layered ineffectiveness claim in Pennsylvania

2023Id. at 1023 (“If the petitioner does not satisfy [that his first counsel was ineffective], the layered ineffectiveness claim (as to [PCRA counsel’s] ineffectiveness . . . necessarily fails, and relief must be denied.”).

2023See also McGill, supra - 16 - J-S40039-22 at 591, 832 A.2d at 1024 (articulating “a general preference toward remanding cases currently pending in the PCRA appellate pipeline where the PCRA petitioner has not pled and/or presented a layered ineffectiveness claim in a manner sufficient to obtain merits review”).

2026In Williams, supra, our Supreme Court outlined PCRA counsel’s role as follows: [I]t is apparent that competent PCRA counsel must, in pleadings and briefs, undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel.

2007See Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014, 1022 (2003) ("[I]n order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, he must plead, present, and prove" the ineffectiveness of appellate counsel.); Commonwealth v. Williams, 566 Pa. 553 , 782 A.2d 517, 525 (2001) ("PCRA counsel must, in pleadings and briefs, undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel.").

2019To preserve (plead and present) a claim that Counsel 2 was ineffective in our hypothetical situation, the petitioner must: (1) plead, in his PCRA petition, that Counsel 2 was ineffective for failing to allege that -7- J-A25011-18 Counsel 1 was ineffective for not [taking the suggested actions], see Commonwealth v. Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present argument on, i.e., develop, each prong of the Pierce test as to Counsel 2's representation, in his briefs or other court memoranda.

2019To preserve (plead and present) a claim that Counsel 2 was ineffective in our hypothetical situation, the petitioner must: (1) plead, in his PCRA petition, that Counsel 2 was ineffective for failing to allege that Counsel 1 was ineffective for not [taking the suggested actions], see Commonwealth v. Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present argument on, i.e., develop, each prong of the Pierce test as to Counsel 2's representation, in his briefs or other court memoranda.

2024Id. (citation omitted).4 Cannavo maintains that his PCRA counsel was ineffective for “failing to challenge appellate counsel’s performance in raising a claim relating to the trial court’s decision to deny [Cannavo] a castle doctrine instruction.” Cannavo’s Br. at 22.

2018Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011)(failure to satisfy test I1 for ineffectiveness against trial counsel defeats a layered ineffectiveness claim against subsequent counsel).

2021See Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa. Super. 2019) (stating “[b]oilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective” (citation omitted)), appeal denied, 216 A.3d 1029 (Pa. 2019); and Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (stating “[w]here the defendant asserts a layered ineffectiveness claim he must properly argue each prong of the three-prong ineffectiveness test for each separate attorney” (citations omitted)). -8- J-S20005-21 Order affirme

2020Where petitioner raises a layered ineffectiveness claim, as is the case here, “he 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) (citations omitted), appeal denied, 64 A.3d 631 (Pa. 2013).

2023Id. at 1128; see also Commonwealth v. Reyes, 582 Pa. 317 , 870 A.2d 888 (2005); Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014 (2003).

2023Id. at 1128; see also Commonwealth v. Reyes, 582 Pa. 317 , 870 A.2d 888 (2005); Commonwealth v. McGill, 574 Pa. 574 , 832 A.2d 1014 (2003).

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),

2018To prevail upon a layered ineffectiveness claim, a defendant "must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that counsel who preceded him was ineffective in taking or omitting some action." Commonwealth v. Reaves, 923 A.2d 1119, 1127 (Pa. 2007) (citation omitted).

2017See Commonwealth v. Reaves, 923 A.2d 1119 , 1127–28 (Pa. 2007).

2002Commonwealth v. (Michael) Pierce, 567 Pa.186, 786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 299 , 724 A.2d 326, 333 (1999). [10] A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. ( Michael) Pierce, 786 A.2d at 221-22; see also Williams, 782 A.2d at 525 ("PCRA counsel must, in pleadings and briefs, undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel."); Albrecht, 720 A.2d at 701 ("If

2002See also Commonwealth v. Williams, 566 Pa. 553 , 782 A.2d 517, 525 (2001) (“PCRA counsel must, in pleadings and briefs, undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel.”); Commonwealth v. Albrecht, 554 Pa. 31 , 720 A.2d 693, 701 (1998) (“If it is clear that Appellant has not demonstrated that counsel’s act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone *127 and the court need not

2006As we noted in McGill , in light of the lack of clear guidance to petitioners who filed before we decided that case, a remand to the PCRA court may be appropriate "where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review." McGill, 832 A.2d at 1024 ; see also Rush, 838 A.2d at 657 (noting that appellant's failure to present argument as to appellate counsel ineffectiveness was "specifically the type of presentation defect that the remand provision in McGill was created to address").

