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Commonwealth v. Holmes

Supreme Court of Pennsylvania

October 30, 2013


Submitted, October 26, 2010,

 Resubmitted, August 13, 2013

Appeal from the Order of the Superior Court entered July 15, 2009 at No932 MDA 2008 which Remanded the PCRA Order of Centre County Court of Common Pleas, Criminal Division, entered May 16, 2008, at NoCP-14-CR-0002169-2005. Appeal allowed June 4, 2010 at 586 MAL 2009. Trial Court Judge: Thomas King Kistler, Judge. Intermediate Court Judges: Jack A. Panella, Jacqueline O. Shogan, John T.J. Kelly, Jr., JJ.

For Commonwealth of Pennsylvania, APPELLANT: Kathleen Granahan Kane, Esq., Kelley Lynn Nelson, Esq., Richard A. Sheetz, Esq., PA Office of Attorney General; Christopher Joseph Schmidt, Esq.

For Justin David Holmes, APPELLEE: David Crowley, Esq., Deborah Lux, Esq., Centre County Public Defender's Office.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. CHIEF JUSTICE CASTILLE. Messrs. Justice Saylor, Baer and Stevens join the opinion. Mr. Justice Saylor files a concurring opinion. Mr. Justice Eakin files a concurring opinion in which Mr. Justice McCaffery joins. Mr. Justice Baer files a concurring opinion. Madame Justice Todd files a concurring opinion in which Mr. Justice McCaffery joins.


Page 563


In this appeal, we consider the reviewability of claims of ineffective assistance of counsel on post-verdict motions and direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), and Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), including the question of whether ineffectiveness claims may be considered if accompanied by a waiver of review as of right under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (" PCRA" ). For the reasons that follow, we vacate the Superior Court's order and remand to the trial court for proceedings consistent with this Opinion.

By way of summary, we hold that Grant's general rule of deferral to PCRA review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel; we disapprove of expansions of the exception to that rule recognized in Bomar; and we limit Bomar, a case litigated in the trial court before Grant was decided and at a time when new counsel entering a case upon post-verdict motions was required to raise ineffectiveness claims at the first opportunity, to its pre-Grant facts. We recognize two exceptions, however, both falling within the discretion of the trial judge. First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. See infra Part III(C)(1).

Second, with respect to other cases and claims, including cases such as Bomar and

Page 564

the matter sub judice, where the defendant seeks to litigate multiple or prolix claims of counsel [621 Pa. 599] ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown,[1] and (2) the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.[2] In other words, we adopt a paradigm whereby unitary review may be available in such cases only to the extent that it advances (and exhausts) PCRA review in time; unlike the so-called Bomar exception, unitary review would not be made available as an accelerated, extra round of collateral attack as of right. See Part III(C)(2). This exception follows from the suggestions of prior Court majorities respecting review of prolix claims, if accompanied by a waiver of PCRA review. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 n.22 (Pa. 2008); Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089, 1095-1101 (Pa. 2009) (Castille, C.J., concurring, joined by Saylor and Eakin, JJ.).


On December 8, 2005, appellee was charged with two counts of criminal use of a communication facility,[3] as well as single counts of delivery of cocaine, possession with intent to deliver cocaine, and simple possession of cocaine.[4] Represented by [621 Pa. 600] retained private counsel, appellee proceeded to a jury trial on November 7, 2006, and was found guilty of all charges except one of the counts of criminal use of a communication facility. The trial court sentenced appellee to three to six years of imprisonment on the delivery charge and a concurrent sentence of two to four years on the criminal use of a communication facility conviction, both with credit for time served. The other drug convictions were deemed to merge for sentencing purposes.

Appellee filed a pro se notice of appeal to the Superior Court, which he later withdrew. On May 2, 2007, appellee motioned for appointment of counsel in the trial court, which the trial court granted, appointing the Centre County Public Defender's Office. On August 23, 2007, appellee filed a counseled PCRA petition seeking reinstatement of his appeal rights due to trial counsel's failure to file a requested direct appeal. Appellee amended the petition on December 18, 2007, raising multiple substantive claims of ineffective assistance of trial counsel. On May 16, 2008, following an earlier evidentiary hearing, the PCRA court reinstated appellee's direct appeal rights nunc pro tunc, without addressing the substantive ineffectiveness claims.

Page 565

Appellee filed a notice of appeal and a statement pursuant to Pa.R.A.P. 1925(b), identifying eleven issues of ineffectiveness of trial counsel. On September 22, 2008, the PCRA court issued its opinion pursuant to Rule 1925(a), briefly addressing the merits of those ineffectiveness claims.

