J-S56037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD LEHMAN,

                            Appellant                 No. 103 MDA 2014


                  Appeal from the PCRA Order January 7, 2014
                in the Court of Common Pleas of Adams County
               Criminal Division at No.: CP-01-CR-0000309-2010


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 05, 2014

        Appellant, Richard Lehman, appeals from the order of January 7,

2014, which denied his counseled petition filed pursuant to the Post

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

        On January 10, 2011, Appellant waived his right to a jury trial.   In

exchange, the Commonwealth agreed not to seek the death penalty and

withdrew its July 1, 2010 Notice of Aggravating Factors.         On March 10,

2011, the court convicted Appellant of two counts of murder in the first

degree and possessing instruments of crime, for the March 21, 2010 deaths

of his wife and son.1 On April 5, 2011, the court sentenced Appellant to two
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 2502(c) and 907(a), respectively.
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consecutive terms of life imprisonment plus costs and fines.               (See Order,

4/5/11, at 1-2; N.T. Sentencing Hearing, 3/24/11, at 4).

       Appellant timely filed a direct appeal on April 21, 2011. On January

20,   2012,    this   Court    affirmed        the   judgment   of   sentence.   (See

Commonwealth v. Lehman, 43 A.3d 524 (Pa. Super. 2012) (unpublished

memorandum)).         Appellant sought leave to appeal to the Pennsylvania

Supreme Court on February 2, 2012, which was denied on July 16, 2012.

(See Commonwealth v. Lehman, 48 A.3d 1247 (Pa. 2012)).

       On July 12, 2013, Appellant filed the instant counseled PCRA petition.

The court held a hearing and ultimately denied relief on January 7, 2014

with an accompanying opinion.           Appellant timely appealed on January 15,

2014.2

       Appellant raises the following question for our review:

       Whether the [PCRA] court erred in denying [Appellant’s] PCRA
       motion on the ground that there was no arguable merit to his
       claim that counsel was ineffective when he failed to discuss the
       history of the death penalty in Pennsylvania—including that
       nobody sentenced to death has actually been put to death
       against his or her will since the death penalty was reinstated in
       the 1970s—before advising him to surrender his right to a jury
       trial so that he could avoid the death penalty?

(Appellant’s Brief, at 4).

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2
   Pursuant to the PCRA court’s order, Appellant filed a Rule 1925(b)
statement on January 24, 2014. The court entered its Rule 1925(a) opinion
on February 6, 2014 relying on the reasons stated in its January 7, 2014
opinion. See Pa.R.A.P. 1925.



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      Our standard of review is well-settled:

             When reviewing the propriety of an order granting or
      denying PCRA relief, this Court is limited to determining whether
      the evidence of record supports the determination of the PCRA
      court and whether the ruling is free of legal error. Great
      deference is granted to the findings of the PCRA court, and these
      findings will not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied, 67 A.3d 796 (Pa. 2013) (citations omitted).

      A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA. See 42 Pa.C.S.A. § 9543. Cognizable claims include those that

allege ineffectiveness of counsel that undermined the truth-determining

process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Appellant asserts that he received ineffective assistance of counsel

based on his failure to inform Appellant that no one sentenced to death has

been put to death against their will since 1976. (See Appellant’s Brief, at

10). We disagree.

      It is well-settled that “[a] criminal defendant has the right to effective

counsel during . . . trial.” Commonwealth v. Rathfon, 899 A.2d 365, 369

(Pa. Super. 2006) (citation omitted). Further, counsel is presumed effective,

and   an   appellant   bears   the   burden     to   prove   otherwise.    See

Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

      A PCRA petitioner must demonstrate that counsel’s performance was

deficient and that such deficiency prejudiced him.           See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined

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the Strickland test into a three-prong inquiry.             An appellant must

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

appellant suffered actual prejudice as a result.      See Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the

Pierce test will require rejection of the claim.      See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Moreover, deference is given to the

PCRA court’s credibility determination if supported by the record.           See

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014).

      Where, as here, Appellant waived his right to a jury trial, counsel can

be found ineffective “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

the right.”   Commonwealth v. Boyd, 334 A.2d 610, 617 (Pa. 1975).

However, all that is required for a valid jury trial waiver is that a defendant

is informed “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. Mallory, 941 A.2d 686, 696-97 (Pa. 2008), cert. denied, 555 U.S. 884

(2008) (citations omitted).

