By Burt Rose
In Com. v. Potter, 2012 WL 6720536, December 27, 2012, in a per curiam decision, a Commonwealth petition for allowance of appeal was granted and the Supreme Court of Pennsylvania vacated a decision of the Superior Court which had remanded a case to the Court of Common Pleas of Montgomery County for further review under the postconviction relief act. The decision of the Superior Court appears at 40 A3d 199 (2011).
The petitioner had claimed before the Superior Court that he was denied effective assistance of counsel in the PCRA proceedings but this claim had not been raised before the PCRA court. The petitioner contended that he was not able to raise this argument before the court of common pleas because he was still represented by that attorney. The Supreme Court rejected this position, citing Com. v. Potts, 981 A2d 875 (PA 2009).
The court made it clear that the petitioner could have challenged the stewardship of his PCRA lawyer upon receiving the notice of the lower court’s intent to dismiss his petition pursuant to Rule 907 yet he failed to do so.
Accordingly, a claim of PCRA Counsel’s ineffectiveness may not be raised for the first time before the Superior Court.
***Note: This seems like a tough decision for new counsel who takes over a PCRA appeal where the lower court attorney was clearly ineffective but no objection to counsel’s performance was presented to the PCRA court.