J-S02020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANTHONY GUNTER,

                          Appellant                    No. 58 EDA 2014


              Appeal from the PCRA Order of December 13, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012990-2008


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 24, 2015

      Appellant, Anthony Gunter, appeals from an order entered on

December 13, 2013, dismissing his first petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we

affirm.

      The PCRA court set forth the facts of this case as follows:

              On September 15, 2008, [Appellant] rode his bicycle
          toward [D.B., “the victim”], who was waiting for a bus at
          the corner of 3rd and Catherine Streets in Philadelphia.
          [Appellant] grabbed [the victim’s] handbag while still on his
          bicycle and attempted to pedal away with it. [The victim]
          tried to hold on to her handbag but ultimately [Appellant]
          wrenched it away from her, tearing all the ligaments in one
          of her fingers. A passerby pursued [Appellant] and saw him
          enter a house [along] South 5th Street in Philadelphia.

              Police Officers Chris Jackson and James Kimrey received
          a radio call to investigate the robbery. Upon arriving at the
          [] South 5th Street property, Officer Kimrey knocked on the
          front door. A woman opened the door, told Officer Kimrey
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        she lived at that address, and invited the officer into the
        house.     Officer Kimrey found [Appellant] sitting in the
        kitchen and asked him to come outside. Once [Appellant]
        went outside, [the victim] signaled to the officers that
        [Appellant] was the man who robbed her. During the
        arrest, [Appellant] pushed off a wall and knocked both
        officers into a parked car, spraining Officer Kimrey’s hand.
        Officer Jackson continued to struggle with [Appellant],
        which led to both men falling to the ground. Officer Jackson
        broke his ankle in the fall.

PCRA Court Opinion, 4/22/2014, at 2-3.

      Procedurally, the case progressed as follows:

        In a bench trial on October 6, 2009, the [trial court] found
        [Appellant] guilty of aggravated assault, recklessly
        endangering another person (REAP), two counts of simple
        assault, and resisting arrest. On January 19, 2010, [the
        trial court] sentenced [Appellant] to three (3) to six (6)
        years[’] imprisonment for aggravated assault. No further
        penalty was imposed on the remaining charges. […] On
        December 16, 2010, the judgment of sentence was affirmed
        by [this Court]. On January 10, 2011, [Appellant] filed a
        petition for allowance of appeal with the Supreme Court,
        which was denied on June 7, 2011.

        On June 20, 2011, [Appellant] filed a pro se PCRA petition.
        On March 4, 2013, appointed counsel for [Appellant] filed
        an amended PCRA petition. On July 11, 2013, the PCRA
        petition was reassigned [after the original judge retired].
        On December 13, 2013, [the PCRA court] formally
        dismissed [Appellant’s] petition.     On January 7, 2014,
        [Appellant] filed a notice of appeal. On that same day [the
        trial court] issued a [Pa.R.A.P.] 1925(b) order. On January
        28, 2014, [Appellant] filed a statement of [errors
        complained of on appeal. The PCRA court issued an opinion
        pursuant to Pa.R.A.P. 1925(a) on April 22, 2014.]

Id. at 1-2 (superfluous capitalization omitted).

      On appeal, Appellant presents the following issues for our review:

        A. Whether the trial court erred in denying [Appellant’s]
           PCRA [p]etition where trial counsel was ineffective for

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           failing to subpoena and review the medical records of the
           complainants where it would have shown that [Appellant]
           did not commit serious bodily injury to the complainants?

        B. Whether the trial court erred in denying [Appellant’s]
           PCRA [p]etition where trial counsel was ineffective for
           failing to explain the difference between a bench and jury
           trial to [Appellant] and the impact of such a decision and
           that [Appellant] was not properly colloquyed on the
           issue?

Appellant’s Brief at 5 (proposed answers omitted).

      Both of Appellant’s PCRA claims challenge trial counsel’s effectiveness.

Our standard of review is well-settled:

        We review an order of the PCRA court to determine whether
        the record supports the findings of the PCRA court and
        whether its rulings are free from legal error. In order to
        obtain relief under the PCRA premised upon a claim that
        counsel was ineffective, a petitioner must establish beyond
        a preponderance of the evidence that counsel's
        ineffectiveness so undermined the truth-determining
        process that no reliable adjudication of guilt or innocence
        could have taken place. When considering such a claim,
        courts presume that counsel was effective, and place upon
        the appellant the burden of proving otherwise. Counsel
        cannot be found ineffective for failure to assert a baseless
        claim. To succeed on a claim that counsel was ineffective,
        Appellant must demonstrate that: (1) the claim is of
        arguable merit; (2) counsel had no reasonable strategic
        basis for his or her action or inaction; and (3) counsel's
        ineffectiveness prejudiced him.