      Here, the record shows that Appellant signed a written jury trial waiver

and engaged in an oral colloquy with the trial court. (See Written Waiver of

Jury Trial, 1/10/11, at 1; N.T. Waiver of Jury Trial Hearing, 1/10/11, at 2-8).

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Appellant testified that he understood that a jury would be chosen from

members of the community, the verdict had to be unanimous, and that he

would be allowed to participate in the selection of the jury.            (See N.T.

Waiver of Jury Trial Hearing, 1/10/11, at 3).

        Moreover, the PCRA court found that Appellant’s trial counsel credibly

testified   that   he   met    with   Appellant   and   thoroughly   discussed   the

aggravating circumstances asserted by the Commonwealth.                 (See Trial

Court Opinion, 1/07/2014, at 5; N.T. PCRA Hearing, 10/21/13, at 21-28).3

“Counsel also discussed with [Appellant] the availability of mitigating

circumstances, including potential psychiatric mitigation.” (Trial Ct. Op., at

5; see also N.T. PCRA Hearing, 10/21/13, at 22).

        The PCRA court also found that:

        [c]ounsel shared with [Appellant] his belief that the
        Commonwealth had a very strong case for a first degree murder
        conviction and thoroughly discussed the sentencing alternatives
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3
    On July 1, 2010, pursuant to Pa.R.Crim.P. 802:

        [t]he   Commonwealth        provided  notice    of   aggravating
        circumstances, 42 Pa. C.S.A. § 9711(d)(5) ([wife] was a
        prosecution witness killed for preventing testimony against
        [Appellant]); (d)(7) ([Appellant] knowingly created a grave risk
        of death to another person); (d)(10) (at the time of the offense,
        [Appellant] committed another crime for which a sentence of life
        imprisonment was imposable); (d)(11) ([Appellant] committed
        another murder at the time of the offense at issue); and (d)(12)
        ([Appellant] convicted of voluntary manslaughter committed at
        the time of the offense at issue).

(Trial Ct. Op., at 5 n.3).



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       in the event such a conviction occurred. Notably, counsel spoke
       with [Appellant] about his age, his health, and the statutory
       distinction in state correctional institution prisoner classification
       for those serving a life sentence as compared to those on death
       row.

(Trial Ct. Op., at 5 (citation omitted); see also N.T. PCRA Hearing,

10/21/13, at 28-30, 33-34, 39).

       [Appellant’s] argument is misguided as it seeks to find trial
       counsel ineffective not upon misadvice or an omission as to the
       legal aspects of [Appellant’s] predicament, but rather on the
       basis that counsel did not discuss aspects of the death penalty
       which are not rooted in the current status of the law.

(Trial Ct. Op., at 6).4      Accordingly, the record supports the PCRA court’s

finding that Appellant validly waived his right to a jury trial because he failed

to prove that trial counsel interfered with his freedom to decide to waive a

jury trial or provided unreasonable advice. See Boyd, supra at 617.

       Moreover, Appellant’s question on appeal is nothing more than a

weaker variant on arguments previously rejected by our Courts that the fear

of a possible death penalty does not make a guilty plea or jury trial waiver

involuntary.    See Commonwealth v. Bhillips, 380 A.2d 1210, 1213 (Pa.

1977), cert. denied, 439 U.S. 1067 (1979); see also Commonwealth v.

Lassiter, 696 A.2d 196, 198 (Pa. Super. 1997), affirmed by, 722 A.2d 657
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4
  The court correctly determined that Appellant improperly relied on Padilla
v. Kentucky, 559 U.S. 356 (2010) to argue that counsel’s duties should be
extended to require a discussion about the relative likelihood of execution of
a death sentence.      (See Trial Ct. Op., at 6-8).        Padilla addresses
deportation.    Appellant’s argument for an “extension” of Padilla is
unpersuasive. Execution is a direct result of a death sentence, not a
collateral consequence.



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(Pa. 1997) (rejecting defendant’s claim that jury trial waiver is involuntary

“when motivated by avoidance of the death penalty”).

       Therefore, we conclude that the PCRA court properly found that

Appellant failed to meet his burden of pleading and proving the arguable

merit prong of the Pierce test for ineffective assistance of counsel and

Appellant’s issue lacks merit. See Spotz, supra at 311; Pierce, supra at

975.

       Accordingly, the PCRA court properly denied Appellant’s claim.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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