J-S29031-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
                   v.                   :
                                        :
ERIC LEON DENNIS,                       :
                                        :
                    Appellant           :     No. 1753 WDA 2014

          Appeal from the PCRA Order Entered October 10, 2014,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0007278-2010

BEFORE:    PANELLA, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED JUNE 11, 2015

     Eric Leon Dennis (Appellant) appeals from the order entered on

October 10, 2014, which dismissed his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The background underlying this matter can be summarized as follows.

            [Appellant was charged with criminal homicide and
     endangering the welfare of children.] On October 31, 2011,
     after spending the morning and part of the afternoon selecting a
     jury, [Appellant] communicated his desire to proceed with a non-
     jury trial. At the time [Appellant] changed his mind about
     wanting a jury trial, the parties already had selected five (5)
     jurors, and [Appellant] had exercised six of his preemptory
     challenges. [Appellant] executed a jury trial waiver form, and a
     waiver hearing was held before Judge Zottola that same day.
     After an extensive on-the-record colloquy [among Appellant],
     the court, and counsel, Judge Zottola accepted his waiver and
     informed him that the bench trial before [Judge Lazzara] would
     begin the next day.

          On the morning of November 1, 2011, the parties
     appeared before [Judge Lazzara] for the commencement of the

*Retired Senior Judge assigned to the Superior Court.
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     non-jury trial. The Commonwealth immediately presented an
     oral motion for the issuance of a material witness arrest warrant,
     and it also addressed the absence of a second trial witness who
     was represented by counsel.          However, the Commonwealth
     made clear that it was ready to proceed with its first two (2)
     witnesses because they were present and ready to testify. The
     court provided defense counsel with an opportunity to set forth
     his position on the record, at which time counsel reaffirmed that
     his client still desired to proceed non-jury:

        Bob Foreman, on behalf of the defendant. l think the
        [c]ourt is aware that we had begun selecting a jury
        yesterday. By consent of the defendant and counsel for
        the Commonwealth, the case will now be heard non-jury;
        [sic] does provide the court a little bit of flexibility but it
        also involves, quite frankly, the convenience of the [c]ourt,
        as well as the efficiency of hearing the case all at one time.
        So l have no position or request to make of the [c]ourt at
        this point.

           After hearing from defense counsel, the court issued the
     material witness warrant, officially called the case, and asked the
     parties to identify themselves for the record. At that point, the
     court was prepared to begin receiving testimony from the
     Commonwealth witnesses. It was only after defense counsel
     entered his appearance on the record that he relayed to the
     court that [Appellant] had changed his mind yet again and that
     he wanted a jury trial after all.

            After engaging in an extensive colloquy with [Appellant]
     regarding his motivation for wanting to withdraw his jury trial
     waiver, the court expressed its concern that [Appellant] was
     playing games with the court and that he was attempting to
     manipulate the system in order to secure a better jury panel,
     particularly one that contained more African-American
     individuals. The court specifically noted that [Appellant] had not
     raised any of his concerns regarding the makeup of the jury pool
     to Judge Zottola the day prior, and defense counsel also
     confirmed that the reason for waiver of the jury trial based upon
     lack of representation of a race or ethnic group was not raised
     before. Given (i) the court’s legitimate concern that [Appellant]
     was attempting to manipulate the system and waste judicial
     resources, (ii) the fact that the court had already entertained


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     matters relating to trial, and (iii) the fact that the request was
     made immediately prior to the Commonwealth calling its first
     witness, the court denied [Appellant’s] request to withdraw his
     jury trial waiver and proceeded to a non-jury trial.

PCRA Court Opinion, 1/21/2015, at 2-4 (citations, quotation marks, and

emphasis omitted).

     The trial court convicted Appellant of third-degree murder and

endangering the welfare of children. The court sentenced Appellant to 22 to

44 years in prison. New counsel was appointed to represent Appellant, and

Appellant appealed to this Court. On appeal, Appellant raised an evidentiary

issue and challenged the sufficiency of the evidence. On July 22, 2013, this

Court affirmed the judgment of sentence. Commonwealth v. Dennis, 83

A.3d 1073 (Pa. Super. 2013) (unpublished memorandum). Appellant did not

seek allowance of appeal with our Supreme Court.

     Appellant pro se timely filed a PCRA petition. Counsel was appointed

to represent Appellant.   PCRA counsel filed two amended PCRA petitions.

Appellant presented three claims in his petition. Appellant argued that trial

counsel was ineffective for failing to object to the trial court’s denial of

Appellant’s request to withdraw his jury-trial waiver.        Appellant also

maintained that appellate counsel was ineffective for failing to pursue on

direct appeal the issue of whether the trial court erred by denying

Appellant’s request to withdraw his jury-trial waiver.     Lastly, Appellant

contended that, if trial had begun when trial counsel raised Appellant’s




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request to withdraw his jury-trial waiver, then counsel was ineffective for

untimely presenting the request.

     On September 22, 2014, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907, stating that the court intended to dismiss the PCRA

petition without holding an evidentiary hearing.            The court formally

dismissed the petition on October 10, 2014. Appellant timely filed a notice

of appeal and sua sponte filed a statement pursuant to Pa.R.A.P. 1925(b).

The PCRA court responded to the 1925(b) statement by issuing an opinion in

compliance with Pa.R.A.P. 1925(a).

     In   his   appellate   brief,   Appellant   presents   one   verbose   issue.

