COM. v. LISTON, 602 Pa. 10 (2009)

977 A.2d 1089

Supreme Court of Pennsylvania.Submitted: March 4, 2009.
Decided: August 17, 2009.

Appeal from the Court of Common Pleas, Fayette County, Nos. CP-26-CR-0001213-2004, CP-26-CR-0001231-2004, John F. Wagner, Jr., J.

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Nancy Vernon, Esq., Hugh J. Burns, Jr., Esq., Philadelphia Dist. Attorney’s Office, for the Com. of PA, appellant.

Dianne H. Zerega, Esq., for Clayton Leroy Liston, appellee.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION
Justice GREENSPAN.

The Commonwealth appeals from the Superior Court’s order remanding the matter to the trial court so that Appellee Clayton Leroy Liston may file a post-sentence motion nunc pro tunc. We hold that the Superior Court erred in declaring that a defendant who has been granted the right to file a notice of appeal nunc pro tunc shall also automatically be granted the right to file post-sentence motions nunc pro tunc. We further hold that the Superior Court’s order impermissibly created a new exception to our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). We vacate in part and affirm the judgment of sentence.

Appellee was charged in 2005 by Fayette County authorities with two counts each of possession of a controlled substance[1] and possession with intent to deliver a controlled substance, [2] and a single count of criminal conspiracy.[3] These charges stemmed from two separate incidents in 2004 when Appellee supplied cocaine to a Pennsylvania State Trooper acting in an undercover capacity. Appellee was tried before the Honorable John F. Wagner and a jury on August 2, 2005, and convicted of the above-enumerated offenses.[4]

On August 19, 2005, Appellee received an aggregate sentence of eighteen to thirty-six months incarceration. Appellee did not file either post-sentence motions or a notice of appeal.

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On December 14, 2005, Appellee filed a timely pro se petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. Counsel was appointed to represent him and on February 6, 2006, appointed counsel filed an amended PCRA petition raising several claims alleging ineffective assistance of counsel, one of which was that trial counsel had been ineffective for failing to file a requested notice of appeal following entry of the judgment of sentence. Judge Wagner convened an evidentiary hearing and on May 31, 2006, issued an opinion and order reinstating Appellee’s direct appeal rights based on a finding that trial counsel had failed to file the requested appeal. Although Judge Wagner took testimony on Appellee’s remaining claims of ineffectiveness of counsel, Judge Wagner did not address them or issue rulings with respect to those claims.

Appellee filed a direct appeal to the Superior Court. Appellee raised one sufficiency claim and four claims of ineffective assistance of counsel. On January 8, 2008, the en banc Superior Court issued a published opinion. Commonwealth v. Liston, 941 A.2d 1279 (Pa.Super. 2008). The Superior Court declined to address Appellee’s ineffective assistance claims, relying on this Court’s decision in Grant. In Grant, this Court held that claims alleging ineffective assistance of counsel should be deferred until the collateral stage of proceedings.[5] Grant, 813 A.2d at 738.

Instead of resting with a plain application of the rule in Grant, the Superior Court turned its attention to this Court’s decision i Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). In Bomar, this Court carved out an exception to the Grant rule and held that an appellate court may consider ineffective assistance claims on direct appeal only if the claims

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were raised below, developed in the certified record, and definitively determined by the lower court. Id. at 854-55. Concluding that Bomar’s
reach should be extended, the Superior Court held that whenever a PCRA court reinstates a defendant’s right to file a direct appeal, the PCRA court shall also issue an order permitting the defendant to file post-sentence motions nunc pro tunc. The Superior Court reasoned that such a procedural rule would conserve precious judicial resources because claims of ineffective assistance of counsel could be reviewed at an earlier stage of the proceedings, thereby obviating the necessity of a subsequent PCRA petition should the judgment of sentence be affirmed on direct appeal. Liston, 941 A.2d at 1284-85.

