J-S68006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

DEREK SUTTON,

                       Appellant                  No. 2047 EDA 2013


           Appeal from the PCRA Order entered June 24, 2013,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0712661-2006


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED OCTOBER 31, 2014

     Derek Sutton (“Appellant”) appeals from the order denying his petition

for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

     The pertinent facts have been summarized as follows:

            On July 27, 2004, Monique Denard was with four friends
        at a Chinese take-out restaurant located at 5008
        Germantown Avenue in the City and County of
        Philadelphia.    Denard saw [Appellant] arguing with
        Quenzell Cothran. [Appellant] said to Cothran, “You think
        I won’t do nothing. You think I won’t do nothing to you.”
        A fight ensued between Cothran and [Appellant].
        Thereafter, [Appellant] pulled a handgun and shot Cothran
        in the abdomen. Cothran shouted “I’m hit, I’m hit.” Aaron
        Blackman (decedent), who had been standing at the food
        counter, came to his aid. Blackman charged [Appellant]
        and put him into a bear hug. Appellant broke loose and
        shot Blackman twice [killing him].

          The decedent sustained gunshot wounds to his chest
        and head. The trajectory of both wounds was downward,
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         which indicated that the shooter was above the decedent.
         The gunshot wound to the left side of his chest indicated
         close range firing. [The medical examiner testified that
         the gunshot wound to the chest was fired at a distance
         within one foot, while the gunshot wound to the head was
         fired at a distance greater than three feet.]

            A search of [Appellant’s] apartment revealed a plastic
         baggie containing sixteen (16) Remington cartridges of 32
         S&W caliber bullets.      The two (2) bullet specimens
         recovered from the decedent’s body were also 32 S&W
         caliber. On July 30, 2004, an arrest warrant was issued
         for [Appellant]. After an extensive search, [Appellant] was
         found and arrested, May 16, 2006 in Conway, South
         Carolina. [Appellant waived extradition].

Commonwealth v. Sutton, 972 A.2d 563 (Pa. Super. 2009), unpublished

memorandum at 1-2 (citation omitted).

      Following a bench trial, Appellant was convicted of first-degree murder

and aggravated assault.       The trial court sentenced Appellant to life

imprisonment for the murder conviction and a consecutive ten to twenty

years of imprisonment for the assault conviction.      Appellant filed a timely

appeal to this Court.    On March 3, 2009, we affirmed his judgment of

sentence.   Sutton, supra.     On September 9, 2009, our Supreme Court

denied Appellant’s petition for allowance of appeal.

      On September 1, 2010, Appellant filed a timely pro se PCRA petition.

The PCRA court appointed counsel, and PCRA counsel filed an amended

petition on August 19, 2011, and a supplemental amended petition on

September 12, 2012.       In the latter filing, Appellant asserted that trial

counsel was ineffective for not objecting to an allegedly involuntary jury trial

waiver. The PCRA court conducted an evidentiary hearing on June 24, 2013,

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at which both Appellant and trial counsel testified.      At the end of the

hearing, the PCRA court, upon concluding that Appellant failed to carry his

burden of proof, dismissed Appellant’s petition. This timely appeal followed.

Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         I. Did the Honorable PCRA Court err when it dismissed
         [Appellant’s] Amended PCRA petition, and supplemental
         filings after an evidentiary hearing where [Appellant] did
         demonstrate that he was entitled to PCRA relief as a result
         of ineffective assistance of counsel, on the part of his
         previous attorney?

Appellant’s Brief at 3.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Stated differently, “[t]he PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.”    Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

      In order to be eligible for relief under the PCRA, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated errors or defects in



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42 Pa.C.S.A. section 9543(a)(2). One of the errors enumerated in section

9543(a)(2) of the PCRA is a claim of ineffectiveness of counsel. To obtain

relief under the PCRA premised on a claim that counsel was ineffective, a

petitioner must establish by 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. Id. “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. Counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

      Appellant asserts that he is entitled to a new trial because at the

evidentiary hearing, he “demonstrated that previous counsel was ineffective

with regard to advice as to a jury waiver and that the ineffectiveness was

prejudicial to [him].” Appellant’s Brief at 6. Our review of the record refutes

Appellant’s claim.


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     The pertinent rule of criminal procedure reads as follows:

        Rule 620. Waiver of Jury Trial

          In all cases, the defendant and the attorney for the
        Commonwealth may waive a jury trial with approval by the
        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.

       Our Supreme Court addressed an ineffective assistance of counsel

claim involving the validity of a defendant’s jury waiver in Commonwealth

v. Mallory, 941 A.2d 686 (Pa. Super. 2008). The high court explained:

            The essential elements, 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.
        Notwithstanding, the Rule’s reference to a “colloquy on the
        record,” the use of a written jury trial waiver form has
        been deemed sufficient in the absence of an oral jury trial
        waiver colloquy.

                                   ***

            When a presumptively-valid [sic] 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.

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Mallory, 941 A.2d at 696-98 (footnote omitted).

