believe it is a burden that is, in this instance, insurmountable, Appellant has simply-chosen to ignore his burden. In light of the United States Supreme Court’s definitive holding that the failure to present additional mitigating evidence at the penalty phase of a capital case does not and cannot be considered a miscarriage of justice, I believe it is a waste of judicial resources to remand this case for any further proceedings. Accordingly, I would affirm the PCRA court’s denial of relief. Because the Majority remands for further proceedings on Appellant’s claim of ineffective assistance of counsel and does not consider whether Appellant would ever be able to meet the miscarriage of justice test, I respectfully dissent. 1 . See also Szuchon v. Lehman, 273 F.3d 299, 324 (3rd Cir.2001) (<HOLDING>). 2 . See also Commonwealth v. Hughes, 581 Pa.
holding that where much of evidence davis alleged should have been presented was in fact presented during penalty phase davis had not shown that counsels ineffectiveness deprived him of reliable penalty phase holding that mental health evidence could be mitigating at the penalty phase even though it is insufficient to establish a legal defense to conviction in the guilty phase holding that the effects of the victims deaths upon the families is part of the circumstances of the crime and is properly presented to the jury at the penalty phase holding that for habeas relief to be granted based on constitutional error in capital penalty phase error must have had substantial and injurious effect on the jurys verdict in the penalty phase holding that the miscarriage of justice test is not met where the basis for the claim is that an alleged constitutional error prevented additional mitigating evidence from being introduced at a penalty phase hearing