J-S35033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH R. EMANUELE                         :
                                               :
                      Appellant                :   No. 1831 WDA 2016

                 Appeal from the PCRA Order November 3, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013429-2014


BEFORE:      LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 21, 2017

        Appellant Joseph R. Emanuele appeals from the order of the Court of

Common Pleas of Allegheny County denying Appellant’s petition pursuant to

the Post Conviction Relief Act (“PCRA”).1          Appellant raises two claims of

ineffective assistance of counsel. We affirm.

        On February 25, 2015, a jury convicted Appellant of two counts of

robbery, one count of receiving stolen property, and one count of theft by

unlawful taking. On May 14, 2015, the trial court sentenced Appellant to an

aggregate term of four to eight years’ incarceration to be followed by ten




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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years’ probation. During trial and sentencing, Appellant was represented by

Jeffrey A. Hawn, Esquire.

      On June 3, 2015, the trial court filed an order, acknowledging receipt

of a handwritten note in which Appellant requested an appeal.            The order

directed Attorney Hawn to perfect Appellant’s appeal.          On June 16, 2015,

Attorney Hawn filed a post-sentence motion along with a motion to withdraw

as counsel.     On June 18, 2015, the trial court denied Appellant’s post-

sentence motion as untimely and denied Attorney Hawn’s motion to

withdraw.

      On November 18, 2015, Appellant filed a pro se PCRA petition, raising

general claims of Attorney Hawn’s ineffectiveness.          Thereafter, the PCRA

court appointed John K. Hempel, Esq., who filed an amended PCRA petition

on August 5, 2016, raising ineffective assistance claims against trial counsel

for failing to object to a specific jury instruction and in failing to poll the jury.

On September 21, 2016, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing.       Appellant did not respond to this

order.     On November 3, 2016, the PCRA court denied Appellant’s petition.

This timely appeal followed.

      Appellant raises two issues for our review on appeal:

      I.      Whether the PCRA court properly dismissed Appellant’s
              claim that trial counsel rendered ineffective assistance for
              failing to poll the jury?

      II.     Whether the PCRA court properly dismissed Appellant’s
              claim that trial counsel rendered ineffective assistance for


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            failing to object to the trial court’s sua sponte issuance of
            written jury instructions without instructing the jury that
            written and oral instructions must be given equal weight?

Appellant’s Brief, at 1.

      In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, --- Pa.

---, 141 A.3d 1277, 1283–84 (2016). In order to be eligible for PCRA relief,

the petitioner must prove by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated

circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the

ineffective assistance of counsel.

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on

an ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice


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when he demonstrates “that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966

A.2d 523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694).                The

failure to satisfy any one of the three prongs will cause the entire claim to

fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

      First, Appellant claims trial counsel was ineffective in failing to poll the

jury after their verdict was read.      Appellant suggests that instances of

possible juror dissent existed as the jury foreperson never stated that the

verdict was unanimous and the trial court did not inquire whether the verdict

was unanimous.

      This Court has established that defense counsel’s failure to request a

jury poll is not per se ineffectiveness. Commonwealth v. Jones, 2013 PA

Super 203, 71 A.3d 1061, 1063 (2013).           Rather, a petitioner raising a

challenge to counsel’s failure to poll the jury must establish ineffectiveness

through the tripartite test set forth above.      Id.   In Commonwealth v.

Martin, 499 A.2d 344, 350 (Pa.Super. 1985), this Court concluded that

there was no arguable merit to the appellant’s claim that counsel was

ineffective for failing to poll the jury as the appellant failed to offer evidence

that any of the jurors did not voluntarily join in the announced verdict.

Similarly, in Commonwealth v. Johnson, 459 A.2d 5, 11 (Pa.Super.

1983), this Court refused to grant appellant relief on his ineffectiveness

claim based on counsel’s choice not to poll the jury as “[t]here was no hint

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of any juror’s dissatisfaction with the foreman’s verdict announcements, nor

does [the] appellant allege any other incidents reflecting a particular juror’s

dissatisfaction with the verdicts.”

      In the same manner, Appellant’s claim that a jury member may have

been dissatisfied with the verdicts reached in this case is mere speculation.

The trial court provided the jury with a detailed instruction emphasizing the

requirement that its verdict be unanimous:

      Your verdict must be unanimous. That means all twelve
      final jurors must agree to it. You have a duty to consult with
      each other and to deliberate with a view to reaching an
      agreement if this can be done without doing any violence to your
      own individual judgment. Each of you must decide the case for
      him or herself, but only after there has been impartial
      consideration with your fellow jurors.

      In the course of deliberations, each juror should not hesitate to
      re-examine his or her own view and change that opinion if
      convinced that it is erroneous. However, none of you should
      surrender an honest conviction as to the weight or effect of the
      evidence solely on the opinion of his or her fellow jurors or
      merely for the purpose of reaching a verdict.

