Commonwealth v. Cam Ly

Chief Justice CASTILLE,

Concurring.

I join the Majority Opinion, with the exception of certain aspects of its disposition of appellant’s “Mills claim.” 1 I write to elaborate on a number of other points, and to explain my respectful disagreement with aspects of the Mills disposition, in particular Footnotes 37 and 38 of the Majority Opinion.

First, I would supplement the Majority’s analysis of appellant’s invocation of relaxed waiver as follows. Appellant invokes the doctrine with respect to some of the record-based claims of error which he did not challenge on direct appeal. *332 Appellant contends that, “under the relaxed waiver doctrine that was in effect at the time of [appellant’s] direct appeal (and when he filed his PCRA petition), this Court would have been ‘obliged’ to review claims not raised below on their merits.” Appellant’s Brief at 44. 2 Appellant maintains that, “because he was entitled to raise [these claims] in his direct appeal, he is entitled to raise [them] now as if on direct appeal.” Id. (emphasis omitted). Not to afford direct relaxed waiver review now, appellant says, violates the due process rights of those who “relied” upon the doctrine. In the alternative, appellant pursues the waived claims under the derivative rubric of ineffective assistance of counsel.

The obvious initial response to appellant’s argument is that he is not presently on direct appeal to this Court. Whatever appellant may have been “entitled” to demand on that direct appeal has long since passed; to the extent appellant failed to raise claims, including waived claims of trial error invoked under relaxed waiver, he has defaulted the claims here. Defaulted claims from direct review are cognizable only to the extent they are permitted under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, which, as appellant recognizes, in this instance, requires him to prove layered claims of ineffective assistance of counsel.

More fundamentally, however, appellant’s absolutist view of his relaxed waiver “entitlement” misapprehends our former doctrine. The Majority dismisses appellant’s relaxed waiver argument because “[ajppellant fails to acknowledge that even when the relaxed waiver rule applied, it was a discretionary rule that did not mandate this Court’s review of waived issues.” Majority Op. at 311, 980 A.2d at 86; see also id. at *333 319-20 n. 34, 980 A.2d at 91-92 n. 34 (“[E]ven if the relaxed waiver rule applied to these claims, the rule never provided a guarantee that this Court would hear the otherwise waived issue, but only that we had the discretion to hear it.”). The Majority is correct. I would add, however, that the discretionary nature of relaxed waiver review eviscerates appellant’s current claims that he is “entitled” to relaxed waiver review now and that he “relied” upon the doctrine in defaulting his claims at trial and on direct appeal. Appellant could not have justifiably “relied” upon the doctrine with respect to waived claims heretofore. See Commonwealth v. Duffey, 585 Pa. 493 , 889 A.2d 56, 64 (2005) (“[TJhis [Cjourt’s relaxed waiver doctrine was discretionary, and thus, there was no guarantee that we would have analyzed [issues] under the relaxed waiver doctrine.... Accordingly, any reliance on this [C]ourt’s relaxed waiver doctrine is unavailing.”). Furthermore, it defies logic that a defense counsel would deliberately fail to raise a claim on direct appeal, thereby guilefully manipulating the appellate process, in “reliance” on the prospect of delayed, collateral review premised upon a discretionary doctrine. And, most importantly, there has been no proffer or proof that appellant in fact “relied” upon the doctrine in defaulting claims on direct appeal; indeed, it is highly unlikely that any defense counsel could with any candor forward such a claim.

Notably, in Commonwealth v. Freeman, 573 Pa. 532 , 827 A.2d 385 (2003), this Court addressed the expectations that fairly could be deemed affected by the abrogation of direct appeal relaxed waiver. We specifically stated that, “[t]his new general rule will be applied prospectively, beginning with those capital direct appeals in which the appellant’s brief has not yet been filed in this Court, and is not due for thirty days or more after today’s decision. It will then apply to all future capital appeals.” Id. at 403. We reasoned as follows:

Prospective application of our new approach will avoid upsetting the expectations of capital appellants and their direct appeal counsel who have already briefed, or are in the process of briefing, their appeals in reliance upon the pros *334 pect that this Court, in its discretion, might reach the merits of some of their otherwise waived claims of trial error.

