J-S49002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CARL THOMAS BURTON

                         Appellant                  No. 1217 EDA 2012


                 Appeal from the PCRA Order April 11, 2012
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003653-2006


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 24, 2014

      Appellant, Carl Thomas Burton, appeals from an order entered on April

11, 2012 that denied his petition filed pursuant to the Post Conviction Relief

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

      The factual history and procedural background in this case are as

follows. On December 17, 2005, at approximately 1:20 a.m., Officer Robert

Whitaker of the Chester Police Department was patrolling the corner of Ninth

and Holland Streets in the City of Chester.    At that time, Officer Whitaker

heard approximately three to five gunshots emanating from a location near

Reflections Bar, which is located at the corner of Ninth and Grace Streets.

      Officer Whitaker proceeded in his marked police cruiser to the 800

block of Grace Street in approximately 30-40 seconds. This location was one

block from Reflections Bar.    Two other officers in separate police vehicles
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also proceeded to the 800 block of Grace Street. The three police vehicles

pulled up in succession, with Officer Whitaker arriving in the first car.

      Officer Whitaker illuminated the spotlight on his vehicle when he

arrived at the scene.     Upon his arrival, Officer Whitaker saw Appellant

talking to the driver of a blue Kia Spectra through the passenger-side

window.     Officer Whitaker then saw Appellant begin to get into the

passenger compartment of the blue Kia Spectra. Officer Whitaker described

Appellant’s entry into the passenger-side door as “real quick [-] like he was

nervous.” N.T., 3/8/07, at 16.

      Appellant’s left foot was in the Kia Spectra when Officer Whitaker

approached and asked him to step back from the vehicle. Officer Whitaker

placed his left hand on the back of Appellant’s leg and told Appellant he was

going to conduct a pat-down search. Officer Whitaker directed Appellant to

place his hands on top of the car.     The officer informed Appellant that he

was investigating gun shots in the area.        When Officer Whitaker asked

Appellant for his name, Appellant refused to provide it.

      Thereafter, Officer Whitaker commenced a             pat-down search of

Appellant. During the search, Officer Whitaker felt the handle of a gun in

Appellant’s waistband. Officer Whitaker seized the weapon, gave it to one of

the assisting officers, and placed Appellant in custody.

      The Commonwealth charged Appellant with firearms not to be carried

without a license (18 Pa.C.S.A. § 6106(a)(1)) and persons not to possess

firearms (18 Pa.C.S.A. § 6105(a)(2)).        Trial counsel filed a motion to

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suppress the gun, challenging Appellant’s detention and subsequent search

under the Fourth Amendment of the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution. After a suppression hearing on

March 8, 2007, the trial court entered an order denying the motion.

      Appellant proceeded to a bench trial on stipulated facts.           At the

conclusion of trial on April 20, 2007, the court found Appellant guilty of the

above-referenced crimes. On June 26, 2007, the trial court imposed a state

sentence totaling five to 10 years of confinement.

      Appellant filed a direct appeal to this Court on July 27, 2007.        We

affirmed   Appellant’s   judgment    of   sentence    on      June   6,   2008.

Commonwealth v. Burton, 959 A.2d 457 (Pa. Super. 2008) (unpublished

memorandum).       Appellant requested that counsel file a petition for

allowance of appeal with the Supreme Court, but no petition was submitted.

      Appellant filed a pro se petition for collateral relief on December 18,

2008. The PCRA court appointed new counsel who filed an amended petition

on June    30, 2009.      The amended petition       sought    nunc pro     tunc

reinstatement of Appellant’s right to petition the Supreme Court for further

review. On July 9, 2009, the PCRA Court granted the amended petition and

directed counsel to file a petition for allowance of appeal within 30 days.

Counsel timely filed a petition for allowance of appeal.      On February 23,

2010, however, the Supreme Court denied the petition.

      On February 14, 2011, Appellant filed a timely pro se PCRA petition,

his first request for substantive collateral relief. Counsel was appointed, an

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amended petition was filed, and the Commonwealth answered the amended

petition. Thereafter, on February 21, 2012, the PCRA court issued notice of

its intent to dismiss Appellant’s amended petition without a hearing pursuant

to Pa.R.Crim.P. 907. On April 11, 2012, the PCRA court entered an order

denying Appellant’s request for collateral relief.

