The Superior Court has decided the case of Commonwealth v. Walter. In Walter, the Pennsylvania Superior Court addressed the issue of whether a PCRA petitioner could raise claims of ineffective assistance of PCRA appellate counsel after the denial of post-conviction relief had been affirmed. The court held that claims of PCRA appellate counsel’s ineffectiveness must be raised before the Superior Court panel rules on the merits of a PCRA appeal, not afterward. Specifically, the petitioner/appellant must raise any concerns after PCRA counsel files a brief but before the appellate court renders its decision.

Once the court has reached its decision, the petitioner may not raise new claims in an application for reargument or reconsideration. The court reasoned that once the appellant’s lawyer files the brief, the appellant will have the opportunity to see if any claims were omitted or not argued adequately. If the appellant believes they were, then the appellant could file something at that point. But once the Superior Court reaches its decision, the appellant may not then try to add claims. It may, however, still be possible to raise claims in federal court if the PCRA appeal is denied.

This case reinforces the principle that a petitioner cannot raise such claims for the first time in a petition for reconsideration or reargument after the appellate decision is made. Moreover, the court declined a request for a remand to hold a Grazier hearing, as the request came too late in the appellate process and would serve no legitimate purpose. The petitioner is not entitled to new counsel after both the PCRA court and the Superior Court have found no merit in the claims of ineffectiveness.

The issue in this case arises from the Supreme Court’s decision in Commonwealth v. Bradley. There, the Pennsylvania Supreme Court held that a PCRA petitioner could raise new claims of ineffective assistance of PCRA counsel for the first time on appeal to the Superior Court. Prior to that, the PCRA petitioner would not be able to raise claims that PCRA counsel provided the ineffective assistance of counsel once the case reached the appellate stage. Instead, the PCRA petitioner would have to try to raise the claims during the 21 day window provided after a court issues a Rule 907 notice of intent to dismiss.

For PCRA practitioners and defendants, this case highlights the importance of raising any claims of PCRA counsel’s or PCRA appellate counsel’s ineffectiveness as soon as possible. Failing to do so before the appellate decision will preclude the petitioner from revisiting those claims in subsequent petitions, meaning that if you want to do long, you will not be able to able to raise those claims. However, if you believe that your PCRA attorney or PCRA appellate attorney provided the ineffective assistance of counsel, it may be possible to retain new counsel and raise new claims or seek remand to the Court of Common Pleas to raise the claims if you do it quickly enough.

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