Id. Thus, Freeman’s concern for parties’ “reliance” on relaxed waiver was limited to those who had actually “relied” upon the doctrine when briefing claims to this Court. Even in Freeman , however, we examined the doctrine, as invoked, claim by claim, declining to reach those claims that were not appropriately subject to review. See, e.g., id. at 406 (declining to reach waived claim that trial court erred in its response to jury question; noting that “where the issue was joined below and appellant agreed to its resolution, we will not review the claim,” even under relaxed waiver). The Freeman Court did not purport to recognize the type of hindsight “reliance” interest alleged by appellant here.

Next, I write to supplement the Majority’s discussion of four claims involving alleged ineffective assistance of counsel: Claim V (jury instructions concerning accomplice liability); Claim VI (lack of mitigation investigation); Claim VII (lack of notice of aggravating circumstances); and Claim IX (jury instructions regarding mitigating circumstances). Taking Claim V first, the Majority correctly dismisses appellant’s underlying challenge to the trial court’s accomplice liability instruction, noting that this Court upheld “nearly identical instructions” in Commonwealth v. Cox, 581 Pa. 107 , 863 A.2d 536, 550 (2004). Majority Op. at 315-16, 980 A.2d at 89. I would add that this Court more recently upheld similar instructions in Commonwealth v. Daniels, 600 Pa. 1 , 963 A.2d 409, 430-31 (2009), where we observed, in pertinent part, as follows:

As [Commonwealth v. Speight, 578 Pa. 520 , 854 A.2d 450 (2004) ] makes clear, when reviewing Huffman[ 3 ]-type challenges, courts must follow the well-settled requirement that the challenged jury charge is to be examined in its entirety. Such an examination includes reviewing the charge to determine whether the jury was adequately apprised of the elements of first-degree murder and the related concept of specific intent to kill.

*335 Thus, the Majority correctly rejects appellant’s invitation to read excerpts of the trial court’s accomplice liability instruction out of their full context.

Turning to Claim VI respecting mitigation evidence, appellant, as the Majority notes, expressly declined to layer this claim in his principal brief, but instead pursued it as a standalone claim of trial counsel ineffectiveness. Appellant explains his failure as follows:

Here, the claim is purely that of trial counsel ineffectiveness with no need to “layer” a claim of ineffectiveness of direct appeal counsel. The failure to conduct a proper mitigation investigation is not a record-based claim and cannot be pursued by direct appeal [counsel], who is without funds and resources to conduct the necessary investigation.

Appellant’s Brief at 52 n.27. The Majority properly deems the claim waived; I would add the following to that analysis.

Appellant’s view that direct appeal counsel’s duties were limited in cases, like this one, which were litigated before Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002) was decided, is erroneous. The Grant Court dispensed with the requirement, embodied in Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977), that ineffectiveness claims always be raised at the defendant’s first opportunity (ie., as soon as he acquires new counsel) “regardless of the myriad of impracticalities associated with such an unbending pronouncement.” Grant, 813 A.2d at 733 . One of the impracticalities of the Hubbard rule — and one of the principal reasons Grant abandoned it in favor of a general rule deferring ineffectiveness claims until collateral review — derives from the fact that “ineffectiveness claims, by their very nature, often involve claims that are not apparent on the record.” Id. at 737. Thus, we noted that, under Hubbard , appellate counsel was obliged to “not only scour the existing record for any issues,” but also had the

additional 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 pursued before or during trial and at sentencing. *336 Importantly, appellate counsel [had to] perform this Herculean task in the limited amount of time that is available for filing an appeal from the judgment of sentence — 30 days.

