ineffective assistance of counsel claim in Pennsylvania

2024See Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

2024See Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

2022To demonstrate prejudice in an ineffective assistance of counsel claim, “the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

2021To establish the prejudice prong of an ineffective assistance of counsel claim, “the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). ____________________________________________ 4 The PCRA court’s order must be affirmed if it is supported by evidence in the record and free of legal error.

2026Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations and quotation marks omitted). - 12 - J-S15040-25 To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

2026To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing the ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

2025To be entitled to relief on a claim of ineffectiveness of counsel, a PCRA petitioner must establish all three prongs of the ineffective assistance of counsel test set forth in Commonwealth v. Pierce, 527 A.2d 973 , 975–76 (Pa. 1987).

2025The Court is not required to analyze the ineffective assistance of counsel test prongs in any particular order; "if a claim fails under any necessary element of the ineffectiveness test, the court may proceed to that element first." Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).

2019Finally, when considering an ineffective assistance of counsel claim, the PCRA court “is not required to analyze these [prongs] in any particular order of priority; instead if a claim fails under any necessary [prong] of the ineffectiveness test, the court may proceed to that [prong] first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

2026To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

2025To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

2026To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

2025To prevail on an ineffective assistance of counsel claim, the petitioner must establish: “(1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing the ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing the ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.

2024Id. 10 To succeed on an ineffective assistance of counsel claim, a petitioner must establish: “(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her conduct; and (3) that the petitioner was prejudiced by counsel’s performance, i.e.[,] that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different.” Commonwealth v. Cox, 863 A.2d 536, 543 (Pa. 2004) (citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), and Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).

2024Id. 10 To succeed on an ineffective assistance of counsel claim, a petitioner must establish: “(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her conduct; and (3) that the petitioner was prejudiced by counsel’s performance, i.e.[,] that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different.” Commonwealth v. Cox, 863 A.2d 536, 543 (Pa. 2004) (citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), and Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).

2025See Fears, 86 A.3d at 804 .

2023Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (stating that the failure “to prove any prong” of the ineffective assistance of counsel test will defeat the claim).

2023“When, as in this case, an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim.” Commonwealth v. Carelli, 546 A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).

2023“When, as in this case, an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim.” Commonwealth v. Carelli, 546 A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).

2024Id. 10 To succeed on an ineffective assistance of counsel claim, a petitioner must establish: “(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her conduct; and (3) that the petitioner was prejudiced by counsel’s performance, i.e.[,] that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different.” Commonwealth v. Cox, 863 A.2d 536, 543 (Pa. 2004) (citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), and Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).

2024Id. 10 To succeed on an ineffective assistance of counsel claim, a petitioner must establish: “(1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his or her conduct; and (3) that the petitioner was prejudiced by counsel’s performance, i.e.[,] that there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different.” Commonwealth v. Cox, 863 A.2d 536, 543 (Pa. 2004) (citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), and Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).

2026See Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was raised on PCRA appeal without an ineffective assistance of counsel analysis because it is not cognizable under the PCRA); see also Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (holding that sufficiency claims are not cognizable under the PCRA).

2026See 42 Pa.C.S.A. -8- J-S09001-26 § 9543(a)(2) (identifying the issues cognizable under the PCRA); Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency challenge that was raised in a PCRA petition without an ineffective assistance of counsel analysis, because it is not cognizable under the PCRA); see also Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (concluding that sufficiency claims are not cognizable under the PCRA).

2020Our analysis is informed by this Court’s decision in Commonwealth v. Johnson, 179 A.3d 1153 (Pa. Super. 2018), wherein we addressed an ineffective assistance of counsel claim related to the entry of a guilty plea.

2019To prevail on an ineffective assistance of counsel claim, a petitioner must plead and prove that: “(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different.” Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super. 2018) (citation omitted).

2019Our Supreme Court has explained the following in addressing an ineffective assistance of counsel claim: To prevail in a claim of ineffective assistance of counsel, a petitioner must overcome the presumption that counsel is effective by establishing all of the following three elements, as set forth in Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973 , 975–76 (1987): (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel’s ineffectiveness. -3- J-S36016-19 Commonwealth

2018Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.2008). 8 The arguable merit prong regarding PCRA counsel's ineffectiveness may only be satisfied by pleading and proving all three elements of the ineffective assistance of counsel test regarding the underlying allegation of trial counsel's'ineffectiveness.