The Superior Court stated:

Therefore, in line with our decision today, henceforth, if the PCRA court determines that, in fact, appellate counsel was ineffective for failing to file a requested direct appeal and reinstates the petitioner’s direct appeal rights nunc pro tunc, the court shall also reinstate the petitioner’s right to file post-sentence motions or amended post-sentence motions nunc pro tunc. The petitioner can then raise whatever “other” claims of counsel ineffectiveness he/she wants to in post-sentence motions; the trial court can hold an evidentiary hearing, if warranted, perfect the record for review, and reach a final decision on the merits. In this way, the trial court’s decision results in an appealable ruling, and the trial court will not be compelled to issue a merely “advisory” opinion. The record will also be complete so that this court may review the appellant’s ineffectiveness claims on the ensuing direct appeal, consistent with [Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003)]. This practice will preserve valuable judicial time and resources, and save the appellant from having to file another, duplicative PCRA petition raising the identical claims later in the process.

Liston, 941 A.2d at 1284-85 (emphasis added). The Superior Court then addressed Appellee’s sufficiency claim and, after ruling that it was meritless, relinquished jurisdiction and

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remanded the matter so that Appellee could file post-sentence motion nunc pro tunc. Id.

The Commonwealth filed a timely Petition for Allowance of Appeal and on October 31, 2008, we granted review of three issues:

a. Did the Superior Court contradict Commonwealth v. Grant in purporting to create its own new exception to that case?
b. Did the Superior Court contradict Commonwealth v. Reaves by holding that any PCRA petitioner entitled to a nunc pro tunc direct appeal is automatically entitled to nunc pro tunc post sentence motions as well, without proving prejudice?
c. Did the Superior Court usurp this Court’s exclusive authority to create procedural rules under Article V, § 10(c) of the state constitution?

The issues in this case present questions of law, thus our standard of review is plenary and our scope of review is de novo. Commonwealth v. King, 595 Pa. 685, 939 A.2d 877, 880 (2007).

The Commonwealth first asserts that, by mandating that permission to file post-sentence motions be conferred automatically whenever a defendant succeeds in having his right to appellate review reinstated, the Superior Court contravened our decision in Grant. The Commonwealth notes that in Grant this Court held the authority to make exceptions to its rule rests specifically in this Court. Grant, 813 A.2d at 738 n. 14 (stating that “this Court may choose to create an exception to the general rule”). Further, in Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597, 602 (2005), this Court reiterated that the power to delineate exceptions to the Grant rule rests solely in this Court.[6]

The Commonwealth further complains that the Superior Court’s directive also conflicts with Commonwealth v.

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Reaves, 592 Pa. 134, 923 A.2d 1119 (2007). In Reaves, this Court declared that the failure to file post-sentence motions does not fall within the limited ambit of situations where a defendant alleging ineffective assistance of counsel need not prove prejudice to obtain relief.[7] Id. at 1132. According to the Commonwealth, the Superior Court’s decision eviscerates the Reaves rule because a defendant now has the right to file post-sentence motions automatically, without having either to request such relief or prove that he or she is entitled to it because of the ineffective assistance of prior counsel.[8] The Commonwealth asserts that in addition to undermining the decision in Reaves, the Superior Court’s ruling herein creates an exception to the Rules of Criminal Procedure, specifically Rule 720(b), by “effectively converting] optional post sentence motions into compulsory post sentence motions where a nunc pro tunc appeal is granted.” Commonwealth’s Brief, 9. On this point, the Commonwealth takes issue with the Superior Court’s conclusion that its new rule is similar to the Grant exception set forth in Bomar. The Commonwealth argues that under Bomar, the filing and resolution of post-sentence ineffectiveness claims is not automatic. Rather, asserts the Commonwealth, the trial court has discretion to defer review of such claims until the post-conviction stage of the proceeding. Commonwealth’s Brief, 9.

