IAC claim in Pennsylvania

2019Our Supreme Court has explained the essential elements of an IAC claim as follows: 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.

2019Our Supreme Court has explained the essential elements of an IAC claim as follows: 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.

2026Burkett, 5 A.3d at 1270 (stating that where an appellant raises a layered IAC claim, if the first “attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.”).

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).

2026Chmiel, 30 A.3d at 1127 (employing ineffective assistance of counsel test from - 17 - J-S09004-26 Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim.

2026Chmiel, 30 A.3d at 1127 (employing ineffective assistance of counsel test from - 17 - J-S09004-26 Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim.

2016See Simpson, 66 A.3d at 260 (stating that the failure to prove any one of the three prongs of the ineffectiveness test defeats an IAC claim).

2016See Simpson, 66 A.3d at 260 (stating that the failure to prove any one of the three prongs of the ineffectiveness test defeats an IAC claim).

2025See id. at 23-27; see also Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (“To demonstrate prejudice, 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.” (citation and internal quotation marks omitted)).

2025See id. at 23-27; see also Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (“To demonstrate prejudice, 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.” (citation and internal quotation marks omitted)).

2015Failure expressly to plead and ____________________________________________ 3 Indeed, before the Supreme Court made clear in Commonwealth v. Grant that claims of ineffective assistance of counsel must be deferred until any direct appeal is resolved and pursued under the PCRA, see 813 A.2d 726, 739 (Pa. 2002) (“We hold that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.”), such claims routinely were raised on direct appeal and measured according to the Pierce standard. -7- J-S56028-14 prove any one of these prongs

2015Failure expressly to plead and ____________________________________________ 3 Indeed, before the Supreme Court made clear in Commonwealth v. Grant that claims of ineffective assistance of counsel must be deferred until any direct appeal is resolved and pursued under the PCRA, see 813 A.2d 726, 739 (Pa. 2002) (“We hold that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.”), such claims routinely were raised on direct appeal and measured according to the Pierce standard. -7- J-S56028-14 prove any one of these prongs

2025See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (“A PCRA petitioner must address each of [the IAC test] prongs on appeal.” (citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading and proving each of the [IAC test prongs] on appeal[.]”)); Commonwealth v. Lawrence, 313 A.3d 265 , 278 n.3 (Pa. Super. 2024) (“It is well settled that this Court will not act as counsel and will not develop arguments on behalf of an appellant.” (citation, brackets, and quotation marks omitted)).

2025See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (“A PCRA petitioner must address each of [the IAC test] prongs on appeal.” (citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading and proving each of the [IAC test prongs] on appeal[.]”)); Commonwealth v. Lawrence, 313 A.3d 265 , 278 n.3 (Pa. Super. 2024) (“It is well settled that this Court will not act as counsel and will not develop arguments on behalf of an appellant.” (citation, brackets, and quotation marks omitted)).

2025See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (“A PCRA petitioner must address each of [the IAC test] prongs on appeal.” (citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading and proving each of the [IAC test prongs] on appeal[.]”)); Commonwealth v. Lawrence, 313 A.3d 265 , 278 n.3 (Pa. Super. 2024) (“It is well settled that this Court will not act as counsel and will not develop arguments on behalf of an appellant.” (citation, brackets, and quotation marks omitted)).

2025See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (“A PCRA petitioner must address each of [the IAC test] prongs on appeal.” (citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading and proving each of the [IAC test prongs] on appeal[.]”)); Commonwealth v. Lawrence, 313 A.3d 265 , 278 n.3 (Pa. Super. 2024) (“It is well settled that this Court will not act as counsel and will not develop arguments on behalf of an appellant.” (citation, brackets, and quotation marks omitted)).

2025See Lawrence, 309 A.3d at 156 (concluding remand was appropriate where the PCRA petitioner raised, for the first time on appeal, an IAC claim regarding his prior PCRA counsel pursuant to Bradley.

2025See Lawrence, 309 A.3d at 156 (concluding remand was appropriate where the PCRA petitioner raised, for the first time on appeal, an IAC claim regarding his prior PCRA counsel pursuant to Bradley.

2023Commonwealth v. Baumhammers, [] 92 A.3d 708, 719 ([Pa.] 2014) (citing [Commonwealth v.] Pierce, 527 A.2d [973,] 975–76 [(Pa. 1987)]).

2023Commonwealth v. Baumhammers, [] 92 A.3d 708, 719 ([Pa.] 2014) (citing [Commonwealth v.] Pierce, 527 A.2d [973,] 975–76 [(Pa. 1987)]).

2018Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

2018Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

2018As noted previously, to show actual prejudice, a Petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Spatz, 84 A.3d at 315 (internal citations omitted).

2018As noted previously, to show actual prejudice, a Petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Spatz, 84 A.3d at 315 (internal citations omitted).

2011Id. (citing Commonwealth v. Reed, 601 Pa. 257 , 971 A.2d 1216 (2009)) (noting that "the filing of a deficient brief does not amount to per se ineffectiveness."). *431 Relying on Reed specifically, the trial court convened an IAC hearing and, applying the three-pronged test, found Fink's claim unsustainable for failure to establish the prejudice prong.

2011Id. (citing Commonwealth v. Reed, 601 Pa. 257 , 971 A.2d 1216 (2009)) (noting that "the filing of a deficient brief does not amount to per se ineffectiveness."). *431 Relying on Reed specifically, the trial court convened an IAC hearing and, applying the three-pronged test, found Fink's claim unsustainable for failure to establish the prejudice prong.

