Com. v. Briggs, J.

J-S25015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
JOSEPH W. BRIGGS
Appellant : No. 100 WDA 2022
Appeal from the PCRA Order Entered December 15, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012107-2003
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: SEPTEMBER 16, 2022
Appellant, Joseph W. Briggs, appeals from the post-conviction court’s
December 15, 2021 order denying his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
In 2006, Appellant was convicted by a jury of first-degree murder. He
was subsequently sentenced to life imprisonment, without the possibility of
parole. Appellant filed a direct appeal, and this Court affirmed his judgment
of sentence on June 11, 2008. See Commonwealth v. Briggs, 959 A.2d
457 (Pa. Super. 2008) (unpublished memorandum). Although Appellant did
not immediately file a petition for allowance of appeal with our Supreme Court,
his right to do so was ultimately reinstated during post-conviction
proceedings. Thereafter, Appellant filed a nunc pro tunc petition for allowance
of appeal, which our Supreme Court denied on July 2, 2013. Commonwealth
v. Briggs, 69 A.3d 599 (Pa. 2013).
J-S25015-22
On June 5, 2014, Appellant filed a timely, pro se PCRA petition. After
delays not pertinent to the issue he raises herein, counsel was appointed and
filed an amended petition on Appellant’s behalf on February 24, 2021.
Therein, Appellant asserted that his appellate counsel was ineffective for not
arguing on appeal that the trial court erred by denying Appellant’s request to
waive his right to a jury trial. After the PCRA court conducted a hearing on
September 20, 2021, it issued an order on January 14, 2022, denying
Appellant’s petition.
Appellant filed a timely notice of appeal, and he also timely complied
with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The court filed its Rule 1925(a) opinion on
March 17, 2022. Herein, Appellant states one issue for our review:
I, Did the [PCRA] court abuse its discretion in denying the
PCRA petition, as amended, where [Appellant] established
that counsel was ineffective for failing to raise a claim on
appeal that the trial court abused its discretion in refusing
to allow [Appellant] to waive a jury trial?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free of
legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he or she received ineffective
J-S25015-22
assistance of counsel, our Supreme Court has directed that the following
standards apply:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
was deficient and that such deficiency prejudiced him.”
[Commonwealth v.]| Colavita, ... 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland |v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.| Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Al, ...
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
these prongs, his claim fails.” Commonwealth v. Simpson, ...
66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
counsel’s assistance is deemed constitutionally effective if he
chose a particular course of conduct that had some reasonable
basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.” Colavita, ... 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, ... 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
marks, and citation omitted). “[A] reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Ali, .... 10 A.3d at 291 (quoting
Commonwealth v. Collins, ...957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694....)).
-3-
J-S25015-22
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Here, Appellant contends that his appellate counsel acted ineffectively
by not challenging on appeal the trial court’s denial of his request to waive his
right to a jury trial. According to Appellant, he presented valid reasons for
wanting to waive that right, including that he was afraid that jurors would not
understand the different degrees of homicide, they would not be able to be
fair and impartial considering the circumstances of his case, and they would
be overly sympathetic to the victim. Appellant contends that the trial court
summarily dismissed his request to waive his right to a jury without giving
him an opportunity to elaborate on his reasons for wanting to do so.
Consequently, Appellant insists that his appellate counsel acted ineffectively
by not challenging the trial court’s error in this regard on direct appeal. He
maintains that counsel had no reasonable basis for not raising this issue, and
he was prejudiced because he would have received a new trial had his attorney
done so.
In assessing Appellant’s issue, we have reviewed the certified record,
the briefs of the parties, and the applicable law. Additionally, we have
examined the well-reasoned opinion of the Honorable Susan Evashavik
DiLucente of the Court of Common Pleas of Allegheny County. We conclude
that Judge Evashavik DiLucente’s comprehensive opinion accurately disposes
of the issue presented by Appellant. Accordingly, we adopt Judge Evashavik
DiLucente’s opinion as our own and affirm the order denying Appellant’s PCRA
petition for the reasons set forth therein.
