Pierce test in Pennsylvania

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).

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).

2019Furthermore, "[i]n accord with these well -established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the Pierce test." Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super. 2009).

2019Furthermore, "[i]n accord with these well -established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the Pierce test." Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super. 2009).

2023In addition, on appeal, a petitioner must adequately discuss all three factors of the Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804 )).

2023“A petitioner must prove all three factors of the ‘Pierce test,’ or the claim fails.” Reyes-Rodriguez, 111 A.3d at 780 .

2025Thus, if the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner’s derivative claim of [subsequent] counsel ineffectiveness of necessity must fail, and it is not necessary for the court to address the other two prongs of ____________________________________________ 9 See Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987) (explaining that to succeed on a claim asserting the ineffective assistance of counsel, the petitioner must establish: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inac

2025Thus, if the petitioner cannot prove the underlying claim of trial counsel ineffectiveness, then petitioner’s derivative claim of [subsequent] counsel ineffectiveness of necessity must fail, and it is not necessary for the court to address the other two prongs of ____________________________________________ 9 See Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987) (explaining that to succeed on a claim asserting the ineffective assistance of counsel, the petitioner must establish: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inac

2016See Spotz, supra at 319 (stating, “remanding for the PCRA court to make factual findings and credibility determinations as to the ‘reasonable basis’ prong will be unnecessary if we determine there is no reasonable probability that an objection to the challenged jury instruction at trial would have led to a more favorable outcome for [the defendant]”); Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (stating, “a petitioner must set forth and individually discuss substantively each prong of the Pierce test[]”).

2016See Spotz, supra at 319 (stating, “remanding for the PCRA court to make factual findings and credibility determinations as to the ‘reasonable basis’ prong will be unnecessary if we determine there is no reasonable probability that an objection to the challenged jury instruction at trial would have led to a more favorable outcome for [the defendant]”); Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (stating, “a petitioner must set forth and individually discuss substantively each prong of the Pierce test[]”).

2025“A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citation omitted).

2025“A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citation omitted).

2023In addition, on appeal, a petitioner must adequately discuss all three factors of the Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804 )).

2023In addition, on appeal, a petitioner must adequately discuss all three factors of the Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804 )).

2019Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

2019Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

2018"Where it is clear that a petitioner has failed to ,· meet any of the three, distinct prongs of the Pierce test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." CQrnmonwealth v Steele, 961 A.2d 786, 797 (Pa. 2008) (citations omitted).

2018"Where it is clear that a petitioner has failed to ,· meet any of the three, distinct prongs of the Pierce test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." CQrnmonwealth v Steele, 961 A.2d 786, 797 (Pa. 2008) (citations omitted).

2007Commonwealth v. Edmiston, 578 Pa. 284 , 851 A.2d 883, 891 (2004) (“If the underlying (or ‘nested,’ to use the term employed in [Commonwealth v. Rush, 576 Pa. 3 , 838 A.2d 651, 656 (2003) ]) claim of trial counsel ineffectiveness fails the Strickland/Pierce test, then the derivative claim of appellate counsel ineffectiveness necessarily fails.”) (citing McGill, 832 A.2d at 1023 ); accord Commonwealth v. Reaves, 592 Pa. 134 , 923 A.2d 1119 , 1132 n. 14 (2007) (“Because appellee’s underlying claim of VOP counsel ineffectiveness fails, his ‘layered’ claim respecting YOP appeal counsel necessarily

2007Commonwealth v. Edmiston, 578 Pa. 284 , 851 A.2d 883, 891 (2004) (“If the underlying (or ‘nested,’ to use the term employed in [Commonwealth v. Rush, 576 Pa. 3 , 838 A.2d 651, 656 (2003) ]) claim of trial counsel ineffectiveness fails the Strickland/Pierce test, then the derivative claim of appellate counsel ineffectiveness necessarily fails.”) (citing McGill, 832 A.2d at 1023 ); accord Commonwealth v. Reaves, 592 Pa. 134 , 923 A.2d 1119 , 1132 n. 14 (2007) (“Because appellee’s underlying claim of VOP counsel ineffectiveness fails, his ‘layered’ claim respecting YOP appeal counsel necessarily

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, 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.”).

2018Since it is uncontested that appellate counsel did not preserve Appellant’s challenge to the discretionary aspects of his sentence by filing a 2119(f) statement, and there is no reasonable basis for counsel’s failure to do so while attempting to argue a discretionary claim, the first two prongs of the Pierce test are met.5 See Roane, supra at 88 .

2018Since it is uncontested that appellate counsel did not preserve Appellant’s challenge to the discretionary aspects of his sentence by filing a 2119(f) statement, and there is no reasonable basis for counsel’s failure to do so while attempting to argue a discretionary claim, the first two prongs of the Pierce test are met.5 See Roane, supra at 88 .

