case, like Strickland itself, in which defense counsel’s “decision not to seek more” mitigating evidence from the defendant’s background “than already was in hand” fell “well within the range of professionally reasonable judgments.” Van Hook , 558 U.S. at-, 130 S.Ct. at 19. Similarly, in Porter , the Court was clear that the inquiry was guided by whether the Florida Supreme Court “unreasonably applied Strickland:’ Porter, 558 U.S. at -, 130 S.Ct. at 453 (emphasis added). Thus, the most recent jurisprudence confirms that Strickland remains the ultimate test by which we as a court must measure claims of ineffectiveness. *64 For my part and consistently with the High Court’s most recent pronouncements, I do not believe that we are required to jettison past approaches, analyses, or holdings in this Court’s Strickland cases, unless: (1) they are squarely precluded by a decision from the U.S. Supreme Court, such as Strickland , which existed when we rendered our decision; or (2) it is beyond reasonable debate that our decision is both materially identical to, and contrary to, one of the later Strickland-application decisions. In this case, I have no difficulty with the Majority’s application of our precedent. Second, the Dissenting Opinion expresses concern with appellant’s argument that the admission of appellant’s written “background history and statement” was materially prejudicial, and suggests that trial counsel’s strategy in proffering the statement was “seriously misguided.” Dissenting Op. at 68, 987 A.2d at 679. Although ultimately the admission of the statement may not have advanced appellant’s cause, I would merely add that trial counsel’s statements at the PCRA hearing reveal that he was struggling with the manner in which he could proffer appellant’s version of the events leading up to and on the night in question, since appellant had refused to testify. N.T., 10/27/08, at 78. Counsel believed that the best way to do this was to urge appellant just to “[tell] things as it was [sic]” by writing a statement in his own words, explaining the events leading up to and on the night in question. Id. at 66. Based on the circumstances facing counsel, I would not find counsel ineffective with respect to this decision. Justice EAKIN joins this concurring opinion. . I am also convinced by the PCRA court's alternative rationale that there was sufficient circumstantial evidence supporting the rape, as explained by the PCRA court earlier in the opinion, when it states that even without the testimony of Dr. Callery, the evidence was sufficient. Thus, I agree with the Majority’s observation that appellant cannot establish that he was prejudiced by trial counsel’s alleged ineffectiveness. See Majority Op. at 32-35, 987 A.2d at 657-58. . Although Justice Alito wrote a separate concurring opinion in one case, he began the responsive opinion by stating, “I join the Court's per *62 curiam opinion....” Justice Alito would give no "special relevance” to the 2003 ABA Guidelines in determining whether an attorney's performance meets the standard for effective representation required by the Sixth Amendment. Van Hook , 558 U.S. at-, 130 S.Ct. at 20. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748019. Public record. Not legal advice.