      In addition, the high court opined:          “[t]o prove trial counsel

ineffective,” a defendant “must show that his understanding of the written

waiver was constitutionally impaired by his lawyer’s deficient performance,

as well as proof that he would have elected a jury [trial] but for his lawyer’s

performance.” Id. at 702. Further, our Supreme Court concluded that when

a defendant raises an ineffectiveness claim in relation to his or her jury trial

waiver, “actual prejudice must be shown.” Id. Stated differently, a PCRA

petitioner has the burden of establishing that “he did not understand what

he was waiving, that trial counsel caused his failure to understand, and that,

but for counsel’s ineffectiveness, he would have insisted upon a jury.”

Commonwealth v. Birdsong, 24 A.3d 319, 340 (Pa. 2011).              Finally, the

Mallory court held:

            [T]o prove prejudice the defendant must demonstrate a
         reasonable probability that the result of the waiver
         proceeding would have been different absent counsel’s
         ineffectiveness; he does not have to demonstrate that the
         outcome of the jury trial would have been more favorable
         than the bench trial.

Id. at 702-03.

      Here, the PCRA court concluded that Appellant’s own testimony at the

PCRA evidentiary hearing “confirmed that he understood what he was

waiving when he forfeited his right to a jury trial.”    PCRA Court Opinion,

12/3/13, at 5. To support this conclusion, the PCRA court cited the following

exchange between PCRA counsel and Appellant:

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        [PCRA COUNSEL]:       By signing D-1, what was your
        understanding as to what you were doing?

        [APPELLANT]: I was waiving a jury trial.

        [PCRA COUNSEL]: And by waiving a jury trial, what, if any
        understanding did you have with regard to the death
        penalty?

        [APPELLANT]: They took it off the table.

        [PCRA COUNSEL]: What was your understanding as to
        what would have occurred if you had chosen to be tried by
        a jury?

        [APPELLANT]: That if I was found guilty that I would [sic]
        receive the death penalty.

        [PCRA COUNSEL]: Did you understand the process by
        which a jury would have been selected, if you had elected
        to go in that direction?

        [APPELLANT]: Yes, I did.

        [PCRA COUNSEL]: And what was your understanding as to
        how the process would work in terms of a jury trial?

        [APPELLANT]: That I would pick among the people, peers
        of the community.

        THE COURT: You would assist your attorney in doing that?

        [APPELLANT]: Yes.

        THE COURT: And that any decision by the jury would have
        to be unanimous?

        [APPELLANT]: Yes. Ma’am.

PCRA Court Opinion, 12/3/13, at 5-6 (citing N.T., 6/25/13, at 17-18).

     The PCRA court further explained:

           [Appellant] acknowledged that he was the one who
        elected to avoid the death penalty by waiving a jury trial.
        “Well, I was shaken up by the fact that I would receive a
        death penalty if I was found guilty, so I figured to go with
        a waiver trial.” Id. at 12.

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                                     ***

            Not only did [Appellant] fail to prove that he did not
         understand what he was waiving, but [he] also made no
         attempt to demonstrate that, but for counsel’s
         ineffectiveness, he would have insisted upon a jury. Id.
         at 5-46. The totality of the circumstances indicated that
         [Appellant] sought to avoid the death penalty, that he
         knew what he was giving up in order to “get death off the
         table,” and that he would have elected to follow that
         course of action regardless of his attorney’s advice.

PCRA Court Opinion, 12/3/13, at 6. Our review of the record amply supports

the PCRA court’s conclusions.

      Although Appellant first argues that his suffering from depression

vitiated his jury waiver, he did not raise this contention in his Pa.R.A.P.

1925(b) statement.      Thus, the claim is waived on appeal.           Pa.R.A.P.

1925(b)(4)(vii).   Moreover, in making his argument that the Pa.R.Crim.P.

620 oral colloquy was defective, Appellant improperly relies upon statements

made by the trial court in isolation, rather than under the totality of the

circumstances. See Appellant’s Brief at 10-11; Mallory, supra.

      We also reject as untenable Appellant’s claim that he was confused by

alleged inconsistencies between his oral waiver and written waiver, which

Appellant does not challenge as deficient.           See id. at 701 (citing

Commonwealth v. Smith, 450 A.2d 973 (Pa. 1982) (explaining that,

notwithstanding any defect in the oral colloquy, the written colloquy, the

validity of which the defendant did not challenge, “reflected the defendant’s

full awareness of the essentials of a jury trial”). Lastly, we reject Appellant’s

claim that his oral waiver is defective because the trial court “never informed

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him of the sentence that he was facing.”       Appellant’s Brief at 12.    The

potential sentence to which a defendant is exposed is not an “essential

ingredient” of a jury waiver. See Birdsong, 24 A.3d at 338. At any rate,

Appellant was fully informed of his potential sentence in the written jury

waiver form, and his own testimony at the PCRA hearing reveals his

awareness of this information.

      Finally, our review of the record supports the PCRA court’s conclusion

that Appellant has not established the requisite prejudice, i.e., but for trial

counsel’s advice, he would have insisted on a trial by jury.      Once again,

Appellant’s testimony as cited by the PCRA court, supra, refutes Appellant’s

claim of prejudice.

      For all of the above reasons, the PCRA court properly concluded that

Appellant did not meet his burden of proving his ineffective assistance of

counsel claim. We therefore affirm the PCRA court’s order denying Appellant

post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2014




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