-4-
J-S25015-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es
Prothonotary
Date: 09/16/2022
Circulated 08/17/2022 09:24 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA. «ss CRIMINAL DIVISION
vs. > CP-02-CR-0012107-2003
JOSEPH W BRIGGS, : ORIGINAL
Defendant Criminat Division
Dept. Of Court Record:
Allegheny County. P?
OPINION AND ORDER TO TRANSMIT RECORD TO APPELLATE COURT
Defendant Joseph W. Briggs appeals the December 15, 2021, order (the
“Order") dismissing his amended Post-Conviction Relief Act petition (the
“Amended Petition”). He contends that this Court erred in concluding that
direct appeal counsel was not ineffective for failing to advance a claim that the
trial court wrongly denied Mr. Briggs’ request for a bench trial. For the reasons
that follow, the Order should be affirmed.
l. Relevant Procedural Background
In September 2000, the Commonwealth charged Mr. Briggs with criminal
homicide for the death of Joseph Looney. Over three years later, Mr. Briggs was
located in Saudi Arabia and returned to Allegheny County for trial. Multiple
postponements occurred, and on January 6, 2006, Mr. Briggs —- represented by
Christopher Conrad, Esquire - appeared before the Honorable Cheryl L. Allen for
— a the
A mistrial was declared on the first day of trial. See January 5-6, 2006,
Transcript at 118-119. Judge Allen and the parties intended to pick a new jury
and to retry the case the following week. Id.During that week, Mr. Briggs appeared before Judge Allen and sought
leave to represent himself. See generally January 11-12, 2006, Transcript. The
record reveals the following:
THE COURT:
MR. CONRAD;
[MR. BRIGGS]:
THE COURT:
And just in my short period of
exposure to you, | am convinced
that you are highly intelligent. I’m
convinced that you are well-read
and that you're very knowledgeable
about some things, but you're not a
lawyer. Okay? And you are not a
lawyer.
And even if you were a lawyer.
representing yourself is not
advisable, and even if you were a
lawyer — but let's just start with the
fact that you're not. Your courtroom
experience, your experience in
dealing with juries, cannot even
begin to compare with your
attorney's experience. And so I’m
just wondering why you feel — why
you want to make this move. | don’t
understand.
| have a couple of questions to ask
you.
Go ahead.
| think there’s a possibility | can do
life without parole.
Well, there's always that possibility.
There's that possibility whether
2
MR. CONRAD:
[MR. BRIGGS]:
MR. CONRAD:
[MR. BRIGGS]:
Id. at 7-8.
you're representing yourself or
whether Mr. Conrad is representing
you.
imean, you know - but it seems to
me that your chances of — you
cannot be better represented. And
your experience as a trial lawyer and
Mr. Conrad's experience as a trial
lawyer cannot even begin to
compare.
Judge, just so it’s clear, without
getting into what they are, ‘cause |!
don't think that's appropriate, youl,
Mr. Briggs,] have indicated to me
there are certain tactical things that
you feel that you could handle
better representing yourself; is that
right?
Generally.
You've mentioned some of the
things, but i really don't think it’s
appropriate to get into them here,
but you have considered various
tactical things that you would do
representing yourself and how it
might apped! to a jury that you feel
that | could not be able to do as
well: is that right?
Yes. That's one of the things....
After Mr. Briggs explained that one factor motivating his desire to proceed
pro se was his belief that he could appeal to a jury better than Attomey Conrad,
Judge Allen informed Mr. Briggs that if he thought he could “do a better job
than [Attorney Conrad], then [he should] just do the better job, but the trial is
3
going forward. [She was] not postponing it.” Id. at 38-39. Following further
discussion between the parties and a lengthy colloquy of Mr. Briggs, Judge Allen
ultimately agreed to permit Mr. Briggs to represent himself with Attorney Conrad
as standby counsel. Id. at 60. She also appointed a private investigator for Mr.
Briggs and permitted him to have increased time at the law library in the
Allegheny County Jail ("ACJ"), where he was being housed. True to her word,
Judge Allen also denied a request by Mr. Briggs to postpone the trial so that he
could purportediy prepare for the same. Id. at 63-64.
