Commonwealth v. Williams

¶1concurring.

¶2I join fully in the majority’s analysis and conclusion affirming the PCRA court’s order vacating appellee’s Pa.C.O.A. conviction, and remanding to the PCRA court for consideration of most of his collateral claims pursuant to our decision in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003). I also join in the majority’s conclusion that trial and direct appeal counsel were not ineffective for failing to raise Besch-related claims, and in the majority’s subsequent finding that the admission of the evidence challenged by appellee “cannot be deemed prejudicial where the jury expressly found appellee criminally responsible for only the murders and robberies in which he was the actual shooter.” M.O. at 396, 936 A.2d at 30. As the majority notes, “the jury obviously rejected the evidence submitted in support of [the five unfounded predicate] acts.” Id. As a result of the jury’s acquit*408ting appellee of crimes in which he was not the shooter, I agree that appellee was not prejudiced by the admission of evidence unrelated to the murders of Gavin Anderson, Kevin Anderson, and Otis Reynolds. Because I believe that this would be a sufficient basis upon which to find a lack of Strickland/Pierce prejudice, I see no need to address the specific admissibility of each piece of evidence challenged by appellee. Accordingly, I decline to join that portion of the majority opinion.

Justice BAER joins this concurring opinion.

¶3concurring and dissenting.

¶4I respectfully dissent from the majority’s affirmance of the PCRA court’s conclusion that this Court would have reversed appellee’s PaCOA conviction on direct appeal, had appellate counsel raised Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996) (PaCOA not applicable to wholly illegitimate organizations).

¶5Trial counsel could not be found ineffective for failing to anticipate Besch, which was not decided at the time of trial. At the time of trial, the PaCOA had been held to apply to both legitimate and illegitimate enterprises. See Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985). Thus, trial counsel cannot be deemed ineffective, and any layered claim of appellate counsel’s ineffectiveness premised on this underlying claim necessarily fails.

¶6The ineffectiveness inquiry here is whether appellate counsel was ineffective for failing to argue, on direct appeal, that Beschshould apply retroactively, rendering appellee’s PaCOA conviction a nullity. The relevant period for assessing appellate counsel’s stewardship is during appellee’s direct appeal. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 51 (2002) (fair assessment of attorney performance requires evaluation of conduct from counsel’s perspective at time).

¶7At the time appellate counsel filed his appellate brief in this case, the legislature had amended the PaCOA in immediate *409response to Besch,1making clear that the statute encompassed both legitimate and illegitimate organizations; Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840 (1999) (holding Besch applies retroactively to date of PaCOA’s enactment) had not been decided. Appellate counsel should not be deemed ineffective for failing to anticipate the holding in Shaffer. Therefore, I cannot agree with the majority’s conclusion that appellate counsel was per se ineffective for failing to challenge appellee’s PaCOA conviction when the law at the time of trial and direct appeal supported the conviction.

¶8Accordingly, I would reverse the order of the PCRA court vacating appellee’s PaCOA conviction; in all other respects, I join the majority’s disposition.