In his Superior Court brief, appellee pursued only three of the eleven claims of ineffectiveness; he raised no preserved, direct review claims. The Superior Court panel determined that appellee's merits arguments were " misguided" because he should have argued that the PCRA court, in its opinion reinstating appellee's direct appeal rights nunc pro tunc, had erred by failing to consider the effect of appellee's amended PCRA petition raising trial counsel's ineffectiveness. The panel cited the Superior Court's then-recent en banc decision in Commonwealth v. Liston, 2008 PA Super. 12, 941 A.2d 1279 (Pa. Super. 2008) ( en banc ). Liston had held that, where a PCRA petitioner [621 Pa. 601] seeks reinstatement of direct appeal rights nunc pro tunc and also raises claims of trial counsel ineffectiveness, and the PCRA court grants reinstatement of direct appeal rights, the PCRA court must also grant the petitioner leave to file post-sentence motions nunc pro tunc to provide the PCRA and Superior Courts with a sufficient record to dispose of the ineffectiveness claims. Id. at 1280. Following Liston, the Superior Court panel here remanded to the PCRA court with instructions to permit appellee to file post-sentence motions nunc pro tunc in which he could raise his ineffectiveness claims.

In the meantime, the Commonwealth sought discretionary review of Liston, which this Court granted. Commonwealth v. Liston, 598 Pa. 638, 959 A.2d 1248 (Pa. 2008) ( per curiam order). The Commonwealth in this matter then filed a petition for allowance of appeal, arguing that this Court should hold the petition pending Liston. Alternatively, the Commonwealth argued that the Superior Court's remand was unnecessary under Bomar, even though appellee's claims were raised in a PCRA petition rather than in post-verdict motions, because the trial court had conducted an evidentiary hearing and had eventually addressed the merits of the ineffectiveness claims in its opinion. On August 17, 2009, three days after the Commonwealth filed its petition, we decided Liston. We affirmed Liston's sentence and vacated and disapproved of the Superior Court's holding that a reinstatement of appellate rights nunc pro tunc also requires granting the defendant the right to file post-sentence motions nunc pro tunc. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089.

By way of further background, the defendant in Liston filed a pro se PCRA petition seeking reinstatement of his appellate rights nunc pro tunc, alleging ineffectiveness of trial counsel for failing to file a requested direct appeal. The PCRA court appointed new counsel, who filed an amended petition raising substantive claims of ineffective assistance of trial counsel. The PCRA court determined that Liston's trial counsel was ineffective in failing to file the appeal and reinstated Liston's direct appeal rights; however, the court did not address the [621 Pa. 602] substantive ineffectiveness claims. Liston then filed his direct appeal raising a single direct review issue involving the sufficiency of the evidence, as well as the ineffectiveness claims he had raised in his PCRA petition. The Superior Court en banc ruled only on the sufficiency claim and declined to consider the ineffectiveness claims, relying on Grant's holding that ineffectiveness claims should be deferred to PCRA review.

However, the Liston panel then went farther and fashioned an additional, broader exception to Grant, based in part on

Page 566

Bomar. This new exception required that, when direct appeal rights are reinstated nunc pro tunc, the trial court must also permit the defendant to file post-sentence motions nunc pro tunc to raise new claims of ineffective assistance of counsel for direct review. The court justified its new rule, in part, by suggesting that it would " preserve valuable judicial time and resources" by sparing the defendant the trouble of filing a PCRA petition after his direct appeal was litigated. 941 A.2d at 1284-85. The court then remanded to the trial court to permit Liston to file post-sentence motions nunc pro tunc.

On the Commonwealth's appeal to this Court, we vacated the Superior Court decision in Liston to the extent that it remanded for filing post-sentence motions nunc pro tunc, and we instead affirmed the judgment of sentence. Madame Justice Greenspan, writing for the Court, emphasized Grant's teaching that ineffectiveness claims generally should be deferred until post-conviction review, and that only this Court may create exceptions to the Grant rule. Liston, 977 A.2d at 1093. We further explained that:

Clearly, the Superior Court's holding creates an exception to the Grant rule in that it permits a defendant to obtain what is essentially collateral review even before a direct appeal has been litigated. In Grant we expressed a preference that review of ineffectiveness claims be deferred until the post-conviction collateral review stage ... because we recognized that " time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness." 813 A.2d at 737-38. Thus we concluded that " [d]eferring review of trial counsel ineffectiveness claims [621 Pa. 603] until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel." 813 A.2d at 738. While we created an exception to Grant in our decision in Bomar, we have explicitly reiterated the general rule in Grant and further directed that any exception to that general rule be accomplished only by this Court:
Accordingly, we believe the best course of action is to reaffirm our decision in Grant and reiterate that, as a general rule, claims of ineffective assistance of counsel will not be entertained on direct appeal. Moreover, we take this opportunity to disapprove of any decisions of the Superior Court that are to the contrary. ....
[Commonwealth v.] O'Berg, 584 Pa. 11, 880 A.2d [597,] 602 [(Pa. 2005)] (emphasis added).

