Com. v. King, C. ( 2021 )

J-A16043-21
2021 PA Super 162COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COLIN FRANK KING :
:
Appellant : No. 34 MDA 2021
Appeal from the PCRA Order Entered December 9, 2020
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000723-2018
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: August 13, 2021
Appellant, Colin Frank King, appeals from the order entered in the Court
of Common Pleas of Schuylkill County dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, after an evidentiary hearing. Herein, he contends the PCRA court
erroneously deemed meritless his ineffective assistance of trial counsel claims
assailing counsel’s advisement to elect a non-jury trial and decision against
appealing the denial of his motion to suppress. After careful consideration,
we affirm.
On March 23, 2018, at approximately 1:45 p.m., Appellant was traveling
alone in a motor vehicle on Pennsylvania State Route 309 in the Borough of
Tamaqua when police clocked his speed of travel at 63.6 miles per hour in an
area with a posted speed limit of 45 miles per hour. N.T. 2/7/19, at 3-5, 7.
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* Former Justice specially assigned to the Superior Court.
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Patrolman Richard Bekesy of the Tamaqua Police Department pursued
Appellant and activated the overhead lights to his patrol car, prompting
Appellant to drive onto the berm of the highway and stop his vehicle in front
of a driveway providing access to an automobile dealership. N.T. at 8-9.
During the police/citizen encounter that followed, Officer Bekesy asked
for Appellant’s driver’s license, but Appellant produced a Pennsylvania ID card,
instead, and told Officer Bekesy that his license was not suspended and that
he was presently working with PennDOT to correct that. N.T. at 8. Officer
Bekesy performed a computer check of Appellant’s driver’s license and
discovered it was, in fact, suspended. The officer therefore called for backup
and, in the meantime, prepared two citations for speeding and driving with a
suspended license, respectively. Tamaqua Police Officer Anthony Stanell
arrived shortly thereafter. N.T. at 9-10.
Officer Bekesy advised Appellant of the two citations he was receiving
and asked him if he had a AAA or similar membership that provided towing
service, as Appellant was no longer permitted to operate the vehicle and the
officers could not drive the vehicle onto a private commercial lot for civil
liability reasons. Appellant answered that his mother owned the vehicle and
had AAA coverage, but Officer Bekesy was unable to reach her at the number
provided by Appellant. Because Appellant and his mother were Philadelphia
residents, and he was unable to identify any other persons who could arrive
at the scene within 10 minutes and move the vehicle on Appellant’s behalf,
Officer Bekesy arranged to have the vehicle towed.
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The officers told Appellant they were required to perform an inventory
search of the vehicle in preparation for the tow, to which Appellant nervously
responded that the officer did not need to take an inventory. N.T. at 13. The
search disclosed a marijuana grinder placed atop the center console, N.T. at
17-18, and a loaded .40 caliber pistol inside the center console. N.T. at 13-
14. Upon Officer Bekesy’s announcement of his discovery of the loaded gun,
Officer Stanell drew his pistol and ordered Appellant to place his arms behind
his head and drop to his knees. A Terry frisk of Appellant uncovered a small
bag of marijuana in Appellant’s front pants pocket, and Appellant was placed
under arrest. N.T. at 19.
Appellant was charged with possession of a firearm by a person not to
possess,1 possession of a firearm without a license,2 possession of drug
paraphernalia,3 possession of a small amount of marijuana,4 driving while
operating privileges are suspended or revoked,5 carrying a loaded weapon in
a vehicle,6 and speeding.7 On February 7, 2019, Appellant was convicted on
all charges after a non-jury trial, and he was sentenced on March 25, 2019,
to an aggregate term of not less than four nor more than eight years of
incarceration, plus an additional two years’ probation.
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1 18 Pa.C.S. § 6105(a.1).
2 18 Pa.C.S. § 6106(a)(1).
3 18 Pa.C.S. § 3113(a)(32).
4 35 P.S. § 780-113(a)(31)(i).
5 75 Pa.C.S. § 1543(a).