Another unintended consequence of the Superior Court’s decision, according to the Commonwealth, arises in the situation where counsel fails to identify existing claims of ineffectiveness

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for purposes of a post-sentence motion, thereby waiving them under the provisions of the PCRA. See 42 Pa.C.S. § 9544(b) (stating that issues that could have been raised previously are waived for purposes of the PCRA). The resulting “waiver trap,” the Commonwealth argues, will require subsequent counsel to “layer” any ineffectiveness claims, a requirement that the Grant decision was intended to eradicate. Commonwealth’s Brief, 10.

In addition, the Commonwealth challenges the Superior Court’s assertion that its holding will “preserve valuable judicial time and resources.”Liston, 941 A.2d at 1285. The Commonwealth characterizes this purported benefit as illusory because it merely provides defendants with a additional collateral attack on their convictions. Commonwealth’s Brief, 11.

Finally, the Commonwealth refers to the Pennsylvania Constitution, which provides, in relevant part,, that this Court “shall have the power to prescribe general rules governing practice, procedure, and the conduct of all courts.” Pa. Const. Art. V, § 10. This power to establish rules of procedure rests exclusively in this Court. See Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 736 (2001). The Commonwealth asserts that the rule set forth in Grant was procedural and thus, under the Pennsylvania Constitution, only this Court has the power and authority to fashion exceptions to it.

In response, Appellee asserts that the Superior Court’s decision should be affirmed “because it . . . correct[s] a gap in the system and . . . permit[s] counsel to pursue a prompt disposition of the claims of the [defendant].” Appellee’s Brief, 9. Appellee argues that under the Superior Court’s decision a defendant will be able to obtain review of any ineffectiveness claims without the unnecessary delay occasioned by the inability to raise those claims on direct appeal because there has been no hearing on them in the lower court.

After a careful review of the Superior Court’s opinion, the applicable law, and the briefs of the parties, we conclude that the Superior Court overstepped its authority in

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this case. The panel determined that all defendants who have been granted the right to file an appeal nunc pro tunc also must be granted a automatic additional right to file post-sentence motions nunc pro tunc.
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. I Grant we expressed a preference that review of ineffectiveness claims be deferred until the post-conviction collateral review stage of a proceeding 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 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. For these reasons, we do not believe there is a need to create a “short sentence” exception to the general rule announced in Grant. Indeed, we fear doing so would undermine the very reasons that led to our decision in Grant in the first instance.

O’Berg, 880 A.2d at 602 (emphasis added).

As we did in O’Berg, we conclude that the Superior Court’s decision in this case is capable of undermining the very purpose and policy underlying Grant. One of the reasons propounded by the Superior Court was to conserve precious judicial resources. Liston, 941 A.2d at 1285. While such a goal is laudable, the prospect that the Superior Court’s decision will have the intended effect is doubtful. A defendant

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who is granted an opportunity to file post-sentence motions because his attorney failed to file a requested appeal maintains the right to seek post-conviction relief under the PCRA after his direct appeal is finally determined. This is an opportunity that most, if not all, defendants likely will take. Thus, 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, CJ., concurring) (in a concurring opinion, then-Justice Castille commented that it is unfair to afford an additional avenue of relief to certain defendants).

Having found merit in the first basis upon which the Commonwealth challenges the Superior Court’s decision, we need not address the Commonwealth’s remaining claims. It is the policy of this Court to avoid deciding a matter on constitutional grounds if the issue can be decided on other grounds. Commonwealth v. Long, 592 Pa. 42, 922 A.2d 892, 897
(2007). Once more, however, we caution the Superior Court with regard to its application of Grant and its progeny. When the panel in this case afforded all defendants who have been granted the right to file an appea nunc pro tunc the automatic right to file post-sentence motions nunc pro tunc, it not only contradicted our decisions in Grant and O’Berg, it essentially attempted to promulgate a new rule of criminal procedure. The Superior Court’s decision to afford additional rights to a specific class of criminal defendants is particularly problematic. Before a mandatory rule of procedure affecting an untold number of cases is issued, it should be studied and approved by one of our procedural rules committees, and then considered by this Court.

