Com. v. Ciuro, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE L. CIURO :
:
Appellant : No. 2756 EDA 2022
Appeal from the PCRA Order Entered February 10, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0006628-2016
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 2, 2023
Jose L. Ciuro (Appellant) appeals nunc pro tunc from the order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.
The PCRA court recounted the following facts:
[Appellant] was the complainant’s1 stepfather, residing with
the complainant, her sister, brother and mother from 1992
through 2003 in Philadelphia. (N.T. 6/12/2017, pp. 10-13, 27-
29). Starting when the child was seven, through the age of
thirteen, the victim testified to increasing sexual assaults in the
household by [Appellant]. ([Id. at] 10-21). The victim testified
that it began in the stairway of their shared house when
[Appellant] was in the bathroom wearing only a towel and he
exposed himself to the child, then prompting her to kiss his penis.
([Id. at] 11-13). The complainant testified that [Appellant] would
expose himself whenever he had a chance, opening his towel or
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* Former Justice specially assigned to the Superior Court.
1 The complainant is also referred to as the victim, child, or stepdaughter.
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pulling down his pants. ([Id. at] 13). When the child was eight
or nine, the assaults progressed to [Appellant] placing his penis in
the child’s mouth, as well as touching the child’s clitoris a couple
of times a week. ([Id. at] 13-15). The assaults expanded to
[Appellant] placing his fingers inside the [child’s] vagina. ([Id.
at] 15-16). Eventually the molestations progressed to oral sex
and rubbing of [Appellant’s] penis on the outside of the child’s
vagina as well as anus and finally anal intercourse. ([Id. at] 14-
22).
The complainant testified that she told her newly divorced
mother about the incidents when she was about thirteen, but her
mother did not want to believe the accusations. ([Id. at] 18-19).
When the child was fifteen or sixteen, she told her best friend,
whom she swore to secrecy. ([Id. at] 19-21). At age twenty, the
complainant got married and although she told her husband that
something occurred in her childhood, she refused to provide any
details. When she was twenty-one, her mother brought the
subject up again asking if she was going to pursue the charges
against [Appellant] to gain closure. The victim testified that she
was worried she would ruin her sibling’s relationship with
[Appellant] if she did, but the incidents were weighing heavily
upon her. Finally, when she was twenty-five, she reported the
incidents to the police, resulting in the eventual arrest of
[Appellant]. ([Id. at] 21-24).
PCRA Court Opinion, 11/18/22, at 2-3 (footnote added).
On June 28, 2015, the Commonwealth charged Appellant with two
counts each of rape of a child and aggravated indecent assault of a child, as
well as one count each of involuntary deviate sexual intercourse, sexual
contact with a minor, sexual assault, endangering the welfare of a child,
indecent exposure, indecent assault, and corruption of minors.2 Following a
non-jury trial on June 12, 2017, the trial court convicted Appellant of all
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218 Pa.C.S.A. §§ 3121(c), 3125(b), 3123(b), 6318(a)(1), 3124.1, 4304(a),
3127(a), 3126(a)(1), 6301(a)(1).
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charges. On December 11, 2017, the trial court sentenced Appellant to an
aggregate 5 - 20 years in prison, followed by 5 years of reporting probation.
Appellant did not appeal.
Appellant timely filed a counseled PCRA petition on December 11, 2018.
The PCRA court held a hearing on January 9, 2020. The court addressed
Appellant’s decision to waive his right to a jury trial:
During the PCRA evidentiary hearing, the court heard the
testimony of [trial counsel, Attorney Andrew Gay, (Attorney Gay)]
as well [Appellant], his wife, sister and stepfather. [Attorney Gay]
testified that [Appellant] had expressed concerns to him on how
a jury might receive the allegations being made against him by
his stepdaughter. (N.T. 1/9/2020, pp. 9-12). [Appellant] alleged
in his petition that trial counsel emphatically stated “I got this” to
induce [Appellant] to waive his right to a jury. Under oath, trial
counsel responded:
[]Your Honor, I have practiced law for two decades,
and I have never used the language like that with a
client concerning the possible outcome of any
proceeding, whether it be a trial, a preliminary
hearing, or any other type of matter that I’ve handled
for a client.