6 18 Pa.C.S. § 6106.1(a).
7 75 Pa.C.S. § 3362(a)(3).
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On direct appeal, this Court affirmed judgment of sentence after
dismissing as meritless Appellant’s challenges to the sufficiency of the
evidence offered to support his firearms convictions. See Commonwealth
v. King, 496 MDA 2019 (Pa. Super., Feb. 12, 2020) (unpublished
memorandum decision). Appellant did not file a Petition for Allowance of
Appeal with the Pennsylvania Supreme Court.
On July 20, 2020, Appellant filed a timely first PCRA petition alleging
ineffective assistance of counsel and improper obstruction of government
officials with his right to appeal. With respect to the ineffectiveness claims
raised, Appellant alleged that trial counsel had improperly advised him to
pursue a bench trial rather than a jury trial because he would likely not receive
a fair jury trial in Schuylkill County, as there may be some among its
predominantly white jury pool who secretly harbor prejudiced attitudes
against African Americans but would not admit this during voir dire. Appellant
also asserted that counsel ineffectively failed to take an appeal from the
court’s order denying his motion to suppress all evidence obtained from the
warrantless search of his vehicle.
At the PCRA evidentiary hearing of September 21, 2020, trial counsel
disputed Appellant’s characterization of his advice. Specifically, counsel
testified that in his 31 years as a practicing attorney in Schuylkill County,
serving as a public defender for over 20 years and an assistant District
Attorney for two years, he has participated in many criminal trials. He testified
that in his work as a public defender, he discusses ethnicity with his clients of
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color and advises them that he “cannot guarantee” what attitudes jurors
possess and whether they will accurately reveal such attitudes during voir
dire, where counsel always asks in a case involving an African American
defendant whether any prospective juror would be unable to serve as a fair
and impartial juror. N.T., 9/21/20, at 19 Counsel, however, denied ever
telling Appellant, or any other client, that they would not receive a fair trial in
Schuylkill County, and he noted that the trial court had addressed this issue
in a pre-trial hearing. Id. at 18-21.
Specifically, the record of the pre-trial hearing reveals the trial court and
parties discussed this very issue as part of the colloquy necessary to verify
whether Appellant wished to accept the Commonwealth’s latest offer of 3 to 6
years’ incarceration and to advise Appellant of his right to a jury trial.
Appellant claimed that, despite his desire for a trial, he had initially accepted
an initial plea deal of 9 to 23 months’ incarceration—which the trial court later
rejected because it required an amended charge which the court decided did
not fit the facts—only because counsel had advised him that “12 white people
here in Schuylkill County was going to find me guilty just because of the color
of my skin.” N.T. 12/10/18, at 2. Counsel denied ever making such a
statement and maintained that he advised Appellant of his right to a jury trial,
N.T. at 3, but Appellant insisted on a bench trial based on counsel’s purported
advice about jury prejudice.
On this point, a thorough discussion occurred, in which the court advised
Appellant that a Schuylkill County jury could render a fair and evidence-based
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verdict, that it would be counsel’s endeavor to secure for him a fair-minded
jury during voir dire, and that he was mischaracterizing counsel’s position on
the lack of guarantees in a trial:
APPELLANT: Only thing I’m saying is that I have a ADA
assisting me. . . . He’s [defense counsel] only trying to send me
up State. Any time he comes to see me and I open up my mouth
to something that pertains to me and my case, he shuts me down
and goes back to what the District Attorney wants. So I have no
counsel when it comes to me. He’s hellbent on sending me up
State even though the Commonwealth has [a] lack of evidence.
They – you know what I mean? He’s looking at –-
THE COURT: All right, Mr. King.
APPELLANT: -- as a winnable case for me. It ain’t 100
percent, but it’s not an open, slam dunk case for the district
Attorney either.
...
THE COURT: You understand, Mr. King, that you are entitled
to a jury trial?
APPELLANT: I’m entitled. If my attorney tell [sic] me I’m not
going to have a fair trial here and 12 jurors going to find me guilty
because of the color of my skin, why would I take 12?
