Question: In a direct criminal appeal, can a defendant raise the issue that his trial counsel did not provide effective assistance of counsel?
Answer: For now at least, the answer is generally “No.”
In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), the Supreme Court held, “that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Id. at 738. The rationale behind the Grant rule rested on three grounds. “First, ineffectiveness claims, by their very nature, often involve claims that are not apparent on the record.” Id. at 737. “Second, even presuming the merit of the claim is apparent on the existing record, oftentimes, demonstrating trial counsel’s ineffectiveness will involve facts that are not available on the record.” Id. “Third, as multiple courts have recognized, the trial court is in the best position to review claims related to trial counsel’s error in the first instance as that is the court that observed first hand counsel’s allegedly deficient performance.” Id.
In Commonwealth v. Bomar, 826 A.2d 831, 853 (Pa. 2003), the Supreme Court permitted ineffective assistance claims to be litigated on direct appeal because the defendant in that case raised them before the trial court, which conducted a hearing to determine their merits. However, several post-Bomar decisions have left serious questions as to whether such a right will be allowed on a going-forward basis.
In 2010, in Commonwealth v. Holmes, 996 A.2d 479, 480 (Pa. 2010), the Supreme Court granted allocatur to decide the following issues:
Whether the claims of ineffective assistance of counsel which are the exclusive subject of this nunc pro tunc direct appeal: (1) are reviewable on direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003); (2) should instead be deferred to collateral review under the general rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002)[,] that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel; or (3) should instead be deemed reviewable on direct appeal only if accompanied by a specific waiver of the right to pursue a first PCRA petition as of right. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 n.22 (Pa. 2008) (‘Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review . . . .’)
In Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. Ct. 2011), the Superior Court held that, until the Supreme Court decides Homes, it will no longer consider ineffective assistance of counsel claims on direct appeal absent an “express, knowing and voluntary waiver of PCRA review” in the trial court.
Therefore, for the time being at least, the Superior Court will accept effective assistance of counsel issues only if the defendant waives his PCRA rights in the trial court.