I express what I believe are the risks and the choices
that the client has to make. And I never make a
guarantee. And I would never use language like, “I
got this,” in order to influence a client to make a
decision.[] ([Id. at] 14).
[Attorney Gay] further stated, unequivocally, that he never
advised [Appellant] that if he waived his right to a jury trial and
proceeded to a trial before the undersigned that he would be
acquitted. ([Id. at] 14).
[Appellant’s] wife testified that trial counsel told them that
“he’s got this” and that [Appellant] was nervous[,] so she gave
him two Xanax pills, however when questioned several times as
to whether [Appellant] seemed impaired after taking the drugs,
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she claimed that she was unable to understand the questions.
([Id. at] 20-26). [Appellant’s] sister testified that trial counsel
was her attorney as well but that she was not present for all of
the conversations between [Appellant] and the attorney. ([Id. at]
26-28). [Appellant’s] stepfather testified as well and stated he
did not know why [Appellant] changed his mind from having a jury
to a bench trial, that he had discussed the evidence in the case,
but nothing about counsel saying, “he had this.” ([Id. at] 29-33).
[Appellant] took the witness stand, testifying that his
attorney discussed the evidence with him, the benefits and
disadvantages of a jury in his case[,] but [said] nothing about the
attorney saying, “he had this.” ([Id. at] 34-38). [Appellant]
claimed to be anxious, took Xanax provided by his wife, which
made him drowsy[,] and [testified] that although he signed the
waiver colloquy, he did not read the entire form. ([Id. at] 35-36).
[Appellant] further stated the answers provided on the written
form were not in his handwriting but that it was his signature on
the fourth page, and his initials on every page of the colloquy.
([Id. at] 38-42, 47). […] When confronted with the notes of
testimony from the oral colloquy conducted by this court,
[Appellant] first answered that “No. I did not answer that.” ([Id.
at] 40-44). [Appellant] then replied that his attorney told him
what to say because he cannot hear and wears a hearing aid.
([Id. at] 44).
PCRA Court Opinion, 11/18/22, at 6-8.
The PCRA court dismissed the petition on February 10, 2020. Appellant
timely appealed. On September 17, 2020, this Court dismissed the appeal for
failure to file briefs. Appellant filed a second PCRA petition seeking
reinstatement of his appeal rights nunc pro tunc on November 12, 2021. By
agreement of the parties, the PCRA court reinstated Appellant’s right to
appeal. Appellant filed a notice of appeal.3
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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Appellant raises four issues:
1. Whether the [PCRA] court erred in denying [Appellant’s PCRA
petition] since under the totality of circumstances, [Appellant’s]
waiver of his right to a trial by jury was not voluntary, knowing
and intelligent?
2. Whether the [PCRA] court erred in denying [Appellant’s PCRA
petition,] since the findings of fact are not supported by the record
and the legal conclusions drawn from those facts are incorrect,
and as such, the decision of the [c]ourt was in error?
3. Whether the [PCRA] court erred and abused its discretion in
denying [Appellant’s PCRA petition] since its credibility
determinations were not supported by the record?
4. Whether the [PCRA] court erred and abused its discretion when
it sustained the Commonwealth’s objection and refused to allow
defense counsel to effectively cross-examine [Attorney Gay] on
the testimony he gave in defense of his actions and inactions?
Appellant’s Brief at 6.
We begin by recognizing:
To be eligible for PCRA relief, a petitioner must prove by a
preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated circumstances found
at 42 Pa.C.S. § 9543(a)(2) (delineating the eligibility
requirements of the PCRA). A petitioner also must demonstrate
that the issues raised in his PCRA petition have not been
previously litigated or waived. Id. at § 9543(a)(3).
***
... It is well-settled that counsel is presumed to have been
effective and that the petitioner bears the burden of proving
counsel’s alleged ineffectiveness. Commonwealth v.
Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome
this presumption, a petitioner must establish that: (1) the
underlying substantive claim has arguable merit; (2) counsel did
not have a reasonable basis for his or her act or omission; and (3)
the petitioner suffered prejudice as a result of counsel’s deficient
performance, “that is, a reasonable probability that but for
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counsel’s act or omission, the outcome of the proceeding would
have been different.” Id. A PCRA petitioner must address each
of these prongs on appeal. See Commonwealth v.
Natividad, 595 Pa. 188, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the [ineffective assistance of
counsel] elements on appeal to this Court”). A petitioner’s failure
to satisfy any prong of this test is fatal to the claim. Cooper, 941
A.2d at 664.
When [an appellate c]ourt reviews an order dismissing or
denying a PCRA petition, its standard of review is whether the
findings of the PCRA court are supported by the record and are
free from legal error. “The PCRA court’s credibility
determinations, when supported by the record, are binding on this
Court[.]” Commonwealth v. Mason, 634 Pa. 359, 130 A.3d
601, 617 (2015) (quoting Commonwealth v. Roney, 622 Pa. 1,
79 A.3d 595, 603 (2013)). “Appellant has the burden to persuade
this Court that the PCRA court erred and that such error requires
relief.” Commonwealth v. Wholaver, 644 Pa. 386, 177 A.3d
136, 144-45 (2018).
Commonwealth v. Reid, 259 A.3d 395, 405-06 (Pa. 2021).
In his first issue, Appellant claims his “waiver of a right to a jury trial
was not voluntary, knowing and intelligent[.]” Appellant’s Brief at 25.
Specifically, Appellant argues Attorney Gay was ineffective “in the advice and
information he provided to [Appellant] that convince[d] him to waive his right
to a jury trial.” Id. at 26. Appellant asserts Attorney Gay was ineffective for
failing to object to a deficient on-record waiver colloquy. Id. at 26-27. Also,
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Appellant avers Attorney Gay was ineffective for failing to adequately explain
the written jury waiver colloquy to him.4 Id. at 29.
The Pennsylvania Supreme Court has explained:
The right to trial by jury is enshrined in both the U.S. and
Pennsylvania Constitutions. See U.S. CONST. amend. VI; PA.
CONST. art. I, § 6. The importance of the right is recognized by
the procedural protections in Rule 620 of this Court’s Criminal
Procedural Rules, which provides that:
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval
by a judge of the court in which the case is pending,
and elect to have the judge try the case without a jury.
The judge shall ascertain from the defendant whether
this is a knowing and intelligent waiver, and such
colloquy shall appear on the record. The waiver shall
be in writing, made a part of the record, and signed
by the defendant, the attorney for the
Commonwealth, the judge, and the defendant’s
attorney as a witness.
Pa.R.Crim.P. 620. ...
The essential elements of a jury waiver, though important and
necessary to an appreciation of the right, are nevertheless simple
to state and easy to understand. “The essential ingredients, basic
to the concept of a jury trial, are the requirements that the jury
be chosen from members of the community (a jury of one’s
peers), that the verdict be unanimous, and that the accused be
allowed to participate in the selection of the jury panel.”
Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597, 600
(Pa. 1973); accord Commonwealth v. Smith, 498 Pa. 661, 450
A.2d 973, 974 (Pa. 1982). Notwithstanding the Rule’s reference
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4 Appellant has waived any direct challenge to the validity of his jury waiver
and the adequacy of the oral and written colloquies because he did not raise
these issues in his direct appeal. See 42 Pa.C.S.A. § 9544(b) (“For purposes
of this subchapter, an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction [sic] proceeding.”).
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to a “colloquy on the record,” the use of a written jury trial waiver
form has been deemed sufficient in the absence of an oral jury
trial waiver colloquy. Williams, 312 A.2d at 599-600 ....
Commonwealth v. Mallory, 941 A.2d 686, 696-97 (Pa. 2008) (footnote and
brackets omitted).
