                         [J-56A&B-2014][M.O. – Eakin, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   Nos. 686 & 687 CAP
                                              :
             Appellant                        :   Appeal from the Order entered on
                                              :   9/13/13 in the Court of Common Pleas,
             v.                               :   Criminal Division of Lehigh County at
                                              :   No. CP-39-CR-0001114-2002
RAYMOND SOLANO,                               :
                                              :
             Appellee                         :   SUBMITTED: May 29, 2014




                                CONCURRING OPINION


MR. CHIEF JUSTICE SAYLOR                                DECIDED: December 21, 2015


      Although I support the outcome and agree with much of the majority’s reasoning,

I have a number of material differences. Accordingly, I concur in the result.

      By way of a few examples of these differences, first, in applying the prejudice

prong of the standard for determining deficient attorney stewardship, the majority

phrases the relevant test in outcome-determinative terms, see Majority Opinion, slip op.

at 12 n.9, whereas, the appropriate one is tethered to whether confidence in the verdict

has been undermined. See, e.g., Strickland v. Washington, 466 U.S. 668, 697, 104 S.

Ct. 2052, 2069 (1984) (explaining that a strict outcome determinative test imposes too

heavy a burden).1     Second, the majority approaches Appellant’s conflict-of-interest


1
 While I consider the majority’s treatment, in this regard, to represent an abbreviated
application of the appropriate standard encompassing a reasonable-probability
assessment, it would be my preference to avoid shorthanding given the potential for
misinterpretation.
claim in a somewhat generic fashion, see Majority Opinion, slip op. at 14-15, when I

believe that the conflict in issue is a particularly problematic species entailing multiple

concurrent representation within the purview of the United States Supreme Court’s

decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980).2 Notably, there is

continued controversy over the appropriate development of the standards prescribed by

Sullivan. See, e.g., West v. People, 341 P.3d 520, 531-32 (Colo. 2015) (discussing the

approaches of various jurisdictions in determining the adverse effect of multiple

concurrent representation on the defense). Third, the majority appears to revert to the

practice of gleaning reasonable strategies on the part of defense counsel, which the

Court has otherwise eschewed. Compare Majority Opinion, slip op. at 32 (theorizing

that “counsel could have wished to downplay” evidence of prior bad acts on Appellant’s

part rather than seeking a limiting instruction), with Commonwealth v. Duffey, 579 Pa.

186, 205, 855 A.2d 764, 775 (2004) (“[T]his court should refrain from gleaning whether

[a] reasonable basis exists.”); cf. Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S. Ct.

2527, 2538 (2003) (admonishing that courts are to avoid “post hoc rationalization of

counsel’s conduct”). As a final example, I would prefer not to frame the mitigation

aspect of the penalty calculus in terms of “arous[ing] the jury’s sympathy,” Majority

Opinion, slip op. at 67; rather, I believe that the relevant inquiry concerns the impact of

mitigation upon the jurors’ assessment of the degree of a defendant’s moral culpability

in the discrete selection determination between the penalties of life imprisonment and

death.


2
  The conflict was particularly stark in this case, since the same public defenders’ office
that represented Appellant also represented the individual, Catalino Morales, found in
possession of the weapons linked by the prosecution to the killing for which Appellant
was charged. Morales, thus, specifically was a potential suspect and a key figure in
Appellant’s prosecution.


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