Written by attorney Elisabeth K. H. Pasqualini

The Post Conviction Relief Act in Pennsylvania

By Shaffer & Engle Law Offices, LLC posted in Post Conviction Relief on Saturday, January 28, 2012

The "Post Conviction Relief Act" (PCRA) affords relief in limited circumstances in PA.

By ** Attorney Elisabeth Pasqualini**, PCRA Attorney, Harrisburg, PA

The PCRA provides relief to persons who have been convicted and are currently serving a sentence of incarceration or probation. The PCRA has a very limited scope and does not apply to all defendants. There are some very strict criteria under the Act that must be met in order to be eligible for relief:

Who's eligible for relief under the PCRA?

To be eligible for relief under the Post Conviction Relief Act (PCRA), a person must plead and prove by a preponderance of the evidence all of the following:

  1. That the person has been convicted of a crime under the laws of Pennsylvania and is currently serving a sentence of imprisonment, probation, or parole for the crime; AND
  2. That the conviction resulted from one or more of a number of specified errors, including 'ineffective assistance of counsel'; AND
  3. That the allegation of error has not been previously litigated or waived; AND
  4. That failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel.

What do I need to show that my counsel was 'ineffective?'

There are three (3) things needed in order to prove that your counsel was ineffective:

  1. The claim has arguable merit; AND
  2. There was no reasonable trial strategy for the alleged error; AND
  3. There was 'actual prejudice' suffered by the defendant due to the error.

What's 'arguable merit?'

A trial court may dismiss a PCRA without a hearing if the claim lacks 'arguable merit.' That is, the claim has to have some basis in the law or fact. It cannot be patently frivolous. For instance, I cannot allege that I wasn't advised of my right to testify if the trial court provided me with a clear warning on the record that I have the right, but that I am voluntarily choosing to give up that right.

What's 'no reasonable trial strategy?'

The courts define a reasonable trial strategy as one that is designed to effectuate your client's interests. That is, the attorney is doing something at trial that has a proper legal basis to protect the client and get a good result. For instance, as an attorney, I choose not to tear into a child victim's direct testimony on cross because I don't want to make the child look like a victim to the jury or make them cry. This will make the jury more sympathetic to the jury. Instead, I heavily cross the police officer about the way he initially questioned the victim in order to show that he filled the child's mind with ideas about the crime.

What's 'actual prejudice?'

If I'm able to prove that the claim has arguable merit and there was no reasonable trial strategy, I still need to show that but for those mistakes the verdict or result would have been changed in some way. It must be real not an imagined prejudice. For instance, I don't call character witnesses for my client that is accused of rape. I have no idea why I didn't do that, as a lawyer. There's no good reason why I wouldn't have done that. It may have helped the jury to understand my client's reputation in the community as a person that wouldn't do something like what he's accused of. The result may have been different. The jury could have found my client 'not guilty' of some or all of the offenses.

What's the bottom line?

If you've been convicted of a crime and are currently serving a sentence that was appealed and denied, you may have a claim under the PCRA. The relief provided by the PCRA may be the granting of a new trial. It does not mean that the case will be dismissed. You should contact an experienced PCRA attorney to discuss your case. You may call ** Shaffer & Engle Law Offices, LLC** toll free or ** email us today**.

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