Accordingly, we vacate that part of the Superior Court’s order that remanded the matter so that Appellee could file post-sentence motions.[9] We affirm that part of the Superior

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Court’s order that dismissed Appellee’s ineffectiveness claims, without prejudice to his right to pursue such claims on collateral review unde Grant. Finally, we affirm the judgment of sentence.[10]

Superior Court’s order vacated in part; judgment of sentence affirmed.

Justice TODD and Justice McCAFFERY did not participate in the consideration or decision of this case.

Chief Justice CASTILLE, files a concurring opinion in which Justices SAYLOR and EAKIN join.

Justice BAER, files a concurring opinion.

Chief Justice CASTILLE, concurring.

I join the Majority Opinion, with the exception of its characterization of the Superior Court’s error as “attempt[ing] to promulgate a new rule of criminal procedure” outside of the formal rule-making process. See
Majority opinion at 17 19, 977 A.2d at 1093 1094. The Majority correctly disapproves of the sua sponte decisional “rule” the Superior Court adopted, which would require trial courts to afford criminal defendants the opportunity to forward claims of ineffectiveness in addition to claims of trial court error on direct appeal, i.e., hybrid, unitary review, whenever they determine that a PCRA[1] petitioner has proven entitlement to reinstatement of

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direct appeal rights nunc pro tunc. In my judgment, the Superior Court’s error did not involve a usurpation of this Court’s rulemaking role, but rather, a good faith but fundamental misapprehension of the governing principles this Court has laid out in cases such as Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), and Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597
(2005), when faced with circumstances that differed from those discussed in our precedent. I realize that the Commonwealth poses the error as a supervisory one implicating this Court’s exclusive rulemaking role, but I view that as a sound strategic posture deriving from the Commonwealth’s recognition that its chances for review were enhanced by casting its claims as involving more than mere error review.[2]

I write not only to explain my view of the nature of the Superior Court’s error but also to express my belief that the circumstances in this case provide a greater and additional reason for this Court to counsel the lower courts not to take affirmative steps to accommodate unitary review under the so-called Bomar exception to Grant. In my judgment, the mischief we are called upon to remedy is much more a result of the unintended consequences of Bomar than a result of the Superior Court losing sight of its institutional role and seeking to adopt perceived efficiencies which, unfortunately, failed to fully appreciate other, competing values. Contrary to the Superior Court’s conclusion, our intent in Bomar was never to

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create a “right” to hybrid review. For the reasons I discuss below, and consistently with this Court’s signal in Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008), I would formally limit Bomar to its pre-Grant, unitary review facts, and I would direct trial judges and the Superior Court not to create or indulge unitary, hybrid review in the post-verdict and direct appeal context, unless such review is accompanied by an express, knowing and voluntary waiver of PCRA review. This approach would allow for 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.[3]

The Superior Court in this case, sitting en banc, undertook to craft an extension of this Court’s decision in Bomar, a capital direct appeal in which this Court passed upon claims of ineffective assistance of counsel which were fully litigated and decided in the court below solely because the trial court proceedings in Bomar were conducted at a time prior to this Court’s decision in Grant, i.e., when ineffectiveness claims were required to be raised immediately by new counsel, under pain of waiver pursuant to Commonwealth v. Hubbard,