Appellant’s Brief at 3. In short, he contends that the PCRA court erred by

rejecting his claims that trial and appellate counsel provided ineffective

assistance of counsel. We disagree.

     Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.      Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).        “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,

there is a reasonable probability the outcome of the proceedings would have




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been different.”   Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.

Super. 2013) (citations omitted).

     Regarding his first claim that trial counsel rendered ineffective

assistance, Appellant argues that counsel improperly failed to object when

the trial court denied Appellant’s request to withdraw his jury-trial waiver.

Yet, the record clearly reflects that counsel presented the trial court with

Appellant’s request to withdraw his jury-trial waiver, that counsel and the

court questioned Appellant regarding the request, that counsel presented

argument in support of the request, and that the court nonetheless denied

the request. N.T., 11/1/2011 - 11/3/2011, at 7-18. Appellant fails to cite to

any legal precedent that required counsel to lodge an objection after the

court denied Appellant’s request.

     Moreover, assuming arguendo that counsel should have objected after

the court denied his request, Appellant offers no argument regarding the

prejudice caused by counsel’s inaction. Indeed, we are not persuaded that

any prejudice could have ensued. The court clearly denied the request. Had

counsel presented the court with a superfluous objection, it would not have

changed the outcome of the court’s decision to deny the request or the

outcome of the trial.   See PCRA Court Opinion, 1/21/2015, at 6 (“First, a

formal objection to this court’s ruling would not have altered the course of

the proceedings because it would not have changed this court’s mind about




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allowing [Appellant] to withdraw his waiver.”).        Appellant’s first claim

warrants no relief.

      We now will consider Appellant’s contention that appellate counsel

rendered ineffective assistance by failing to raise on appeal that the trial

court erred by denying his request to withdraw his jury-trial waiver.

Appellant had a constitutional right to a jury trial but was permitted to waive

that right.   Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008).

Indeed, Appellant did waive his right to a jury trial after five jurors were

selected. He has no complaints regarding the court accepting that waiver or

counsel’s stewardship concerning the waiver.

      Pursuant to Pennsylvania Rule of Criminal Procedure 621(B), “[a]t any

time before the commencement of trial, a waiver of a jury trial or the judge’s

approval thereof may be withdrawn.”         Pa.R.Crim.P. 621(B).     This rule

confers on criminal defendants an absolute right to withdraw a jury-trial

waiver at any time prior to the commencement of trial. Dowling, 959 A.2d

at 913 n.6.    However, while Rule 621(B) affords criminal defendants the

absolute right to withdraw their jury-trial waiver before trial commences, our

Supreme Court has striven to “ensure that the exercise of such right is not

used to frustrate the administration of justice by delaying the proceedings

for tactical gain.” Id. at 915.

      As to when a trial commences, our Supreme Court has held “that trial

commences for purposes of Pa.R.Crim.P. 621(B)[] when a court has begun



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to hear motions which have been reserved for the time of trial; when oral

arguments have commenced; or when some other such substantive first

step in the trial has begun.”   Id. at 915; see also id. at 913 (“A trial

commences when the trial judge determines that the parties are present and

directs them to proceed to voir dire or to opening argument, or to the

hearing of any motions which had been reserved for the time of trial, or to

the taking of testimony, or to some other such first step in the trial.”)

(quoting Comment to Pa.R.Crim.P. 600).     If trial has commenced when a

defendant requests to withdraw a jury-trial waiver, the request should be

denied as untimely raised.   See id.   (“Applying this holding to the facts

presented, we conclude that the trial court was correct in denying

[Dowling’s] untimely request to withdraw his jury trial waiver when such

request was made after defense counsel and the Commonwealth waived

opening arguments[.]”).

     When Appellant asked the trial court to allow him to withdraw his jury-

trial waiver, the parties had selected five jurors, Appellant had waived his

right to a jury trial, and the court had entertained and granted the

Commonwealth’s motion for a material-witness warrant. Consequently, trial

clearly had commenced, and Appellant’s request to withdraw his waiver was

presented untimely.    For this reason, had appellate counsel argued on

appeal that the trial court erred by denying his request to withdraw his




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waiver, such an issue would have been fruitless. This claim lacks arguable

merit and therefore warrants no relief.

      In anticipation that this Court may conclude that Appellant untimely

requested to withdraw his waiver, Appellant lastly offers the following,

undeveloped argument:

      However, arguendo, if this Honorable Court were to determine
      that [Appellant’s] trial had begun when the “housekeeping”
      matters were raised and addressed, and that consequently
      [Appellant] had lost his opportunity to assert his right to a jury
      trial, … trial counsel [], who knew before the “housekeeping”
      matters were addressed that [Appellant] wanted to proceed with
      a jury, was ineffective for failing to assert [Appellant’s] right to a
      jury trial before the “housekeeping” matters were addressed.[1]

Appellant’s Brief at 17-18. We disagree.

      Even if trial counsel would have sought to withdraw Appellant’s jury-

trial waiver before the Commonwealth presented its motion for a material-

witness warrant, the request would have been untimely presented. At that

point, the parties had selected jurors.          Thus, trial had commenced.

Appellant’s final argument lacks arguable merit.

      Appellant has not presented this Court with an issue worthy of relief.

Accordingly, we affirm the order which dismissed his PCRA petition.

      Order affirmed.




1
    The housekeeping matters to which Appellant refers are the
Commonwealth’s motion for a material-witness warrant and the trial court’s
ruling thereon. Appellant’s Brief at 17.


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/11/2015




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