layered claim in Pennsylvania

2026They are all layered ineffectiveness claims, challenging the effectiveness of prior PCRA counsel for not previously raising ineffectiveness claims focusing on his trial and direct appeal counsel.3 We will address Appellant’s claims in the order in which he presents them. ____________________________________________ 3 “In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).

2026“In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).

2025As noted above, when raising a layered claim of ineffectiveness, a PCRA petitioner “must properly argue each prong of the three-prong ineffectiveness test for each separate attorney.” Rykard, 55 A.3d at 1190 .

2024In making a layered claim of ineffectiveness, a PCRA petitioner “must properly argue each prong of the three-prong ineffectiveness test for each separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177 , 1190 (Pa. Super. 2012).

2024The precedents he believes were not followed are: Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003) (discussion on how to properly raise a layered claim of ineffective assistance of counsel); Commonwealth v. Moore, 860 A.2d 88 Pa. 2004) (distinction between “traditional” and “non-traditional” layered claims of ineffectiveness); and Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (holding that claims of ineffectiveness are distinct issues and should be reviewed under the three-prong standard articulated in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).

2024See, e.g., Commonwealth v. McGill, 832 A.2d 1014, 1022-23 (Pa. 2003) (explaining that in a layered claim a court cannot conclude that there is arguable merit to a challenge to subsequent counsel’s performance was deficient unless all three prongs of the Pierce test are proven as to prior counsel).

2025Additionally, “[i]n determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the [petitioner] asserts was ineffective did, in fact, render ineffective assistance of counsel.” Commonwealth v. McCready, 295 A.3d 292, 298-99 (Pa. Super. 2023) (emphasis and brackets in original).

2025“In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the petitioner asserts was ineffective did, in fact, render ineffective assistance of counsel.” Commonwealth v. McCready, 295 A.3d 292, 299 (Pa. Super. 2023) (internal citation, quotations, and brackets omitted; emphasis in original).

2026Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citation omitted). -6- J-S22014-25 Diaz first raises a layered claim of ineffectiveness, asserting that PCRA counsel was ineffective5 for failing to allege all prior counsel were ineffective for not challenging the sufficiency and/or weight of the evidence on direct appeal.

2024The precedents he believes were not followed are: Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003) (discussion on how to properly raise a layered claim of ineffective assistance of counsel); Commonwealth v. Moore, 860 A.2d 88 Pa. 2004) (distinction between “traditional” and “non-traditional” layered claims of ineffectiveness); and Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (holding that claims of ineffectiveness are distinct issues and should be reviewed under the three-prong standard articulated in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).

2019Because Appellant has completely failed to develop a layered claim of ineffectiveness, his first issue fails. ____________________________________________ 1 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

2026If the petitioner fails to prove any prong of the ineffectiveness test related to plea counsel, “he will have failed to establish the arguable merit prong of the layered claim of [PCRA] counsel's ineffectiveness, and the claim fails.” Commonwealth v. Reyes, 870 A.2d 888, 896 (Pa. 2005). - 15 - J-A11044-26 Here, we have already concluded that Appellant failed to establish that plea counsel rendered ineffective assistance in connection with the entry of his guilty plea.

2025As to PCRA counsel’s ineffectiveness, if the petitioner fails to prove any prong of the ineffectiveness test related to trial counsel, “he will have failed to establish the arguable merit prong of the layered claim of [PCRA] counsel’s ineffectiveness, and the claim fails.” Commonwealth v. Reyes, 870 A.2d 888, 896 (Pa. 2005).

2012See Commonwealth v. Hughes, 581 Pa. 274 , 865 A.2d 761 , 775 n. 7 (2004) (providing that when appellant was represented by the same counsel at trial and on direct appeal, the PCRA proceeding is the first opportunity to challenge the stewardship of prior counsel and the analysis of such issue does not involve a layered claim of ineffectiveness).

2012See Commonwealth v. Hughes, 581 Pa. 274 , 865 A.2d 761 , 775 n. 7 (2004) (providing that when appellant was represented by the same counsel at trial and on direct appeal, the PCRA proceeding is the first opportunity to challenge the stewardship of prior counsel and the analysis of such issue does not involve a layered claim of ineffectiveness).

2022Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). ____________________________________________ 4 Commonwealth v Pierce, 786 A.2d 203, 213 (Pa. 2001) (reiterating the well-settled elements of the ineffectiveness test, as rephrased in Cooper and quoted in this excerpt from Wholaver). -6- J-A20025-22 Appellant’s stated issue reflects a layered claim of ineffective assistance, calling into question the effectiveness not only of trial counsel but also of PCRA counsel.

