On September 17, the Pennsylvania Superior Court issued an en banc decision in Commonwealth v. Pander, 2014 WL 4628565, holding that, in seeking an evidentiary hearing, the PCRA statute and rules of criminal procedure require only a witness certification form, signed by either the attorney or the petitioner pro se, detailing the proposed witness and the substance and supporting evidence of his or her testimony. This decision overrules Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super. 2012), a panel decision where the court erroneously required the higher burden of witness affidavits.
Pander corrects the aberrant decision in McLaurin, recognizing that the affidavit requirement is flatly contradicted by a previous decision of the court, Commonwealth v. Brown, 767 A.2d 576 (Pa. Super. 2001), and the plain language of both the PCRA statute and the rules of criminal procedure. The Brown court had recognized from examining the legislative history that the affidavit requirement had been considered and rejected by the legislature while drafting the statute as too onerous a burden. The witness certification was enacted as a compromise measure, to facilitate the PCRA petitioner’s rights in obtaining a hearing.
Nevertheless, in Pander, the court affirmed the trial court’s denial of relief for the petitioner’s ineffectiveness of counsel claim regarding the failure to call these witnesses as trial as lacking arguable merit. The petitioner was unable to overcome the fact that the trial court had undertaken a thorough colloquy regarding his decision not to call fact witnesses at trial.
Seneca, the Roman stoic philosopher, once aptly said, “To Err is Human.”
Pander is an example of the court recognizing a previous mistake and making the necessary correction. To speak with one of our attorneys about your case, contact Fairlie & Lippy today.