Notes of Testimony (N.T.), 2/24/15 – 2/25/15, at 133-34 (emphasis added).

      After a short two-hour deliberation period, the jury returned and

announced through its foreperson that it had convicted Appellant on all the

individual counts that were charged.    After the verdict was read, the trial

court clerk asked the jury members to confirm on the record that they found

Appellant guilty of these charges.

      The Clerk: Members of the jury, hearken to your verdict, as the
      Court has recorded it in the issue joined between the
      Commonwealth of Pennsylvania and the Defendant, Joseph

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      Robert Emanuele, you say you find the Defendant at CC
      2013013429 as to robbery, serious bodily injury to Diane Miller,
      guilty. Robbery, financial institution, guilty. Receiving stolen
      property, guilty. Theft by unlawful taking, moveable property,
      guilty, and so say you all. Please respond I do.

      The jury: I do.

N.T. at 141 (emphasis added).       Moreover, there is an indication on the

record that the trial court subsequently dismissed Appellant and cleared the

courtroom so that the court “could have the opportunity to talk to the jury.”

Id.   None of the jury members expressed disagreement with the verdict

during this exchange with the trial judge.

      Based on the trial court’s clear instruction emphasizing that the jury’s

verdict had to be unanimous, the fact that there was no indication that any

juror disagreed with the verdict, and the brevity of the jury’s two-hour

deliberation period, we conclude that there is no arguable merit to

Appellant’s claim of ineffectiveness based on counsel’s decision not to

request a polling of the jury.

      Second, Appellant claims trial counsel was ineffective in failing to

object to the form and substance of one of the trial court’s jury instructions.

      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.




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Commonwealth v. Proctor, 156 A.3d 261, 269 (Pa.Super. 2017) (citations

omitted).

      Specifically, Appellant argues that counsel was ineffective in failing to

object to the trial court’s decision to allow the jury to have written copies of

its charge on the elements of the crimes charged without a necessary jury

instruction. Pennsylvania Rule of Criminal Procedure 646 provides that the

trial judge may permit the jury to consult certain materials for deliberation.

Rule 646 states in relevant part:

      (B) The trial judge may permit the members of the jury to have
      for use during deliberations written copies of the portion of the
      judge's charge on the elements of the offenses, lesser included
      offenses, and any defense upon which the jury has been
      instructed.

      (1) If the judge permits the jury to have written copies of the
      portion of the judge's charge on the elements of the offenses,
      lesser included offenses, and any defense upon which the jury
      has been instructed, the judge shall provide that portion of the
      charge in its entirety.

      (2) The judge shall instruct the jury about the use of the written
      charge. At a minimum, the judge shall instruct the jurors that

            (a) the entire charge, written and oral, shall be given
            equal weight; and

            (b) the jury may submit questions regarding any
            portion of the charge.

Pa. R. Crim. P. 646(B).

      Appellant claims that trial counsel should have objected to the trial

court’s failure to instruct the jury that its written and oral instructions should

be given equal weight as provided in Rule 646(B)(2)(a). However, while the


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trial court did not use the exact terminology desired by Appellant, the trial

court did emphasize to the jury that it was equally important to follow all of

the instructions it provided. Specifically, the trial court stated:

      As I told you at the beginning, I will now instruct you as to the
      law that you must apply to this case. It is your duty to follow
      these instructions. You should consider these instructions as a
      whole. You may not pick out one instruction and disregard
      others.

N.T. at 116-17.

      This instruction clearly advised the jury that they were not to give

undue weight to any particular instruction, which included the written

instructions. The trial court emphasized that all the jury instructions must

be given equal weight. While Appellant challenges trial counsel’s decision to

refrain from questioning the trial court’s broad discretion in phrasing its

instructions, the trial court’s wording of its jury instruction clearly,

adequately,   and   accurately   presented    the   law   to   the    jury   for   its

consideration.

      In addition, the trial court assured the jury that they were welcome to

ask any questions about any of the jury instructions:

      If during your deliberations you have any questions on matters
      related to the case, direct them to me in writing signed by the
      foreperson. You may ask questions about any of the instructions
      that I have given you – actually I’m going to send the charge
      with the actual crime and elements of the crime out with you
      given there are so many and you may ask questions about any
      of the instructions that I given you to whether they were given –
      they will be given to you. My tipstaff, Ms. Ross, will be available
      to attend to your needs during deliberations to act as a liaison
      between you and the Court.


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N.T. at 137-38.   Accordingly, we find this ineffectiveness claim also lacks

arguable merit.

     For the foregoing reasons, we affirm the order denying Appellant’s

PCRA petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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