Commonwealth v. Uderra

Justice CASTILLE,

concurring.

Although I concur in the result, I write separately to address a number of concerns I have with the Majority Opinion.

First, I write concerning the question of the Third Circuit’s recent criticism of this Court’s approach to the procedural requirements for properly presenting a preserved claim of equal protection error under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). See Holloway v. Horn, 355 F.3d 707 (3d Cir.2004). Mr. Justice Saylor notes that he agrees with that criticism and would reconsider this Court’s Batson precedent on this collateral attack, while acknowledging that a majority of this Court does not deem that issue to be properly before us. See Majority op. at 86 n. 12. I do not dispute that the Third Circuit panel’s unwillingness to respect this Court’s decisions counsels in favor of our reexamining that precedent in an appropriate case. Respectfully, however, I do not believe that this is an appropriate case for *533 such a reexamination. The U.S. Supreme Court has not outlawed a legitimate role for the States in adopting reasonable procedural restrictions upon the litigation of federal constitutional claims. In my view, in the absence of specific adversarial presentations on the question of whether this Court’s existing procedural decisions amount to an unconstitutional burden on the substantive litigation of preserved Batson claims under U .S. Supreme Court authority—the only authority which binds this Court—it is better not to pass upon the question of the propriety of this Court’s precedent on this collateral attack, which involves a defaulted Batson claim raised only through the guise of ineffective assistance of counsel.

Second, I do not agree with the Majority’s discussion of appellant’s claim that his previous counsel were ineffective for failing to allege that he was incompetent to stand trial. Notwithstanding the Majority’s initial, global disclaimer that it analyzes appellant’s underlying defaulted claims only to determine the viability of his layered, “derivative” claims of counsel ineffectiveness, Majority op. at 79, the Majority’s analysis of the competency claim does not make clear whether it is being deemed reviewable as a never-waivable due process claim, or as a derivative claim of counsel ineffectiveness, or both. In any event, I do not agree with the Majority Opinion to the extent that it may be read to suggest that the trial court has a sua sponte obligation to conduct a competency hearing for a counseled defendant, where the defendant’s lawyer makes no such request. I also do not agree with appellant’s claim— which the Majority states but does not directly address—that competency claims cannot be waived for purposes of PCRA review. I have addressed these points at length in my Concurring Opinion in Commonwealth v. Santiago, 855 A.2d 682 (Pa.2004) (Castille, J. concurring). For the reasons set forth in that Concurrence, I would make plain that appellant’s claim is reviewable only as a layered claim of counsel ineffectiveness; and that claim is meritless because appellant has utterly failed in his burden to allege any factual predicate upon which his previous lawyers could have based a claim of incompetence.

*534 Third, I respectfully disagree with the Majority’s statement that it “disapproves” of a part of the prosecutor’s closing argument at the penalty phase. Majority op. at 95. Since the remark was not objected to at trial, the question is not whether this Court would “approve” or “disapprove” of the remark if we had been presiding at trial and an objection had been raised. Indeed, if this was the direct appeal and a contemporaneous objection had been raised, our task would not be to approve or disapprove the remark. Instead, it would be to review the trial court’s discretionary response to the objection if one had been asserted. The only issue , upon collateral review is whether appellant’s direct appeal counsel was constitutionally ineffective in failing to claim that appellant’s trial counsel was ineffective for failing to object to the remark. In my view, given the role of closing argument, the existence of cautionary charges, the overall tenor of the remarks, and the controlling presumption that trial counsel was competent, the notion that appellate counsel was required to pursue this claim borders on the frivolous. I do not join in the Majority’s hindsight sanction of the trial prosecutor.

Finally, I realize that it is easier to dispose of claims of counsel ineffectiveness—particularly in cases where counsel choose to burden this Court with prolix briefs raising dozens of claims and sub-claims of error, few of which have any real substance—as if the pleading of ineffectiveness is a mere conduit by which we proceed to review the defaulted, underlying claim as if it had been preserved. There is a danger in this approach, which this case has revealed. In my view, it is inappropriate to employ collateral review to opine upon, and indeed purport to modify, the underlying law that would be at issue if these were preserved claims of trial court error. Collateral review is not the place for such a practice. The focus must still be upon counsel’s performance, and I would not lose sight of that fact.