[J-56A&B-2014][M.O. – Eakin, J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v. RAYMOND SOLANO,** 

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **Nos. 686 & 687 CAP Appeal from the Order entered on**  **9/13/13 in the Court of Common Pleas, Criminal Division of Lehigh County at**  **No. CP-39-CR-0001114-2002**

**SUBMITTED: May 29, 2014**

CONCURRING OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: December 21, 2015

**Although I support the outcome and agree with much of the majority’s reasoning,**  **I have a number of material differences. Accordingly, I concur in the result.**  **By way of a few examples of these differences, first, i n applying the prejudice**  **prong of the standard for determining deficient attor ney stewardship, the majority**  **phrases the relevant test in outcome-determinative ter ms,**  see **Majority Opinion,** slip op. **at 12 n.9, whereas, the appropriate one is tethered t o whether confidence in the verdict** 
**has been undermined.** See, e.g. **,** Strickland v. Washington **, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) (explaining that a strict outcom**  **e determinative test imposes too heavy a burden).**  **1 Second, the majority approaches Appellant’s conflict-**  **of-interest**

**1 While I consider the majority’s treatment, in this re**  **gard, to represent an abbreviated application of the appropriate standard encompassing a r**  **easonable-probability assessment, it would be my preference to avoid shorthand**  **ing given the potential for misinterpretation.** **[J-56A&B-2014][M.O. – Eakin, J.] - 2**

**claim in a somewhat generic fashion,** see **Majority Opinion,** slip op. **at 14-15, when I believe that the conflict in issue is a particularly probl**  **ematic species entailing multiple concurrent representation within the purview of the Un**  **ited States Supreme Court’s**
**decision in** Cuyler v. Sullivan **, 446 U.S. 335, 100 S. Ct. 1708 (1980). 2**  **Notably, there is continued controversy over the appropriate development**  **of the standards prescribed by** Sullivan

**.** See, e.g. **,** West v. People **, 341 P.3d 520, 531-32 (Colo. 2015) (discussing the approaches of various jurisdictions in determining the ad**  **verse effect of multiple concurrent representation on the defense). Third, th**  **e majority appears to revert to the practice of gleaning reasonable strategies on the part o**  **f defense counsel, which the Court has otherwise eschewed.**  Compare **Majority Opinion,** slip op. **at 32 (theorizing that “counsel could have wished to downplay” evidence of**  **prior bad acts on Appellant’s part rather than seeking a limiting instruction),**  with Commonwealth v. Duffey **, 579 Pa. 186, 205, 855 A.2d 764, 775 (2004) (“[T]his court shou**  **ld refrain from gleaning whether [a] reasonable basis exists.”);**  cf. Wiggins v. Smith **, 539 U.S. 510, 526-27, 123 S. Ct. 2527, 2538 (2003) (admonishing that courts are to avo**  **id “** post hoc **rationalization of counsel’s conduct”). As a final example, I would prefer**  **not to frame the mitigation aspect of the penalty calculus in terms of “arous[ing] the**  **jury’s sympathy,” Majority Opinion,**  slip op. **at 67; rather, I believe that the relevant inquiry concerns the impact of**  **mitigation upon the jurors’ assessment of the degree of a defendant’s moral culpability**  **in the discrete selection determination between the pe nalties of life imprisonment and** 
**death.**

**2 The conflict was particularly stark in this case, since the**  **same public defenders’ office that represented Appellant also represented the indiv**  **idual, Catalino Morales, found in possession of the weapons linked by the prosecution to the**  **killing for which Appellant was charged. Morales, thus, specifically was a potential su**  **spect and a key figure in Appellant’s prosecution.**