# Commonwealth v. Grant

> Supreme Court of Pennsylvania · December 31, 2002 · 572 Pa. 48

URL: https://www.frixlaw.com/law-library/cases/9748423

## 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 Castille
- **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/9748423

## 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 CASTILLE,
concurring and dissenting.
Although I join in the majority opinion’s abrogation of the procedural rule first announced by this Court in Common *73 wealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), I respectfully dissent from (1) the majority’s formulation of the new rule which would replace Hubbard ; and (2) the majority’s directive that its new rule applies retroactively to this case and to all pending direct appeals where claims of counsel ineffectiveness are raised, irrespective of whether a claim relating to the vitality of Hubbard was presented in those appeals.
The Hubbard rule requires new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity, even if that first opportunity is on direct appeal and the claim of ineffectiveness was not raised in the trial court. See Commonwealth v. Ford, 809 A.2d 325, 340 (Pa.2002) (Castille, J., dissenting) (describing operation and effect of Hubbard rule). This Court’s recent experience has more than amply demonstrated the inherent difficulties with this rule, difficulties which are aptly expressed by the majority. Application of the rule has caused particular havoc in this Court’s capital PCRA jurisprudence, as the majority also notes. The question of “layering” routinely arises in capital PCRA appeals because those defendants frequently have been represented by counsel other than trial counsel on direct appeal. The Hubbard rule makes those direct appeals a previous opportunity to raise claims of trial counsel ineffectiveness in the first instance for purposes of the PCRA’s waiver provision. See 42 Pa.C.S. § 9544(b) (issue is waived under PCRA if petitioner “could have raised it but failed to do so” in prior proceeding). Accordingly, to state a cognizable claim under the PCRA deriving from alleged deficiencies in representation at trial, the petitioner must “layer” his claim by pleading and proving that direct appeal counsel was ineffective. This Court has struggled with the consequences of the interplay of Hubbard , “layered” claims of ineffectiveness, and the PCRA waiver provision.
The majority accurately notes that requiring new counsel upon appeal to raise claims sounding in the ineffectiveness of trial counsel, even if such claims were never raised below, runs contrary to fundamental principles of appellate review. See, *74 e.g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114, 116 (1974); Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272, 273 (1974). See also Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal”). Such a practice creates difficulties both for new counsel and for the reviewing court. Moreover, it is particularly anomalous to permit, much less to require, the raising of such new claims on direct appeal when the General Assembly has provided a specific vehicle for such collateral claims via the PCRA. Indeed, claims sounding in the alleged ineffective assistance of counsel are specifically deemed cognizable under that Act. 42 Pa.C.S. § 9543(a)(ii). Criminal appeals, like other appeals, should generally be confined to those claims which were properly raised and preserved at the trial court level—which, of course, may include claims of counsel ineffectiveness if such were actually raised by new counsel on post-sentencing motions and were decided by the trial court. Collateral claims should be directed to the PCRA, which exists for that very purpose.
Accordingly, I agree that the time has come to overrule Hubbard. 1 respectfully dissent, however, from the majority’s formulation of the new rule to take Hubbard’s place. The majority holds that, as a “general rule,” criminal defendants on direct appeal “should” wait until collateral review to raise new claims of trial counsel ineffectiveness. Majority op. at 732. In addition to employing the equivocal word “should” in the actual standard, the majority also appends a footnote in which it suggests, in dicta, an exception to the new rule. I am concerned that these equivocations inevitably will cause confusion for litigants and future complications under the PCRA *75 waiver provision. The word “should” does not bar appellants from raising new claims of trial counsel ineffectiveness on direct appeal: it therefore suggests an aspiration rather than an actual standard; it invites appellants to try to avoid the “general” rule; and it promises years of further confusion as the contours of the play in the new rule are litigated. In this regard, I note that the Hubbard rule has been a fixture of Pennsylvania’s legal landscape for over twenty-five years and, for many in the criminal defense bar, raising new claims of trial counsel ineffectiveness on direct appeal no doubt has become a matter of routine. A significant number of appellants and their counsel are likely to share the view of the parties and the amicus here that “the interests of justice are best served by prompt adjudication of ineffectiveness claims,” see Brief for Appellant at 41, and they will thus persist in attempting to raise such claims on direct appeal. I am concerned that the formulation of the new standard will undercut the majority’s overriding, salutary goal of funneling claims of counsel ineffectiveness to the collateral review stage.