Liston, 977 A.2d at 1093-94.

The Liston Court went on to explain that the exception devised by the Superior Court " was capable of undermining the very purpose and policy underlying Grant." Focusing on the Superior Court's suggestion that its rule would conserve judicial resources, we noted that the prospect of such an effect was " doubtful" because a defendant favored by the Liston rule still retained the right to seek PCRA review as of right if his direct appeal failed. Furthermore, we expressed concern with the fact that, " the Superior Court's decision grants some defendants an additional automatic opportunity to attack their convictions based on claims of ineffective assistance of counsel, a recourse not available to all defendants. See Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1030 (2007) (Castille, C.J., concurring) (in a concurring opinion, then-Justice Castille commented that it is unfair to afford an additional avenue of relief to certain defendants)." Id. at 1094.

This author, joined by Mr. Justice Saylor and Mr. Justice Eakin (thus representing a majority of the five Justices

Page 567

participating in Liston), filed a concurring opinion which joined the majority with the exception of one point, not relevant here, concerning whether the Superior Court had improperly attempted [621 Pa. 604] to promulgate a new rule of criminal procedure. The concurrence stated that the Court should " formally limit Bomar to its pre-Grant, unitary review facts," and direct the lower courts " not to indulge unitary, hybrid review in the post-verdict and direct review context, unless such review is accompanied by an express, knowing and voluntary waiver of PCRA review." The concurrence noted that this approach would allow acceleration of collateral review in some instances, " but would not, as would happen here under the Superior Court's rule, arbitrarily afford certain defendants both accelerated and multiple rounds of collateral review." Liston, 977 A.2d at 1096 (Castille, C.J., concurring). Mr. Justice Baer filed a separate concurring opinion expressing, inter alia, a counterpoint to the view in this author's concurrence.

After our decision in Liston, this Court granted allocatur in this case, phrasing the issue for review as follows:

Whether the claims of ineffective assistance of counsel which are the exclusive subject of this nunc pro tunc direct appeal: (1) are reviewable on direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003); (2) should instead be deferred to collateral review under the general rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002) that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel; or (3) should instead be deemed reviewable on direct appeal only if accompanied by a specific waiver of the right to pursue a first PCRA petition as of right. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 n.22 (Pa. 2008) (" Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review . . . ." ); see also Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089, 1095-1101 (Pa. 2009) (Castille, C.J., concurring, joined by Saylor, J., & Eakin, J.).

Commonwealth v. Holmes, 606 Pa. 209, 996 A.2d 479 (Pa. 2010). This appeal presents pure questions of law; therefore, our standard of review is de novo, and our scope of review is plenary. Liston, 977 A.2d at 1092.

[621 Pa. 605] II

The Commonwealth states that it will not address the Superior Court's reasoning below, since it is " clearly erroneous to the extent that it relied upon its decision in Liston, which has since been overturned." Brief of Appellant at 10. Addressing the Bomar exception to Grant, the Commonwealth argues that appellee's ineffectiveness claims should not be deemed reviewable on direct appeal under Bomar even if they had been accompanied by a specific waiver of his PCRA rights, but instead, the collateral claims should be deferred until PCRA review, as dictated by Grant.

The Commonwealth traces the manner in which ineffectiveness claims have been handled by the courts, beginning with Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (Pa. 1977), which required the defendant, upon pain of waiver, to raise ineffectiveness claims at the first opportunity after new counsel enters an appearance. Id. at 695 n.6 (" ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant" ). In 2002, Grant altered this construct, explaining that waiver for purposes

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of the PCRA, see 42 Pa.C.S. § 9544(b), did not encompass claims of trial counsel ineffectiveness where new counsel entered the case on direct appeal, and mandating that ineffectiveness claims generally be deferred until post-conviction proceedings. The next year, this Court recognized a limited exception to the Grant deferral rule in Bomar, a direct capital appeal that was decided post-Grant but which involved a pre-Grant procedure in the lower court -- i.e., Bomar's newly-appointed counsel had filed comprehensive post-sentence motions raising ineffectiveness claims. The Bomar trial court held evidentiary hearings, heard from trial counsel, and then denied the ineffectiveness claims on the merits. The Commonwealth asserts that this Court determined that these circumstances presented an exception to the Grant deferral rule because there was an extensive record regarding the ineffectiveness claims.