Following jury selection several days later, Mr. Briggs appeared before
Judge Allen, and the following occurred:
MR. CONRAD: [The private investigator has not
been able to meet with Mr. Briggs at
the ACJ because the jail requires a
certified order from the Court for
such a meeting to occur.]
* ok o*
THE COURT: Thank you. The Court will provide
the certified order. And the Court
will give [the investigators] the
opportunity to interview [and work
with] Mr. Briggs. | don't see that
necessarily as a reason to delay the
Commonwealth's presentation of its
case. I’m not sure how long your
case is going to take. Given the
totality of the circumstances,
however, | will permit the interview — |
will order the interview to take place
well prior to Mr. Briggs beginning his
defense.
MR. CONRAD:
MR. BRIGGS:
THE COURT:
MR. CONRAD:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
Did you understand that, [Mr. Briggs],
So far? Do you understand about
the investigator, why you didn't get
to see him over the weekend, and
that | have a certified order for them.
Hopefully that will be sufficient now
that court is in session. If there [is] a
problem they can contact the Cour
direcily to facilitate you being seen,
okay.
Okay.
Anything else?
Yes. He has other matters.
Okay.
The first is | never got the library time
that the Court ordered. Trying to
show every staff member at every
Co.
.... | [will make sure the ACJ
permits the library time]. Anything
else?
Because of that, | didn't get a
chance to do any work and was
unable to go over the rules that I’m
accountable for. Stand-by counsel
never came, so | couldn't subpoena
the witnesses that | do have. |
brought their names and addresses
today.
Well, the reason you have stand-by
counsel is so that he can assist you
with any rules that you need to be
aware of.
Okay.
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
Again, | will provide the certified
order for you to get the library time
this week.
What about to get the witnesses? |
haven't had any time to get them.
Weill, that’s what the investigator was
for, and the investigator is going to
have an opportunity to speak with
you. And | told you, as {just said, you
will have that opportunity to
subpoena any witnesses that they
can find before you begin the
presentation of your defense.
Which is one day.
| don't know how tong it is going to
take the prosecution to complete its
case. You know you have had five
years. You have had at least three,
so don’t tell me about one day; but
we are doing the best that we can.
tis going to affect my ability to
cross-examine.
As | said before, you have had three
years. I’m going to sign an order
and have done an order for you to —
for the investigator to speak with you
today, and after the investigator
speaks with you, presumably the
investigator will have an opportunity
to serve those subpoeanas. And |
also said that we would make sure
that these things happened before
you had to begin your case; now
that’s all | can say to you and that's
all - that’s the best 1 can do.
Okay.
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
If you have an objection to this
procedure, your objection is noted
for the record.
| object.
All right.
You know | haven't been able to try
to procure my witnesses myself.
We have been through that already.
Okay. On Thursday[, January 12,
2006,] somebody jumped out the
window on the jail and died. That’s
what everything is about here. There
was a shake-down. Cops, they went
through all my stuff and disorganized
all my material. | have just been
able to organize everything, so I'm
not prepared to cross-examine the
witnesses. | don't have my own
defense witnesses. It is going to take
more than a day or two.
Your defense witnesses would not be
taking the stand until after the
prosecution has competed its entire
case; therefore, as | told you, you
would have an opportunity to
prepare for that.
Because despite how long this case
has been going on, | haven’t been
counseled for the case. | just
wanted to finish real quick. | haven't
been counseled for the case. I’m
just now taking the case from prior
counsel. And I'm not ready to
present a competent defense....
| just want to restate my position that
ldo not want to have a jury trial
7
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
without being prepared. And |
would like to just plead guilty but
mentally ill.
| will not accept your guilty plea.
You already stated that you're — on
Friday or Thursday, | believe it is,
when you were asked and given the
colloquy with regard to your waiver
of counsel, you stated that you were
not suffering from any mental iliness
and you stated that under oath on
the record.
!mean mentally ill at the time of the
crime. I’m sorry.