Id.; see also Commonwealth v. Moore, 580 Pa. 279 , 860 A.2d 88, 98 (2004) (noting that because direct appeal preceded Grant, appellate counsel was obliged to argue that trial counsel was ineffective for failing to raise sufficient mitigation evidence “even though there was no record of what mitigating evidence was available to trial counsel”); Commonwealth v. Ford, 570 Pa. 378 , 809 A.2d 325 , 344 n. 5 (2002) (Castille, J., dissenting) (“The fact that a claim appears to have arguable merit in hindsight ... says nothing about the objective reasonableness of appellate counsel’s performance on appeal— which requires an assessment of the case from appellate counsel’s perspective. This is especially so in a case ... where the claim is a non-record one.”); cf. Commonwealth v. Porter, 556 Pa. 301 , 728 A.2d 890, 895 (1999) (declining to require that PCRA counsel “launch into an extra-record investigation of every claim raised by a PCRA petitioner on collateral attack” before determining that claims lack merit for purposes of filing “no merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491 , 544 A.2d 927 (1988)). While Grant recognized and responded to the difficulties inherent in the obligations of appeal counsel under Hubbard , we did not suggest there, or in any other case, that direct appeal counsel “could not” pursue non-record claims, or could not be faulted for failing to pursue obvious and meritorious non-record claims.

Indeed, on multiple occasions, this Court has found an appellate lawyer ineffective for failing to raise or prove that trial counsel was ineffective in his mitigation investigation for the penalty phase of a capital trial. See, e.g., Commonwealth v. Williams, 597 Pa. 109 , 950 A.2d 294, 305 (2008) (finding that appellate counsel failed to “provid[e] essential support for the claim of trial counsel ineffectiveness in the failure to investigate and present available mitigation” where trial counsel had failed to request defendant’s complete medical records or arrange for mental health examination despite trial counsel’s *337 constructive notice of potential relevance of mental-health issues); Commonwealth v. Gorby, 589 Pa. 364 , 909 A.2d 775, 792 (2006) (finding appellate counsel ineffective for failing to raise ineffectiveness of trial counsel during penalty phase where trial counsel failed to obtain medical, educational, or social-history records, or consult mental-health professional); Ford, 809 A.2d at 331 (Opinion Announcing the Judgment of the Court) 4 (finding appellate counsel ineffective for failing to raise trial counsel’s ineffectiveness for “present[ing] virtually no evidence of mitigating circumstances”); see also Commonwealth v. (Damon) Jones, 590 Pa.202, 912 A.2d 268, 294-95, 291 (2006) (remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel for failure to raise ineffectiveness of trial counsel during penalty phase where trial counsel “called no witnesses and presented no evidence at Jones’ penalty hearing”); Commonwealth v. Gibson, 596 Pa. 1 , 940 A.2d 323 (2005) (per curiam) (remanding for PCRA evidentiary hearing on claim of ineffective assistance of appellate counsel based on ineffectiveness of trial counsel in investigation of mitigation evidence).

Finally, although the issue arises most often with respect to layered ineffectiveness claims based on the investigation (or lack thereof) of potential mitigation evidence during the penalty phase of a capital trial, we have previously considered layered ineffectiveness claims involving other types of extra-record evidence. See, e.g., Commonwealth v. Dennis, 597 Pa. 159 , 950 A.2d 945, 964 (2008) (remanding for consideration of, inter alia, claim that appellate counsel was ineffective for failing to “discover and assert” trial counsel’s ineffectiveness for failing to interview potential alibi witness). In light of this ample precedent, appellant’s theory that he need not prove appellate counsel ineffective in instances requiring layered claims fails. The fact that a claim is partially or wholly extra- *338 record may well be relevant to an assessment of appellate counsel’s performance and to the prospect for relief, but it does not alter the fact that such claims were available before Grant , and counsel could be held to answer for unreasonable and prejudicial defaults under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Turning to Claim VII, appellant cites Lankford v. Idaho, 500 U.S. 110 , 111 S.Ct. 1723 , 114 L.Ed.2d 173 (1991), in which the U.S. Supreme Court held that due process requires that the defense be provided pre-hearing notice of the prosecution’s intent to seek the death penalty. Appellant claims that direct appeal counsel was ineffective for failing to raise a claim based on the prosecutor’s failure to notify the defense, before appellant’s penalty hearing, of the aggravating circumstances it intended to prove to the jury. Lankford was not decided until after this Court denied relief on appellant’s direct appeal, but while appellant’s reargument petition was pending. Appellant argues that direct appeal counsel was ineffective both for failing to raise the claim before Lankford was decided and, once it was decided, for failing to pursue the claim by filing a supplemental reargument petition. See Appellant’s Brief at 65 & n.35.

