preserved claim in Pennsylvania

2026“As a general and practical matter, it - 35 - J-S45027-25 is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (citing Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)).

2025See Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004) (“[A]s a general and practical matter, the fact that a claim is litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error, makes it more difficult for the defendant to prevail.”).

2026See Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (“In light of the distinct review standards applicable to a preserved claim of trial court error versus a claim sounding in ineffective assistance of counsel under the PCRA, the Superior Court plainly erred in utilizing the ‘harmless’ error standard, rather than the higher [ineffective-assistance-of-counsel] ‘prejudice’ standard, which required [the petitioner] to show that his trial counsel’s conduct had an actual adverse effect on the outcome of the proceedings.”).

2023See Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) (“As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.”). - 14 - J-S01007-23 harmless and could not have contributed to the verdict).

2026“As a general and practical matter, it - 35 - J-S45027-25 is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (citing Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)).

2025Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (“As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” (citation omitted)); Commonwealth v. Evans, 303 A.3d 175, 183 (Pa. Super. 2023) (“Our evaluation of counsel’s performance is highly deferential.” (citation and quotation marks omitted)). -9- J-S35027-25 To overcome the presumption of counsel’s effectiveness, a PCRA

2025Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (“As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” (citation omitted)); Commonwealth v. Evans, 303 A.3d 175, 183 (Pa. Super. 2023) (“Our evaluation of counsel’s performance is highly deferential.” (citation and quotation marks omitted)). -9- J-S35027-25 To overcome the presumption of counsel’s effectiveness, a PCRA

2024Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (“As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” (citation omitted)).

2025See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008) (“if the PCRA court can determine from the record that the sentence was not excessive ... then there is no underlying merit to the ineffectiveness claim and the claim must fail”). -6- J-S27036-25 Appellant’s ineffectiveness claims fail as the underlying sentencing claims lack arguable merit.

2024See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can ____________________________________________ 6 Here, there is no dispute that Appellant preserved his sentencing claim before the trial court, but that trial counsel abandoned the issue on Appellant’s direct appeal.

2005Cf. Commonwealth v. Howard, 538 Pa. 86, 100 , 645 A.2d 1300, 1307 (1994) (elaborating on the distinction between the respective burdens relative to a preserved claim of trial court error versus one raised via ineffectiveness).

2005Cf. Commonwealth v. Howard, 538 Pa. 86, 100 , 645 A.2d 1300, 1307 (1994) (elaborating on the distinction between the respective burdens relative to a preserved claim of trial court error versus one raised via ineffectiveness).

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim.

2016This Court has addressed the difference as follows: [A] defendant [raising a claim of ineffective assistance of counsel] is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it ‘could have reasonably had an adverse effect on the outcome of the proceedings.’ Pierce, 515 Pa. at 162 , 527 A.2d at 977 . . . .

2022Initially, we note that “[t]he Pennsylvania Supreme Court has addressed the issue of appellate counsel's duty of representation and has concluded [] that state law does not require appellate counsel to raise all potentially appealable issues.” Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa Super. 2001), citing Commonwealth v. Yocham, 375 A.2d 325 (Pa. 1977) (counsel on direct appeal is not obligated to present every issue raised at trial and the decision not to pursue a preserved claim is weighed in light of the traditional ineffective assistance of counsel standard); _______________________

2001See Com. v. Yocham, 473 Pa. 445 , 375 A.2d 325 (1977) (counsel on direct appeal is not obligated to present every issue raised at trial and the decision not to pursue a preserved claim is weighed in light of the traditional ineffective assistance of counsel standard); Com. v. Laboy, 460 Pa. 466 , 333 A.2d 868, 870 (1975) ("If, in view of the reasonable alternatives, the appellate advocate had any rational basis for restricting the appeal to the one or two issues chosen, then he has performed as an effective counsel and it matters not that he rejected other issues whether gathered from his own

2013In resolving the merits of this preserved claim in favor of the appellant, the Boczlcowski Court looked to the statutory review standard, and concluded that “this sentence of death cannot stand under Section 9711(h)(3)(i)’s proscription against sentences that are the product of passion, prejudice or any other arbitrary factor.” 846 A.2d at 100-01 .

2013See Commonwealth v. Boczkowski, 577 Pa. 421 , 846 A.2d 75 (2004) (Commonwealth’s unilateral decision contrary to existing court order to extradite appellant to North Carolina to be tried for prior murder, upon which sole aggravator introduced at Pennsylvania trial and related certification of appellant as death-eligible were premised, introduced arbitrary factor into appellant’s sentencing).

2004The Commonwealth also correctly notes that O'Donnell prevailed upon her waived claim on direct appeal only because she enjoyed the benefit of the then-available "relaxed waiver" rule. [9] In contrast, the Commonwealth notes that relaxed waiver is unavailable upon this collateral attack, see Albrecht, 720 A.2d at 700 (abrogating relaxed waiver on PCRA review); thus, appellant cannot pursue this claim as if it were a preserved claim of trial court error.

2004The Commonwealth also correctly notes that O’Donnell prevailed upon her waived claim on direct appeal only because she enjoyed the benefit of the then-available “relaxed waiver” rule. 9 In contrast, the Commonwealth notes that relaxed waiver is unavailable upon this collateral attack, see Albrecht, 720 A.2d at 700 (abrogating relaxed waiver on PCRA review); thus, appellant cannot pursue this claim as if it were a preserved claim of trial court error.

