For the Defense - Vol. 8, Issue 1 - 37

fail to do that and the claim is dismissed, your lack of diligence
will cause your client to default his claim in federal court. Such a
result would be your fault.
Avoid raising generalized claims of ineffectiveness such as
" Trial counsel failed to conduct a proper investigation " or " Trial
counsel failed to interview potential defense witnesses. " At
that level of generality, those are not even legal claims. Your
allegations must be specific, and you must prove those specifics.
For example, " Trial counsel was ineffective in violation of the
United States Constitution for failing to investigate and present
John Smith and Mary Jones to support a defense of voluntary
manslaughter " provides the necessary pleading specificity. You
must append as exhibits declarations from Smith and Jones
that spell out in detail what their testimony would be. And you
must make legal argument on why (1) trial counsel performed
deficiently in failing to investigate and present them and (2) why
there is a reasonable probability one juror would have changed
her vote if this evidence had been presented.
4. You MUST ask for a hearing.
Note the capital letters. Witness declarations and exhibits are
not proof of anything; they are simply required at the pleading
stage as a precondition to convincing the court to grant you a
hearing at which witnesses will testify and proffered exhibits
will be admitted. If you the lawyer do not request a hearing, the
federal court will rule that your client was not diligent, refuse
to grant a hearing, and summarily deny the claim. If the PCRA
court denies a hearing after you (1) ask for one and (2) make an
adequate record supporting the request, your diligence allows
your client to seek a hearing in federal court. There may well be
circumstances where you do not actually want a hearing before
your particular PCRA judge-adverse credibility determinations
by a state court judge are binding on the federal court-but you
absolutely must ask for one. (Making the request is sufficient;
there is no legal requirement that you jump up and down
demanding one.)
5. Exhaust your claims.
As previously discussed, you must brief the federal constitutional
claim thoroughly in the Court of Common Pleas and preserve the
claim on appeal. If you fail to do this, the claim will be defaulted
in federal court. Exhausting your state remedies also includes
federalizing the claim, investigating it thoroughly, pleading it
properly and, if a hearing is granted, litigating it completely and
competently.
6. Direct appeal counsel can be ineffective too.
PCRA counsel must also determine whether direct appeal
counsel failed to raise a meritorious claim. Even though there is
no federal constitutional right to a direct appeal, when the state
provides a right to appeal (as all 50 states do) there is a federal
constitutional right to effective counsel on that appeal. If direct
appeal counsel failed to raise a viable claim, brief the underlying
7. Finley? Schminley!
By filing a Finley letter you deprive your client of the
opportunities to prevail in both state and federal court. Way
too many PCRA lawyers file Finley letters and do so after only a
cursory review of the case. Please remember that your job is not
to make the court's job easier. Particularly in serious cases, there
are almost always legitimate claims that should be pursued. This
is Pennsylvania after all - the only state in the nation that refuses
to fund indigent defense at the state level, thereby forcing cashstrapped
counties to foot this burdensome bill.16
The invariably
inadequate fees paid in court-appointed cases are a sure-fire
recipe for ineffective counsel. Finley letters are absolute last
resorts and can only be ethically filed after you have completed
an exhaustive review and investigation. The fact that judges and
prosecutors love Finley letters should be reason enough to make
you seriously hesitate before filing one. You may increase the
numbers of PCRA court appointments you receive by ingratiating
yourself with the judges this way, but you are not discharging
your duty of zealous advocacy if you resort prematurely to filing
a Finley letter.
8. Bradley is your friend.
The Pennsylvania Supreme Court's 2021 decision in
Commonwealth v. Bradley17
allows litigants on PCRA appeal
to allege claims that initial PCRA counsel was ineffective. This
gives our clients a major opportunity to avoid the adverse impact
of Shinn. If you are appointed or retained for a PCRA appeal,
the first and most important thing you must do is to determine
whether initial PCRA counsel missed any claims. If so, file in the
Superior Court a motion for remand asking for leave to raise
and litigate those claims at a hearing in the lower court. In the
alternative, ask for leave to file a supplemental Rule 1925(b)
Statement notifying the court of your intention to raise claims
that initial PCRA counsel was ineffective. Bradley is a recent case,
and the Superior Court has responded in different ways to such
motions, including,
(a) retaining jurisdiction but remanding the matter with
directions that:
(i) the lower court hold a hearing with follow-up
findings of fact and conclusions of law;
(ii) appellant then file a supplemental Rule 1925(b)
Statement; and
(iii) the lower court file a supplemental opinion or
(b) retaining jurisdiction and directing appellant to
brief the new claims in his principal brief after which
the panel might remand the matter.
If you represented the client in the court below and realize or
become aware that you missed a claim, you have a duty to file
Vol. 8, Issue 1 l For The Defense 37
claim, and argue that the claim counsel missed possesses stronger
merit than the claims she raised. To show prejudice in this
context, you only need to show a reasonable probability that the
appellate claim would have prevailed.
For the Defense - Vol. 8, Issue 1

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