[621 Pa. 606] The Commonwealth adds that this Court has continued to recognize and apply the Bomar exception in appropriate cases citing, as examples, Commonwealth v. O'Berg, supra, Commonwealth v. Rega, supra, and Commonwealth v. Wright, supra. The Commonwealth then notes that some Justices have expressed concerns with the continued application of a Bomar-style exception in cases litigated post-Grant. And, indeed, in a series of concurring opinions, this author and other Justices have expressed the view that Bomar was not devised as a prospective exception affecting all cases and inviting trial courts to permit unitary review on post-verdict motions, but rather, represented an instance where the Court accepted the pre-Grant unitary review record presented, and then decided that hybrid appeal. See Liston, 977 A.2d at 1097 (Castille, C.J., concurring, joined by Saylor and Eakin, JJ.); Rega, 933 A.2d at 1029 (Cappy, C.J., concurring); Rega, at 1029-33 (Castille, J., concurring, joined by Saylor, J.); O'Berg, 880 A.2d at 603 (Castille, J., concurring). Accord Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 111-12 (Pa. 2009) (Castille, C.J., concurring). The Commonwealth notes that these expressions would limit Bomar to the narrow class of cases in the same pre-Grant procedural posture as Bomar, i.e., ineffectiveness claims raised on post-verdict motions because new counsel entered the case and, at that time, was required to raise the claims pursuant to Hubbard.

The Commonwealth notes that the primary concern with an expansive application of the Bomar exception is that it affords select defendants " two bites at the collateral review apple," while other defendants are permitted only the single collateral review of right authorized by the PCRA. Brief of Appellant at 14 (quoting Rega, 933 A.2d at 1030 (Castille, J., concurring)). In addition, application of Bomar in post-Grant cases would inject arbitrariness as it essentially leaves the question of whether to award an additional and accelerated round of collateral review within the trial judge's discretion. Such a prospect also thwarts one of the main purposes of Grant, which was to eliminate the need for layering ineffectiveness claims to account for two prior levels of lawyering. The [621 Pa. 607] Commonwealth further argues that this Court should expressly limit Bomar and hold that all ineffectiveness claims, even if raised and developed below and addressed by the trial court, must be deferred to PCRA review. According to the Commonwealth, the disparate treatment inherent in a contrary course indicates the need for uniform application of the Grant rule requiring that ineffectiveness claims be deferred to PCRA review.

In conjunction with this concern for uniformity, the Commonwealth also argues

Page 569

that this Court should not adopt the waiver procedure suggested by the Liston concurrence, which would allow for unitary, hybrid review encompassing ineffectiveness claims on post-verdict motions and direct appeal so long as the defendant waives his right to pursue PCRA relief. The Commonwealth suggests that such a procedure will not result in fewer PCRA petitions because a defendant can always file a timely second PCRA petition attacking prior counsel's effectiveness and the validity of his PCRA waiver, allegations which, in turn, would require the layering of ineffectiveness claims that Grant had sought to avoid. Thus, the Commonwealth concludes, a waiver procedure would not have the intended effect of efficiency and equalizing the opportunity for collateral review as of right.

In response, appellee argues that a Bomar-like exception should apply here because his ineffectiveness claims were presented to the trial court in his PCRA petition, even if they were not presented in post-verdict motions; a record, including testimony from trial counsel, was made before nunc pro tunc reinstatement of his direct appeal rights was granted; and the trial court eventually addressed the merits of the issues in its opinion. Simply stated, appellee's position is that, so long as the record is sufficient to review the ineffectiveness claims on his direct appeal, he should be deemed entitled to review of the claims. Appellee notes that the Grant Court left the door open to " the prospect of exceptions to the general rule of deferral of all ineffective assistance of counsel claims to collateral review." See Grant, 813 A.2d at 738 n.14. Appellee further argues that the Bomar Court noted that the fact [621 Pa. 608] that Bomar's ineffectiveness claims were properly raised and preserved in the trial court was " a circumstance not present in, or addressed by Grant." Appellee cites the Bomar Court's observation that when trial counsel testified at an evidentiary hearing, and the trial court addressed the merits of the ineffectiveness claims, the concerns that had led to the Grant rule " are simply not present in this context." Bomar, 826 A.2d at 853.

