[J-52-2013] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER Y, STEVENS, JJ.

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**JOHN CHARLES EICHINGER, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 657 CAP Appeal from the Order entered on**  **04/04 /2012 in the Court of Common Pleas,**  **Criminal Division of Montgomery County at**  **No. CP-46-CR-0002785-2005**

**SUBMITTED: June 19, 2013**

CONCURRING OPINION

MR. JUSTICE STEVENS DECIDED: December 31, 2014 **I join the Majority in its entirety. I write separat ely to emphasize my agreement**  **with the Majority’s admonishment to PCRA capital coun sel, the Federal Community**  **Defender Office, that the tactics employed in this case, w hich are designed to impede**  **the already overburdened wheels of justice, cannot be tolerated.**  **Simply put, those who oppose the death penalty should address their concerns**  **to the legislature. Using the court system as a way to d elay, obstruct, and, thus, by**  **implication invalidate a law passed by duly elected sen ators and representatives cannot**  **be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital**  **case does not relieve counsel of their obligation under Rule 3.1 of the Rules of** 

**Professional Conduct not to raise frivolous claims.” Comm onwealth v. Chmiel, 612 Pa.** **333, 468, 30 A.3d 1111, 1191 (2011) (citation and fo otnote omitted). If change is** 

**desired, the proper path of action is to lobby the leg islature rather than to overwhelm**  **our courts with such a systematic attack on the death penal ty statute.**  **The record establishes that Appellant’s crimes were particu larly heinous. On**  **March 25, 2005, Appellant planned the murder of Heat her Groves, stabbed her**  **repeatedly seeking to puncture her organs, stabbed and murdered Heather’s three**  **year-old daughter, who had witnessed the stabbing of her mother, and then murdered**  **Heather’s sister, Lisa, to eliminate her as a witness. No t done yet, Appellant returned to**  **Heather and stabbed her in the diaphragm and slit her throat, killing her.**  **As described by the well-reasoned Majority, Appellant r eceived full**  **representation and due process, resulting in court-appoin ted counsel litigating**  **numerous pre-trial and post-trial motions, a three-day death penalty phase hearing, as**  **well as this Court’s examination of the proceedings, evi dence, and sentence upon direct**  **appeal. See Commonwealth v. Eichinger, 591 Pa. 1, 9 15 A.2d 1122 (2007), cert.**  **denied, 552 U.S. 894 (2007). However, thereafter, the record reflects PCRA capital**  **counsel raised 27 claims of error, which can only be described as excessive, in the am**  **ended PCRA petition. This resulted in 22 days of PCRA court evidentiary hearings**  **and a 129-page PCRA court opinion. PCRA capital counsel has continued with thi**  **s strategy on appeal to this Court by presenting 12 issues for our consideration, many of wh**  **ich are frivolous arguments, “which is to say arguments that cannot conceivably persuad**  **e the court[.]” Chmiel, 612 Pa. at 468, 30 A.3d at 1190 (quotations and quotatio**  **n marks omitted). While an attorney may have an ethical obligation to**  **be a zealous advocate, he**

**has no duty to pester the courts with frivolous argumen ts. In fact, an attorney does his**  **client a disservice by failing to winnow out the weaker arguments and focusing on**  **central, key issues, upon which his client might be granted relief. Adding weaker,**  **particularly frivolous arguments, dilutes the force of t he stronger ones and makes it** 

**difficult for a court to focus on those issues which are de serving of attention, i.e., those** 

**which are non-frivolous. Common sense dictates that, when an attorney raises an e**  **xcessive number of issues, as occurred in this PCRA case, the motivation for**  **so doing is to paralyze the court system to further personal political views. It is**  **not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessar**  **ily to put forth the best legal arguments upon which his client may be granted relief;**  **but rather, the strategy is to keep, at all costs, his client from suffering the ultimate**  **penalty proscribed by law. Such personal political viewpoints, manifested in such a manne**  **r as to cause disruption and paralysis, have no legitimate place in our court system.**  **Moreover, the public resources wasted by PCRA capital coun sel’s pursuit of** 

**numerous frivolous claims cannot be tolerated. Substanti al investigative resources,**  **police officers testifying in court, and judges, along w ith court personnel, devoting**  **precious time to the rejection of excessive frivolous claim s is a basis for imposing**  **sanctions upon those attorneys who violate or ignore th eir obligations under our Rules**  **of Professional Conduct. While federally-financed lawye rs, such as those who**  **represented Appellant as PCRA capital counsel in this case, have the duty, like any** **attorney, to raise and pursue viable claims, they must d o so within the ethical limits** 

**which govern all Pennsylvania lawyers. In the case sub judice, Appellant committed his brutal**  **murders more than nine years from the date of this writing; however, and des**  **pite the fact that a jury made the agonizing decision to sentence Appellant under the deat**  **h penalty laws, this case illustrates the administration of justice is more often**  **than not paralyzed by what the Majority accurately calls “predictable tactics.” Due, in**  **part, to PCRA capital counsel’s dysfunctional strategies, the families of the victims beco**  **me yet another victim to Appellant’s brutal crimes. As Chief Justice Castille eloq**  **uently stated in his Concurring Opinion in Commonwealth v. Spotz, 610 Pa. 17, 170,**  **18 A.3d 244, 335 (2011): “[T]his Court is not obliged to indulge political tactics that s**  **eek to dismantle or impede governing law. The difference of death does not mean**  **that any and all tactics in pursuit of the defeat of capital judgment are legitimate.”** 

**Mr. Chief Justice Castille joins this concurring opinion.**