The Majority denies relief on appellant’s Lankford claim on the grounds of lack of prejudice, concluding that “no amount of notice of the aggravators to be sought would have allowed Appellant’s counsel the opportunity to mount a defense to them.” Majority Op. at 321, 980 A.2d at 93. The Majority is certainly correct on this point, but the claim fails for more fundamental reasons. First, appellate counsel cannot be faulted for failing to raise a Lankford claim before Lankford was decided. Moreover, the notion that counsel can be faulted for failing to forward the new case as a supplemental basis for reargument is mistaken. Reargument does not exist to allow a party to raise new claims, whether via the relaxed waiver doctrine or some other theory, but, rather, to specify error concerning the claims that were raised and rejected. Appellant cites no cases where, under relaxed waiver or any other theory, this Court entertained new claims premised upon new *339 and non-retroactive U.S. Supreme Court decisions that were not anticipated by the appellant. Notably, the High Court in Lankford did not hold that its decision applied globally, i.e., to all defendants irrespective of whether they raised and preserved the claim. This is not surprising given that neither of the two narrow exceptions set forth in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (plurality) to the general rule of non-retroactivity of new rules 5 would apply here, as Lankford neither: (1) forbade a certain category of punishment for a class of defendants because of their status or offense; 6 nor (2) announced a “watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of a criminal proceeding.” Teague, 489 U.S. at 311 , 109 S.Ct. 1060 . 7

Moreover, while the Majority does not address the merits of appellant’s Lankford claim (as it need not for the reasons just stated), the Commonwealth is correct that Lankford is readily distinguishable. As the Commonwealth notes, this Court addressed a Lankford claim in Commonwealth v. Pirela, 556 Pa. 32 , 726 A.2d 1026 , 1031-32 n. 9 (1999). In Pirela , the appellant raised an ineffectiveness claim based on his allegation that his waiver of his right to a jury trial was invalid because the trial court had told the appellant prior to trial that he would not be subject to the death penalty. In denying relief on the appellant’s ineffectiveness claim on collateral review, this Court noted that his allegation had been rejected on direct *340 appeal. We also rejected the appellant’s reliance on Lank-ford, observing that the trial court had notified the appellant in an extensive waiver colloquy prior to the sentencing hearing that the court was considering the death sentence. We distinguished Lankford , noting that, in that case, it was undisputed that “the prosecutor declared that he was not seeking the death penalty and explained at the sentencing hearing why he was not seeking the death penalty; defense counsel did not argue against the death sentence; and, the court gave no indication at the sentencing hearing that the court was considering a death sentence.” Id. Noting that “this was not a case where the prosecutor or the court represented that a certain penalty would not be imposed and appellant relied to his detriment,” we denied relief in Pirela. Id.

Appellant now asserts that, “[i]n Lankford v. Ohio, the Court ruled that Due Process requires appropriate pre-hearing notice of the aggravating factor(s) the prosecution will rely on in seeking a sentence of death.” Appellant’s Brief at 64 (citation omitted). But appellant misstates the holding of Lankford . As we noted in Pirela , the issue in Lankford was “whether a defendant had adequate notice that the death sentence may be imposed.” Pirela, 726 A.2d at 1031 n. 9; see also Lankford, 500 U.S. at 119 , 111 S.Ct. 1723 (framing “narrow legal issue” as “whether, at the time of petitioner’s sentencing hearing, he and his counsel had adequate notice that the judge might sentence him to death”). While the Lankford Court did suggest that, “if the State ... indicated an intention to rely on only three aggravating circumstances, the defense could reasonably have assumed that the evidence to be adduced would relate only to those three aggravating circumstances,” id. at 120 , 111 S.Ct. 1723 the facts before the Court did not require it to decide whether due process requires pre-hearing notice of which aggravating circumstances the prosecution intends to prove. And the Court was careful, in setting forth its holding, to use language tailored to the facts before it. See, e.g., id. at 127, 111 S.Ct. 1723 (“Petitioner’s lack of adequate notice that the judge was contemplating the imposition of the death sentence created *341 an impermissible risk that the adversary process may have malfunctioned in this case.”) (emphasis added). Therefore, because appellant does not allege that he was not notified before his penalty hearing that the Commonwealth intended to seek the death penalty, appellant’s underlying Lankford claim, even if reviewable, is patently meritless. 8