       Appellant filed a timely notice of appeal on April 18, 2012.1 On April

25, 2012, the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b)

directing Appellant to file a concise statement of errors complained of on

appeal. Appellant filed a pro se concise statement on May 14, 2012 and the

PCRA court issued its opinion on June 19, 2012.

       Appellant’s counseled brief raises the following question for our

review:

       Whether the PCRA [c]ourt erred in dismissing [Appellant’s] PCRA
       [petition] without a hearing where he was denied the effective
       assistance of counsel, where trial counsel improperly advised
       him to waive his constitutional right to a jury trial or contested
       non-jury trial by proceeding with a stipulated bench trial that
       would automatically render a finding of guilt so he could
       expeditiously effectuate pursuit of his direct appeal rights?

Appellant’s Brief at 4.



____________________________________________


1
   On April 20, 2012, Appellant raised claims of ineffectiveness against
appointed PCRA counsel and requested new representation. We remanded
this matter to the PCRA court. The case was reassigned to a new judge who
granted prior PCRA counsel leave to withdraw and appointed present counsel
to represent Appellant.



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          Appellant alleges that the PCRA court erred in denying his request for

collateral relief.    In support of this contention, Appellant claims that trial

counsel was ineffective in failing to ensure that Appellant knowingly,

intelligently, and voluntarily waived his right to a jury trial, or a contested

non-jury trial.2 According to Appellant, trial counsel never explained to him

the nature and essential components of his right to a jury trial.      Instead,

counsel induced him to waive his rights to a contested trial and encouraged

him to agree to a stipulated bench trial in order to pursue expedited

appellate review of the trial court’s suppression order. Appellant claims that

he derived no benefit from trial counsel’s strategy since the direct appeal

process was burdened by delays and because counsel made no effort to

advocate for a reduced or mitigated sentence in view of Appellant’s decision

not to contest the criminal charges against him. Appellant’s claim merits no

relief.

____________________________________________


2
   We may dispense with any claim in which Appellant requests collateral
relief based solely upon trial court error in failing to conduct a thorough
waiver colloquy or to establish otherwise that Appellant knowingly and
voluntarily waived his jury trial rights. Such a claim merits no relief within
the PCRA context.       Separate and unattached to any claim implicating
counsel’s stewardship, this claim could have been raised on direct appeal but
it was not. Thus, Appellant has waived this claim. See 42 Pa.C.S.A.
§ 9544(b) (“an issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding”); see also Commonwealth v. Michaud,
70 A.3d 862, 873 (Pa. Super. 2013) (PCRA petitioner waives issue of
adequacy of trial court's colloquy concerning his jury trial waiver where
petitioner could have, but failed to raise claim on direct appeal).



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        Our standard of review for an order denying collateral relief is well

settled. We have said:

          This Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).   “The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   the    findings   in   the    certified   record.”

Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citation

omitted).

        To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).

        Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”            Commonwealth v.


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Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not
         have some reasonable basis designed to effectuate his
         interests; and, (3) but for counsel’s ineffectiveness, there is
         a reasonable probability that the outcome of the challenged
         proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).              “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id. Further, with respect to the second ineffectiveness prong, we

note that counsel’s “chosen strategy will not be found to have lacked a

reasonable basis unless it is proven that an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (internal quotations

omitted).

      Our Supreme Court has observed that the fundamental components of

a jury waiver are straightforward: “The[ ] essential ingredients, basic to the

concept of a jury trial, are the requirements that the jury be chosen from

members of the community (a jury of one's peers), that the verdict be

unanimous, and that the accused be allowed to participate in the selection of

the jury panel.”     Commonwealth v. Mallory, 941 A.2d 686, 696 (Pa.

2008) (citation omitted). Furthermore, the Supreme Court has recognized a

criminal defense lawyer’s obligation to consult with a client regarding waiver

of the right to a jury trial:



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        Of course, lawyers have an obligation to counsel their clients in
        conjunction with the waiver of basic rights, including the waiver
        of a jury; but the mere absence of a record oral waiver colloquy
        does not automatically prove that a right was relinquished
        unknowingly or involuntarily and that the trial lawyer was
        ineffective for causing the waiver. When a presumptively-valid
        waiver is collaterally attacked under the guise of ineffectiveness
        of counsel, it must be analyzed like any other ineffectiveness
        claim. Such an inquiry is not resolved by the mere absence of
        an oral waiver colloquy; instead, the analysis must focus on the
        totality of relevant circumstances.