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.

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.

2020The Strickland/Pierce1 test was summarized by our Supreme Court in Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013), as follows: [W]e apply a three-pronged test for determining whether trial counsel was ineffective, derived from our application in Pierce, ____________________________________________ 1 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). -3- J-S66014-19 [] 527 A.2d at 975 , of the performance and prejudice test articulated by the United States Supreme Court in Strickland, 466 U.S. at 687 [.] The Pierce test requires a PCRA petitioner to

2020The Strickland/Pierce1 test was summarized by our Supreme Court in Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013), as follows: [W]e apply a three-pronged test for determining whether trial counsel was ineffective, derived from our application in Pierce, ____________________________________________ 1 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). -3- J-S66014-19 [] 527 A.2d at 975 , of the performance and prejudice test articulated by the United States Supreme Court in Strickland, 466 U.S. at 687 [.] The Pierce test requires a PCRA petitioner to

2016The Pierce standard applies because failure to file a post-sentence motion—unlike failure to file an appeal, a Rule 1926(b) statement, or a brief that complies with the Rules of Appellate Procedure—“does not waive any and all appellate issues; it waives only those claims subject to issue preservation requirements which were not otherwise already properly preserved.” Id. at 1129 (holding that failure to file for sentencing reconsideration, which resulted in waiver of right to appeal discretionary aspects of sentence, must be evaluated under Pierce standard for ineffectiveness). .

2016The Pierce standard applies because failure to file a post-sentence motion—unlike failure to file an appeal, a Rule 1926(b) statement, or a brief that complies with the Rules of Appellate Procedure—“does not waive any and all appellate issues; it waives only those claims subject to issue preservation requirements which were not otherwise already properly preserved.” Id. at 1129 (holding that failure to file for sentencing reconsideration, which resulted in waiver of right to appeal discretionary aspects of sentence, must be evaluated under Pierce standard for ineffectiveness). .

2023Put differently, “[t]he burden of proving ineffectiveness rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

2022Put differently, “[t]he burden of proving ineffectiveness rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005). “[A] criminal defendant’s right to effective counsel extends to the plea process, as well as during trial.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations omitted).

2020See Commonwealth v. Spotz, 587 Pa. 1 , 896 A.2d 1191, 1250 (2006) (finding ineffectiveness claim insufficient when appellant “failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 264 , 273 n. 4, 795 A.2d 935 , 940 n. 4 (2001) (“[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief”).

2020See Commonwealth v. Spotz, 587 Pa. 1 , 896 A.2d 1191, 1250 (2006) (finding ineffectiveness claim insufficient when appellant “failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 264 , 273 n. 4, 795 A.2d 935 , 940 n. 4 (2001) (“[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief”).

2014See Commonwealth v. Busanet, 618 Pa. 1 , 54 A.3d 35 (2012), cert. denied, — U.S.-, 134 S.Ct. 178 , 187 L.Ed.2d 122 (2013) (discussing overwhelming evidence of guilt as it relates to finding of prejudice under the Strickland/Pierce standard).

2014See Commonwealth v. Busanet, 618 Pa. 1 , 54 A.3d 35 (2012), cert. denied, — U.S.-, 134 S.Ct. 178 , 187 L.Ed.2d 122 (2013) (discussing overwhelming evidence of guilt as it relates to finding of prejudice under the Strickland/Pierce standard).

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 .

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 .

2023“Failure to establish any prong of the Strickland/Pierce test will defeat an ineffectiveness claim.” Id. (citing Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011)).

2019Failure to establish any prong of the Strickland/Pierce test will defeat an ineffectiveness claim. -5- J-S75008-18 Commonwealth v. Mason, 130 A.3d 601 , 617–18 (Pa. 2015) (case citations and footnote omitted) (emphasis added).

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

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

2020See Commonwealth v. Spotz, 587 Pa. 1 , 896 A.2d 1191, 1250 (2006) (finding ineffectiveness claim insufficient when appellant “failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 264 , 273 n. 4, 795 A.2d 935 , 940 n. 4 (2001) (“[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief”).

2020See Commonwealth v. Spotz, 587 Pa. 1 , 896 A.2d 1191, 1250 (2006) (finding ineffectiveness claim insufficient when appellant “failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim”); Commonwealth v. Bracey, 568 Pa. 264 , 273 n. 4, 795 A.2d 935 , 940 n. 4 (2001) (“[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant’s burden of establishing that he is entitled to any relief”).

2022See PCRA Ct. Op. at 12; see also Washington, 927 A.2d at 608 .