2022See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (stating the failure “to prove any prong of this test will defeat an ineffectiveness claim[,] and that “counsel cannot be deemed ineffective for failing to raise a meritless claim”).

2015See, e.g., Fears, 86 A.3d at 804 (“When an appellant fails to meaningfully discuss each of the three [IAC] prongs, he is not entitled to relief ....”) (internal quotation omitted); Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa.Super.2014) (finding IAC claim regarding jury instructions waived where appellant baldly asserted prejudice and failed to develop argument regarding reasonable basis).

2019Holmes, 79 A.3d at 563-64 ; see also Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013) (IAC claim not reviewable on direct appeal because claim was not apparent from record and appellant did not waive PCRA review). ____________________________________________ 4The Supreme Court summarized the impact of Holmes on Grant and Bomar as follows: [W]e hold that Grant’s general rule of deferral to PCRA review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel; we disapprove of expansions of the exception to that rule recognized in Boma

2015Holmes, 79 A.3d 563 -64; see also Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013) (IAC claim not reviewable on direct appeal because claim was not apparent from record and appellant did not waive PCRA review).

2022There is no dispute, for purposes of this appeal, that counsel’s admitted failure to review the crime scene photos prior to trial meets the arguable merit prong of the IAC test.3 Counsel has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984).

2022There is no dispute, for purposes of this appeal, that counsel’s admitted failure to review the crime scene photos prior to trial meets the arguable merit prong of the IAC test.3 Counsel has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984).

2021See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (recognizing that a failure to prove any prong of the IAC test defeats the claim).

2021See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (recognizing that a failure to prove any prong of the IAC test defeats the claim).

2026Id. at 15-17; see also Treiber, supra. Appellant asserts his ____________________________________________ 8 Nowhere in his appellate brief, or PCRA petition, does Appellant identify Ms. Hall by name or explain the substance of her proposed testimony.

2020See Treiber, supra. G In his next IAC claim, Appellant asserts that trial counsel provided ineffective assistance by failing to ask Appellant about the victim’s tattoos, which purportedly read, “Fuck You” and “Not Nice.” Appellant asserts that “Pennsylvania law allows evidence of the acts of a victim and[] getting a tattoo is an act.

2024See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement ... are waived.); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (setting bright-line rule requiring strict compliance with Rule 1925(b) requirements).

2021See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed waived.”).8 Nevertheless, even had Appellant preserved his IAC claim for our review, we would deem it meritless.

2022See Jarosz, 152 A.3d at 350 (explaining that failure to satisfy any prong of the IAC test will result in denial of the claim).

2022See Jarosz, 152 A.3d at 350 (explaining that failure to satisfy any prong of the IAC test will result in denial of the claim).

2022However, because Appellant’s non-IAC claims are interrelated and ultimately would entitle him ____________________________________________ 10We note that, to prevail on an IAC claim, the defendant must plead and prove by a preponderance of the evidence that: “(1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the [defendant] suffered resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 , 780 (Pa. Super. 2015).

2022However, because Appellant’s non-IAC claims are interrelated and ultimately would entitle him ____________________________________________ 10We note that, to prevail on an IAC claim, the defendant must plead and prove by a preponderance of the evidence that: “(1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the [defendant] suffered resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 , 780 (Pa. Super. 2015).

2019Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).

2019Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).

2018Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth v. Pierce, 527 A.2d 973 , 975–976 (Pa. 1987)).

2018Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth v. Pierce, 527 A.2d 973 , 975–976 (Pa. 1987)).

2018Commonwealth v. Mason , 634 Pa. 359 , 130 A.3d 601 , 618 (2015) (citations omitted). *113 The petitioner must plead and prove all three prongs, and the failure to establish any one prong warrants denial of an IAC claim.

2018Commonwealth v. Mason , 634 Pa. 359 , 130 A.3d 601 , 618 (2015) (citations omitted). *113 The petitioner must plead and prove all three prongs, and the failure to establish any one prong warrants denial of an IAC claim.

2021See Commonwealth v. Reaves, 923 A.2d 1119, 1127-28 (Pa. 2007) (explaining that to prevail upon a layered IAC claim a petitioner must present argument on the three prongs of the IAC test as to each relevant layer of representation).

2021See Commonwealth v. Reaves, 923 A.2d 1119, 1127-28 (Pa. 2007) (explaining that to prevail upon a layered IAC claim a petitioner must present argument on the three prongs of the IAC test as to each relevant layer of representation).

2021To establish an IAC claim, a PCRA petitioner must “plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) [the a]ppellant suffered prejudice because of counsel’s action or inaction.” Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011).

2021To establish an IAC claim, a PCRA petitioner must “plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) [the a]ppellant suffered prejudice because of counsel’s action or inaction.” Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011).

2015Stated simply, the record before us is devoid of any evidence to overcome the presumption that counsel was effective.' Perry’s failure to demonstrate that appellate counsel had no reasonable basis for her actions is fatal to his IAC claim. 3 See Rathfon, supra (stating that a PCRA petitioner bears the burden of pleading and proving each of the Pierce factors by a preponderance of the evidence).

2015Perry’s failure to demonstrate that appellate counsel had no reasonable basis for her actions is fatal to his IAC claim.3 See Rathfon, supra (stating that a PCRA ____________________________________________ 3 Perry also failed to demonstrate that he suffered prejudice as a result of counsel’s performance.