Comm. v. Shaw, 2019 PA Super 207 (July 3, 2019)

Out of Delaware County.  This was an appeal from the denial of a post-conviction petition (PCRA).  The background can get a little convoluted, but here’s my best shot at summarizing the pertinent facts in plain English.

Shaw was convicted of attempted murder and other felony offenses based upon some shaky eyewitness accounts.  His trial attorney had filed a “Notice of Alibi Defense,” which read in part as follows:

[Appellant] contends that [at] the time of the commission of the alleged crimes, he was with April Wynn, who resides at . . ., and Devon [Crowley], who resides at . . . .”

Thus, the alibi notice indicated that Shaw was with both Wynn and Crowley at the time of the offense, but in actuality Shaw had told his trial attorney that he was with Crowley during the first part of the day, and then later on was with Wynn.  Well, the Commonwealth pounced on the discrepancy in the alibi notice and impeached Wynn’s testimony at the time of trial based upon what was put in that notice.

A PCRA hearing was held on the issue of whether trial counsel was ineffective for failing to amend the alibi notice, and at the PCRA hearing, trial counsel admitted that what was represented in the alibi notice was inaccurate and inconsistent with what his client told him.  Nevertheless, the PCRA court denied post-conviction relief.  On appeal from that denial, Shaw’s PCRA counsel (then acting as appellate counsel) didn’t preserve this issue in the 1925(b) Concise Statement of Errors.  He then withdrew as counsel and new appellate counsel entered their appearance, raising for the first time on appeal that predecessor PCRA/appellate counsel was ineffective for failing to preserve the alibi issue.  The Commonwealth argued the issue was accordingly waived.  The Superior Court disagreed.  It said this:

Here, Appellant presented the underlying claim of trial counsel’s ineffectiveness in an oral amendment to the petition at the PCRA hearing, as discussed above. By denying the petition on April 25, 2018, the PCRA court effectively ruled on the merits of that claim. Appellant filed a timely notice of appeal on May 15, 2018. Appellant then filed his Rule 1925(b) statement on June 14, 2018. It is on that date that Appellant alleges Attorney Molineux [first PCRA/appellate counsel] provided ineffective assistance. As such, Appellant had no opportunity to raise that claim before the PCRA court, practically or theoretically, as the alleged ineffectiveness did not occur until after the PCRA court was deprived of jurisdiction to modify or otherwise rescind its order denying relief. See 42 Pa.C.S. § 5505.

In all the cases discussed in Henkel, the alleged ineffectiveness of PCRA counsel occurred before this Court assumed jurisdiction or could assume jurisdiction. Although Attorney Molineux was responsible for the alleged ineffectiveness in the filing of the 1925(b) statement, it is perhaps somewhat of a misnomer to refer to him as ‘PCRA counsel’ at all within the context of Henkel. When the 1925(b) statement was filed, the PCRA proceedings had ended and the PCRA court no longer had jurisdiction. Attorney Molineux, at that time, was acting as appellate counsel, not PCRA counsel, even though he had previously served as Appellant’s PCRA counsel.

Because this claim concerning Attorney Molineux’s alleged ineffectiveness does not fall under the purview of Henkel, and because Appellant raised it at the earliest possible opportunity, the issue has not been waived. Thus, we now will consider the merits of each layer of Appellant’s layered ineffectiveness claim.

The Superior Court went on to do a layered-ineffective-assistance analysis, ultimately concluded that both prior attorneys rendered ineffective assistance, and held that Shaw was entitled to relief.  But by doing that, the Superior Court made this an interesting case for this reason: the Superior Court entertained an ineffective-assistance claim on appeal rather than deferring the claim to the lower court in the first instance.  

Since 2002, Supreme Court caselaw has all but firmly established that ineffective-assistance claims must be litigated in the trial courts first, unless one of two exceptions are at play. Here, the Superior Court, however, has seemingly carved out another exception to this well-settled general rule.  That is: if PCRA/appellate counsel waives an issue, then successor appellate counsel can step in and raise preceding counsel’s ineffectiveness for the first time on appeal.

Comm. v. Pacheco, 2019 PA Super 208 (July 3, 2019)

Out of Montgomery County.  Relying on Carpenter v. United States, __ U.S. __, 138 S. Ct. 2206 (2018), which held that retrieval of cell site location information (CSLI) constituted a “search” for Fourth Amendment purposes, the Superior Court held that “prosecutors need to obtain a warrant supported by probable cause before obtaining this information.”  

This significantly impacts procedures under Pennsylvania’s Wiretap Act, which permits retrieval of this information by court order.  In this case, the Superior Court noted there’s “no meaningful distinction between the privacy issues related to historical as opposed to real-time CSLI.”