Well, I'm not going to accept your
guilty plea. We will proceed with a
jury trial.
Then | would like to just go judge.
You would like to go what?
Bench trial.
I'm not going to proceed with a
bench trial. | don't even believe
that would be fair at this point. And
I'm not—I cannot and will not
accept your waiver of a jury trial.
| would like to demand my right to
have new judge for the bench trial,
if you won't accept the plea or -
There is no requirement that a judge
accept a plea.
| have a statute here.
lam not going to accept your piea,
and I'm not going to recuse myself.
8
MR. BRIGGS:
THE COURT:
MR, BRIGGS:
THE COURT:
MR. BRIGGS:
THE COURT:
We will proceed with the jury trial.
Your objection is noted for the
record.
ORK
| would really like to proceed bench
trial. I'm not prepared for this jury
trial - i'm not prepared for trial
period. | would like to have a bench
trial.
Weil, I'm not going to accept your
waiver of a jury trial. I'm not going to
accept your guilty plea. We are
going to proceed with the jury trial.
You have had three years to
prepare for this trial. There have
been many postponements. This is
the date and time set aside for the
trial. That’s the way it is going to be.
Allright.
For the record, | wouid like to object
to this jury, that! was clearly stressed
out and unprepared for the picking
of the jurors.
Well —
Under great anxiety.
| gave you plenty of opportunity to
raise any objections to particular
jurors serving on your jury. Your
comment was repeatedly “no
comment.”
| told you on the day that you were
selecting the jury that this was — that
was the time to raise any objections.
You did not raise any objections.
You know, you put yourself in this
position; i did not put you in this
position. | did everything short of
getting on my knees to beg you not
to do this. But you're not going fo tie
up the court system any longer. You
made the decision to proceed as
your own — fo proceed pro se. That
was nof what | would have liked to
have seen you do, but you made
that decision. | respect your
decision. Now, we are going to trial.
January 17, 2006, Transcript at 4-20.
Trial ultimately commenced, and the jury convicted Mr. Briggs of first-
degree murder. Judge Allen sentenced him to life imprisonment. Following the
denial of post-sentence motions, Mr. Briggs — through Patrick Nightingale, Esquire
— appealed his judgment of sentence to the Pennsylvania Superior Court, which
docketed the matter at 2160 WDA 2006.
In Mr. Briggs’ Pa.R.A-P. 1925(b) statement, Attorney Nightingale advanced
many claims of error, including that Judge Allen erred in not permitting Mr.
Briggs to proceed with a non-jury trial and that she erred by denying Mr. Briggs’
request for a continuance after he elected to represent himself. Judge Allen
addressed those and other related claims collectively, stating in her Pa.R.A.P.
1925(a} opinion:
In his Statement of Matters Complained of on Appeal,
[Mr. Briggs] states that the trial court ered in denying his
request for a continuance to consult with experts
regarding a plea of guilty but mentally ill. However, in
his colloquy waiving representation, [Mr. Briggs] had
stated under oath that he was not suffering from any
mental infirmity. Moreover, the behavior clinic report
10
indicated that [Mr. Briggs] was competent to stand
trial. Finally, a review of the protracted proceedings in
this case reveal both the ample time in which [Mr.
Briggs] could prepare his defense as well as myriad
antics and approaches by [Mr. Briggs} to delay and
otherwise frustrate an orderly trial. [Mr. Briggs']
complaint regarding a continuance to investigate a
potential guilty but mentally ill plea is without merit.
In the same vein, [Mr. Briggs] at the eleventh hour at
the beginning of trial, expressed desires to proceed
non-jury and visit the crime scene. Again, these
assertions are derivative of [Mr. Briggs] claim of lack of
preparedness — a claim that is wholly lacking merit
given that [Mr. Briggs] always has legal counsel
availabie to him as well as years which passed from the
date of the crime in September 2000 to [Mr. Briggs’]
apprehension by the authorities in 2003 and the
commencement of trial in January 2006. ... Nor, after
hearing on his right to proceed pro se, was the trial
court required to grant [Mr. Briggs'] request for a bench
trial. The record is replete with [Mr. Briggs’] histrionics.