2020See Wholaver, 177 A.3d at 144 .

2020See Wholaver, 177 A.3d at 144 .

2020However, ineffective assistance of counsel claims may be reviewed on direct appeal if (1) the ineffective assistance of counsel claim is apparent from the record and meritorious to the extent that immediate consideration best serves the interested of justice; or (2) there is good cause shown, and the defendant waives his right to file a future Post Conviction Relief Act petition.8 See Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013).

2018As the Concurring Memorandum notes, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court held that, except in limited circumstances not present in the case sub judice, a defendant may not raise an ineffective assistance of counsel claim on direct appeal.

2016Id. at 9-10; see, e.g., Commonwealth v. Pearson, 685 A.2d 551 , 558- 559 (Pa.Super. 1996) (in the time prior to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), where an appellant’s judgment of sentence was proper on direct appeal, but where the conjoined ineffective assistance of counsel claim had arguable merit, this Court was required to “affirm the judgment of sentence and remand solely for an evidentiary hearing on [the] ineffectiveness claim;” if, following remand, this Court affirmed the denial of the ineffective assistance of counsel claim, the appellant could then file a petition for a

2016Furthermore, the Commonwealth properly cites Commonwealth v. Grant, 813 A.2d 726 , 73 7-738 (Pa. 2002), which held that the proper time to raise an ineffective assistance of counsel claim against pervious counsel is on collateral review.

2025See Commonwealth v. Steele, 961 A.2d 786, 823 (Pa. 2008), abrogated on other grounds sub nom, Pena–Rodriguez v. Colorado, 580 U.S. 206 (2017) (affirming the PCRA court’s finding that the underlying PCRA petition did not meet the arguable merit prong of the ineffective assistance of counsel standard on credibility grounds); Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.”); see also Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) (

2025See Commonwealth v. Steele, 961 A.2d 786, 823 (Pa. 2008), abrogated on other grounds sub nom, Pena–Rodriguez v. Colorado, 580 U.S. 206 (2017) (affirming the PCRA court’s finding that the underlying PCRA petition did not meet the arguable merit prong of the ineffective assistance of counsel standard on credibility grounds); Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (“A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.”); see also Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) (

2026See Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was raised on PCRA appeal without an ineffective assistance of counsel analysis because it is not cognizable under the PCRA); see also Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (holding that sufficiency claims are not cognizable under the PCRA).

2026See 42 Pa.C.S.A. -8- J-S09001-26 § 9543(a)(2) (identifying the issues cognizable under the PCRA); Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency challenge that was raised in a PCRA petition without an ineffective assistance of counsel analysis, because it is not cognizable under the PCRA); see also Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (concluding that sufficiency claims are not cognizable under the PCRA).

2024Regarding the reasonable basis prong of the ineffective assistance of counsel test, our Supreme Court has relevantly stated the following: When assessing whether counsel had a reasonable basis for his act or omission, the question is not whether there were other courses of action that counsel could have taken, but whether counsel’s decision had any basis reasonably designed to effectuate his client’s interest….[T]his cannot be a hindsight evaluation of counsel’s performance, but requires an examination of “whether counsel made an informed choice, which at the time the decision was made reasona

2023Regarding the reasonable basis prong of the ineffective assistance of counsel test, our Supreme Court has relevantly stated the following: When assessing whether counsel had a reasonable basis for his act or omission, the question is not whether there were other courses of action that counsel could have taken, but whether counsel’s decision had any basis reasonably designed to effectuate his client’s interest….[T]his cannot be a hindsight evaluation of counsel’s performance, but requires an examination of “whether counsel made an informed choice, which at the time the decision was made reasona

2026See Commonwealth v. Natividad, . . . 938 A.2d 310, 322 ([Pa.] 2007) (explaining that “appellants continue to bear the burden of pleading and proving each [prong of the ineffective-assistance-of-counsel standard] on appeal to this Court”).

2016"A PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness." Commonwealth v. Natividad supra 595 Pa. at 209 , 938 A.2d at 322 -23 citing Commonwealth v. Spatz supra 587 Pa. at 99 , 896 A.2d at 1250 (Finding the ineffectiveness claim insufficient when the appellant" ... failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim.") See also Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2012) quoting 45 Commonwealth v. Natividad s

2025See Commonwealth v. Wharton, 571 Pa. 85, 100 , 811 A.2d 978, 987 (2002) (holding appellant waived claim regarding right to counsel where he did not raise issue before PCRA court but raised it for the first time on appeal).

