                                 [J-52-2013]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :             No. 657 CAP
                              :
               Appellee       :             Appeal from the Order entered on
                              :             04/04/2012 in the Court of Common Pleas,
                              :             Criminal Division of Montgomery County at
         v.                   :             No. CP-46-CR-0002785-2005
                              :
                              :
JOHN CHARLES EICHINGER,       :
                              :
               Appellant      :             SUBMITTED: June 19, 2013
                              :


                               CONCURRING OPINION


MR. JUSTICE STEVENS                             DECIDED: December 31, 2014

      I join the Majority in its entirety. I write separately to emphasize my agreement

with the Majority’s admonishment to PCRA capital counsel, the Federal Community

Defender Office, that the tactics employed in this case, which are designed to impede

the already overburdened wheels of justice, cannot be tolerated.

      Simply put, those who oppose the death penalty should address their concerns

to the legislature. Using the court system as a way to delay, obstruct, and, thus, by

implication invalidate a law passed by duly elected senators and representatives cannot

be characterized as proper, zealous advocacy.    That is to say, “the gravity of a capital

case does not relieve counsel of their obligation under Rule 3.1 of the Rules of

Professional Conduct not to raise frivolous claims.” Commonwealth v. Chmiel, 612 Pa.
333, 468, 30 A.3d 1111, 1191 (2011) (citation and footnote omitted).          If change is

desired, the proper path of action is to lobby the legislature rather than to overwhelm

our courts with such a systematic attack on the death penalty statute.

      The record establishes that Appellant’s crimes were particularly heinous. On

March 25, 2005, Appellant planned the murder of Heather Groves, stabbed her

repeatedly seeking to puncture her organs, stabbed and murdered Heather’s three-

year-old daughter, who had witnessed the stabbing of her mother, and then murdered

Heather’s sister, Lisa, to eliminate her as a witness. Not done yet, Appellant returned to

Heather and stabbed her in the diaphragm and slit her throat, killing her.

      As    described   by     the   well-reasoned   Majority,   Appellant   received   full

representation and due process, resulting in court-appointed counsel litigating

numerous pre-trial and post-trial motions, a three-day death penalty phase hearing, as

well as this Court’s examination of the proceedings, evidence, and sentence upon direct

appeal.    See Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122 (2007), cert.

denied, 552 U.S. 894 (2007).

      However, thereafter, the record reflects PCRA capital counsel raised 27 claims of

error, which can only be described as excessive, in the amended PCRA petition. This

resulted in 22 days of PCRA court evidentiary hearings and a 129-page PCRA court

opinion. PCRA capital counsel has continued with this strategy on appeal to this Court

by presenting 12 issues for our consideration, many of which are frivolous arguments,

“which is to say arguments that cannot conceivably persuade the court[.]” Chmiel, 612

Pa. at 468, 30 A.3d at 1190 (quotations and quotation marks omitted).
       While an attorney may have an ethical obligation to be a zealous advocate, he

has no duty to pester the courts with frivolous arguments. In fact, an attorney does his

client a disservice by failing to winnow out the weaker arguments and focusing on

central, key issues, upon which his client might be granted relief.        Adding weaker,

particularly frivolous arguments, dilutes the force of the stronger ones and makes it

difficult for a court to focus on those issues which are deserving of attention, i.e., those

which are non-frivolous.

       Common sense dictates that, when an attorney raises an excessive number of

issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the

court system to further personal political views.   It is not hard to discern that, in such

cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal

arguments upon which his client may be granted relief; but rather, the strategy is to

keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Such

personal political viewpoints, manifested in such a manner as to cause disruption and

paralysis, have no legitimate place in our court system.

       Moreover, the public resources wasted by PCRA capital counsel’s pursuit of

numerous frivolous claims cannot be tolerated.       Substantial investigative resources,

police officers testifying in court, and judges, along with court personnel, devoting

precious time to the rejection of excessive frivolous claims is a basis for imposing

sanctions upon those attorneys who violate or ignore their obligations under our Rules

of Professional Conduct.       While federally-financed lawyers, such as those who

represented Appellant as PCRA capital counsel in this case, have the duty, like any
attorney, to raise and pursue viable claims, they must do so within the ethical limits

which govern all Pennsylvania lawyers.

       In the case sub judice, Appellant committed his brutal murders more than nine

years from the date of this writing; however, and despite the fact that a jury made the

agonizing decision to sentence Appellant under the death penalty laws, this case

illustrates the administration of justice is more often than not paralyzed by what the

Majority accurately calls “predictable tactics.”     Due, in part, to PCRA capital counsel’s

dysfunctional strategies, the families of the victims become yet another victim to

Appellant’s brutal crimes. As Chief Justice Castille eloquently stated in his Concurring

Opinion in Commonwealth v. Spotz, 610 Pa. 17, 170, 18 A.3d 244, 335 (2011): “[T]his

Court is not obliged to indulge political tactics that seek to dismantle or impede

governing law. The difference of death does not mean that any and all tactics in pursuit

of the defeat of capital judgment are legitimate.”



       Mr. Chief Justice Castille joins this concurring opinion.
