Ineffective assistance of counsel in Pennsylvania
Ineffective assistance of counsel is the claim behind most Pennsylvania PCRA petitions. It is also the most misunderstood. Losing at trial is not ineffectiveness; a lawyer's decision you disagreed with is not ineffectiveness. The legal test is specific, and a petition that does not meet all three parts fails.
By John A. Julian, Esq. Updated October 1, 2026.
The presumption
Counsel is presumed effective. The petitioner bears the burden of proving otherwise. That presumption is why a PCRA petition cannot simply assert that the lawyer "did a bad job"; it has to identify a particular act or omission and show why it meets each part of the test.
The three-part test
Pennsylvania applies the federal Strickland standard through its own three-prong formulation, drawn from Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The petitioner must plead and prove:
- Arguable merit. The underlying claim has arguable merit. If the motion counsel failed to file would have been denied anyway, or the witness counsel failed to call had nothing helpful to say, the claim fails here.
- No reasonable basis. Counsel had no reasonable strategic basis for the act or omission. The question is not whether a different lawyer would have done something else, but whether the course chosen was so unreasonable that no competent lawyer would have taken it. Decisions made after investigation get strong deference; decisions made without investigating the alternatives get much less.
- Prejudice. There is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. It does not require proof of innocence, but it requires more than a possibility.
Failure on any one prong defeats the claim. Courts frequently resolve petitions on the prejudice prong alone: even if counsel erred, the evidence of guilt was so strong that the error could not have mattered.
Claims that succeed
- Failure to investigate or call a witness. The petition must identify the witness, show the witness existed and was available, show counsel knew or should have known of the witness, and show the witness was willing to testify and what the testimony would have been. A signed statement or affidavit from the witness is expected.
- Failure to file a suppression motion where the search, stop, or statement was likely unlawful and the suppressed evidence was central to the conviction.
- Failure to object to inadmissible evidence, improper prosecutorial argument, or an erroneous jury instruction, where the objection would have been sustained and the error was significant.
- Bad plea advice. Misadvising the client about the sentence exposure, the immigration consequences, or the elements of the offense, where the client would have gone to trial (or accepted a rejected offer) with correct advice.
- Failure to file a requested appeal or to preserve issues for appeal. Prejudice is presumed when counsel fails to file a direct appeal the client asked for.
- Conflict of interest that affected counsel's performance.
Claims that usually do not
Choosing not to call a witness whose testimony would have opened the door to damaging evidence. Declining to pursue a defense the client wanted but the evidence did not support. Recommending a plea that, in hindsight, was worse than a trial might have been. Failing to make a motion or objection that would not have been granted. Each of these fails on the first or second prong, and courts say so routinely.
Layered claims: when trial counsel's error was not raised on direct appeal, the petition must also plead that appellate counsel was ineffective for failing to raise it, and prove all three prongs as to each lawyer. Since Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), a petitioner may also raise PCRA counsel's ineffectiveness at the first opportunity, including on appeal from the denial of the petition.
What a strong petition looks like
It names the specific error. It attaches the evidence: the witness affidavit, the police report counsel never obtained, the transcript page where the objection should have been made. It explains why no strategy justified the omission, ideally with reference to what counsel actually knew at the time. And it connects the error to the verdict, showing how the case would have looked different to the jury. The PCRA court will hold a hearing when the petition raises a genuine issue of material fact; it will dismiss without one when the petition is conclusory.
Not sure how this applies to your case? The first thing we do in a case review is pull the docket and calculate the deadline. Request a case review or call (215) 568-0607.
Common questions
What is the test for ineffective assistance of counsel in Pennsylvania?
The petitioner must prove the underlying claim has arguable merit, counsel had no reasonable basis for the act or omission, and the error caused prejudice, meaning a reasonable probability of a different outcome. Failure on any prong defeats the claim.
Is losing the trial proof my lawyer was ineffective?
No. Counsel is presumed effective. The petition must identify a specific error and show it meets all three parts of the test.
Do I need an affidavit from the witness my lawyer did not call?
In practice, yes. Courts expect a statement showing the witness existed, was available, was willing to testify, and what the testimony would have been.