The potential for uncertainty and equivocation is particularly acute in light of the exception to the general rule suggested by the majority. The majority suggests that the Court might create an exception if the appellant merely alleged “that there has been a complete or constructive denial of counsel or that counsel has breached his or her duty of loyalty.” Majority op. at 738 n. 14. This particular sub-class of claims involving the stewardship of counsel has indeed been afforded distinctive Sixth Amendment treatment by the U.S. Supreme Court—but not on the procedural ground that there is something in the nature of such claims that requires that they be entertained for the first time on direct appeal. Instead, the Court has afforded such claims different substantive treatment. Specifically, it has held that in situations where assistance of counsel in fact has been denied entirely or during a critical stage of the proceeding, or where counsel in fact actively represented conflicting interests, the defendant does not need to demonstrate the Strickland prejudice that would otherwise be required for a showing of ineffectiveness, i.e., he need not show *76 that, but for counsel’s errors, the outcome of the proceeding would probably have been different. See Mickens v. Taylor, 535 U.S. 162 , 122 S.Ct. 1237, 1240-41 , 152 L.Ed.2d 291 (2002); Smith v. Robbins, 528 U.S. 259, 287 , 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000). Accord Commonwealth v. Lambert, 568 Pa. 346 , 797 A.2d 232, 245-46 (2001) (Opinion Announcing Judgment of Court).
Of course, it is easy in the extreme to allege that an ineffectiveness claim involves an instance where prejudice should be deemed presumed; we see such allegations in almost all the capital cases. But the allegation is far more difficult to prove under the prevailing Sixth Amendment standard. I see no reason to afford such mere allegations special status on direct appeal. It is more than sufficient that the relaxation of the substantive ineffectiveness standard will apply when the claim is raised on collateral attack. The predictable consequence of the majority’s dicta is that routine claims of counsel ineffectiveness will now be accompanied by an exaggerated assertion of the constructive denial of counsel— i.e., the courts will see claims that counsel’s performance in failing to raise an objection was so deficient that it was as if the defendant were unrepresented—merely in the hope of securing a preview round of collateral attack upon direct appeal.
Furthermore, given the unfortunate vacillation built into the new rule, I do not agree with the majority’s predictive assessment of the effect the new rule will have upon the PCRA waiver provision and the necessity for “layering” claims of counsel ineffectiveness in first PCRA petitions. If the case law interpreting our new rule—and its possible “exceptions”— develops in such a way as to permit certain new claims of trial counsel ineffectiveness to be raised as a matter of right on direct appeal then, as to those claims at least, we will be right back to where we were under the Hubbard rule for purposes of PCRA waiver. This is so because the PCRA waiver provision speaks in terms of claims which “could have been raised” on direct appeal. The exceptions invited by the majority, if they materialize, will create classes of claims sounding in *77 trial counsel ineffectiveness which are cognizable on direct appeal; and if those cognizable claims are not so raised, they will be subject to waiver under the PCRA unless they are properly layered. For this reason, I cannot join the majority’s hopeful prediction that “a claim raising trial counsel ineffectiveness will no longer be considered waived [under the PCRA] because new counsel on direct appeal did not raise a claim related to prior counsel’s ineffectiveness.” Majority op. at 738.
Consistently with the general standards of issue preservation that govern all appeals, and to avoid the confusion the majority’s new rule will engender, I would formulate the new “general rule” as holding that claims sounding in the ineffectiveness of trial counsel, which were not properly raised and preserved in the trial court, are unavailable for review upon direct appeal and must, instead, be pursued under the PCRA. On the question of potential exceptions to this general rule, although I recognize the majority’s concern, I believe that it is sufficient to state the general rule for now, and let experience with the rule be our guide. Accordingly, I would await a case where such an argument is actually forwarded and reserve comment and judgment until that time, rather than anticipating that for which we have no prospect of adequately accounting.