In rejecting Appellant’s claim that trial counsel rendered ineffective
assistance relative to his jury waiver, the PCRA court observed that Appellant
“fails to specify his reasons[.]” PCRA Court Opinion, 11/18/22, at 6. The
PCRA court explained:
“Because ‘the decision to waive a jury trial is ultimately and
solely the defendant’s ... a defendant must bear the responsibility
for that decision. Counsel’s advice to waive a jury trial can be the
source of a valid claim of ineffective assistance of counsel only
when 1) counsel interferes with his client’s freedom to decide to
waive a jury trial... or 2) appellant can point to specific advice of
counsel so unreasonable as to vitiate the knowing and intelligent
waiver of his right.” Commonwealth v. Boyd, 334 A.2d 610,
616-617 (Pa. 1975) (quoting Commonwealth v. Stokes, 299
A.2d 272, 276 n.1 (Pa. 1973). “Where an appellant merely claims,
as in the present case, that his decision was a strategic error, and
can point to no specific incidents of counsel impropriety, he must
bear the responsibility for that decision and cannot shift the blame
to counsel.” Id. Counsel’s testimony that [Appellant] expressed
a lot of concern about how a jury would react to the testimony of
his stepdaughter further evinces that [Appellant] waived his right
to a jury a trial based upon a strategic decision and not a
misunderstanding of his options.
“When a presumptively-valid waiver is collaterally attacked
under the guise of ineffectiveness of counsel, it must be analyzed
like any other ineffectiveness claim. Such an inquiry is not
resolved by the mere absence of an oral waiver colloquy; instead,
the analysis must focus on the totality of relevant circumstances.”
[Mallory, 941 A.2d at 698]. The law is clear that a reviewing
court is free to look at the totality of the circumstances
surrounding the [colloquy] when assessing whether [it] was
entered into in accordance with the law. Commonwealth v.
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Allen, 732 A.2d 582, 588[-89] (Pa. 1999); Commonwealth v.
Muhammad, 794 A.2d 378, 383-84 (Pa. Super. 2002);
Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002). A
defendant is obliged to tell the truth […] and a trial court may rely
on a properly executed written colloquy supplemented by an oral
colloquy in deciding whether the waiver is knowing, intelligent and
voluntary. See Commonwealth v. Cappelli, 489 A.2d 813 (Pa.
Super. 1985); Commonwealth v. Nelson, 465 A.2d 1056 (Pa.
Super. 1983). For [Appellant] to succeed in his claim, he would
need [to] assert that he was lying under oath when he attested to
the written waiver forms. He is barred from doing so. See
[Cappelli, supra, at 819]; Commonwealth v. Willis, 68 A.3d
997 (Pa. Super. 2013).
This court has reviewed the totality of the circumstances
relating to [Appellant’s] waiver of a jury [trial] and it is crystal
clear that the waiver was knowing, intelligent, voluntary and
entered into in accordance with the law. Additionally, this court
found trial counsel’s testimony to be completely credible, while
[Appellant’s] testimony lack[ed] almost all credibility. The signed
written colloquy as well as the oral inquiry conducted by this court
belie any of the allegations made by [Appellant] on this issue.
PCRA Court Opinion, 11/18/22, at 8-9 (parallel cites omitted).
The PCRA court also rejected Appellant’s claims that Attorney Gay was
ineffective for failing to object to alleged deficiencies in the oral colloquy and
failing to adequately explain the written colloquy. The PCRA court continued:
[Appellant] next complains that the oral colloquy was somehow
deficient. In his PCRA petition, [Appellant] contends that the court
failed to address whether he was coerced, threatened or induced
into making the waiver; promised anything in exchange for
making the waiver; under any mental or psychiatric treatment or
told that the decision was his to make; that the questions asked
of [Appellant] were leading and lastly the court failed to question
[Appellant] on the content of the written colloquy. (PCRA Petition,
p. 12-13). All are without merit.
First, it must be noted that [Appellant] completed a four
page “Written Jury Trial Waiver Colloquy” on the day of trial.
[Appellant] admitted to initialing every page and signing the final
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one. The written colloquy was attested to by his counsel, the
attorney for the Commonwealth and the court. […] In addition
to the four page written colloquy, the following oral inquiry was
made of [Appellant] prior to the commencement of trial:
….
