AND NOW, this 10th day of January, 2013, upon consideration of the Commonwealth's Motion to Remove Federal Counsel and Appellant's Answer thereto, the matter is REMANDED to the PCRA court to determine whether current counsel, the Federal Community Defender Organization ("FCDO") may represent appellant in this state capital PCRA proceeding, or whether other appropriate post-conviction counsel should be appointed. In this regard, the PCRA court must first determine whether the FCDO used any federal grant monies to support its activities in state court in this case. If the FCDO cannot demonstrate that its actions here were all privately financed, and convincingly attest that this will remain the case going forward, it is to be removed. If the PCRA court determines that the actions were privately financed, it should then determine "after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings." See Pa.R.Crim.P. 904(H)(1)(c). We note that the order of appointment produced by the FCDO, issued by the U.S. District Court for the Eastern District of Pennsylvania at No. 2:11-cv-02063-MAM, and dated April 15, 2011, appointed the FCDO to represent appellant only for purposes of litigating his civil federal habeas corpus action, and the authority of the FCDO to participate in this state capital proceeding is not clear. See 18 U.S.C. § 3599(a)(2) (authorizing appointment of counsel to indigent state defendants actively pursuing federal habeas corpus relief from death sentence).
Madame Justice Todd files a Dissenting Statement joined by Mr. Justice Baer.
By per curiam order, the Court today is presented with two related legal questions: (1) Is counsel's participation in these state capital proceedings, with federal funds, violative of federal law or otherwise improper? and (2) If so, should counsel be removed from representation? By directing the PCRA court to remove counsel if counsel cannot demonstrate that its actions were privately financed, the Court also answers both questions in the affirmative.
Yet, the Court summarily decides these novel questions without discussion of the parties' arguments,*fn1 without citation to legal authority, without benefit of any lower court analysis, and, indeed, without acknowledgement that there are open legal questions.
Moreover, the Court fails to address Appellant's contention that the Commonwealth has waived its objections. Instead, this Court directs the removal of counsel without any stated analysis of the issues involved, issues which require the construction of federal statutes and other authority, consideration of the relationship between federal and state court systems in capital litigation, and consideration of counsel's role therein. This approach, in my view, is imprudent and, indeed, would appear to contravene the admonitions expressed in our own Internal Operating Procedures regarding the use of per curiam orders. See IOP § 3.B.5 (per curiam orders should not be used, inter alia, to establish a new rule of law).
Further, the Court offers no explanation for why it does not simply remand this matter to the PCRA court for initial review of these legal questions, as it has uniformly done in the past in similar situations. See Commonwealth v. Montalvo, 639 CAP (Pa. filed Apr. 5, 2012) (order) (remanding to PCRA court to determine lawfulness of counsel's representation); Commonwealth v. Powell, 44 A.3d 1144 (Pa. 2012) (order) (same); Commonwealth v. Tharp, 637 CAP (Pa. filed July 3, 2012) (order) (same); Commonwealth v. Sepulveda, 55 A.3d 1108 (Pa. 2012) (plurality) (same).
Accordingly, I respectfully dissent.
Mr. Justice Baer joins this Dissenting ...