He ain’t – he’s not disputing what I am saying because he knows
that’s what he said to me. There’s no way in the world. If my
lawyer going to tell me I’m going to be a racist – there’s going to
be a racist trial, why would I pick it? I’d rather go in front of the
judge.
THE COURT: Attorney Burke, do you want to address that?
MR. BURKE: Yes, Your Honor. Through my years of
experience representing inmates at SCI Mahanoy and SCI
Frackville, I did inform Mr. King that during the voir dire process
I do ask the question would they be unable to serve as a fair and
impartial juror due to his African American heritage.
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What I did tell Mr. King was that I can’t guarantee that the
response would be an accurate one or [that] you’d get a response
at all. You can’t determine what – if a juror keeps their mouth
shut, really, what their – what’s going through their head.
He’s certainly entitled to a jury trial if he’d like, but I didn’t indicate
that it was a slam dunk if he went to jury trial. I indicated a
potential problem if people don’t speak up and speak up what they
really think.
THE COURT: Well, I mean, that could be – I mean, people
can be prejudiced for a number of reasons.
MR. BURKE: Absolutely, Your Honor. And some people are
quick to raise their hands and others are not. And if a hand isn’t
raised, I can’t guarantee that 12 people are going to be fair and
impartial. It’s just – it’s just a danger of the process.
THE COURT: Well, you can’t guarantee it, but to say that an
African American can’t have a –
MR. BURKE: I didn’t say that.
APPELLANT: You did say that, basically.
MR. BURKE: No, Your Honor. I said what it was. . . . If
someone doesn’t raise their hand and admit to their prejudice, I
can’t -- I can’t guarantee that they’re all fair and impartial jurors.
APPELLANT: Here in Schuylkill County.
...
THE COURT: That could be for any type of case.
MR. BURKE: Absolutely. Or a DUI case or any kind of case,
Your Honor. You’re right, Your Honor.
THE COURT: Well, I mean obviously that was portrayed to
your client and now he doesn’t feel that he can get a fair trial in
Schuylkill County.
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MR. BURKE: Your Honor, that’s a question I have to ask. It’s
a question that’s asked on a regular basis with regard to that.
THE COURT: I understand that, but the way it was conveyed
to your client and now we have a situation where he doesn’t feel
he can get a fair trial in Schuylkill County.
You’re requesting a nonjury trial, Mr. King?
APPELLANT: I mean, yes. I mean, from this, my counsel,
he’s telling me I’m not getting a fair trial here in Schuylkill County.
And I look at Schuylkill County Prison, there’s no African
Americans that works there. There’s no African Americans that
work anywhere in Tamaqua Police Department, none here in the
courthouse, none in the Probation Office. I mean, by looking at
that and him telling me that, I have to be like – I’m not from here.
I’m from Philadelphia, so . . .
THE COURT: I understand that, Mr. King. We’ve had many
African Americans. We’ve had Mexican and many other
minorities.
APPELLANT: I’m African American. I’m not Mexican.
THE COURT: I understand that, but I’m using that as an
example.
APPELLANT: I asked him, I have my right, it’s my right to be
judged by my peers. He said, yeah, but I won’t. it would be 40
white people to pick from so I will get 12 and went on about how
they not going to be. So why would I take a jury trial when he
already telling me that my chances just because they no – they
not going to look at the evidence, they not going to look at any
statement that hasn’t been made or anything like that. They just
going to say, okay, I can be manipulated, he’s a convicted felon,
you know what I’m saying, and already leaning towards guilty just
because I’m black. So I’d rather take a judge.
THE COURT: All right, Mr. King, that’s your decision to make.
Schuylkill County is predominantly a white population. So if the
majority of jurors, if not maybe all of them, will be white and there
will not be African American – there may not be on the jury panel.
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APPELLANT: I thought maybe I could get a jury sequestered
from a county that do have African American citizens there that
we can pick from a jury. Because if I’m picking from, I’m not
being adjuged by my peers.