Appellee argues that, instead of applying Bomar and the Superior Court's prior decisions applying Bomar,[5] which should have led the Superior Court to address his ineffectiveness claims, the panel here delayed decision on the merits and " foist[ed] upon him a remedy he did not seek and from which he cannot benefit." Appellee says that he supported the Commonwealth's allocatur petition in the hope that this Court would remand to the Superior Court to rule on the merits of his ineffectiveness claims. Brief for Appellee at 7.

Appellee further notes that, to the extent this Court's concerns in this area are with purposeful delays by defendants, delay does not serve his interests. He was brought to this point not by a calculated decision, but rather, by trial counsel's failure to preserve issues and file a direct appeal and his derivative failure to apprise appellee that, because no viable issues had been preserved for direct appeal, his proper recourse was to file a PCRA petition alleging ineffective assistance of counsel at trial.

Appellee also takes issue with the suggestion in the concurrence in Montalvo that Bomar should be limited to " Hubbard-era

Page 570

cases and . . . that there is no 'Bomar exception' to Grant." See Montalvo, 986 A.2d at 112 (Castille, C.J., concurring). Appellee argues that there is nothing in Bomar suggesting that it was not a broad exception to Grant or that it applied only to Hubbard-era cases. Instead, appellee claims, [621 Pa. 609] Bomar makes clear that Grant anticipated exceptions and that a Bomar-like exception was accepted in other jurisdictions. Appellee contends that Bomar should be viewed as a viable mechanism whereby appellate courts can resolve ineffectiveness claims on direct appeal.

Finally, appellee contends that, while capital defendants may benefit from the delay occasioned by litigating a hybrid appeal under a Bomar type of exception, delay is no ally of the typical defendant, such as himself, serving a term of years. Appellee also argues that the concern that the Bomar procedure affords select defendants an additional opportunity for collateral review is misplaced because any defendant who files a serial PCRA petition may be permitted a second review as well. Appellee concludes that the most expeditious course is where a trial court addresses a defendant's ineffectiveness claims and the appellate court rules on the merits of all claims, direct and collateral.



Preliminarily, we note that this case is not like Bomar, which was a capital case litigated in the trial court, before Grant, under the Hubbard rule. New counsel, who entered Bomar after the verdict, was both required and authorized to raise ineffectiveness claims on post-verdict motions at that time and did so, a full hearing was held where counsel testified, and the trial court ruled upon all claims. The trial court in Bomar, in short, afforded the defendant the unitary review contemplated by the Capital Unitary Review Act (" CURA" ), 42 Pa.C.S. § § 9570-79 (suspended; see In re Suspension of Capital Unitary Review Act, 554 Pa. 625, 722 A.2d 676 (Pa. 1999) (explaining suspension)) and required by Hubbard in instances where new counsel entered a case at the post-verdict stage.[6] This author, who wrote the Court's opinion in Bomar, has described the dynamic in Bomar as follows:

[621 Pa. 610] The post-trial litigation in Bomar commenced in 1999, three years before this Court overruled Hubbard [in Grant]. Notwithstanding that this Court had struck down the procedure-based unitary review paradigm for capital cases envisioned by the General Assembly in [CURA], . . . the defendant in Bomar essentially proceeded, in light of the trial judge's discretionary post-verdict decisions, under a unitary review construct. This was not an unusual circumstance in capital (and some non-capital) cases arising during the Hubbard regime, since ineffectiveness claims were required to be raised immediately by new counsel, under pain of waiver.

O'Berg, 880 A.2d at 603 (Castille, J., concurring). Ultimately, in Bomar, we determined

Page 571

that the concerns informing Grant did not require deferral of the ineffectiveness claims on that record:

This Court's holding in Grant was grounded upon concerns which affected both the ability of the defendant to develop his claims and the reviewing court's ability to consider the claims. Thus we noted that, when appellate courts reviewed a claim of ineffective assistance of counsel raised for the first time on appeal under Hubbard, there was rarely a trial court opinion addressing the issue, which poses a " substantial impediment to meaningful and effective appellate review." 813 A.2d at 733-34 (quoting Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998)). In addition, we expressed concern that review under Hubbard frequently obliged the appellate courts to consider matters not of record, a function that appellate courts normally do not perform. . . . Finally, we noted the difficult task that faced appellate counsel ...

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