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    Pennsylvania Post Conviction Relief Act Law – Ineffective Assistance of Counsel Explained

    Most inmates in prison in Pennsylvania have heard about the phrase “ineffective assistance of counsel.” Whether it’s a sentence for murder, robbery or drug dealing, inmates who are facing lengthy prison terms have probably considered whether they can file a criminal appeal or a Post Conviction Relief Act Petition.

    Ineffective Assistance of Counsel – Strickland v. Washington

    The concept of “ineffective assistance of counsel” (IAC) originates from a 1984 United States Supreme Court case, Strickland v. Washington. There, the Court held that the Sixth Amendment to the Constitution affords a criminal defendant the right to a fair trial, which includes representation by a reasonably effective or competent attorney.

    More: PA Post Conviction Relief Act Petition – How to Prove Ineffective Assistance of Counsel Claims

    Therefore, a criminal defendant can seek legal recourse when their attorney’s performance is ineffective. However, the Strickland Court established a two part test for IAC claims. Under Strickland, a defendant must show the following:

    • The attorney’s representation fell below an objective standard of reasonableness.
    • The attorney’s representation shows a reasonable probability that if he or she had performed adequately, the result would have been different.

    In other words, there are two critical questions which must be answered. First, were there mistakes? Second, even if there were mistakes, did they have any real effect on the result of the case?

    Ineffectiveness of Counsel in Pennsylvania Criminal Cases

    Pennsylvania law incorporates IAC in the Post Conviction Relief Act, Section 9543(a)(2)(ii) which states the grounds for filing a PCRA petition, including:

    “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.”

    Pennsylvania courts have routinely held that a defendant who files a PCRA petition on the basis of IAC must prove the following 3 elements:

    1. the claim of ineffectiveness of counsel has arguable merit;
    2. defense counsel’s act was not reasonably designed to advance the interest of the defendant; and
    3. the defendant was prejudiced by the defense counsel’s actions, i.e., but for his counsel’s actions, the result of the trial would have been different.

    In a nutshell, the three part test under Pennsylvania (state) law is really just a regurgitation of the two part test under federal law as laid out in Strickland v. Washington. It boils down to whether the criminal attorney made mistakes and if so, whether those mistakes made a difference.

    Being incompetent is not the be-all-end-all. Even if a criminal lawyer was intoxicated at trial or fell asleep during trial, there must still be evidence that the mistake actually made a difference in the outcome. If there’s substantial evidence of guilt, a PCRA claim based on IAC at trial is not likely to be successful.

    Top Philadelphia Criminal PCRA and Appeals Lawyer

    David Nenner is a “Top Rated Philadelphia Criminal Defense Lawyer” by Super Lawyers magazine and has been a criminal lawyer since 1985.  He has handled countless criminal defense cases, including PCRA petitions and direct appeals. Mr. Nenner offers FREE consultations. (215) 564-0644

    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.

    Sentencing for 1st Degree Murder in PA

    In this article below we discuss sentencing for 1st degree murder cases in Pennsylvania. In later articles, we will discuss sentencing for 2nd and 3rd degree murder cases. If you or a loved one is facing murder charges in Philadelphia or the surrounding counties,...

    Philadelphia Criminal Trials – Evidence Pointing to Another Perpetrator in Drug Possession or Drug Manufacture Cases

    In criminal trials in Philadelphia, one pretty common defense tactic is pointing the finger at another person at trial. This can raise enough doubt to result in a not guilty verdict by the judge or jury that the defendant was not the perpetrator of the crime. Here’s...

    Philadelphia Murder & Gun Possession Cases Increasing in 2021 – A Look at Common Charges & Defenses

    A look at PA criminal law for Murder (1st, 2nd, 3rd Degree), Aggravated Assault, Robbery, Possession of a Firearm, Carrying a Firearm Without a License, Carrying a Firearm in Philadelphia (misdemeanor).

    Pennsylvania Murder Charges, Deceased Person’s Statements Used to Prove Guilt

    Defense Trial Strategies – Excluding Statements That Accuse the Defendant Prosecutors often look to a deceased individual’s statements made prior to a murder to show that the defendant is guilty. These statements may point to a history of violence between the deceased...

    Pennsylvania (State) Drug Charges, Dog Sniffs & Constitutional Law

    Federal and Pennsylvania state courts treat narcotics dog searches differently. So different that the same scenario could result in different outcomes in federal versus state court. For example, a Philadelphia resident is pulled over for speeding. During the traffic...