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472 Pa. 259, 372 A.2d 687 (1977).[4] The Superior Court adopted a “rule”requiring a similar form of unitary review, as of right, governing cases where any PCRA defendant proves an entitlement to reinstatement of his direct appeal rights nunc pro tunc. The Superior Court’s rule is a significant extension of the decision I authored in Bomar. Bomar merely accepted the Hubbard-era record presented to it and decided the hybrid case. As I have repeatedly cautioned, however, Bomar’s decision to review the direct appeal and ineffectiveness claims on direct appeal there “did not purport to approve such a review paradigm prospectively, as a post-Grant matter. Rather, this Court merely took the Hubbard-era record as we found it in Bomar, and proceeded to determine if direct review, or a pointless deferral to PCRA review, of the collateral claims was appropriate.” Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1030-31
(2007) (Castille, J., joined by Saylor, J., concurring) (quoting in part Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597, 603 (2005) (Castille, J. concurring)).[5] , [6]

In contrast, the Superior Court here took a post-Grant case that was not ripe for hybrid decision, affirmatively required creation of a hybrid record and issuance of a hybrid opinion, and adopted a rule that would require trial courts in future cases to indulge hybrid, unitary review. In so doing, the Superior Court failed to account for this Court’s post-Grant decisional law, failed to recognize the competing values at stake, and failed to appreciate that its stated goal of efficiency

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would be undermined by its creation of multiple rounds of collateral attack.

In this case, appellee filed a PCRA petition seeking to have his direct appeal rights reinstated nunc pro tunc as well as raising various claims of trial counsel’s ineffectiveness. The PCRA court held an evidentiary hearing, at which evidence was taken regarding counsel’s failure to file a direct appeal as well as trial counsel’s conduct at trial.[7] At the conclusion of the proceedings the PCRA court granted appellee nunc pro tunc relief and did not issue any rulings with respect to the ineffectiveness claims.

Presented with this situation, the Superior Court raised the question of whether it should address the ineffectiveness claims as “the ineffectiveness claims [were] being raised on collateral review” consistent with Grant. Commonwealth v. Liston, 941 A.2d 1279, 1283
(Pa.Super. 2008). And, the panel noted, “as in Bomar” there was a complete record respecting the ineffectiveness claims, which “can be addressed when the collateral review remedy granted is reinstatement of direct appeal rights.” Id. The Superior Court then went on to observe that if the PCRA court had “addressed the claims in an opinion, there would be an adequate record for our review on [direct] appeal.” Id. (citing Bomar).
Such a conclusion was guided by its own precedent wherein it had previously reviewed a claim of ineffectiveness on direct appeal when the PCRA court granted the petitioner’s request to reinstate his direct appeal rights nunc pro tunc, and the PCRA court had reviewed and resolved the ineffectiveness claim during the PCRA proceeding. See Commonwealth v. Miller, 868 A.2d 578 (Pa.Super. 2005). Notably, the Miller court proceeded in such a manner and addressed the fully developed ineffectiveness claims on direct appeal in the belief that doing so was consistent with this Court’s directive in Bomar. Id. at 581 (“The Supreme Court carved out an exception to Grant in

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Bomar, permitting review of ineffectiveness claims on direct appeal where a sufficient record concerning the claims had been established. Thus, ineffectiveness claims that were developed in the PCRA court may be reviewed in the nunc pro tunc direct appeal, along with any other appealable claims the appellant chooses to raise.”) (citations omitted).

In this case, the Superior Court correctly concluded that it was facing untraveled territory — not quite Bomar nor Miller, since the PCRA court did not resolve the ineffectiveness claims — but not quite Grant, since the PCRA court held an evidentiary hearing on the claims of ineffectiveness. Thus, it turned to its own precedent for further guidance.

The Superior Court explained that in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982) (en banc), the court confronted the proper scope of review permitted a post-conviction hearing court under the Post-Conviction Hearing Act (“PCHA”) when it determined that the petitioner had been denied his direct appeal rights. In Miranda, the Superior Court concluded that the “PCHA court must address the other claims (i.e., ineffectiveness claims) raised in the PCHA petition when it is necessary to complete the record for appellate review; but under these circumstances, the PCHA court is merely functioning as an evidentiary tribunal. . . . The PCHA court is to see to it that the record is made complete on these issues for the purpose of review in the appellate court on the nunc pro tunc appeal.” Id. at 1137-38. According to the Miranda
court, proceeding in such a way would avoid the further complication or delay that would result if the appellate court ordered a remand for an evidentiary hearing or a ruling on the remaining claims. Id. at 1139.