2021Washington, 927 A.2d at 594 n.8. -9- J-A02028-21 * * * The Supreme Court concluded that Cooper’s counsel had been ineffective, and explained that a post-conviction petitioner seeking relief on the basis that ineffective assistance of counsel caused him or her to reject a guilty plea must demonstrate the following circumstance: [B]ut for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circums

2020Commonwealth v. Bennett, 57 A.3d 1185, 1195-1196 (Pa. 2011).

2020Commonwealth v. Bennett, 57 A.3d 1185, 1195-1196 (Pa. 2011).

2019In addition, a petitioner must present argument, in briefs or other court memoranda, on the three prongs of the Pierce test as to each relevant layer of representation" Commonwealth v. McGill, 574 Pa. 574 , 7 589, 832 A.2d 1014 , 1023 (2003). "[T]he inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel's purported ineffectiveness alone will be fatal to his layered ineffectiveness claim." Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008) at 13 (quoting Commonwealth v. Carson, 913 A.2d 220, 233 (Pa. 2006)).

2019In addition, a petitioner must present argument, in briefs or other court memoranda, on the three prongs of the Pierce test as to each relevant layer of representation" Commonwealth v. McGill, 574 Pa. 574 , 7 589, 832 A.2d 1014 , 1023 (2003). "[T]he inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel's purported ineffectiveness alone will be fatal to his layered ineffectiveness claim." Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008) at 13 (quoting Commonwealth v. Carson, 913 A.2d 220, 233 (Pa. 2006)).

2021Accord Commonwealth v. Daniels, 963 A.2d 409, 420 (Pa. 2009) (“A remand is unnecessary, however, when the petitioner fails to ____________________________________________ 4 Appellee ostensibly raised this claim below in his filing titled, “Petitioner’s Memorandum in support of amended PCRA petition.” See Memorandum, 6/28/17, at 4 (unnumbered pages); Reproduced Record at 208a. -8- J-S56007-20 plead all three prongs of the Pierce test related to trial counsel’s ineffectiveness or fails to prove any prong with respect to trial counsel’s ineffectiveness”); Commonwealth v. Lohr, 468 A.2d 1375, 1379

2021Accord Commonwealth v. Daniels, 963 A.2d 409, 420 (Pa. 2009) (“A remand is unnecessary, however, when the petitioner fails to ____________________________________________ 4 Appellee ostensibly raised this claim below in his filing titled, “Petitioner’s Memorandum in support of amended PCRA petition.” See Memorandum, 6/28/17, at 4 (unnumbered pages); Reproduced Record at 208a. -8- J-S56007-20 plead all three prongs of the Pierce test related to trial counsel’s ineffectiveness or fails to prove any prong with respect to trial counsel’s ineffectiveness”); Commonwealth v. Lohr, 468 A.2d 1375, 1379

2022In his fourth issue, Appellant contends PCRA counsel was ineffective when he failed to allege that trial counsel was ineffective when she raised a ____________________________________________ 9 Our Supreme Court has recognized “the inability of a petitioner to prove each prong of the Pierce test in respect to [appellate] counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim.” Commonwealth v. Tedford, 598 Pa. 639 , 960 A.2d 1, 13 (2008). - 16 - J-S13045-22 medical marijuana claim that had not been preserved in any way.

2022In his fourth issue, Appellant contends PCRA counsel was ineffective when he failed to allege that trial counsel was ineffective when she raised a ____________________________________________ 9 Our Supreme Court has recognized “the inability of a petitioner to prove each prong of the Pierce test in respect to [appellate] counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim.” Commonwealth v. Tedford, 598 Pa. 639 , 960 A.2d 1, 13 (2008). - 16 - J-S13045-22 medical marijuana claim that had not been preserved in any way.

2022Although the PCRA court found that Attorney Farrell’s conduct did not constitute per se ineffectiveness, it nevertheless granted Hipps’ petition on the basis that counsel had acted ineffectively, presumably under the general Strickland/Pierce standard.2 On appeal, the Commonwealth contends that the court lacked jurisdiction to grant Hipps relief because his ____________________________________________ 2 See Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (requiring that, to prove counsel’s ineffectiveness, the petitioner must show that: (1) his un

2022Although the PCRA court found that Attorney Farrell’s conduct did not constitute per se ineffectiveness, it nevertheless granted Hipps’ petition on the basis that counsel had acted ineffectively, presumably under the general Strickland/Pierce standard.2 On appeal, the Commonwealth contends that the court lacked jurisdiction to grant Hipps relief because his ____________________________________________ 2 See Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (requiring that, to prove counsel’s ineffectiveness, the petitioner must show that: (1) his un