[J-56A&B-2014][M.O. – Eakin, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

COMMONWEALTH OF PENNSYLVANIA, 

Appellant 

v. 

RAYMOND SOLANO, 

Appellee 

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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, in applying the prejudice 

prong of the standard for determining deficient attorney stewardship, the majority 

phrases the relevant test in outcome-determinative terms, see Majority Opinion, slip op.

at 12 n.9, whereas, the appropriate one is tethered to 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 outcome 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 regard, to represent an abbreviated 

application of the appropriate standard encompassing a reasonable-probability 

assessment, it would be my preference to avoid shorthanding 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 problematic species entailing multiple 

concurrent representation within the purview of the United 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 adverse effect of multiple 

concurrent representation on the defense). Third, the majority appears to revert to the 

practice of gleaning reasonable strategies on the part of 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 should 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 avoid “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 penalties 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 individual, 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 suspect and a key figure in 

Appellant’s prosecution.