Returning to this case, the Liston en banc panel recognized tha Miranda was decided at a time when Hubbard was in force, and further noted that the process for raising ineffectiveness claims had changed when Grant overruled Hubbard. The court, however, believed that the concerns underlying the decision in Miranda “with judicial economy and efficiency remain[ed] valid.” Liston, 941 A.2d at 1283. Therefore, following its own Miranda case, the Superior Court concluded

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that reinstating the right to file post-sentence motions at the time the court reinstated the right to file a direct appeal nunc pro tunc would serve the judicial economy and efficiency interests the Miranda, court sought to promote.

I understand that in crafting the remedy, the Superior Court believed it was being faithful to our Bomar decision[8] as well as its own precedent. See Miller supra. Indeed, the panel essentially undertook to have the trial court make the case ready for Sowarstyle unitary review treatment. But the fundamental flaw in the Superior Court’s reasoning was its conclusion that a decision such as Miranda, which was powered b Hubbard, should have the same force following this Court’s decision i Grant, and our subsequent cases explicating Grant. Applying Miranda in the post-Grant setting gives vitality and primacy to hybrid, unitary review on direct appeal, precisely the type of procedure that Grant
sought to prevent. Additionally, the Superior Court failed to account for other concerns in this area.

Specifically, the Superior Court ignored the concerns that pre-PCRA hybrid review raises and that I most recently outlined in my concurring opinion in Commonwealth v. Rega, supra. Therein, I noted that allowing such claims to be forwarded on direct review leads to avoidable delay, abuse, arbitrariness, and complication. Generally, my concerns were that unitary review builds unnecessary delay into the direct review process, which also increases the potential for abuse, breeds illogical and unfair results by arbitrarily allowing one class of defendants a second round of collateral review, and fosters the requirement that defendants raise “layered” claims of ineffectiveness for purposes of collateral review Id. at 1032-33.[9]

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These concerns can be alleviated by following the statutory scheme authorized by the Legislature, which permits a direct appeal followed by a single collateral attack, via the PCRA, as of right. “[A]ny such unitary review [on direct appeal], should be a substitute for, and not an advance supplement to, PCRA review.” Id. at 1033. These additional concerns and potential consequences outweigh the judicial efficiency and economy interest that the Superior Court perceived would result from the creation of a hybrid review requirement in certain direct appeals.

Significantly, the Superior Court also did not have the benefit of this Court’s recent decision in Commonwealth v. Wright, supra, a case arising under the pre-Grant framework. In Wright, this Court confronted the question of whether the ineffectiveness claims were cognizable on direct appeal and, in my view, correctly concluded that the Bomar exception applied and allowed review of claims of ineffectiveness to be forwarded on direct appeal as the case arose before this Court’s mandatory directive in Grant. A majority[10] of this

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Court also indicated that it would approve of the position that I forwarded in Rega when it stated, “Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review, because the PCRA does not afford the right to two collateral attacks.” Wright, 961 A.2d at 148 n. 22.[11]

For these reasons, like the Majority, I agree that the Superior Court’s remedy is in error. I also agree with the Majority’s observation that the mandatory procedure set forth by the Superior Court in this case is neither commanded nor authorized by this Court’s decision in Grant, and indeed, undermines that decision.