I also respectfully dissent from the majority’s holding that the new rule applies retroactively to this case as well as to all other cases pending on direct appeal where “the issue of ineffectiveness was properly raised and preserved.” Majority op. at 738. The majority appears to misapprehend the scope of the retroactivity doctrine. Under our settled precedent, a new judicial rule cannot have the global retroactive effect the majority accords its new rule here—ie., it cannot apply retroactively to a case where no party has even raised a challenge to the Hubbard doctrine. When a new rule is deemed to apply retroactively, it still applies only to matters where the very question at issue—in this case, the continuing propriety of the Hubbard rule and the substitution of a new rule—was properly raised and preserved at all stages of the adjudication *78 up to and including the direct appeal. See, e.g., Commonwealth v. Tilley, 566 Pa. 312 , 780 A.2d 649, 652 (2001); Commonwealth v. Cabeza, 503 Pa. 228 , 469 A.2d 146, 148 (1983). Here, neither of the parties challenged the propriety of the Hubbard procedure—even after this Court specifically invited them to do so. The majority nevertheless states that its new rule will apply both here—where no one asks for it— and to cases on direct appeal “where the issue of ineffectiveness” was properly raised and preserved—even if no party there complained about the deleterious effects of Hubbard . The new rule, whose retroactive effect is in question, is not the broad, generic “issue of ineffectiveness” as the majority misapprehends, but the propriety of the Hubbard rule’s requirements. Accordingly, the new rule substituted for Hubbard properly should only apply retroactively to a case where one of the parties advocated that change in the Hubbard doctrine. This is not such a case, nor, I suspect, are many, if any, of the pending appeals which will be affected by the majority’s “retroactivity” holding.
Laying aside my differences over the specific contours of the new rule, I would have no difficulty with retroactively applying the new rule in a pending direct criminal appeal where the defendant actually challenged the continuing validity of Hubbard . But that is not what the majority does here. The majority’s global, retroactive application of its new rule to all direct appeals involving claims of trial counsel ineffectiveness—irrespective of whether a party challenged Hubbard , and where the parties, quite to the contrary, briefed the appeals in explicit reliance upon Hubbard—is manifestly unjust.
In justifying its global “retroactivity” holding, the majority reasons as follows:
The purpose of the new rule will be served since defendants will no longer be compelled to raise ineffectiveness claims on an undeveloped record; although the parties may rely on the old rule of law and raise ineffectiveness claims, neither party will be harmed by application of the new rule since claims of ineffectiveness can be raised in a collateral pro *79 ceeding; finally, the administration of justice will be served since the rule announced today provides a clearer and more concise standard for both courts and the parties to follow.
Majority op. at 738-39. I do not agree that criminal defendants will be unharmed by retroactive application of the majority’s new rule to appeals where no question concerning Hubbard was ever raised. The majority does not take into account the fact that appellate counsel may have made a strategic decision to forego raising colorable, preserved claims of trial court error, that were otherwise available on direct appeal, in favor of the ineffectiveness claims made available (and required, until today) under Hubbard . Indeed, appellate counsel in this case may have discarded other colorable claims in preference for the counsel ineffectiveness claims approved by Hubbard . Moreover, there undoubtedly are direct appeals currently pending in the Superior Court, and there may be cases on this Court’s capital appeal docket, where all of the claims raised sound in trial counsel’s ineffectiveness.
I have noted elsewhere that the U.S. Supreme Court has recognized that appellate advocates are empowered to select which of multiple colorable claims to pursue on appeal:
Arguably meritorious claims may be omitted in favor of pursuing claims which, in the exercise of appellate counsel’s objectively reasonable professional judgment, offer a greater prospect of securing relief. Jones v. Barnes, 463 U.S. 745, 750-54 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983). “[Appellate counsel ... need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Robbins, 528 U.S. at 288 , 120 S.Ct. 746 (characterizing Barnes). “This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986), quoting Barnes, 463 U.S. at 751-52 , 103 S.Ct. 3308 . See also Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.1999) (“One element of effective appellate strategy is the exercise *80 of reasonable selectivity in deciding which arguments to raise.”).
