# Commonwealth v. Grant > Supreme Court of Pennsylvania · December 31, 2002 · 572 Pa. 48 URL: https://www.frixlaw.com/law-library/cases/9748422 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Taibu Modamu GRANT A/K/A Bryant Damu Taibu A/K/A Tyrone Gramm, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 31, 2002 - **Citations:** 572 Pa. 48; 813 A.2d 726; 2002 Pa. LEXIS 3148 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Zappala, Cappy, Castille, Nigro, Newman, Saylor, Eakin - **Cited by:** 1,027 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/9748422 ## How later opinions describe it (automated extraction) - explaining that, under the rule pertaining at the time of Appellant's trial, appellate counsel had the "burden of raising any extra-record claims that may exist by interviewing the client, family members, and any other people who may shed light on claims that could have been p… - explaining that “the only way to consider claims related to trial counsel’s ineffectiveness that were not raised on direct appeal by new counsel was to plead and prove the additional claim of appellate counsel’s ineffectiveness, i.e., a layered claim of ineffectiveness” - holding that to prove ineffective assistance of counsel, a three-prong test must be satisfied: (1) that the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the defendant prejudice - finding appellant failed to establish Brady claim where he did not explain why “public defender could not have procured” information about witness’s prior conviction and ____________________________________________ 14 Mosely was represented by counsel from the public defender’… ## Opinion text Justice SAYLOR, concurring. As a general proposition, I see benefit in the majority’s preference to channel claims of ineffective assistance of counsel into the collateral review process, and I have no quarrel with its effort to treat such claims in a more systematic fashion. On balance, however, I would not eliminate the requirements of Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), at this juncture. In this regard, I offer the following points. First, I do not regard the Hubbard rule, in and of itself, as being as inflexible as the majority portrays. The majority fails to mention that Hubbard allows for remand by an *70 appellate court to the trial court for an evidentiary hearing concerning the merits of a claim of ineffective assistance of trial counsel raised for the first time on appeal. See, e.g., Commonwealth v. Musi, 486 Pa. 102 , 108 n. 4, 404 A.2d 378 , 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278 , 372 A.2d at 696 )). Indeed, the mandate in Hubbard itself subsumed a remand on an ineffectiveness issue. See Hubbard, 472 Pa. at 286 , 372 A.2d at 700 . When properly implemented, the remand procedure ameliorates most of the difficulties that the majority associates with the Hubbard rule: the tension between the rule against raising matters for the first time on direct appeal and the requirement that claims of ineffective assistance must be raised at the first available opportunity is lessened, since the matter can be returned to the common pleas court for disposition in the first instance; the specter of the appellate court engaging in factfinding is removed; and the remand will generally put the matter back before the trial judge, who, as the majority observes, is in the best position to review the ineffectiveness claims in the first instance. 1 The concern regarding providing substitute counsel on direct appeal with sufficient time to fully and fairly complete the necessary review of potential claims could be addressed through procedures more modest than a revamping of the review process, and potentially foreclosing the vindication of substantive rights at the earliest opportunity. 2 *71 Second, as the majority notes, neither party to this appeal advocates departure from present practice. Further, the view of the Attorney General of Pennsylvania, acting as amicus curiae, aligns with that of the parties: This Court should continue its practice of requiring allegations of ineffective assistance of counsel to be raised at the first available opportunity on direct appeal. Any alternative procedures would delay finality where affirmance of the judgment of sentence is the correct result, would delay the grant of relief where relief is the correct result, and would delay the convening of evidentiary hearings where there is a need to complete a factual record. Any alternative procedures would benefit neither the Commonwealth, the defendant nor the effective administration of justice. Brief of Amicus Curiae The Attorney General of Pennsylvania at 2. Third, I have fundamental reservations about implementing substantial, structural changes to the review paradigm without settling the parameters of the review. In this regard, I believe that the majority’s observation that “for the rule to work in practice, common sense require[s] some exceptions,” see Majority Opinion, at 733, applies just as equally to the new manner of review as to Hubbard . For example, the majority of cases cited and relied on by the majority make it clear that claims of ineffective assistance of counsel should be resolved on direct appeal where the appropriate disposition is apparent from the record, or the claim has been duly developed in the trial court via the post-sentence motion procedure. 3 See, e.g., Majority Opinion, at 734-35 nn. 12-13 (citing cases). 4 The *72 alternative is to accept that some claims that were wholly amenable to consideration on direct appeal will nevertheless evade appellate review in light of the restrictions on the availability of state collateral review. See, e.g., 42 Pa.C.S. § 9543(a)(1) (providing that, to be eligible for relief under the PCRA, a petitioner must at the time relief is granted: be currently serving a sentence of imprisonment or probation or on parole; awaiting execution; or serving a sentence which must expire before the person may commence serving the disputed sentence). I also disagree with the majority that the issue before the Court is purely one of state law, as the procedures afforded by this Commonwealth on direct review implicate due process as guaranteed by the United States Constitution. I am therefore not as certain as the majority that this Court’s implementation of a new practice based on identified deficiencies in the present manner of review will not have wider consequences, for example, in federal courts’ treatment of cases pending on collateral review. Finally, as to the availability of relief under Hubbard in the present case, while there may be material facts in issue, I agree with the Superior Court that Appellant’s proffer was insufficient to implicate a present entitlement to an evidentiary hearing. 5 . It would seem less likely that the same judge will necessarily preside over a later claim of ineffectiveness litigated through the post-conviction process. . In my view, what is most troubling about the application of the Hubbard rule is the problem of achieving consistency in the application of the remand procedure. In this regard, I would merely clarify that, where the appellant has made a sufficient proffer concerning a claim challenging trial counsel's stewardship, there are material facts at issue concerning such claim, and relief is not plainly unavailable as a matter of law, the remand should be afforded. . Of course, the appellate court should also consider any appropriately framed challenges to denial of an evidentiary hearing by a trial court. . Notably, the federal model also maintains the conception of plain error to account for significant errors or defects affecting substantive rights that have not been properly raised or brought to the attention of the court. See F.R.Crim.P. 52(b). See generally 5 Wayne R. LaFave et ai.„ Criminal Procedure § 27.5(d) (2d ed. 1999) (“All but a few jurisdictions recognize the authority of an appellate court to reverse on the basis of a plain error.”). Since this Court has abandoned (or at least substantially restricted) this concept, see, e.g., Commonwealth v. Clair, 458 Pa. 418, 422 , 326 A.2d 272, 274 (1974), it would seem to me that *72 the direct exceptions to the rule precluding raising ineffectiveness claims on direct appeal assume a central role in preserving the opportunity to vindicate substantive rights at the earliest opportunity. . See, e.g., Commonwealth v. Grant, No. 2389 Pittsburgh 1997, 2000 WL 1577022 , slip op. at 6 (Pa.Super.2000) (“In order to obtain relief on a claim of ineffective assistance of counsel for failing to present witnesses, Appellant must allege the names and availability of the witnesses, the substance of their testimony, how their testimony would have appreciably strengthened Appellant’s defense and that trial counsel knew of the witnessesf;] Appellant has not met that burden.” (citation omitted)). While such deficiencies may obviously implicate the stewardship of counsel on direct appeal, no claim of this form is presently before the Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748422. Public record. Not legal advice.