I would go farther than the Majority, however, and consistently wit Wright, I would explicitly limit Bomar to Hubbard-era cases, and make clear that there is no “Bomar exception” to Grant. The Superior Court’s opinion in this case, which applies Bomar to a new set of facts and, thus, extends its reach, exemplifies an unintended and unauthorized consequence arising from Bomar’s continued application in the post-Grant
setting and fails to take into account this Court’s shift away fro Hubbard-era unitary review and the concerns previously discussed. I have also recognized that unitary review may be appropriate under limited circumstances in order to provide the immediate vindication of a clear claim and noted that there is no such current system in place allowing for such a procedure. Rega, 933 A.2d at 1033. Consistently with this Court’s approval in Wright, however, I would permit hybrid review only when the request for such review is accompanied by an express, knowing and voluntary waiver of further PCRA review. Unless and until we take such steps, we will not be able to give this Court’s corrective decision in Grant its full effect consistently with the terms of the PCRA.

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Finally, I recognize that Justice Baer argues that it is inappropriate to address the effects of Bomar upon continuing post-verdict practice in this appeal. Indeed, Justice Baer suggests that the only proper time to visit that subject must await a case where Bomar hybrid review has occurred and the defendant has proceeded to PCRA review. Concurring opinion at 31-33, 977 A.2d at 1102-03. I respectfully disagree that we are obliged to allow unintended and problematic applications of Bomar to spin out of control.[12] Bomar was a rule of our own creation, arising in a case where the hybrid review below occurred solely because of Hubbard.
The parties in Bomar did not argue the effect of Grant, much less did they argue the prospective effect of Bomar itself on cases — unlik Bomar, but like the very case sub judice — litigated under the Grant
paradigm, rather than under the Hubbard rule. Nor did Bomar purport to authorize hybrid, unitary review in post-Grant cases.

The issue in this case directly implicates the proper effect Bomar can be said to have on direct appeals and the post-verdict motions practice facilitating those appeals. In addition, the effect of authorizing trial courts to “apply” Bomar and permit unitary, hybrid review in these cases is readily apparent and inescapable. There is no reason, consistent with the PCRA, to authorize trial courts to arbitrarily permit an extra round of collateral attack for some but not all defendants; no rational, fair rule of limitation has been offered to warrant placing our imprimatur upon this unauthorized extension of Bomar, and this Court has the exclusive power to

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supervise such procedural matters. We should take the bull by the horns and correct the problem now.[13]

Justice SAYLOR and Justice EAKIN join this concurring opinion.

Justice BAER, concurring.

I join the Majority Opinion to the extent it holds that the Superior Court erred in mandating that trial courts grant the filing of post-sentence motions nunc pro tunc in each case in which a defendant’s direct appeal rights are reinstated. As the Majority recognizes, this holding improperly affords an enumerated class of defendants i.e., those who have had their direct appeal rights reinstated, the opportunity to raise claims of trial counsel ineffectiveness on direct appeal in contravention of our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which held that, generally, such claims should be deferred to collateral review. I write separately, however, to disassociate myself from the Majority’s characterization of the Superior Court’s holding as “attempting] to promulgate a new rule of criminal procedure,” Op. at 19, 27-29, 977 A.2d at 1093, 1099-1100, and to provide counterpoint to Chief Justice Castille’s Concurring Opinion advocating the abrogation of the exception to Grant created in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). I believe the Bomar exception remains good law, and the Superior Court’s decision herein is an attempt, albeit an unwarranted one, to have the instant case fall within that narrow exception.

As to my first point, a fair review of the Superior Court’s opinion reveals that the court was not promulgating a new rule of criminal procedure, but rather was evaluating a previous decision of that court, which addressed the issue of a trial

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court’s scope of review in a collateral proceeding when one of the remedies sought and granted was the reinstatement of the right to a direct appeal. See Commonwealth v. Liston, 941 A.2d 1279, 1281-83
(Pa.Super. 2008) (examining the vitality of the Superior Court’s previous decision in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133
(1982), which addressed whether the trial court in a collateral proceeding is precluded from reaching the merits of additional issues raised by the defendant once the trial court grants a direct appeal nunc pro tunc).