The trial court properly denied [Mr. Briggs'] requests to .
.. proceed non-jury.
June 5, 2007, Pa.R.A.P. 1925(a} opinion at 7-8 (citations omitted).
Attorney Nightingale ultimately did not argue to the Superior Court that
Judge Allen erred in denying Mr. Briggs' request for a non-jury trial. He did,
however, continue to advance to the Superior Court the claim that Judge Allen
wrongly refused to continue Mr. Briggs’ jury trial after he decided to represent
himself. In rejecting that argument, the Superior Court stated:
[Mr. Briggs} contends he did not have adequate time
to locate and subpoena witnesses and was otherwise
unprepared for trial... .
[Mr. Briggs] was represented by Christopher Conrad,
Esq., a highly experienced attorney who has tried
numerous homicide cases. At the last minute,
11
however, on the first day of jury selection, [Mr. Briggs]
informed the court he desired to proceed pro se.
Following a thorough waiver of counsel colloquy during
which the trial court specifically instructed [Mr. Briggs]
that the trial would not be postponed as a result of his
decision, the court granted [Mr. Briggs} permission to
proceed pro se, and Attorney Conrad remained as
standby counsel.
[Mr. Briggs] complains he was not given adequate time
to prepare for trial and procure witnesses. However, as
the trial court observed, this case had dragged on for
years following [Mr. Briggs'] extradition from Saudi
Arabia. “You've had a couple of years. And ihe trial is
going forward. if you think that you can do a better
job than him, then you just do the better job, but the
trial is going forward. i'm not postponing it. |am not
going to postpone anything.” In addition, as the
Commonwealth points out, [Mr. Briggs] had
represented himself from August 2004 until March 2005,
when Attorney Conrad was appointed as counsel.
There is no merit fo [Mr. Briggs’] argument that he was
afforded inadequate time to prepare a defense.
Rather, the record supporis the trial court’s conclusion
that [Mr. Briggs] was engaging in delay tactics: “Finally,
a review of the protracted proceedings in this case
reveal[s] both the ample time in which [Mr. Briggs]
could prepare his defense as well as myriad antics and
approaches by [Mr. Briggs] to delay and otherwise
frustrate an orderly trial.” “The record is replete with
[Mr. Briggs] histrionics.”
Our review of the record reveals that the trial court
actually put forth every effort to ensure that [Mr. Briggs]
was able to secure witnesses and prepare for trial. [Mr.
Briggs] complained he was prohibited from using the
prison law library; the court ordered prison authorities to
permit [him] full use of the law library for a minimum of
five hours per week, as requested. [Mr. Briggs]
requested an investigator to help him locate potential
witnesses and serve subpoenas; the court appointed
an investigator. [Mr. Briggs] stated that prison
authorities were not allowing him to have contact visits
12
with the court-appointed investigator; the trial court
issued an order directing prison authorities to permit
[Mr. Briggs] to meet with the investigator.
Finally, [Mr. Briggs] has failed to demonstrate how he
was prejudiced by the trial court's refusal to grant a
continuance. [Mr. Briggs] mounted a vigorous defense
and called witnesses. His decision to proceed pro se
was made with the knowledge that the trial would not
be further delayed. We find the trial court did not
abuse its discretion in denying [Mr. Briggs'] request for a
continuance, ]
Commonwealth v. Briggs, No. 2160 WDA 2006 at 12-15 (Pa. Super. Ct. June 11,
2008} (citations omitted}.
In the end, the Superior Court affirmed Mr. Briggs’ judgment of sentence.
Though no petition for allowance of appeal (“PAA"} to the Pennsyivania
Supreme Court was initially filed, Mr. Briggs’ right to file a PAA was eventually
reinstated by the Honorable Kathieen A. Durkin. Through William Kaczynski,
Esquire, Mr. Briggs filed a PAA, the matter was docketed by the Supreme Court
at 293 WAL 2012, and the Supreme Court denied the PAA on July 2, 2013.