2025See Commonwealth v. Wharton, 571 Pa. 85, 100 , 811 A.2d 978, 987 (2002) (holding appellant waived claim regarding right to counsel where he did not raise issue before PCRA court but raised it for the first time on appeal).

2020To the extent Appellant’s challenges to the validity of his plea is couched within ineffective claims, they are not previously litigated or waived, for “an ineffective assistance of counsel claim is a separate legal issue distinct from the underlying substantive claim for which counsel allegedly had provided ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875 , 883 n.6 (Pa. Super. 2006); see also Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005).

2018We agree with Appellant and conclude that his ineffective assistance of counsel claims have not been previously litigated or waived under the PCRA because “an ineffective assistance of counsel claim is a separate legal issue distinct from the underlying substantive claim for which counsel allegedly had provided ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875 , 883 n.6 (Pa. Super. 2006); see also Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005).

2020Our supreme court has held that a PCRA petitioner establishes prejudice within the context of an ineffective assistance of counsel claim when he or she, “demonstrat[es] there is a reasonable probability that, but for counsel’s error, the outcome of the proceedings would have been different.” Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012), citing Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999).

2015Whereas Strickland explained the ineffective assistance of counsel test using two prongs, our Commonwealth uses three prongs to apply the “identical rule of law.” Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999); Commonwealth v. Washington, 927 A.2d 586 , 594 n.8 (Pa. 2007) (“The Third Circuit has likewise recognized that Pennsylvania’s standard for assessing claims of counsel ineffectiveness is materially identical to Strickland.

2025According to Kesecker, prejudice should be presumed, but if not, he “still demonstrated prejudice under the ineffective assistance of counsel inquiry.” Kesecker’s Brief at 6. -7- J-S13027-25 In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) our Supreme Court addressed whether a PCRA petitioner whose counsel failed to file a motion to reconsider sentence suffered prejudice.

2009The Court further determined that counsel's inaction "caused [Reaves] prejudice because counsel `effectively waived [Reaves'] right'" to challenge the discretionary aspect of his sentence on appeal, and concluded that Reaves "successfully established an ineffective assistance of counsel claim." Id. at 141 , 923 A.2d at 1123 .

2026See id. at 30-31. “[When] an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim.” Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008) (citation omitted).

2023We agree with counsel for Appellant that this claim lacks arguable merit. “[W]here an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying - 12 - J-S10032-23 suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim.” Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008).

2025As such, other than issue 2.d, Appellant has failed to meet his burden of proof to establish the reasonable basis prong of the ineffective assistance of counsel test and these claims must fail.4 See Commonwealth v. Koehler, 614 Pa. 159, 202-03 , 36 A.3d 121, 147 (2012) (holding that where petitioner was given evidentiary hearing and failed to question counsel regarding his reasons for alleged failures, petitioner fails to ____________________________________________ 4 At 2.i and 2.j in the amended PCRA petition, Appellant asserts: i) [Trial Counsel] failed to object to questions put to [Appell

2025As such, other than issue 2.d, Appellant has failed to meet his burden of proof to establish the reasonable basis prong of the ineffective assistance of counsel test and these claims must fail.4 See Commonwealth v. Koehler, 614 Pa. 159, 202-03 , 36 A.3d 121, 147 (2012) (holding that where petitioner was given evidentiary hearing and failed to question counsel regarding his reasons for alleged failures, petitioner fails to ____________________________________________ 4 At 2.i and 2.j in the amended PCRA petition, Appellant asserts: i) [Trial Counsel] failed to object to questions put to [Appell

2017To prevail on an ineffective assistance of counsel claim, a “petitioner must plead and prove (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or inaction lacked any reasonable basis designed to effectuate petitioner's interest; and (3) counsel’s action or inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citation omitted).

2017To prevail on an ineffective assistance of counsel claim, a “petitioner must plead -3- J-S03009-17 and prove (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or inaction lacked any reasonable basis designed to effectuate petitioner’s interest; and (3) counsel’s action or inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citation omitted).