2006As we noted in McGill , in light of the lack of clear guidance to petitioners who filed before we decided that case, a remand to the PCRA court may be appropriate “where the petitioner has failed to preserve, by pleading and/or presenting, a layered ineffectiveness claim in a manner sufficient to warrant merits review.” McGill, 832 A.2d at 1024 ; see also Rush, 838 A.2d at 657 (noting that appellant’s failure to present argument as to appellate counsel ineffectiveness was “specifically the type of presentation defect that the remand provision in McGill was created to address”).

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),

2017In Commonwealth v. Pitts, 884 A.2d 251 (Pa. Super. 2005), this Court explained: On more than one occasion, our Supreme Court has instructed that to establish [ineffective assistance] of appellate counsel based on the antecedent ineffectiveness of trial counsel, the petitioner must demonstrate: “(1) the underlying claim of trial counsel’s ineffectiveness has arguable merit; (2) appellate counsel had no reasonable basis for failing to pursue the claim; and (3) but for appellate counsel’s ineffectiveness, the result on direct appeal would have differed.” Commonwealth v. Moore, 580 Pa. 279 , 860 A

2015See Commonwealth v. Lopez, 854 A.2d 465, 469 (Pa. 2004) (recognizing a layered ineffectiveness claim begins with an assessment of trial counsel’s performance and a failure to establish ineffectiveness of trial counsel defeats the entire claim). -9- J-S13020-15 mother, Appellant’s wife, to “facilitate [Appellant’s] removal from the home and permit her to engage in another relationship without that impediment.” Appellant’s Brief at 7; see N.T., 11/18/10, at 28-29.

2015See Commonwealth v. King, 57 A.3d 607, 624 (Pa. 2012) (citations omitted).

2015See Commonwealth v. King, 57 A.3d 607, 624 (Pa. 2012) (citations omitted).

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).

2016As we set forth in Burkett, supra, Counsel is presumed effective and will only be deemed ineffective if the petitioner demonstrates that counsel’s performance was deficient and he was prejudiced by that deficient performance.

2017Notice of Appeal In assessing Appellant’s claim, we apply the well-settled test first established in Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987): To prevail on an ineffectiveness claim, appellant must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

2010Id. “[I]n order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove the ineffectiveness of direct appellate counsel, which necessarily relates back to the actions of trial counsel.” Commonwealth v. Brown, 582 Pa. 461, 473-74 , 872 A.2d 1139, 1146 (2005). (emphasis in original) (citation omitted) Initially, the court notes that defendant apparently asserts ineffectiveness of all counsel; however, his petition neither properly develops such a claim for layered ineffective assistance, nor

2026It is well established that “a claim of ineffective assistance of counsel does not save an otherwise untimely petition for review on the merits.” Commonwealth v. Morris, 822 A.2d 684, 694 (Pa. 2003).6 We note briefly that Appellant cites our Supreme Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 , 401 (Pa. 2021) (holding that “a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal”), and argues that, despite Appellant’s request, Atto

2025See, e.g., Commonwealth v. Moore, 310 A.3d 802, 806 (Pa. Super. 2024) (noting that, “[g]enerally, to have standing to pursue a suppression motion . . . the defendant’s own constitutional rights must have been infringed”).

2025See McCready, 295 A.3d at 299 .

2025See id. at 33- 34.

2024The United States Supreme Court “has explicitly affirmed that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present.” Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012) (citing Gomez v. United States, 490 U.S. 858, 873 (1989)).

2024See Pa.R.A.P. 2119(a); see also Hardy, 918 A.2d at 771 . - 28 - J-S28036-24 to argue [T]rial [C]ounsel was ineffective for not seeking the transcripts.

2024The United States Supreme Court “has explicitly affirmed that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present.” Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012) (citing Gomez v. United States, 490 U.S. 858, 873 (1989)).

2023To prevail on a layered ineffectiveness claim, Appellant must satisfy each element of the test “as to each layer of allegedly ineffective counsel[.]” Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).

2023See Hairston, supra; Bishop, supra. In his third and final issue, Appellant presents a layered ineffectiveness claim based on Trial Counsel’s failure to challenge the Commonwealth’s alleged violation of Appellant’s right to a speedy trial pursuant to Pa.R.Crim.P. 600.

2022Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019).

2022Johnson, supra, 139 A.3d at 1272 (“Counsel cannot be deemed ineffective for failing to raise a meritless claim.”) (citation omitted)); Tedford, supra (holding where each prong of Pierce test as to an appellate counsel’s purported ineffectiveness is not met, the layered ineffectiveness claim must fail). - 18 - J-S13045-22 Appellant’s argument is not sufficiently developed, and the defects preclude us from conducting meaningful appellate review of the issue.