Commonwealth v. Jones

Justice SAYLOR

concurring.

I concur in the result and write to the following points.

*248 As threshold matters, I do not read the decision in Commonwealth v. Collins, 585 Pa. 45 , 888 A.2d 564 (2005), as requiring a demonstration by a post-conviction petitioner that “this Court erred in denying relief with respect to any of the underlying claims upon which the issues are premised” to avoid a determination that a claim is previously litigated. Majority Opinion at 217, 912 A.2d at 277. Indeed, Collins determined that claims of ineffective assistance of counsel raised on post-conviction review by their very nature are to be treated as distinct from underlying claims raised on direct appeal. See Collins, 585 Pa. at 61 , 888 A.2d at 573 . There is no indication in Collins that, with respect to such distinct claims, post-conviction petitioners are required to attack the Court’s reasoning and/or holding on direct appeal. For example, it seems to me that a claim that appellate counsel’s performance in presenting an issue impeded or foreclosed a favorable disposition of a meritorious claim would be wholly cognizable upon post-conviction review under Collins as it is written, but would not be under the new interpretation of that decision that the majority advances here. 1 Further, concerning the majority’s discussion of waiver, I cross-reference my comments from Commonwealth v. Marinelli, 589 Pa. 682, 713-16 , 910 A.2d 672, 690-91 (2006) (Saylor, J., concurring), as they are equally applicable here.

Regarding Issue 1 (jury instruction on first-degree murder), I believe that the trial court’s decision to issue the standard instruction that “an intent to kill may be inferred by reason of the killer’s use of a deadly weapon to a vital part of the body of his victim” was proper for different reasons than those identified by the majority. In the first instance, I recognize Appellant’s argument that, given the Commonwealth’s reliance *249 on a theory of transferred intent — i.e., that a specific intention to kill others can be transferred to the killing of unintended victims — the usual instruction concerning circumstantial evidence of specific intent arising from the use of a deadly weapon on vital parts of the victims’ bodies lacked any rational underpinning in the case. However, although the Commonwealth certainly advanced transferred intent as a theory to explain the killings, the prosecutor also argued, in the alternative, that the killings of the victims was the intended result. See N.T., at 5852 (reflecting the district attorney’s argument that “it is our contention that the [killings were] willful, deliberate, and premeditated, in that there was a time to select the weapon, there was a time chosen to do the deed, and there was an opportunity to decide what portion of the body to use the gun on”); see also id. at 5854 (describing the killings as directed and “efficient” and arguing transferred intent in the alternative). Moreover, the relevant circumstantial-evidence instruction expressly authorized a permissive, but did not require a mandatory, inference. See id. at 6028. Finally, in connection with this instruction, the jurors also were admonished as follows: “Note well that you are not to infer this intent to kill if the facts and circumstances indicate a contrary intent.” Id. When considering that direct and transferred intent theories were presented to the jury in the alternative by the trial court and the prosecutor, it is my position that there is no logical incongruity, and Appellant’s argument may be rejected for that reason.

On the aspect of this claim arising under Commonwealth v. Huffman, 536 Pa. 196 , 638 A.2d 961 (1994), I concur in the result, because 1 am constrained by the prior decision in Commonwealth v. Cox, 581 Pa. 107 , 863 A.2d 536 (2004), where -the Court applied a rationale consistent with the majority reasoning here. See id. at 131-33 , 863 A.2d at 550-51 . As I suggested in Cox , however, it appears there is little left of Huffman under this Court’s jurisprudence, since the Court is now relying on the issuance of a general accomplice liability charge as a method of circumventing Huffman . This, of course, will be true in every case in which a Huffman issue is *250 presented, since the problem identified in Huffman arises only in cases in which such general charges are issued, as there must be some basis upon which the defendant may be convicted on a vicarious liability theory in the first instance. See Cox, 581 Pa. at 149-51 , 863 A.2d at 560-61 (Saylor, J., dissenting) (elaborating on the perspective that the fact of a general accomplice liability charge and/or a general charge to first-degree murder cannot overcome Huffman’s stated rationale). 2 Thus, after Cox , it seems to me that the only surviving vestige of Huffman is that which remains to be litigated in the federal courts under due process theory. See, e.g., Laird v. Horn, 414 F.3d 419, 425-28 (3d Cir.2005).

Regarding Issue 2 (statements of Nassia Ford), I concur in the result solely because, upon review of the declarations and other submissions accompanying the PCRA petitions filed by Appellant, I find that there is no proffer of evidence to support a claim of prejudice relative to the layered ineffectiveness claim. For this reason, I agree that the PCRA court’s decision to dismiss the claim without an evidentiary hearing need not be disturbed. Further, I note only that the Court in Commonwealth v. Pronkoskie, 477 Pa. 132 , 383 A.2d 858 (1978), did expressly caution: “Where young children are involved, however, there is a greater risk that outside influences or imagination may have tempered the perception of an event and thus a court must exercise greater caution in allowing such an issue to reach the jury.” Id. at 139 n. 6, 383 A.2d at 861 n. 6.

. By way of a more specific example, under the majority's approach, a post-conviction petitioner apparently would be barred from raising a claim that his appellate counsel failed to properly raise and preserve an issue that was deemed waived on direct appeal, without mounting an attack on the merits of the appellate court's decision concerning waiver. I am not aware of any other jurisdiction applying such a restrictive approach to ineffectiveness claims, and, indeed, I believe that the approach is inconsistent with the entitlement to effective counsel on direct appeal.

. I recognize that in this particular case, Appellant's argument is crafted around the general conspiracy instruction. See Brief for Appellant at 19 (suggesting the possibility that the jury could have found Appellant guilty of the substantive offense of conspiracy to commit aggravated assault, which does not require a finding of specific intent to kill, and then relied upon this finding to support the first-degree murder conviction under the court's instruction that all members of a conspiracy are criminally responsible for the acts of any co-conspirator done to further the objects of the conspiracy).