Assistance of Counsel • Ineffectiveness Claim • Direct Appeal • Collateral Review • Post-Conviction Relief Act

Commonwealth v. Stollar, PICS Case No. 14-0133 (Pa. Jan. 21, 2014) McCaffery, J. (36 pages).

Pursuant to its decision in Commonwealth v. Holmes, the court dismissed defendant’s two ineffective assistance of counsel claims, which he asserted on direct appeal, without prejudice should defendant decide to include the two claims in a timely petition under the Post-conviction Relief Act. Affirmed.

On June 4, 2003, Jean Heck was found dead in her house in Upper St. Clair Township. Thereafter, defendant was arrested and charged with one count of criminal homicide, one count each of robbery, burglary, theft by unlawful taking and two counts of forgery.

A jury found defendant guilty of all charges. Defendant was formally sentenced to death by the trial court on March 24, 2008. He filed this appeal to the Supreme Court, which found no question that the evidence was sufficient to find defendant guilty of first-degree murder.

Defendant also raised two ineffectiveness of counsel claims arising from alleged deficiencies in counsels’ advocacy during the penalty phase of his trial. The trial court disposed of these claims following an evidentiary hearing. On appeal, the Supreme Court noted that for more than 10 years, it had applied the rule that claims of ineffectiveness of counsel must be raised on collateral review, not on direct appeal.

An exception arose under case law premised upon the supposition that when the relevant ineffectiveness claims have been properly raised and preserved in the trial court, the trial court holds a hearing on those claims and addresses the merits of the claims in a subsequent opinion, such ineffectiveness claims may be reviewed on direct appeal pursuant to an exception set forth in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).

Significant criticisms of the extent of the use of the “Bomar exception” raised questions concerning the appropriateness of its continued viability, the court observed, noting that such questions were definitively answered in Commonwealth v. Holmes, 79 A. 3d 562 (Pa. Oct. 30, 2013).

Here, the trial court reviewed defendant’s ineffectiveness claims pursuant to the Bomar exception, a process disapproved by the Holmes court. Such claims must now be deferred to Post-Conviction Relief Act (PCRA) review, whereupon there will be an opportunity for greater development than that which occurred in the post-trial proceeding before the trial court.

As such, and pursuant to the decision in Holmes, the court dismissed defendant’s two ineffective assistance of counsel claims without prejudice should defendant decide to include and potentially further develop the two claims in a timely filed petition under the PCRA.