Email or Call (215) 564-0644

    PA Criminal Appeals & PCRA – Ineffective Assistance of Counsel

    The 6th Amendment Right to Counsel in Criminal Cases

    Many people who have been convicted of a crime in Pennsylvania often have questions about whether their lawyer made a mistake or was ineffective. So called “ineffective assistance of counsel” claims are one of the most common claims made in Post-Conviction Relief Act (PCRA) petitions in Pennsylvania.

    Related: Pennsylvania Post Conviction Relief Act (PCRA) Petition – Ineffective Assistance of Counsel (IAC) During Plea Bargaining

    What is an ineffective assistance of counsel claim?

    Throughout the course of a criminal case, there may be multiple lawyers involved in the case. From trial counsel to counsel who handled an appeal or a PCRA petition, an ineffective assistance of counsel claim may be made against any lawyer who handled any part of the case.

    Ineffective assistance of counsel is defined by Section 9543(a)(2)(ii) of the Post Conviction Relief Act:

    “Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”

    Ineffective assistance of counsel claims vary in nature and scope. Below are some examples of conduct which is generally deemed ineffective:

    • failing to present mitigating evidence at sentencing (failing to present evidence of mental illness);
    • failing to advise a defendant of the right to appeal (advising a defendant’s parent of the right to appeal, but not the defendant);
    • failing to protect a defendant’s right to appeal/failing to file an appeal (failing to file the appeal on time).

    More: PA Criminal Appeals Law, Filing a Direct Appeal After a Trial

    When is an ineffective assistance of counsel claim successful?

    Under Pennsylvania criminal appeals law, ineffective assistance of counsel claims are successful when the following 3 factors can be proved:

    1. the underlying legal claim has arguable merit;
    2. counsel’s course of conduct lacked any reasonable basis designed to serve his client’s interest; and
    3. there is a reasonable probability that the outcome of the proceedings would have been different had counsel not been ineffective, i.e., that the petitioner was prejudiced by counsel’s act or failure to act.

    How do I make a claim of ineffective assistance (IAC) of counsel?

    Pennsylvania law with respect to ineffective assistance counsel claims has a complex history.

    Prior to 2002, claims of ineffectiveness had to be raised at the time a defendant obtained new counsel, i.e., after new counsel was hired or appointed. However, that doctrine, known as the Hubbard rule, proved unworkable since most ineffective assistance of counsel claims are complex and require at least some fact finding; hence, the PA Supreme Court’s reversal of this doctrine in a 2002 case, Commonwealth v. Grant.

    In 2002, the Grant court held that IAC claims were more appropriate for PCRA petitions because IAC claims usually require some fact-finding, and on direct appeal, appellate courts cannot engage in any fact-finding. In some cases however, IAC claims may have been made on direct appeal, depending on the circumstances. If for instance, the conduct or omission was clear on the record, the matter could have been raised in a direct appeal.

    In July 2011, the Pennsylvania Superior Court in Commonwealth v. Barnett changed how IAC claims are raised. IAC claims must now be raised in a PCRA petition and cannot be raised on appeal, unless a defendant has waived the right to pursue PCRA claims.

    More: PA Criminal Appeals Law – The Basics of Pennsylvania’s Post Conviction Relief Act Part 1

    Pennsylvania Criminal Lawyer PCRA & Appeals – FREE Consultations

    When filing an appeal or a PCRA petition, it is important to have the case reviewed by a criminal trial lawyer, someone with enough actual trial experience to be able to identify errors at trial and sentencing.

    Our lawyers have over 40 years of combined trial experience.  Call (215) 564-0644 for a free consultation.

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

    David S. Nenner

    "Top Rated Criminal Defense Lawyer"

    MURDER, Att. Murder CHARGES – Negotiated Significantly Lower prison sentence (Feb. 2022, PHILA)

    Mr. Anderson faced murder and attempted murder charges after an incident in Northeast Philadelphia involving the shooting death of Anderson’s sister’s boyfriend and the boyfriend’s roommate who was shot 5 times and survived. The decedent had previously beaten the...


    The Commonwealth alleged that Mr. Shelton shot and seriously injured a male in a bar in North Philadelphia called Circles. There was video of the shooting which happened outside the bar. However, Mr. Nenner presented witnesses who testified that the person in the bar...


    Mr. Nenner's client was charged with multiple crimes (murder, conspiracy, aggravated assault, robbery, etc.) after a shooting death occurred at a gambling house in North Philadelphia. At trial, Mr. Nenner successfully presented a self-defense argument and convinced...


    Mr. Nenner’s client was charged with murder and gun charges in Philadelphia. The client was accused of shooting and killing another male on Arch Street near the 5600 block of Ithan Street in Philadelphia. The jury returned a verdict of not guilty after deliberating...

    Drug Possession Case – Motion to Suppress Granted

    Mr. Nenner presented evidence that to show that the traffic stop was a pretextual stop. The officer had no reason to pull the car over. The judge agreed and suppressed the evidence. As a result, the prosecution withdrew the charges.

    Drug Charges in Philadelphia PA State Court – Possession of a Controlled Substance

    In most criminal drug cases in Philadelphia, there are two common charges or offenses: Possession of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver. In addition to these drug charges, there are other drug related charges, such...

    Drug Charges in Philadelphia PA State Court – What is “Possession”

    Page last reviewed and updated: October 20, 2019 One of the most common types of criminal state (PA) cases in Philadelphia is possession of drugs. Possession of a Controlled Substance (PCS) and Possession of a Controlled Substance with Intent to Deliver (PWID) often...

    Pennsylvania Second Degree Murder (AKA: Felony Murder) Law

    Philadelphia criminal lawyer David S. Nenner discusses the current status of second degree murder law in Pennsylvania. This is also known as the felony murder rule. Get info about PA court decisions and the agency theory. Not every case of death during the commission of a felony will result in a second degree murder conviction in PA.

    Philadelphia Murder Cases – Police Investigation Tactics

    Questioning Police Officer Tactics in Philadelphia Murder Cases Within the last 10 years, there have been several murder Philadelphia criminal cases in which the accused individuals were acquitted of the crimes. In these cases, the individuals spent months, if not...

    Murder Charges in Pennsylvania – Murder Law in Pennsylvania

    An explanation of Pennsylvania murder laws including Section 2502. What is murder in the first degree, murder in the second degree and murder in the third degree. Get a summary of the definitions under Pennsylvania criminal law.