Finally, respecting Claim IX, which is premised upon Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), the Majority notes that the U.S. Supreme Court did not decide Mills until after appellant’s trial, but instead during the pendency of his direct appeal. Given these circumstances, the Majority rightly rejects appellant’s claim that trial counsel was ineffective for failing to anticipate Mills . The Majority cites Duffey, supra, as support for rejecting appellant’s Mills claim, but I would add that this Court has repeatedly denied Mills relief under such circumstances. See, e.g., Commonwealth v. Steele, 599 Pa. 341 , 961 A.2d 786, 831 (2008); Commonwealth v. Cox, 581 Pa. 107 , 863 A.2d 536, 554 (2004); see *342 also id. at 557 (Castille, J., joined by Eakin, J., concurring) (“[Sjince Mills does not apply retroactively to those who failed to preserve a Mills claim for direct review, [see Beard v. Banks, 542 U.S. 406 , 124 S.Ct. 2504 , 159 L.Ed.2d 494 (2004),] appellant was not entitled to its benefit on appeal once he had failed to lodge an objection below. In such a circumstance, it would be an arbitrary windfall to allow the doctrine of relaxed waiver-a doctrine since abrogated by this Court ... -and ineffective assistance of counsel to permit appellant to upset a final verdict which was fundamentally fair when rendered.”).

I part ways with the Majority, however, when it comes to Footnote 37 and Footnote 38. In Footnote 37, the Majority states that it will not address appellant’s claim that direct appeal counsel was ineffective for failing to pursue a Mills claim because appellant’s underlying claim of ineffectiveness fails. Appellant’s Mills argument is admittedly brief, disjointed and careless. Thus, for example, he declares that Mills was “clearly established law” at the time of appellant’s trial, Appellant’s Brief at 68 (emphasis by appellant), only to admit on the very next page, as he must, that Mills was not decided until several months after his trial. In addition, there is an aspect of the claim (again, it is not clear as appellant blends several undeveloped theories in a single paragraph) that plainly alleges layered ineffectiveness, and the Majority’s disposition handles that aspect of the claim. However, it also appears that, inarticulate as the claim is, appellant intends a stand-alone, albeit near-boilerplate argument that appellate counsel independently was ineffective for failing to press Mills because the decision was rendered before his direct appeal was briefed and decided, and, he thinks, all changes in the law effected by decisions of the High Court “will be given effect while a case is on direct review.’ ” Id. at 69 (citation omitted).

This would-be stand-alone claim of appellate counsel ineffectiveness is not responsibly forwarded: indeed, appellant inexplicably fails even to cite or discuss the U.S. Supreme Court’s decision in Beard v. Banks, which held that Mills was a new rule which has no retroactive effect. The answer to appellant’s claim that appellate counsel was ineffective for failing to *343 seek relief premised upon Mills is in decisional law from this Court that appellant neither cites nor challenges, which notes that new, otherwise non-retroactive constitutional rules are available to succeeding defendants still on direct appeal only if the defendant has argued and preserved the point below, which appellant did not do here. See Commonwealth v. Hughes, 581 Pa. 274 , 865 A.2d 761, 809 (2004); Cox, 863 A.2d at 554 ; see also id. at 555-57 (Castille, J., joined by Eakin, J., concurring); accord Commonwealth v. (James) Jones, 597 Pa. 286 , 951 A.2d 294, 302-04 (2008); Commonwealth v. Sneed, 587 Pa. 318 , 899 A.2d 1067, 1075 (2006).