Lambert, 797 A.2d at 244 . Today’s abrogation of the Hubbard rule substantially reduces the universe of claims that were available to criminal defendants when they filed the briefs that will be directly affected by today’s decision. In those instances where all of the claims raised sound in counsel’s ineffectiveness, application of the new rule will essentially extinguish the appellant’s constitutional right to a direct appeal entirely. See PA. CONST. Article V, § 9. In short, retroactive application of the majority’s new rule to all pending cases where claims of ineffectiveness are present—irrespective of whether there was any issue involving Hubbard—raises serious concerns under the state and federal due process clauses and under Article V, § 9. The holding frustrates, rather than serves, the ends of justice.
Accordingly, I would hold that any new rule we formulate involving Hubbard have purely prospective effect—unless the defendant actually argued and preserved a claim that Hubbard should be discarded. Such an approach would avoid upsetting the legitimate expectations of criminal appellants and their direct appeal counsel who relied upon Hubbard in evaluating and arguing their appeals. In addition, prospective application would be consistent with this Court’s general practice when new procedural rules of non-constitutional dimension are at issue. E.g., Chalkey v. Roush, 569 Pa. 462 , 805 A.2d 491, 497 (2002); Commonwealth v. Gravely, 486 Pa. 194 , 404 A.2d 1296, 1298 (1979). See also Commonwealth v. Minarik, 493 Pa. 573 , 427 A.2d 623, 626 (1981) (plurality opinion) (“Court-made rules of procedure do not generally apply retroactively: when the circumstance motivating a new rule ‘is not one of constitutional proportions, a rule will be wholly prospective’ ”) (quoting Commonwealth v. Milliken, 450 Pa. 310 , 300 A.2d 78, 81 (1973)).
Finally, I write to note the complications that inevitably will arise in direct capital appeals in the wake of our new rule. This Court routinely sees claims of trial counsel ineffectiveness raised for the first time on capital direct appeals. In *81 some cases, most if not all of the claims sound in the alleged ineffectiveness of trial counsel. In capital direct appeals, however, this Court employs a “relaxed waiver” rule. Today’s decision obviously is on a collision course with the relaxed waiver rule in capital direct appeals. Will the Court entertain those ineffectiveness claims under the relaxed waiver rule? If not, will the Court apply today’s decision retroactively and force defendants in pending direct capital appeals to raise their ineffectiveness claims under the PCRA—even if such are the only claims raised? With respect to relaxed waiver, it also bears noting that many of the concerns that have led the Court to overrule Hubbard today are also present when the Court “relaxes” waiver on capital direct appeals and reviews fictional claims of “trial court error” involving objections that, in fact, were never brought to the trial judge’s attention. In any rational system of jurisprudence, such claims more properly should be entertained only as claims sounding in trial counsel ineffectiveness for failing to object and those claims, too, should await review on collateral attack.
In summary, I join the majority in overruling Hubbard . I believe, however, that the new general rule should be that a criminal defendant must wait until collateral review to raise claims of trial counsel ineffectiveness unless such claims were raised and preserved in the trial court. I would apply this new rule prospectively, unless a criminal defendant on direct appeal actually advocated abrogation of the Hubbard , rule. Since no such challenge has been made here, like Justice Saylor, I would proceed to the merits and reject the claims since appellant has failed to demonstrate that his trial counsel rendered ineffective assistance. As to appellant’s claims of prosecutorial misconduct and trial court error, I agree with the majority that appellant is not entitled to relief. Accordingly, I would affirm the Superior Court’s order.
. I recognize the legitimacy of Mr. Justice Saylor's concern that the parties to this appeal, as well as the Attorney General of Pennsylvania as amicus curiae, have advocated retention of the Hubbard rule. Nevertheless, in light of this Court’s substantial experience with the deficiencies and unintended consequences of the Hubbard rule, I am satisfied that we are obliged to correct it now. Moreover, I note that the fact that the parties to an appeal agree upon a point does not bind a court when, in the court’s judgment, the point agreed upon is simply incorrect. See Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056 , 1058 n. 4 (2001).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748423. Public record. Not legal advice.