THE COURT: You are here for a trial. Do you understand that?
[Appellant]: Yes, sir.
THE COURT: It is my understanding you want to do a waiver trial,
a trial by judge alone, is that correct?
[Appellant]: Yes, sir.
THE COURT: I am going to ask you a couple of questions. How
old are you?
[Appellant]: I’m 60.
THE COURT: How far did you go in school?
[Appellant]: I graduated high school.
THE COURT: Do you read, write and understand English?
[Appellant]: Yes.
THE COURT: Are you under the influence of any drugs or
alcohol?
[Appellant]: No, sir.
THE COURT: Have you ever been diagnosed with any mental
disability?
[Appellant]: No, sir.
THE COURT: I show you this written waiver colloquy. Did
you go over this with your attorney?
[Appellant]: I did.
THE COURT: Did you read and understand every paragraph?
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[Appellant]: Yes, sir.
THE COURT: Do you have any questions for either Mr. Gay
or myself on what is contained in here?
[Appellant]: I did not hear.
THE COURT: Do you have any questions about what is
contained in here to either Mr. Gay or myself?
[Appellant]: No, I don’t.
THE COURT: I show you the back page. Is that your
signature?
[Appellant]: Yes, sir.
THE COURT: Now, you know that if you had a jury trial, in order
to be convicted all 12 jurors would have to be agreed; do you
understand that?
[Appellant]: Yes, sir.
THE COURT: In order to be acquitted all 12 jurors would have to
be agreed; do you understand that.
[Appellant]: Yes.
THE COURT: In a jury trial sometimes the jurors can’t agree and
that becomes a hung jury and the Commonwealth has a right to
try you again; do you understand that?
[Appellant]: Yes, sir.
THE COURT: And that can’t happen if I try the case as a judge
alone.
[Appellant]: Yes, sir.
THE COURT: All your rights remain the same. You have a right
to take the stand in your own defense, you have [the] right not to
take the stand in your own defense, you are presumed innocent
unless and until proven guilty. All the other rights you have in a
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trial remain the same except I will hear the case rather than 12
people, do you understand?
[Appellant]: Yes, sir.
THE COURT: Are you satisfied with Mr. Gay’s representation
up until this point?
[Appellant]: Yes, sir.
THE COURT: And it is your desire to have a trial with [a]
judge alone?
[Appellant]: Yes, sir.
(N.T. 6/12/2017, pp. 4-7 [emphasis added]).
Pennsylvania requires that a jury trial waiver be knowing,
intelligent and voluntary. Commonwealth v. Eichinger, 108
A.3d 821, 831 (Pa. 2014) (citing Commonwealth v. O ’Donnell,
740 A.2d 198, 208 (Pa. 1999)). “The essential ingredients in a
jury trial, which are necessary to understand the significance of
the right a defendant is waiving include: the jury will be chosen
from members of the community, the verdict will be unanimous,
and the accused will be allowed to participate in the selection of
the jury panel.” Commonwealth v. Hayes, 596 A.2d 874, 876
(Pa. Super. 1991) (citing Commonwealth v. Lott, 581 A.2d 612(Pa. Super. 1990); [Williams, 312 A.2d 597]. The combined oral
and written inquiries in the case at bar were obviously in
compliance with the mandates of the rule. Furthermore, our
appellate courts have determined that a written waiver is
sufficient in the absence of an oral inquiry. Commonwealth v.
Smith, 181 A.3d 1168, 1175 (Pa. Super. 2018). Clearly, a review
of the combined oral and written colloquies demonstrates that
[Appellant’s] waiver was knowing, intelligent and voluntary, and
[Appellant’s] claim that it was deficient, and counsel ineffective
for failing to object, are without merit.
***
Next [A]ppellant contends the written waiver colloquy was
deficient, and counsel constitutionally ineffective for failing to
object, in that it failed to adequately advise him of the rights he
was giving up. A review of the written colloquy […] categorically
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contradicts this claim. The right to a trial, by judge or by jury, the
presumption of innocence, the burden of proof beyond a
reasonable doubt, the right to a jury of your peers and to
participate in its selection and requirement of an unanimous
verdict, as well as all the other relevant rights of a defendant, are
spelled out in the written colloquy, signed and admittedly read by
[Appellant], and as such these claims by [Appellant] are meritless.
