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[J-86-2000] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : GILBERT JONES, : : Appellant :

No. 227 Capital Appeal Docket Appeal of the Order of the Court of Common Pleas of Philadelphia County entered on May 8, 1998, at Nos. 91023520, 3523, 3525, 3532 & 3534.

SUBMITTED: March 10, 2000

CONCURRING AND DISSENTING OPINION

MR. JUSTICE SAYLOR

DECIDED: December 31, 2002

I would remand to the PCRA court for a hearing on the claims of ineffective assistance of post-conviction counsel and write to the following points: First, I favor consistent enforcement of the governing procedural rules, which serve to ensure fairness and reliability in the collateral review process. See generally

Commonwealth v. Williams, 566 Pa. 553, 568, 782 A.2d 517, 526 (2001). By their operation and effect, the rules facilitate the exposure of potential ineffectiveness in the initial stages by, inter alia, requiring the PCRA court to provide both notice of its intention to dismiss and the supporting reasons, see Pa.R.Crim.P. 909(B)(2), and, where appropriate, allowing amendment of a petition to correct defects. See Pa.R.Crim.P. 905(A) (stating that

"[a]mendment shall be freely allowed to achieve substantial justice"); Pa.R.Crim.P. 909(B)(2)(c)(ii) (noting that the PCRA court may permit amendment of a petition following notice of intention to dismiss). Here, for example, the PCRA court's notice of its intention to dismiss the petition was identical, in all material respects, to that which was at issue in Williams, in which the Court remanded for compliance with the rules. While I acknowledge that such omission does not appear to have substantially impacted upon Appellant's claims before this Court (as all but two of the issues were never raised below), I would nevertheless continue to emphasize that noncompliance with the rules detracts from this Court's ability to conduct effective appellate review. See Williams, 566 Pa. at 569, 782 A.2d at 527. Second, I would not summarily dispose of Appellant's claims concerning PCRA counsel's ineffectiveness -- where allegations of ineffectiveness of counsel are made on appeal, a remand is appropriate unless the merits of the allegations can fairly be discerned from the record. See, e.g., Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984).1 But here, the Court does not address the merits of the ineffectiveness claims; rather, it merely refuses to consider them based on perceived insufficiency of present counsel's appellate presentation. In this regard, I share many of the concerns motivating Madame Justice Newman's concurrence. As here, the Court has in recent opinions frequently denied merits review of capital, post-conviction claims because of the manner of their presentation in the appellate briefing. That attorneys in capital cases are recurrently being deemed to have forfeited

This precept should apply equally in the post-conviction context to vindicate the rulebased right to effective representation on a first petition, see Commonwealth v. Priovolos, 552 Pa. 364, 368, 715 A.2d 420, 423 (1998). Notably, enforcement of the corresponding right to appeal in the post-conviction setting has been accomplished in substantially the same manner as on direct appeal. See, e.g., Commonwealth v. Albrecht, 554 Pa. 31, 4546, 720 A.2d 693, 700-01 (1998).

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their clients' ability to obtain a post-conviction assessment of the reliability of their convictions and/or sentences by an appellate court raises fundamental questions concerning the clarity of the rules governing appellate briefing, the manageability of the burden imposed by them, and/or the effectiveness of the bar practicing in the capital, postconviction area in Pennsylvania. Unless and until such questions are adequately

addressed, I believe that the Court should be less exacting in its strict enforcement of waiver principles predicated on deficiencies in appellate briefing. Since it appears to me that the necessary review of Appellant's claims of ineffective assistance of PCRA counsel involves a more probing assessment, potentially having factual aspects, I would remand to the PCRA court.

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