        Furthermore:

            [t]o demonstrate prejudice, appellant must show
            there is a reasonable probability that, but for
            counsel's error, the outcome of the proceeding would
            have been different. When it is clear the party
            asserting an ineffectiveness claim has failed to meet
            the prejudice prong of the ineffectiveness test, the
            claim may be dismissed on that basis alone, without
            a determination of whether the first two prongs have


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            been met. Failure to meet any prong of the test will
            defeat an ineffectiveness claim. Counsel is not
            ineffective for failing to raise meritless claims.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)

(citations and quotations omitted).

      In his first issue presented, Appellant claims the PCRA court erred by

denying him relief on his claim that trial counsel was ineffective for failing to

subpoena the medical records of the complainants. Id. at 9-10. He claims

that “[t]he proper admission of the medical records wo[u]ld have shown that

the complainants suffered minor injuries and that the intent to cause serious

injury was not present.” Id. at 10. Thus, he contends that “[t]his failure

caused the court to convict [] Appellant of a more serious crime[,]”

aggravated assault rather than simple assault. Id.

      We conclude that Appellant has failed to meet any of the prongs of the

test for counsel ineffectiveness. At trial, the victim testified that Appellant

rode past her on a bicycle and wrenched her pocketbook from her grasp.

N.T., 10/6/2009, at 16-18. “[W]hen [Appellant] tugged, [the Victim] tor[e]

all the ligaments in her finger and [] had to have surgery” wherein doctors

removed a ligament in her wrist, performed a bone graft and inserted a pin

in her finger which remained for six weeks. Id. at 18. Officer Chris Jackson

testified that Appellant attempted to flee when told he was a robbery

suspect; Officer Jackson broke his ankle when both men fell during the

scuffle. Id. at 25. Officer Jackson required an operation to insert a surgical



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pin in his ankle, had to wear a cast and a leg brace, and participated in six

to seven months of rehabilitative therapy. Id. at 26.       The Commonwealth

presented the medical records of both the victim and Officer Jackson,

Appellant stipulated to their contents, and the trial court accepted them into

the record. Id. at 30.

      Because    the    complainants’   medical   records   were   entered   into

evidence, there is no merit to Appellant’s ineffective assistance of counsel

claim. The Commonwealth produced the medical records for both victims;

defense counsel stipulated to the authenticity and entry of those records into

the certified record.    Moreover, there was no reasonable basis to subpoena

medical records when they were already available and entered into evidence

by the Commonwealth. Finally, Appellant cannot show that he was

prejudiced, because the outcome of trial would not have been different. The

complainants’ medical records were already before the trial court. Appellant

does not suggest that there was additional information that would have been

available by subpoena or that trial counsel somehow erred by stipulating to

the admission of the evidence. Hence, Appellant’s first claim fails.

      Next, Appellant argues, “trial counsel was ineffective for improperly

explaining the meaning of a bench trial and where a colloquy was not

conducted by the court” and, thus, he “did not make a voluntary and

knowing decision to waive his right to a jury trial.” Appellant’s Brief at 11.

“Appellant claims counsel did not explain that the judge would make the


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rulings on the evidence even though he would hear all the evidence whether

prejudicial or not and sit as the fact finder.”     Id. at 12.    Appellant also

contends “[t]his was further evident where the trial court did not colloquy []

Appellant on the record as to his right to a jury trial and that he fully

understood the impact of a jury trial on the outcome of trial.”1 Id.

       Pursuant to Pennsylvania Rule of Criminal Procedure 620:

         In all cases, the defendant and the attorney for the
         Commonwealth may waive a jury trial with approval by a
         judge of the court in which the case is pending, and elect to
         have the judge try the case without a jury. The judge shall
         ascertain from the defendant whether this is a knowing and
         intelligent waiver, and such colloquy shall appear on the
         record. The waiver shall be in writing, made a part of the
         record, and signed by the defendant, the attorney for the
         Commonwealth, the judge, and the defendant's attorney as
         a witness.

Pa.R.Crim.P. 620.

       In Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), our

Supreme Court addressed the issue of counsel ineffectiveness in connection

with the validity of a defendant's jury waiver. In that case, the defendants

executed extensive written jury waiver colloquies but did not request on-

the-record oral colloquies, and the trial court did not conduct such

colloquies. After their direct appeals were unsuccessful, the defendants filed

____________________________________________


1
  Appellant waived this aspect of his claim by failing to raise trial court error
on direct appeal. See 42 Pa.C.S.A. § 9544 (“[A]n 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.”)



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PCRA petitions, each alleging his trial counsel was ineffective for failing to

challenge the validity of his jury waiver on the grounds the trial court did not

conduct an oral colloquy pursuant to Pa.R.Crim.P. 620. The PCRA court held

the absence of such colloquies rendered the waivers invalid as a matter of

law and concluded counsel were ineffective. This Court reversed, finding the

defendants failed to demonstrate prejudice. Our Supreme Court accepted

review to address the proper analysis of the prejudice prong of the

ineffectiveness test in the context of the validity of a jury waiver.