Mr. Briggs subsequently filed a timely pro se Post-Conviction Relief Act
(“PCRA") petition on June 5, 2014. The instant matter was transferred to the
undersigned on Sepfember 16, 2019, and the Court appointed Suzanne M.
Swann, Esquire, to represent Mr. Briggs. Mr. Briggs filed the Amended Petition
through Attorney Swann. Therein, Mr. Briggs asserted that Attorney Nightingale
was ineffective for failing to raise before the Superior Court the claim that Judge
Allen erred in refusing to allow Mr. Briggs to waive a jury trial. The
Commonwealth filed an answer to Mr. Briggs’ ineffective assistance of counsel
13
assertion, and this Court held a hearing on the Amended Petition on September
20, 2021.
At that hearing, Attorney Nightingale credibly testified that his normal
practice when representing someone on appec is “to review the transcripts
and the records before [he] file[s] a brief[.]" See September 20, 2021, Transcript
at 6. He also credibly explained that though he did not have a specific
recollection of Mr. Briggs’ case, the reason he did not advance Mr. Briggs’ claim
regarding a non-jury trial to the Superior Court was because he “must have
conciuded that [he] did not consider it meritorious.” Id. at 5. According to
Attomey Nightingale, “When [he] briefs) issues to the Superior Court, [he]
prefer[s] to move forward with the strongest issues, so that [he] do[esn't] dilute
those stronger issues by raising multiple non-meritorious issues." Id. at 5-6. Thus,
Attorney Nightingale believed that he did not raise the non-jury claim because
he “made a professional judgment call in this case, that the issue lacked
sufficient merit. And it would potentially dilute from other meritorious issues that
[he] presented.” Id.
This Court subsequently entered the Order denying the Amended Petition.
Attorney Swan filed a timely notice of appeal on January 14, 2022. Mr. Briggs
also filed a Pa.R.A.P. 1925(b) statement, which the Court deemed to be timely
filed.
14
Il. Relevant Factual Background
When affirming Mr. Briggs’ judgment of sentence, the Superior Court
stated the following:
Betty Foster ("Foster") testified that at approximately
7:00 p.m. on September 18, 2000, she saw two people
wrestling or fighting inside a car in the parking lot of her
housing complex. it was still light out. Foster saw [Mr.
Briggs} exit the vehicle from the driver's side window,
point a gun into the car and fire. Foster then saw [Mr.
Briggs] remove his shoes and a brown paper bag from
the vehicle, put his shoes on, and run from the scene.
Later that evening, Foster picked [Mr. Briggs] out of a
photo array. She also identified [Mr. Briggs] at trial as
the shooter.
Sean Embry (“Embry”) is Foster’s brother-in-law and was
visiting at Foster's house the evening of the incident.
Embry's wife, Lottie Foster, said there was a fight inside
acar. Embry went to the front door of the house and
observed two men “tussling pretty hard" in a car.
Embry testified the two were “fighting real hard” one
on top of the other. [Mr. Briggs], who was on top, fell
out of the driver’s side window. [Mr. Briggs] then got
up, pointed his gun directly at the victim, and fired into
the car window. Embry knew [Mr. Briggs] from the
neighborhood and identified him at trial as the shooter.
Although [Mr. Briggs’] finger and palm prints were
found on both sides of the exterior of the victim’s car,
at time of arrest, [Mr. Briggs] denied knowing the victim
or ever being in his vehicle. Dr. Abdulrezak Shakir, M.D.,
of the Allegheny County coroner's office, testified that
the victim, Joseph Looney, suffered gunshot wounds to
the left arm and chest. Dr. Shakir testified that a single
gunshot could have caused both wounds and. in fact,
only one bullet was recovered from the victim's body.
The bullet removed from the right side of the victim's
chest punctured the victim's heart and would have
caused deaih within approximately one minute. The
victim had also suffered a laceration to the right side of
his face consistent with being struck by a hard object.
45
Dr. Shakir testified that the cause of death was a
gunshot wound to the victim's chest and manner of
death was determined to be homicide.