THE COURT: That’s not going to happen because if –
APPELLANT: That’s what he said. That’s exactly what he told
me. So basically I want a judge. I’d rather for a judge to be a
racist.
THE COURT: What I’m saying is that even though they’re not
African American, jurors can still be fair and – fair and try you
based on the evidence. And that’s your attorney’s job to make
sure of that.
APPELLANT: I just –
THE COURT: He’s basically saying that he can’t guarantee
that they don’t have prejudices that they don’t disclose when he
asks questions.
Your indicating to the court that you understand that, that your
attorney will represent you and try to get a fair jury. You’re
indicating you want a trial before –-
APPELLANT: Absolutely.
THE COURT: -- before a judge?
APPELLANT: I want a judge. I mean, he’s basically not
representing me when the only thing he’s representing and
putting on the table for me is to go up State. That’s it. The only
thing he comes over to the jail to give me is a deal to go up State.
And when I sit there and say I don’t want to take this deal, he
gets upset and tell me, okay, go.
When I start to talk about things, about let’s take it to trial, the
Commonwealth don’t have any fingerprints or DNA or start talking
about the case, he shuts me down and say, you want to take this
up State offer or not? Then just go.
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And you, being my attorney, the only thing he’s doing is the
district attorney’s bid. And he was an ADA he told me once before,
maybe four years ago.
THE COURT: All right.
APPELLANT: I’m looking at two ADAs. I got one on my side
and one on the other side.
THE COURT: Mr. King, I think you’re mischaracterizing your
conversations with Attorney Burke.
N.T., 12/10/18, at 3-10.
After consideration of issues raised at the PCRA evidentiary hearing, the
PCRA court denied Appellant relief on his petition. In dismissing Appellant’s
claim of ineffective advice on whether to proceed to a jury trial, the PCRA
court reviewed testimony taken at both the evidentiary hearing and the pre-
trial status hearing where the trial court advised Appellant that he could
receive a fair and impartial jury in Schuylkill County. From this record, the
court determined that Appellant received fair advice from both defense
counsel and the trial court regarding the possibilities of hidden prejudice in a
jury, such that Appellant made a knowing and voluntary decision to proceed
with a bench trial.
On whether counsel ineffectively failed to challenge on direct appeal the
trial court’s order denying the defense motion to suppress all evidence
obtained from the warrantless search of his vehicle prior to towing, the PCRA
court deemed counsel’s decision reasonable in light of pertinent authority that
supported the inventory search in question. Noting that the Vehicle Code
prohibits a parked car from blocking a private driveway, see 75 Pa.C.S. §
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3353(a)(2)(i), the PCRA court observed that the officers were required to tow
Appellant’s vehicle and, thus, allowed to check the interior for inventory to
protect themselves against both claims of missing property and potential
dangers lying within the vehicle. See Commonwealth v. Hennigan, 753
A.2d 245, 253 (Pa. Super. 2000).
Appellant files the present timely appeal from the PCRA court’s order
and raises the following two-prong issue for our consideration.
1. Whether attorney William Burke was ineffective in his
representation of the Appellant for failing to pursue a jury trial
as opposed to a bench trial, and whether attorney Burke was
ineffective in failing to appeal the trial court’s decision not to
suppress evidence to the Superior Court.
Appellant’s brief, at 5.
Our standard of review follows:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court's determination is
supported by the evidence of record and whether it is free of
legal error. The PCRA court's credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court's legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the
defendant to prove all three of the following prongs: (1) the
underlying claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction; and
(3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings
would have been different.
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We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would
have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of
success. Counsel's decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with other
efforts he may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel's errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner's burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted).
Counsel cannot be ineffective for failing to pursue a meritless claim.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012). While
claims of trial court error may support the arguable merit element of an
ineffectiveness claim, a petitioner must meaningfully discuss each of the three
prongs of the ineffectiveness claim to prove he is entitled to relief.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super.
2015). We presume that counsel has rendered effective assistance. See
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).