2008Id. (citing Commonwealth v. (Michael) Pierce, 567 Pa. 186 , 786 A.2d 203, 213 (2001), abrogated on other grounds, Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002)). 7 A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, Sneed, 899 A.2d at 1076 , which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel, McGill, 832 A.2d at 1023 .

2019See Commonwealth v. Mason, 130 A.3d 601, 618-19 (Pa. 2015) (to prevail upon a layered ineffectiveness claim, a PCRA petitioner must present argument on and prove the three prongs of the ineffective-assistance test, including that “the legal claim underlying the ineffectiveness claim has arguable merit[,]” as to each relevant layer of representation); Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (to prevail on a claim of most recent counsel’s ineffectiveness for failure to raise an allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must present a layered claim that shows

2017See Commonwealth v. Mason, 130 A.3d 601, 619 (Pa. 2015) (holding, to prevail upon a layered ineffectiveness claim, a PCRA petitioner must present argument on the three prongs of the ineffective-assistance test as to each relevant layer of representation); Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (stating, to prevail on a claim of most recent counsel’s ineffectiveness for failure to raise an -6- J-S18041-17 allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must present a layered claim that shows ineffectiveness at each layer of allegedly ineffective representation),

2019See Commonwealth v. Mason, 130 A.3d 601, 618-19 (Pa. 2015) (to prevail upon a layered ineffectiveness claim, a PCRA petitioner must present argument on and prove the three prongs of the ineffective-assistance test, including that “the legal claim underlying the ineffectiveness claim has arguable merit[,]” as to each relevant layer of representation); Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (to prevail on a claim of most recent counsel’s ineffectiveness for failure to raise an allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must present a layered claim that shows

2019See Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (to prevail on a claim of most recent counsel’s ineffectiveness for failure to raise an allegation of earlier counsel’s ineffectiveness, a PCRA petitioner must present a layered claim that shows ineffectiveness at each layer of allegedly ineffective representation). -4- J-S42036-19 Judgment Entered.

2012Commonwealth v. Ly, 602 Pa. 268 , 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397 , 957 A.2d 237, 244-45 (2008) (citations omitted)).

2012Commonwealth v. Ly, 602 Pa. 268 , 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397 , 957 A.2d 237, 244-45 (2008) (citations omitted)).

2024The precedents he believes were not followed are: Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003) (discussion on how to properly raise a layered claim of ineffective assistance of counsel); Commonwealth v. Moore, 860 A.2d 88 Pa. 2004) (distinction between “traditional” and “non-traditional” layered claims of ineffectiveness); and Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (holding that claims of ineffectiveness are distinct issues and should be reviewed under the three-prong standard articulated in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)).

2016Appellant’s first argument fails to specify the substantive claim of ineffective assistance, and therefore it does not merit relief. ____________________________________________ 2 This Court has explained: Layered claims of ineffectiveness “are not wholly distinct from the underlying claims[,]” because “proof of the underlying claim is an essential element of the derivative ineffectiveness claim[.]” [Commonwealth v. Collins, 888 A.2d 564, 584 (Pa. 2005) (Saylor, J. concurring)]; […] In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the d

2004The McGill Court recognized that this Court had “not been clear as to exactly what is required of a PCRA petitioner seeking to plead, present, and ultimately prove a layered claim of counsel ineffectiveness.” Since this Court’s Rules of Criminal Procedure contemplate permitting amendment of PCRA petitions to address “correctable defects,” we noted that a remand might be appropriate in instances where the petitioner had failed to properly develop his cognizable, layered claims of counsel ineffectiveness but was not afforded the opportunity to amend his pleading to cure the defect. 832 A.2d at 1

2004The McGill Court recognized that this Court had “not been clear as to exactly what is required of a PCRA petitioner seeking to plead, present, and ultimately prove a layered claim of counsel ineffectiveness.” Since this Court’s Rules of Criminal Procedure contemplate permitting amendment of PCRA petitions to address “correctable defects,” we noted that a remand might be appropriate in instances where the petitioner had failed to properly develop his cognizable, layered claims of counsel ineffectiveness but was not afforded the opportunity to amend his pleading to cure the defect. 832 A.2d at 1

2024Commonwealth v. Brown, 582 Pa. 461, 474 , 872 A.2d 1139, 1146 (2005) (citations and footnotes omitted).