[Mr. Briggs] presented several witnesses and also took
the stand in his own defense. [Mr. Briggs] testified that
on the date of the incident, the victim wanted to buy
marijuana from him. [Mr. Briggs] got into the victim's
car, and they pulled in to the parking lot. The victim
asked [Mr. Briggs] if he had change for a hundred; [Mr.
Briggs] said yes and reached into his left pocket to
retrieve the money. At that point, the victim grabbed
[Mr. Briggs’) wrist and, with his other hand, held a gun
to [Mr. Briggs’] face. The victim demanded all of [Mr.
Briggs’] money. To be brief, according to [Mr. Briggs’]
testimony, a melee ensured, eventually concluding
with (Mr. Briggs'] exit from the driver's side window. [Mr.
Briggs] testified he hit his head on the pavement and
blacked out for a few seconds; when he came to, he
saw someone standing over him with his arm extended.
He did not see the individual hoiding a gun. After [Mr.
Briggs] left the scene, he heard a gunshot. [Mr. Briggs]
subsequenily learned that it was Amire Cox ("Cox"),
since deceased, who supposedly came to [Mr. Briggs’]
aid.
[Mr. Briggs] also presented the testimony of Michael!
Lynn (“Lynn”), who indirectly implicated Cox. Lynn
testified he was with Cox in the area at the time of the
incident. Cox left and headed towards the parking lot,
and approximately three minutes later, Lynn heard two
gunshots. Shortly after the second shot, Cox came
running back down the hill. Lynn described him as
“hyper” and sweating. Cox then ran towards the East
Hills school,
Kenneth Dent (“Dent”) testified to an argument
between [Mr. Briggs] and Emby some months prior to
the incident. [Mr. Briggs] called Dent to try to establish
bias on the part of Embry. Embry recalled an incident
between Embry's friend Doo-Jee and [Mr. Briggs] over
some sort of marijuana transaction, but denied that he
and [Mr. Briggs] nad an argument.
16
Clearly, the evidence was sufficient to convict [Mr,
Briggs] of murder in the first degree. Both Foster and
Embry identified [Mr. Briggs] as the shooter and testified
that after struggling with the victim in the vehicle and
falling to the ground, [Mr. Briggs] got up, pointed his
firearm directly at the victim and fired, hitting him in the
chest. Although [Mr. Briggs] argue[d] that “the only
evidence the Commonwealth presented that [he] was
indeed the shooter was the testimony of Better Foster
and Sean Embry”, this was all the evidence the
Commonwealth needed. The jury obviously did not
believe [Mr. Briggs'] defense that somebody named
Amire Cox, who died prior to trial, was the actual
shooter, and neither eyewitness testified to seeing a
third person at the scene.
The Commonwealth also presented evidence that
after the shooting, [Mr. Briggs] fled the jurisdiction and
was not found until 2003 in Saudi Arabia, approximately
three years later. In addition, the Commonwealth
established that [Mr. Briggs] lied to the police after his
initial arrest when he stated that he did not know the
victim, had never met the victim, and had never been
in the victim's car.
See Briggs, No. 2160 WDA 2006 at 7-10.
iit. This Court Did Not Err in Denying PCRA Relief.
In his Pa.R.A.P. 1925(b} statement, Mr. Briggs asserts: “The court erred in
denying the [Amended Petition] insofar as Mr. Briggs established that [Attorney
Nightingale] was ineffective for failing to raise a claim on appeal that the trial
court abused its discretion in refusing to allow Mr. Briggs to waive a jury trial.”
That allegation fails.
“In order 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. CS. §
17
9543(a}(2).” Commonwedith v. Hannible, 30 A.3d 426, 438 (Pa. 2011).
Ineffective assistance of counsel claims are included within those
circumstances, see 42 Pa. C.S. § 9543(a) (2) {ii}, and when adjudicating said
claims, courts must recognize that “counsel is presumed effective[,]” see
Hannible, 30 A.3d at 439. “[T]he defendant bears the burden of proving
ineffectiveness.” Id.