After rejecting appellant’s Mills claim, the Majority unnecessarily adds the obiter dictum which comprises Footnote 38, and which purports to “acknowledge [ ] that Appellant may find relief in the federal courts on this issue,” citing the decisions of the U.S. Court of Appeals for the Third Circuit in Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir.2008) (“Abu-Jamal II ”) and Kindler v. Horn, 542 F.3d 70 (3d Cir.2008). Majority Op. at 328 n.38, 980 A.2d at 96 n.38. There is no basis for this dictum. Preliminarily, I would note that both of these questionable Third Circuit precedents may not be long for the appellate world. Abu-Jamal’s petition for certiorari has been denied, see Abu-Jamal v. Beard, — U.S. -, 129 S.Ct. 1910 , 173 L.Ed.2d 1062 (2009), but the Commonwealth’s certiorari petition, confined to the Mills question, is still pending. See Beard v. Abu-Jamal, petition for cert. filed, No. 08-652 (Nov. 14, 2008). Notably, the High Court also has granted review in a Sixth Circuit case posing a similar question arising from federal habeas courts extending the rule in Mills beyond its terms and then retroactively faulting state courts for failing to follow the lower federal court’s extensions. Smith v. Spisak, — U.S. -, 129 S.Ct. 1319 , 173 L.Ed.2d 583 (2009). Presumably, the Court is holding Abu-Jamal pending Spisak.

Meanwhile, the Court has already granted the Commonwealth’s petition for certiorari in Kindler, see Beard v. Kindler, - U.S. -, 129 S.Ct. 2381 , 173 L.Ed.2d 1292 (2009). The question there involves the Third Circuit ignoring a Pennsylvania procedural default rule-the fugitive forfeiture *344 rule-so that it could retroactively impose its idiosyncratic view of Mills to upset a death verdict in a Pennsylvania case tried before Mills was decided.

I am not sure what point is served by Footnote 38, unless it is to convey the Majority’s preference for the Third Circuit’s approach, which seems to reflect a determination to grant Mills relief in pre-Mills cases, notwithstanding the deference standard commanded by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), see 28 U.S.C. § 2254 (d); the absurdity of finding error in a case premised upon the retroactive application of a non-retroactive new rule of law; and the fact that the Third Circuit’s view of what Mills commands on habeas review is not exactly a paragon of clear and consistent application. 9 It may well be that the Third Circuit will find a way to retroactively impose its current take on Mills in this case, just as it has in Abu-Jamal, Kindler, Banks, and other cases. But, contrary to the Majority’s assumption, this case is not like Abu-Jamal. In order to reach the waived Mills claim, the Third Circuit in Abu-Jamal construed this Court’s decision on PCRA review as if we were entertaining a preserved Mills claim on direct review-notwithstanding this Court’s explanation at the outset of our PCRA opinion that we were entertaining the appellant’s waived claims only under the guise of his overarching argument of “layered ineffectiveness.” Commonwealth v. Abu-Jamal, 553 Pa. 485 , 720 A.2d 79 , 88 & n. 9 (1998) (“Abur-Jamal I ”).

*345 Even leaving aside the question of whether the Third Circuit’s grounds for giving retroactive effect to a non-retroactive decision are plausible in Abu-Jamal II, in this case we have made clear that appellant’s Mills claim is defaulted, and the only cognizable .collateral claim he has is a derivative claim concerning trial and direct appeal counsel. Thus, the Third Circuit presumably would have to invoke a reason other than the one devised in Abu-Jamal if it is determined to grant retroactive Mills relief here.

Justice EAKIN joins this opinion.

. Mills v. Maryland, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988).

. This Court abrogated relaxed waiver in the PCRA context in Commonwealth v. Albrecht, 554 Pa. 31 , 720 A.2d 693, 700 (1998), and has since reaffirmed that such abrogation applies retroactively. See Commonwealth v. Wilson, 580 Pa. 439 , 861 A.2d 919 , 928 n. 8 (2004); Commonwealth v. Basemore, 560 Pa. 258 , 744 A.2d 717, 725-26 (2000); Commonwealth v. Pursell, 555 Pa. 233 , 724 A.2d 293, 303 (1999); Commonwealth v. Steele, 599 Pa. 341 , 961 A.2d 786, 834-35 (2008) (Castille, C.J., concurring). This Court later abrogated the relaxed waiver doctrine in the direct capital appeal context in Commonwealth v. Freeman, 573 Pa. 532 , 827 A.2d 385, 403 (2003).