Mallory, 941 A.2d at 698.

        Upon careful review of the relevant facts and circumstances in this

appeal, we are persuaded that Appellant failed to raise a genuine issue of

fact that required a hearing on his ineffectiveness claim. Appellant’s petition

alleged that trial counsel was ineffective in advising him to stipulate to a

bench trial, allow the court to find him guilty, and challenge the court’s

suppression order before this Court. Within his petition, Appellant included a

letter from trial counsel (setting forth the foregoing advice) to support his

claim.3    Neither side disputes that trial counsel would have been the only

____________________________________________


3
    In relevant part, counsel’s letter stated:

        My suggestion to you is to have a Stipulated Non-Jury Trial,
        allow the Judge to find you guilty, and file an immediate Appeal
        to the Superior court.       In all honesty, it will take us
        approximately nine to twelve months to get through the Superior
        Court. However, because I am so sure that the case law in this
        matter is on your side, I am confident that the Superior Court
        appeal is your best option. Quite frankly, you have nothing to
        [lose] by pursuing an appeal. [The trial court] is going to
        sentence you to five (5) years in jail for this case.
(Footnote Continued Next Page)


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witness called to testify at Appellant’s PCRA hearing and both parties agree

that trial counsel’s letter reflected the substance of any testimony she would

have given. Hence, the trial court correctly determined that the facts of this

case were not in dispute and that a hearing was not necessary.             See

Pa.R.Crim.P. 907(2) ( “If the judge is satisfied from [a review of the petition,

the Commonwealth’s answer, and any other matters of record] that there

are no genuine issues concerning any material fact and that the defendant is

not entitled to post-conviction collateral relief, and no purpose would be

served by any further proceedings, the judge shall give notice to the parties

of the intention to dismiss the petition and shall state in the notice the

reasons for the dismissal.”)

      We also conclude, as a matter of law, that Appellant cannot prove that

trial counsel was ineffective or that she recommended a strategy that lacked

a reasonable basis designed to advance his interests. The Commonwealth

charged Appellant with persons not to possess a firearm4 and carrying a

firearm without a license. Appellant does not dispute that, on the day that

these offenses occurred, he did not have a license to carry a gun and his

                       _______________________
(Footnote Continued)


Appellant’s Post-Conviction Relief Act Petition, 2/14/11, Exhibit B.
4
  We are skeptical of any strategy that suggests trying a persons not to
possess a firearm charge to a jury. It is a common and widely accepted
practice not to try such claims to a jury because doing so necessarily entails
disclosure of the defendant’s criminal history to the fact finder.



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criminal record forbade his possession of a firearm in this Commonwealth.

Trial counsel immediately recognized that the only strategy that offered

Appellant any hope for an acquittal involved suppression of the firearm.

Accordingly, she filed a motion to suppress. After the trial court denied that

motion, counsel no doubt was aware that, given the undisputed facts in this

case, Appellant’s conviction was a certainty regardless of whether he tried

his claims before a jury, contested this case before the trial court, or

proceeded to a stipulated bench trial. Accordingly, counsel recommended a

strategy    aimed     at   securing    prompt      appellate   review   of   Appellant’s

suppression claims, as any seasoned criminal defense lawyer would have

done.5     Under these circumstances, Appellant has failed to show that

counsel’s performance fell below that which is demanded from a reasonably

competent trial lawyer.        In addition, Appellant has not demonstrated that

counsel’s strategy lacked a sound basis calculated to effectuate his interests.

For each of these reasons, we are compelled to deny relief.

       Order affirmed.


____________________________________________


5
  We note that a stipulated bench trial, as opposed to a guilty plea,
preserved Appellant’s right to challenge the trial court’s suppression order on
appeal. See Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013), appeal denied, 87 A.3d 319 (Pa. 2014) (when a defendant pleads
guilty, he waives all non-jurisdictional claims on direct appeal except the
voluntariness of his plea and the legality of his sentence); see also
Commonwealth v. Rachak, 62 A.3d 389, 392 n.1 (Pa. Super. 2012),
appeal denied, 67 A.3d 796 (Pa. 2013).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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