To do so and to overcome the presumption that counsel was effective, a
defendant “must demonstrate that: (1) the underlying substantive claim has
arguable merit: (2) counsel whose effectiveness is being challenged did not
have a reasonable basis for his or her actions or failure to act; and {3} the
defendant suffered prejudice as a result of counsel's deficient performance.”
Id, Allegations of ineffectiveness will be denied “if the defendant's evidence
fails to meet any one of these prongs.” Id.
Trial courts are “not constitutionally prohibited from denying a
defendant's request to waive a jury trial." Commonwealth v. Maxwell, 459 A.2d
362, 364 (Pa. Super. Ct. 1983). Rather, trial courts have discretion fo permit such
a waiver. Id. That exercise of discretion will be reviewed on appeal “on a case
by case basis.” Id.; see also id. at 364-65 (finding an abuse of discretion where
the trial court’s “sole justification for denying [a] request [to waive jury trial] was
for means of judicial economy"); Commonwealth v. Kellum, 489 A.2d 758, 760
(Pa. Super. Ct. 1985).
18
Here, the record does not show that Judge Allen abused her discretion in
denying Mr. Briggs’ request for a bench trial. Mr. Briggs always contemplated a
jury trial. He had one that ended in a mistrial, and he wanted to represent
himself at his second trial in part because he believed he would have a tactical
advantage over Attorney Conrad in appealing fo a jury. See page 3, supra.
Mr. Briggs’ purported desire to proceed non-jury came at the eleventh hour and
was, Judge Allen found, derivative of his asserted lack of preparedness. See
pages 10-11, supra. Judge Allen, however, “put forth every effort to ensure that
[Mr. Briggs] was able to secure witnesses and [to] prepare for trial." Briggs, No.
2160 WDA 2006 at 14. As set forth above and as found by the Superior Court,
she ensured that Mr. Briggs had sufficient access to the law library, received an
investigator to locate and subpoena witnesses, had contact visits with his court-
appointed investigator, and even had the assistance of an extremely
experienced attorney acting as standby counsel. See id, at 12-14.
Given the foregoing, which included her face-to-face observations and
interactions with Mr. Briggs, Judge Allen concluded — and the Superior Court
determined the “record support[ed] .. . [her] conclusion[,]" see id. at 13 — that
Mr. Briggs’ behavior, including his histrionics, constituted tactics designed “to
delay and otherwise frustrate an orderly trial[,]" see pages 10-11, supra.
Accordingly, she found, and the record establishes, that Mr. Briggs, who wanted
to proceed to a jury trial and without counsel because he believed he could
better appeal fo the jury pro se — ultimately grounded his last-minute request for
19
a non-jury trial in gamesmanship crafted to obstruct the proper administration of
justice. Notably, nothing in Mr. Briggs' testimony before the undersigned at the
September 20, 2021, PCRA hearing credibly demonstrated the contrary or any
error in Judge Allen's findings.
Judge Allen, therefore, did not err in denying Mr. Briggs a bench trial. She
properly exercised her discretion, and Mr. Briggs’ argument that Judge Allen
improperly precluded him from proceeding non-jury lacks merit. Attorney
Nightingale, moreover, reasonably did not advance that unmeritorious claim on
direct appeal. Ineffective assistance of counsel under the circumstances
presented here has not been proven.
IV. Conclusion
Accordingly, Mr. Briggs wrongly contends that this Court erred in denying
PCRA relief. For the foregoing reasons, the Order should be affirmed. The
Department of Court Records, Criminal Division, is ordered and directed to
transmit the record in the above-captioned matter to the Pennsylvania Superior
Court without delay.
BY THE COURT: 7 te
Date: 7 /iqjag ¢£ (_/ J
susan Evashavik DiLucente
cc: Suzanne M. Swan, Esquire
310 Grant Street
Suite 823
Pitisourgh, PA 15219
20
Deputy District Attormey Michael W. Streily
Office of the District Attorney
401 Allegheny County Courthouse
Pittsburgh, PA 15219
2i