Opinion
J-81A&B-2012 No. 612 CAP No. 624 CAP
11-21-2013
COMMONWEALTH OF PENNSYLVANIA, Appellant v. JOSEPH A. ELLIOTT, Appellee COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSEPH ELLIOTT, Appellant
[M.O. – Baer, J.]
Appeal from the Order entered on
5/28/10 in the Court of Common Pleas,
Criminal Division of Philadelphia County
at No. CP-51-CR-0410911-1994
CONCURRING OPINION
MR. JUSTICE SAYLOR
I join the majority opinion, except for its treatment of Issue I. I agree with the majority that this claim (deriving from trial counsel's obviously poor performance in failing to meet with with Appellant about his capital prosecution prior to the eve of trial) is waived. Although I believe this type of challenge would have implicated relaxed waiver, recourse to such doctrine is no longer available for the reasons delineated by the Court majority in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003). Thus, in my view, constraints imposed upon our review preclude the award of state post-conviction relief.
As to Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (2003), the decision is best understood from the frame of reference that it was rendered in the midst of an essential upheaval in this Court's death-penalty jurisprudence. There was a strong and largely-prevailing current on the Court favoring stricter enforcement of waiver principles and a bolstering of the prejudice requirement attending claims of deficient stewardship. The circumstances produced landmark decisions such as Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002) (implementing a general rule favoring deferment of claims of ineffective assistance of counsel to post-conviction review); Freeman, 573 Pa. at 560-61, 827 A.2d at 402 (abolishing the general application of the relaxed waiver doctrine in capital cases); and Commonwealth v. McGill, 574 Pa. 574, 587-90, 832 A.2d 1014, 1022-23 (2003) (tightening the requirements for issue presentation relative to claims of deficient stewardship). Brooks, I believe, should be seen as a vestige of an era in which Justices had greater freedom to look down on a record and recognize prejudice from a defense lawyer's failure to prepare in a capital case, where such prejudice was palpable.
Finally, I remain deeply disturbed by the lack of competent representation in Brooks and by the many other similar and analogous instances we have seen in death-penalty cases before and after Brooks. See generally Commonwealth v. King, ___ Pa. ___, ___, 57 A.3d 607, 633-39 (2012) (Saylor, J., concurring specially) (collecting cases). I also am of the belief that justice would be best served by acknowledging that the prejudice bar should not be so rigidly applied in the face of the accumulating evidence of pervasive deficiencies. See id.