Secondly, I note my respectful disagreement with the view taken in Chief Justice Castille’s Concurring Opinion, wherein he asserts that this Court should no longer recognize a “Bomar exception to the rule of Grant,” permitting defendants to raise collateral claims on direct appeal, unless the defendant expressly forfeits his right to PCRA review via the execution of a knowing and voluntary waiver of collateral review. Concurring Opinion at 21-22, 977 A.2d at 1096. While the Chief Justice has previously taken this position in his responsive opinions i Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597 (2005), and Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997 (2007), I feel compelled to highlight that a majority of this Court has never squarely addressed the issue. Further, the Bomar decision itself, which has never been abrogated or modified by this Court, set forth no such forfeiture requirement.

I acknowledge that in footnote 22 of our recent decision i Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008), the Court cited Chief Justice Castille’s Concurring Opinion in Rega, as follows:

Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review, because the PCRA does not afford the right to two collateral attacks.

Id. at 148 n. 22. This statement, however, amounts to nothing more tha dicta because Wright was a direct appeal from the imposition of a sentence of death. Thus, the parties had no reason to raise or brief the issue of what review a PCRA petitioner is entitled under circumstances where a trial court,

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employing the Bomar exception, has addressed a claim of ineffective assistance of counsel on direct appeal.

As I recognized in my Concurring Opinion in Wright:

I agree with the observation that “post-verdict motions should not become an accepted repository for laundry lists of collateral-appropriate complaints. . . .” Maj. Op. at 320, 961 A.2d at 148, (quoting Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1032-33 (Pa. 2007) (Castille, J., concurring, joined by Saylor, J. concurring)). Nevertheless, this Court has previously provided an exception to the holding in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726
(Pa. 2002), delaying claims of counsel ineffectiveness until PCRA review, and allowed review of claims of ineffectiveness on direct appeal that were raised and addressed by the trial court on post-verdict motions, see, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831
(Pa. 2003). The Court, however, has never held that such process would result in waiver of subsequent full PCRA review. To the extent that footnote 22 attempts to change our jurisprudence in dicta supported only by cites to two concurring opinions, I respectfully disagree. I believe our established case law permits the review of claims under the Bomar exception without affecting a defendant’s right to seek PCRA relief. Of course, in accordance with well-established judicial principles, claims that have been previously litigated at the time the PCRA is filed are barred. 42 Pa.C.S. § 9543(a)(3).

961 A.2d at 158-59.

To be clear, I am not advocating that each PCRA petitioner be afforded two rounds of collateral review. In the vast majority of cases, our decision in Grant clarifies that claims of ineffective assistance of counsel are to be deferred until collateral review proceedings. Th Bomar exception is only satisfied where the ineffectiveness claims were presented to the trial court, which, in its sound discretion, chose to address them on direct appeal; the trial court held an evidentiary hearing thereon; and the trial court ultimately ruled on the merits of the ineffectiveness claims in its opinion. Only in a case where all of this occurs, and a petitioner subsequently

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files a PCRA petition after his judgment of sentence becomes final, will the issue of the proper scope of collateral review under these peculiar circumstances arise. These conditions are simply not present in the matter now before this Court.

Accordingly, I respectfully caution against ruling upon this issue until it is raised, briefed, and argued by the parties in the appropriate case. See Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95, 108 n. 15 (2007) (holding that “[w]e find it ill-advised, generally, to consider substantial questions not squarely presented and fully argued by the parties below and before this Court.”). Absent a “real world” premise, we cannot begin to anticipate and analyze the peculiar positions advanced by thoughtful parties. Thus, it is inappropriate for this Court to hold that a PCRA petitioner per se forfeits his entire collateral review when a trial court exercises its discretion, for what one may presuppose is an appropriate reason, to dispose of a certain claim(s) of ineffectiveness on direct appeal, while leaving other collateral issues for the more typical post-judgment scrutiny anticipated by Grant. This is an especially important observation when one considers the already significantly limited nature of collateral review, via the one-year jurisdictional time restriction.