For the Defense - Volume 3, Issue 1 - 2018 - 27

(ii) Ineffective assistance of counsel which, in
the circumstances of the particular case, so
undermined the truth-determining process
that no reliable adjudication of guilt or
innocence could have taken place.33
Note that, thankfully, our Courts have
interpreted these seemingly insurmountable
standards in a manner that makes them a little
more manageable. For instance, to establish an
ineffective-assistance-of-counsel claim - again,
the most common of PCRA claims34 - a petitioner
must prove "1) an underlying claim of arguable
merit; 2) no reasonable basis for counsel's act
or omission; and 3) prejudice as a result, that is,
a reasonable probability that but for counsel's
act or omission, the outcome of the proceeding
would have been different."35

What are Some Specific Examples of
Claims?
While many more examples abound, these
examples are intended to introduce practitioners
to the wide variety and breadth of potential
PCRA claims. Examples of ineffective-assistanceof-counsel claims include:
Trial claims
*	Failure to conduct a reasonable pre-trial
investigation36
*	Failure to communicate with client37
*	Failure to file an appropriate pre-trial
motion, such as a suppression motion38
*	Failure to call an important witness,39 such as
a character40 or alibi witness41
*	Failure to offer necessary expert opinion
testimony42
*	Failure to effectively impeach a prosecution
witness (such as through the witness's
probationary status43 or crimen falsi
convictions44 )
*	Failure to request an applicable jury
instruction45 or failure to object to an
inaccurate jury instruction46
Sentencing and post-sentencing claims:
*	Failure to address RRRI eligibility48
*	Failure to offer mitigation evidence49
*	Failure to file a necessary post-sentence
motion,50 such as motions challenging the

weight of the evidence or the discretionary
aspects of sentence
Direct appeal claims:51
*	Failure to preserve a meritorious issue
(for example, by failing to address it in
appellant's brief)52
* Failure to file a notice of appeal,53 Rule
1925(b) statement,54 appellate brief,55 or
petition for allowance of appeal56
Some examples of constitutional claims
include:
*	Sentence violates ex post facto clause57
*	Sentence violates prohibition against cruel
and unusual punishment58
*	Brady claims59
Finally, examples of after-discovered evidence
claims include:
*	The recanting witness60
*	Exculpatory DNA results61
*	Recent revelations of officer or prosecutor
misconduct62

What Investigation Must be Done
Before the Petition is Filed?
When it comes to investigation before filing
the petition, counsel should be guided by this
overarching principle - if I were standing in trial
counsel's shoes, what should have been done
differently to ensure that petitioner received a
fair trial and zealous defense? At minimum, a
prudent investigation will typically include the
following: communicate with the client (in fact,
a thorough client interview - about both the
nature of the case and the circumstances of prior
counsel's representation - is critical);63 review
relevant transcripts; review the entire court file,
and particularly the sentencing order; speak
with prior counsel and request access to her case
files; and, of course, research the governing law.
From this starting point, counsel needs to follow
the facts wherever they may lead. Counsel can
also request discovery from the Commonwealth,
though it's not easy to get.64
The level of investigation necessary will
depend on the type of case. For example, on a
first PCRA in a first-degree murder case, counsel
must leave absolutely no stone unturned. On the

Vol. 3, Issue 1

l

For The Defense

27



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
For the Defense - Volume 3, Issue 1 - 2018 - 36
For the Defense - Volume 3, Issue 1 - 2018 - 37
For the Defense - Volume 3, Issue 1 - 2018 - 38
For the Defense - Volume 3, Issue 1 - 2018 - 39
For the Defense - Volume 3, Issue 1 - 2018 - 40
For the Defense - Volume 3, Issue 1 - 2018 - 41
For the Defense - Volume 3, Issue 1 - 2018 - 42
For the Defense - Volume 3, Issue 1 - 2018 - 43
For the Defense - Volume 3, Issue 1 - 2018 - 44
For the Defense - Volume 3, Issue 1 - 2018 - 45
For the Defense - Volume 3, Issue 1 - 2018 - 46
For the Defense - Volume 3, Issue 1 - 2018 - 47
For the Defense - Volume 3, Issue 1 - 2018 - 48
For the Defense - Volume 3, Issue 1 - 2018 - 49
For the Defense - Volume 3, Issue 1 - 2018 - 50
For the Defense - Volume 3, Issue 1 - 2018 - 51
For the Defense - Volume 3, Issue 1 - 2018 - 52
For the Defense - Volume 3, Issue 1 - 2018 - 53
For the Defense - Volume 3, Issue 1 - 2018 - 54
For the Defense - Volume 3, Issue 1 - 2018 - 55
For the Defense - Volume 3, Issue 1 - 2018 - 56
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
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