Com. v. Nichols, D. ( 2019 )

J-A26018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUSTIN CAMERON NICHOLS :
:
Appellant : No. 1815 WDA 2018
Appeal from the Judgment of Sentence Entered November 14, 2018
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000347-2017
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 10, 2019
Dustin Cameron Nichols appeals from his judgment of sentence, entered
in the Court of Common Pleas of Mercer County, after a jury found him guilty
of first-degree murder1 and cruelty to animals.2 He argues the trial court erred
when it did not give the jury a no-adverse-inference instruction. After careful
review, we affirm.
On February 6, 2017, Nichols killed Olivia Gonzalez shooting her four
times with a 12-gauge shotgun. At trial, Nichols admitted to shooting
Gonzalez, but he argued he was voluntarily intoxicated on lysergic acid
diethylamide (LSD) and did not have the requisite criminal intent.
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1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 5511(a)(1)(i).
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Nichols chose not to testify at trial. During the charge to the jury, the
Honorable Daniel P. Wallace did not give the jury a no-adverse-inference
instruction. Nichols did not object or suggest additional jury instructions. The
jury found Nichols guilty on October 19, 2019 and sentenced him to life
imprisonment without the possibility of parole. The court denied post-
sentence motions and this appeal follows.
Nichols has raised the single issue that the trial court committed
reversible error when it did not provide the jury a no-adverse-inference jury
instruction. With respect to jury instructions, we have explained that,
[a] specific and timely objection must be made to preserve a
challenge to a particular jury instruction. Failure to do so results
in waiver. Generally, a defendant waives subsequent challenges
to the propriety of the jury charge on appeal if he responds in the
negative when the court asks whether additions or corrections to
a jury charge are necessary.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010); see also
Pa.R.Crim.P. 647(c) (stating that “[n]o portions of the charge nor omissions
from the charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate”). While Nichols’ argument
implicates his constitutional right not to testify at trial, even when the issue
takes on a “constitutional dimension,” a defendant must preserve the issue on
peril of waiver. Commonwealth v. Veon, 150 A.3d 435, 456 n.33 (Pa.
2016).
Instantly, after he charged the jury, Judge Wallace asked the assistant
district attorney and Nichols’ attorney, “[a]ny additions or corrections to the
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charge?” N.T. Trial, 10/19/18, at 94. Both attorneys responded in the
negative. As no timely objections were made to the jury instructions before
the jury retired to deliberate, we find Nichols’ claim is waived. See
Pa.R.Crim.P. 647(c), Moury, 992 A.2d at 178.3
Nichols argues that he preserved the issue by requesting the instruction
when he declined to testify and his attorney read him an on-the-record
colloquy.4 Appellant’s Brief, at 14-15. Even if we accepted that Nichols
requested the no-adverse-inference jury instruction, he still failed to preserve
the issue for review. See Commonwealth v. Pressley, 887 A.2d 220, 225
(Pa. 2005) (mere submission and subsequent denial of proposed jury
instructions does not preserve jury instruction error for appellate review). The
distinction between a proposed charge to the jury and an objection at a
charging conference is significant.5 Id. at 224.
Judgment of sentence affirmed.
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3 Here, Nichols first raised his jury instruction issue in his Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
4 The relevant portion of the colloquy reads, “[y]ou have a Fifth Amendment
privilege that’s afforded to everybody that says you cannot be compelled to
testify and the jury will be instructed that that’s not evidence of any type of
guilt.” N.T. Trial, 10/18/18, at 110-11.
5 We note that the issue of trial counsel’s effectiveness is not before us, nor
could it be at this stage of proceedings. See Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002) (holding that generally, defendants should wait to raise
claims of ineffective assistance of trial counsel until collateral review).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2019
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