. Commonwealth v. Huffman, 536 Pa. 196 , 638 A.2d 961 (1994).

. Although there was no Majority Opinion in Ford , former Justice Newman authored a concurring opinion, which Justice Saylor joined, in which she specifically expressed her agreement “that appellate counsel acted ineffectively by neglecting to raise trial counsel's ineffectiveness for failing to investigate and present evidence during the penalty phase of Appellant’s history of abuse and mental illness.” Ford, 809 A.2d at 336 (Newman, J., joined by Saylor, J., concurring).

. Although Teague's retroactivity analysis did not gamer five votes, a majority of the High Court soon thereafter reaffirmed the Teague plurality's rule and its two exceptions in Penry v. Lynaugh, 492 U.S. 302, 313 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989).

. Compare with Roper v. Simmons, 543 U.S. 551 , 125 S.Ct. 1183 , 161 L.Ed.2d 1 (2005) (holding that juveniles are constitutionally ineligible for death penalty); Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (holding that mentally retarded capital murderers are constitutionally ineligible for death penalty); see also Commonwealth v. Miller, 585 Pa. 144 , 888 A.2d 624 , 629 n. 5 (2005) (noting that Atkins would qualify for retroactive application under first Teague exception).

. See Saffle v. Parks, 494 U.S. 484, 495 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990) (citing Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (holding that a defendant has right to be represented by counsel in all criminal trials for serious offenses) to illustrate "the type of rule coming within” second Teague exception).

. In his Reply Brief, appellant asserts that “the Lankford principle has been applied to the failure to provide timely notice of aggravating factors.” Reply Brief at 23. In support of this assertion, appellant quotes Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998), in which the Tenth Circuit, citing Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977), stated that "a defendant must have a meaningful opportunity to deny or explain the State’s evidence used to procure a death sentence.” Even if Duvall were binding on this Court, it would be of no help to appellant. First, even assuming Gardner otherwise supports the proposition that appellant quotes from Duvall, Gardner is an Opinion Announcing the Judgment of the Court that was joined by only two Justices. More importantly, the claim in Duvall was that the defendant was not given adequate notice “of the State's evidence in support of” a certain aggravating circumstance that the State had notified the appellant it intended to prove, see Duvall, 139 F.3d at 797 (noting that "[t]he Bill of Particulars In Rem Punishment advised Mr. Duvall that the State was seeking the death penalty because the murder was especially heinous, atrocious or cruel”). The Duvall court first determined that the claim (which is obviously distinct from appellant’s claim before this Court) was procedurally defaulted and then concluded that, in any event, the claim lacked merit, “find[ing] nothing in the record to suggest that the state denied Mr. Duvall due process in this case.” Id. Therefore, appellant's reliance on Duvall is unavailing, as is his unexplained companion citation to Szuchon v. Lehman, 273 F.3d 299 (3d Cir.2001), see id. at 315 (denying relief on claim that defendant “was provided inadequate notice that he faced the death penalty”).

. Compare Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-08 (3d Cir.1991), cert. denied, 502 U.S. 902 , 112 S.Ct. 280 , 116 L.Ed.2d 232 (1991) (applying non-deferential pre-AEDPA standard; upholding standard instructions in Pennsylvania capital murder trial against Mills challenge) with Frey v. Fulcomer, 132 F.3d 916, 920-24 (3d Cir.1997), cert. denied, 524 U.S. 911 , 118 S.Ct. 2076 , 141 L.Ed.2d 151 (1998) (applying non-deferential pre-AEDPA standard; disapproving of similar charge because trial court's use of words "unanimous” and "mitigating” were closer in space than in Zettlemoyer, but noting that Commonwealth's counter-argument was "plausible”); and Banks v. Horn, 271 F.3d 527, 545-49 (3d Cir.2002), rev'd sub nom. Beard v. Banks, 542 U.S. 406 , 124 S.Ct. 2504 , 159 L.Ed.2d 494 (2004) (disapproving of similar charge; though purporting to apply AEDPA’s deferential standard, concluding that Mills relief was warranted because "same concerns" animating non-deferential Frey decision rendered state court determination objectively unreasonable).