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Appellant contends that counsel ineffectively failed to file an appeal from
the court’s order denying his motion to suppress evidence obtained from the
warrantless search of his car. His claim essentially states police did not
lawfully impound his car where “Officer Bekesy, or another member of the
Tamaqua Police Department, could simply have pulled the Appellant’s vehicle
from its parking spot onto a nearby parking lot and allowed the Appellant to
contact the owner of the vehicle to come and pick it up.” Appellant’s brief, at
11-12.
Officer Bekesy indicated at the evidentiary hearing, however, that
officers are not permitted to drive another person’s vehicle for reasons of
potential civil liability, and the PCRA court observed that towing the car from
the middle of the car dealership’s entrance was consistent with the Vehicle
Code’s proscription against parking in a manner that blocks a driveway.
Appellant presents no argument pertaining to the Tamaqua Police
Department’s impoundment policy in this regard.
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution protect citizens from
unreasonable searches and seizures. Commonwealth v. Richter, 791 A.2d
1181, 1184 (Pa. Super. 2002). Therefore, “[a] warrantless search or seizure
is per se unreasonable unless it falls within a specifically enumerated
exception.” Commonwealth v. Lee, 972 A.2d 1, 3 (Pa. Super. 2009)
(citation omitted). An inventory search is one such exception to the warrant
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requirement. See Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa.
2013).
The purpose of an inventory search is not to uncover
criminal evidence. Rather, it is designed to safeguard seized items
in order to benefit both the police and the defendant. Inventory
searches serve one or more of the following purposes: (1) to
protect the owner's property while it remains in police custody;
(2) to protect the police against claims or disputes over lost or
stolen property; (3) to protect the police from potential danger;
and (4) to assist the police in determining whether the vehicle was
stolen and then abandoned.
Commonwealth v. Hennigan, 753 A.2d 245, 254-55 (Pa. Super. 2000)
(emphasis added; citations and quotation marks omitted).
In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have lawfully
impounded the automobile, i.e., have lawful custody of the
automobile. The authority of the police to impound vehicles
derives from the police's reasonable community care-taking
functions. Such functions include removing disabled or damaged
vehicles from the highway, impounding automobiles which violate
parking ordinances (thereby jeopardizing public safety and
efficient traffic flow), and protecting the community's safety.
The second inquiry is whether the police have conducted a
reasonable inventory search. An inventory search is reasonable if
it is conducted pursuant to reasonable standard police procedures
and in good faith and not for the sole purpose of investigation.
Lagenella, 83 A.3d at 102-03 (citation omitted) (concluding evidence did not
support a finding that the vehicle, operated by a defendant with a suspended
license, posed a public safety risk, where the vehicle was not disabled or
damaged, no items of value were in plain view; and the parked vehicle did not
impede the flow of traffic). But see Commonwealth v. Peak, 230 A.3d
1220, at **5-6 (filed Mar. 30, 2020) (concluding police had authority to tow
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another’s vehicle driven by a defendant with suspended license and conduct
an inventory search, where the vehicle blocked access to a gas pump at a
commercial gas station, thus interfering with the regular course of the gas
station's business).
In light of this precedent, we conclude the evidence established that
Tamaqua police officers properly impounded and towed Appellant’s vehicle, as
it posed a public safety risk. The vehicle blocked the access road to a car
dealership and neither Appellant nor anyone acting on his behalf was available
to move the car in a timely manner as required under police department
policy. Notably, Appellant offers no developed argument with citation to
authority taking the opposing position that no public safety risk existed.
To the extent that Appellant seems to suggest in the alternative that
Officer Bekesy’s search impermissibly preceded the proper impoundment of
the vehicle—again, a claim for which Appellant provides no citation to policy
or authority—we observe that even assuming, arguendo, the accuracy of such
a claim, the evidence in question would have been inevitably discovered
during a lawful inventory search. The inevitable discovery doctrine provides:
[E]vidence which would have been discovered was sufficiently
purged of the original illegality to allow admission of the
evidence....[I]mplicit in this doctrine is the fact that the evidence
would have been discovered despite the initial illegality.