2025See Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“this Court repeatedly has held that ‘a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review’”), citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007); Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate”), citing Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super.

2025See Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“this Court repeatedly has held that ‘a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review’”), citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007); Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate”), citing Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super.

2025Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim.

2025See Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“this Court repeatedly has held that ‘a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review’”), citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007); Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate”), citing Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super.

2025See Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021) (“this Court repeatedly has held that ‘a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review’”), citing Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007); Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (“[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate”), citing Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super.

2025Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); see also Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (“As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.” (citation omitted)); Commonwealth v. Evans, 303 A.3d 175, 183 (Pa. Super. 2023) (“Our evaluation of counsel’s performance is highly deferential.” (citation and quotation marks omitted)). -9- J-S35027-25 To overcome the presumption of counsel’s effectiveness, a PCRA

2024See Commonwealth v. LaCava, 666 A.2d 221 , 228 & n.8 (Pa. 1995) (holding claim of erroneous jury instruction would normally be waived in absence of objection but nonetheless reaching merits under relaxed waiver rule formerly applicable in capital cases). [96 WAL 2024] - 2

2024Id. at 13-14. “[C]laims implicating the discretionary aspects of sentencing raised in the context of an ineffectiveness claim are cognizable under the PCRA.” Commonwealth v. Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018) (citations omitted).6 In order to obtain relief on a claim that trial counsel was ineffective for failing to pursue a preserved challenge to the discretionary aspects of his sentence on direct appeal, a PCRA petitioner must demonstrate that the underlying sentencing issue has merit.

2022Initially, we note that “[t]he Pennsylvania Supreme Court has addressed the issue of appellate counsel's duty of representation and has concluded [] that state law does not require appellate counsel to raise all potentially appealable issues.” Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa Super. 2001), citing Commonwealth v. Yocham, 375 A.2d 325 (Pa. 1977) (counsel on direct appeal is not obligated to present every issue raised at trial and the decision not to pursue a preserved claim is weighed in light of the traditional ineffective assistance of counsel standard); _______________________

2021Dist., 700 A,2d 1038, 1053-54 (Pa.Cmwlth. 1997) See also Staub v. Toy Factory, Inc., 2000 PA Super 87 , 1 6, 749 A.2d 522, 526 (Pa, Super.

2021Dist., 700 A,2d 1038, 1053-54 (Pa.Cmwlth. 1997) See also Staub v. Toy Factory, Inc., 2000 PA Super 87 , 1 6, 749 A.2d 522, 526 (Pa, Super.

2021Dist., 700 A,2d 1038, 1053-54 (Pa.Cmwlth. 1997) See also Staub v. Toy Factory, Inc., 2000 PA Super 87 , 1 6, 749 A.2d 522, 526 (Pa, Super.

2020See Konidaris, 598 Pa. at 71 , 953 A.2d at 1240 (stating a vested right is “something more than a mere expectation, based upon an anticipated continuance of existing law”).

2020See Konidaris, 598 Pa. at 71 , 953 A.2d at 1240 (stating a vested right is “something more than a mere expectation, based upon an anticipated continuance of existing law”).

2014Gribble, supra. In point of fact, “this Court has applied the Strickland/Pierce ineffectiveness measurement for assessing prejudice in reviewing claims of counsel ineffectiveness relating to the introduction of references to the defendant’s silence, weighing the precise nature of the reference against the strength of the evidence on the point at issue.” Spotz I, 582 Pa. at 227 , 870 A.2d at 884 (citations omitted).

2014Gribble, supra. In point of fact, “this Court has applied the Strickland/Pierce ineffectiveness measurement for assessing prejudice in reviewing claims of counsel ineffectiveness relating to the introduction of references to the defendant’s silence, weighing the precise nature of the reference against the strength of the evidence on the point at issue.” Spotz I, 582 Pa. at 227 , 870 A.2d at 884 (citations omitted).

2009See generally Ieropoli v. AC & S Corp., 577 Pa. 138, 155-56 , 842 A.2d 919, 930 (2004) (explaining that "a cause of action that has accrued ... is a vested right, which under Article 1, Section 11, may not be eliminated by subsequent legislation"); see also Gibson, 490 Pa. at 161 , 415 A.2d at 83 . [27] In this regard, I would emphasize the requirement of a preserved claim.

2009See generally Ieropoli v. AC & S Corp., 577 Pa. 138, 155-56 , 842 A.2d 919, 930 (2004) (explaining that "a cause of action that has accrued ... is a vested right, which under Article 1, Section 11, may not be eliminated by subsequent legislation"); see also Gibson, 490 Pa. at 161 , 415 A.2d at 83 . [27] In this regard, I would emphasize the requirement of a preserved claim.

2009See generally Ieropoli v. AC & S Corp., 577 Pa. 138, 155-56 , 842 A.2d 919, 930 (2004) (explaining that "a cause of action that has accrued ... is a vested right, which under Article 1, Section 11, may not be eliminated by subsequent legislation"); see also Gibson, 490 Pa. at 161 , 415 A.2d at 83 . [27] In this regard, I would emphasize the requirement of a preserved claim.

2009See generally Ieropoli v. AC & S Corp., 577 Pa. 138, 155-56 , 842 A.2d 919, 930 (2004) (explaining that "a cause of action that has accrued ... is a vested right, which under Article 1, Section 11, may not be eliminated by subsequent legislation"); see also Gibson, 490 Pa. at 161 , 415 A.2d at 83 . [27] In this regard, I would emphasize the requirement of a preserved claim.