PCRA Court Opinion, 11/18/22, at 9-12 (parallel citations omitted).
The PCRA court’s thorough reasoning is supported by the record, and
refutes Appellant’s claim that Attorney Gay was ineffective in advising
Appellant about his right to a jury trial. Appellant’s additional claims that he
was under the influence of Xanax, unable to hear the oral colloquy, and did
not read the written colloquy are negated by his sworn testimony. We thus
affirm on the PCRA court’s reasoning.
In his second issue, Appellant contends the factual findings of the PCRA
court are not supported by the record, and “the legal conclusions drawn from
those facts are incorrect[.]” Appellant’s Brief at 30; see id. at 30-31. The
PCRA court suggests Appellant has waived this issue because his Rule 1925(b)
statement failed to “sufficiently, concisely, and coherently” identify the basis
for this claim. PCRA Court Opinion, 11/18/22, at 12; see id. at 12-13. We
agree.
Rule 1925(b) mandates that the “Statement shall concisely identify
each error that the appellant intends to assert with sufficient detail to
identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii)
(emphasis added). Rule 1925(b) “is a crucial component of the appellate
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process because it allows the trial court to identify and focus on those issues
the parties plan to raise on appeal.” Commonwealth v. Bonnett, 239 A.3d
1096, 1106 (Pa. Super. 2020); see also Pa.R.A.P. 302(a) (issues cannot be
raised for the first time on appeal). A Rule 1925(b) statement that is too
vague to afford the court an opportunity to identify the issues raised on appeal
“is the functional equivalent of no statement at all.” Commonwealth v.
Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008); see also Commonwealth
v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (“if a concise statement is
too vague, the court may find waiver.”).
Here, Appellant merely alleged the PCRA court’s “findings of fact are not
supported by the record and the legal conclusions drawn from those facts are
incorrect[.]” Concise Statement of [Errors] Complained of on Appeal,
11/3/22, at 2. As this statement is improperly vague, Appellant’s second issue
is waived.5
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5 Appellant’s argument is also undeveloped, as it consists of a recitation of our
standard of review. Appellant’s Brief at 30-31. Appellant does not identify
specific findings of fact or legal conclusions he believes to be incorrect. See
id. This Court will not act as counsel and will not develop arguments for an
appellant. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007);
Bombar v. West American Insurance Company, 932 A.2d 78, 94 (Pa.
Super. 2007). Waiver is proper when deficiencies hinder our ability to conduct
meaningful appellate review. Pa.R.A.P. 2101; Hardy, supra.- 14 -
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In his third issue, Appellant asserts the PCRA court’s “credibility
determinations were not supported by the record.” Appellant’s Brief at 31.
Appellant has waived this issue as well.
Appellant’s argument is simply that “the record does not support the
[PCRA c]ourt’s finding that counsel is credible.” Appellant’s Brief at 31. It is
well-settled that “mere issue spotting without analysis or legal citation to
support an assertion precludes appellate review of a matter.” Coulter v.
Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014) (citation omitted); see also
Pa.R.A.P. 2119(a) (stating the appellant’s brief “shall have ... such discussion
and citation of authorities as are deemed pertinent.”). Appellant’s third issue
is waived.
In his final issue, Appellant avers the PCRA court erred when it
“sustained the Commonwealth’s objection and refused to allow defense
counsel to effectively cross-examine [Attorney Gay] on the testimony he gave
in defense of his actions and inactions.” Appellant’s Brief at 32. Appellant
asserts the PCRA court erred in sustaining an objection as to “whether or not
the decision to waive the jury trial could be affected by the trial judge assigned
to the case, namely, Judge [Diana L.] Anhalt.” Id. (emphasis added).