If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, the
evidence is admissible. The purpose of the inevitable discovery
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rule is to block setting aside convictions that would have been
obtained without police misconduct.
Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009).
Here, because Appellant’s vehicle was parked illegally along State Route
309 in obstruction of an adjacent commercial driveway, and no one was
available to drive it to an appropriate location, impoundment and towing of
the vehicle was required. As such, the firearm in the vehicle would have been
procured pursuant to a lawfully executed inventory search. See id. at 863(“[B]ecause the police conduct routine inventory searches whenever a car is
towed, and an inventory search includes looking into obvious storage places
... the gun would have inevitably been discovered absent police error or
misconduct.”). See also Commonwealth v. Parker, 248 A.3d 51 (Pa.
Super. filed Jan. 27, 2021) (unpublished memorandum applying inevitable
discovery doctrine to hold even if officer's warrantless search were unjustified,
the illegally obtained evidence inevitably would have been discovered by an
inventory search pursuant to a lawful impoundment and towing of the car).8
Therefore, Appellant is entitled to no relief on his challenge asserting that
counsel should have moved to suppress evidence obtained during the
inventory search conducted of his vehicle.
Appellant’s second claim centers on trial counsel’s advisement that he
could not guarantee an entirely evidence-based verdict free from racial
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8 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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prejudice. In this regard, however, he offers merely bare assertions that “his
chances at acquittal would have been higher at a jury trial,” Appellant’s brief,
at 12, and that “the Commonwealth would have had a more difficult time
convincing a jury of the facts of constructive possession [of the gun hidden in
the center console], than it would have a single judge.” Id. at 13.
Because Appellant, therefore, fails to develop a meaningful argument
with citation to pertinent decisional law as is his obligation under our
precedent, we find this issue waived. See Commonwealth v. McGrath,
2021 PA Super 132, *7, n.5 (June 28, 2021) (citing to Commonwealth v.
Perez, 93 A.3d 829, 838 (Pa. 2014) (the failure to develop an appellate
argument with citations to supporting authorities and the record is waived));
Commonwealth v. Donoughe, 243 A.3d 980, 986 (Pa. Super. 2020)
(acknowledging, “It is not the role of this Court to formulate an appellant’s
arguments for him.”). See also Pa.R.A.P. 2119(a) (requiring the argument
to include “such discussion and citation of authorities as are deemed
pertinent.”).
Even if we were to review Appellant’s claim on the merits, we would
reject it. Initially, we agree with the trial court’s assessment, adopted by the
PCRA court, that Appellant mischaracterized defense counsel’s advisement
regarding the risks associated with opting for a jury trial. Moreover, the PCRA
court observed in this regard that counsel’s advice was offered in the context
of his recommendation that Appellant accept the Commonwealth’s offer of a
negotiated sentence of 3 to 6 years, which, counsel predicted correctly, was
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likely to be favorable to a sentence he would receive if he took his case to trial
and was found guilty. Counsel’s advisement about the risks of a jury trial
were, thus, couched in terms of what counsel considered to be the better
option presented with the Commonwealth’s offer, not counsel suggesting the
people of Schuylkill County are incapable of rendering a fair and impartial
verdict.
Furthermore, as demonstrated in the record discussed supra, Appellant
was properly advised by both the trial court and defense counsel at the pre-
trial status hearing that while there are no guarantees of an impartial jury,
mechanisms such as voir dire and a counsel’s continuing obligation to
advocate for a fair trial on a defendant’s behalf are in place, along with
procedural and other safeguards to ensure a fair trial.
To accept Appellant’s position would be to denigrate the entire jury trial
process which has numerous safeguards built in to assure fair trials, including
review by appellate courts. Appellant clearly understood the trial court’s
message on this point, but he elected to stay with his choice of proceeding
with a non-jury trial, a decision made knowingly, voluntarily and intelligently.
Accordingly, Appellant’s second ineffectiveness claim fails.
For the foregoing reasons, we discern no error with the PCRA order
denying Appellant relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2021
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