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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"

    Not guilty on 1st Degree MURDER CHARGE (dec. 2022, Pottsville, Pa)

    Mr. Nenner's client faced first degree murder, third degree murder and various other charges. The Commonwealth alleged that Mr. Whitted stabbed and killed a driver after an incident at a red light in West Brunswick Township. Throughout the trial, Mr. Nenner argued...

    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 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.