Our standard of review regarding the admissibility of
evidence is an abuse of discretion. The admissibility of evidence
is a matter addressed to the sound discretion of the [PCRA] court
and ... an appellate court may only reverse upon a showing that
the trial court abused its discretion. An abuse of discretion is not
a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, or
misapplication of law.
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Commonwealth v. Collins, 70 A.3d 1245, 1251–52 (Pa. Super. 2013)
(citations omitted).
Our review discloses the PCRA court never sustained an objection to a
question about Judge Anhalt. The following exchange occurred at the start of
PCRA counsel’s cross-examination of Attorney Gay:
Q. All the conversations you had with [Appellant] regarding
waiver of a jury trial was when the case was assigned to Judge
[Donna M.] Woelpper, correct?
A. I believe that that is accurate. There is a lot of information in
your petition … about conversations that I had with [Appellant]
about talking him into a non-jury trial in front of Judge Anhalt.
And the allegations in the PCRA petition that you signed and filed
were that that would be an unreasonable position for me to take
with [Appellant], that I should recommend to him that he proceed
to a non-jury trial with someone who previously worked in the
Family Violence and Sexual Assault Unit of the District Attorney’s
Office. So that is completely untrue.
[B]ut to answer your question, I believe that those
conversations must have taken place with him prior to proceeding
or appearing for trial in front of Judge Woelpper, because I don't
think that there was another trial judge assigned.
N.T., 1/9/20, at 16 (emphasis added); see also PCRA Petition, 12/11/18, at
4 (unnumbered) and 13 (unnumbered) (recounting alleged conversations
between Attorney Gay and Appellant about the merits of waiving a jury trial
and having the case heard by Judge Anhalt). Our review of the trial court
docket reveals Attorney Gay was correct and Judge Anhalt was never assigned
to Appellant’s case.
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However, the record reflects that the PCRA court sustained an objection
to a question about Judge Ann Marie B. Coyle:
Q. [PCRA Counsel:] All right. But my question is all of the
conversations you had with regard to a waiver of a jury were while
the case was pending before Judge Woelpper, correct?
A. [Attorney Gay:] No. I can’t say that because the
conversations concerning the waiver trial or a jury trial started
from the beginning of my representation of [Appellant]; from the
time of the preliminary hearing and afterwards. So we had
conversations throughout my representation of him concerning
the differences and the benefits or drawbacks of a non-jury trial
or jury trial.
Q. And that was even before it was assigned to Judge Woelpper?
A. That’s correct.
Q. What if the case was assigned to Judge [Ann Marie B.]
Coyle, would that be your same advice?
[The Commonwealth]: Your Honor, I’m going to object to
the relevance of this question.
[PCRA Counsel]: I say that, Judge, with all candor because
of that judge’s lack of reasonable doubt, so we’re discussing --
THE COURT: How about we rephrase it into, “Would it make
a difference which judge it was assigned to?” Rather than naming
a particular judge.
…
Q. [PCRA Counsel:] Would it make a difference of what judge it
was assigned to?
A. [Attorney Gay:] Absolutely.
Q. And would it be a fair statement that if it were assigned to
certain judges in this county, your advice would be, take a jury?
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J-S13025-23
A. That is exactly correct. I can tell you my general practice, and
what I did with [Appellant] as well, is to let him know that, you
know, you have to make a decision about whether to choose a
jury or a non-jury based on the judge before whom you are
scheduled for trial. And you have to also assume in making that
decision that you will receive your average jury. And whether or
not the court that is going to preside over the trial, in your opinion
or your experience with that judge, is going to give you at least
as fair of a shake at trial as your standard jury would. Then many
times it’s advisable to go with a non-jury trial in those
circumstances.
[PCRA Counsel]: Okay. And that’s all I have, Judge.
Id. at 16-18 (emphasis added).
The record shows that the PCRA court did not err in sustaining the
objection to the question about Judge Coyle, who was also not involved in this
case. The court permitted PCRA counsel to inquire about Attorney Gay’s tact
in advising clients about whether to waive the right to a jury trial, and his
views regarding judges. Because we discern no error, Appellant’s fourth issue
does not merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2023
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