2017“Only when the petitioner has adequately pled and presented the ineffectiveness of [prior] counsel pursuant to the [three prong] test will this Court proceed to review the layered claim to determine whether he…has proven [subsequent] counsel’s ineffectiveness.” Id. (emphasis in original). - 10 - J-S45007-17 “With regard to an attorney’s duty to investigate [a defendant’s mental health], …the reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation.” Commonwealth v. Willis,

2018Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa. 2005), citing Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003), Commonwealth v. Rush, 838 A.2d 651, 656 (Pa. 2003).

2011McGill, 832 A.2d at 1023 ; Commonwealth v. Rush, 576 Pa. 3 , 838 A.2d 651, 656 (2003).

2018“A failure to satisfy any of the three prongs of the Pierce test requires rejection of [a] claim of ineffective assistance of trial counsel, which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel.” Id. (citation omitted).

2016See Commonwealth v. Thomas, 44 A.3d 12, 17 (Pa. 2012) (stating that a failure to satisfy any of the three prongs of the ineffectiveness test requires rejection of an ineffective assistance of trial counsel claim, which requires rejection of a layered claim of ineffective assistance of counsel). -7- J-S35036-16 The PCRA court addressed Mann’s Alleyne claim and determined it to be without merit.

2004In Commonwealth v. Marrero, 561 Pa. 100 , 748 A.2d 202 (2000) the PCRA petitioner, like appellant here, asserted a layered claim of counsel ineffectiveness based upon trial counsels alleged failure to inquire into the petitioners competence to stand trial by seeking psychological and/or intelligence evaluations.

2004In Commonwealth v. Marrero, 561 Pa. 100 , 748 A.2d 202 (2000) the PCRA petitioner, like appellant here, asserted a layered claim of counsel ineffectiveness based upon trial counsels alleged failure to inquire into the petitioners competence to stand trial by seeking psychological and/or intelligence evaluations.

2024If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “[C]ounsel is presumed effective, and [the appellant] bears the burden of proving otherwise.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014), quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

2023See Steele, 961 A.2d at 796 .

2023See Rivera, supra. In his final two issues, Appellant argues the PCRA court erred when it - 14 - J-S17036-23 denied his motion for DNA testing,2 which Appellant filed during the pendency of this appeal, on August 4, 2022.

2023See Rivera, supra. In his final two issues, Appellant argues the PCRA court erred when it - 14 - J-S17036-23 denied his motion for DNA testing,2 which Appellant filed during the pendency of this appeal, on August 4, 2022.

2023See Ford, supra. See also Dennis, supra. In his seventh issue, Appellant raises a layered claim of ineffective assistance of counsel.

2023See Ford, supra. See also Dennis, supra. In his seventh issue, Appellant raises a layered claim of ineffective assistance of counsel.

2023See King, supra. As PCRA counsel cannot be deemed ineffective for failing to preserve a meritless claim, we conclude that Appellant is not entitled to relief on this layered claim of ineffectiveness.

2023See King, supra. As PCRA counsel cannot be deemed ineffective for failing to preserve a meritless claim, we conclude that Appellant is not entitled to relief on this layered claim of ineffectiveness.

2022See Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008) (explaining that an appellant’s inability to prove each prong of the ineffective-assistance-of-counsel standard as to trial counsel’s purported ineffective stewardship is fatal to a layered claim of ineffectiveness).

2019See Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008).

2012Commonwealth v. Ly, 602 Pa. 268 , 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397 , 957 A.2d 237, 244-45 (2008) (citations omitted)).

2012Commonwealth v. Ly, 602 Pa. 268 , 980 A.2d 61, 74 (2009) (quoting Commonwealth v. Collins, 598 Pa. 397 , 957 A.2d 237, 244-45 (2008) (citations omitted)).

2022Paddy, 15 A.3d at 443 (citations omitted).

2022See, e.g., Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (to prevail on a layered claim of ineffectiveness, “a PCRA petitioner must present argument as to each of the three prongs of the Pierce test for each layer of allegedly ineffective representation.”).

2022See id. at 733 (explaining that “the only way to consider claims related to trial counsel’s ineffectiveness that were not raised on direct appeal by new counsel was to plead and prove the additional claim of appellate counsel’s ineffectiveness, i.e., a layered claim of ineffectiveness”).

2008Id. (citing Commonwealth v. (Michael) Pierce, 567 Pa. 186 , 786 A.2d 203, 213 (2001), abrogated on other grounds, Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002)). 7 A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, Sneed, 899 A.2d at 1076 , which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel, McGill, 832 A.2d at 1023 .

2026As with all appeals stemming from the denial of PCRA relief, our standard of review is limited to “whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error.” Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011).