      The Mallory Court determined:

        The essential elements of a jury waiver, though important
        and necessary to an appreciation of the right, are
        nevertheless simple to state and easy to understand. 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.

                               *         *             *

        A waiver colloquy is a procedural device; it is not a
        constitutional end or a constitutional right. Citizens can
        waive their fundamental rights in the absence of a colloquy;
        indeed, waivers can occur by conduct or by implication.
        Moreover, the absence of an on-the-record colloquy
        concerning the fundamentals of a trial by jury does not
        prove, in an absolute sense, that a defendant failed to
        understand the right he waived by proceeding non-jury.
        Consider, for example, a criminally-accused lawyer who
        waives a jury. Or, consider a career criminal defendant with
        previous, first-hand experience with jury trials. Or, imagine
        a reasonably intelligent client whose lawyer informed him,
        off the record, of the three basics of a jury trial. The record
        colloquy contemplated by Pa.R.Crim.P. 620 serves a
        salutary prophylactic purpose, as it makes it plain that a

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        jury waiver is knowing and voluntary, and it creates a
        record in the event of a later, collateral attack upon the
        waiver. For the same twin reasons, an on-the-record
        colloquy is a useful procedural tool whenever the waiver of
        any significant right is at issue, constitutional or otherwise,
        e.g., waiver of a trial, waiver of the right to counsel, waiver
        of the right to call witnesses, waiver of the right to
        cross-examine witnesses, waiver of rules-based speedy trial
        time limits, etc. But the colloquy does not share the same
        status as the right itself.

        The right to a jury trial in criminal cases, unlike the Rule-
        based requirement of a waiver colloquy, does implicate
        constitutional concerns.       If this case involved direct
        governmental denial of an explicit request for a jury—if
        appellants had demanded a jury and the trial judge said,
        “No”—appellants would have a valid claim that they were
        denied their constitutional right to trial by jury. But that is
        not the claim presented here. Appellants explicitly waived
        their rights to a jury, in writing, on the record. Appellants'
        shared collateral claim (the [the other appellants] have an
        added burden concerning appellate counsel which we will
        address below) is that, notwithstanding their explicit written
        waiver colloquies, which were attested by their lawyers, the
        prosecutor and (in two of three cases) the trial judge, those
        waivers were the product of the ineffectiveness of their trial
        counsel. Specifically, they allege that their lawyers failed to
        object when the trial court failed to conduct an on-
        the-record oral waiver colloquy to supplement the written
        waivers. If they had been so queried in open court, all three
        appellants claim, they would have contradicted their written
        waivers and demanded a jury. This not uncommon my-
        record-waiver-was-my-lawyer's-fault claim is far removed
        from the constitutional, structural error that would be at
        issue if a timely jury demand was wrongly denied.

Mallory, 941 A.2d at 696–697 (citations, quotations, brackets and ellipsis

omitted).




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      The Mallory Court also stressed the importance of recognizing the

distinct analysis required when a jury waiver colloquy claim is litigated

through the guise of counsel ineffectiveness:

        Recognizing that the claim here involves a collateral attack
        focusing upon the Sixth Amendment right to counsel, and
        that the collateral attack only indirectly implicates the
        distinct constitutional right to a jury trial and the Rule-based
        right to an oral waiver colloquy, is paramount to its proper
        evaluation. 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. Those circumstances
        include the defendant's knowledge of and experience with
        jury trials, his explicit written waiver (if any), and the
        content of relevant off-the-record discussions counsel had
        with his client.

Id. at 698 (internal citations and quotation omitted).

      The Mallory Court adopted the totality of the circumstances approach:

        [A]bsence of an oral colloquy alone does not prove that a
        jury waiver was in fact unknowing or involuntary; rather,
        the PCRA court must look to the totality of the
        circumstances ... including the discussions between the
        lawyers and their clients regarding the jury waiver.... The
        analysis regarding the underlying merits of appellants'
        ineffectiveness challenge must be more precise and must
        account for all relevant circumstances surrounding the
        waiver.

Id. at 704.


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      Here, the record belies Appellant’s claim that counsel did not explain

Appellant’s jury trial rights prior to his waiver.   The certified record contains

a written jury trial waiver colloquy executed on October 6, 2009. Prior to

trial, the trial court identified the written colloquy and asked Appellant “did

your lawyer explain this form to you?” N.T., 10/6/2009, at 14. Appellant

responded “yes.” Id. The trial court also confirmed Appellant: (1) was 48

years old at the time; (2) completed 11th grade; (3) could read, write and

understand English, and; (4) did not suffer from mental deficiencies.         Id.

Moreover, the written colloquy form set forth Appellant’s constitutional right

to a jury trial. Appellant stated on the record that counsel had explained the

form to him and that he understood his rights. Appellant then waived those

rights and proceeded to a bench trial. Based upon the totality of

circumstances, there is no merit to Appellant’s ineffective assistance of

counsel claim for failing to explain Appellant’s right to a jury trial.     Thus,

Appellant’s second claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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