J-S55029-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                 Appellee                  :
                                           :
                    v.                     :
                                           :
DREW PRITCHETT,                            :
                                           :
                 Appellant                 :   No. 436 WDA 2015

            Appeal from the PCRA Order Entered March 11, 2014
             in the Court of Common Pleas of Allegheny County,
                         Criminal Division, at No(s):
                          CP-02-CR-0001813-2008
                          CP-02-CR-0016115-2007

BEFORE:     FORD ELLIOTT, P.J.E., BENDER, P.J.E, and STRASSBURGER,* J.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:
                               FILED: NOVEMBER 17, 2015

      I agree with the Majority that the trial court did not err in denying

Appellant’s PCRA petition, and I largely agree with the Majority’s reasoning.

The portion of the Majority Memorandum that I cannot join concerns

Appellant’s claim that Attorney McCune was ineffective for excluding

Appellant’s parents from jury selection.

      There is no question that Appellant’s right to a public trial extended to

the jury selection process.   Commonwealth v. Johnson, 455 A.2d 654,

661 (Pa. Super. 1982) (“[A]ppellant’s right to a public trial, under both the

United States Constitution and the Pennsylvania Constitution, included the

right to have the jury that was to try him selected in public.”). There also is



*Retired Senior Judge assigned to the Superior Court.
J-S55029-15


no dispute that Attorney McCune misadvised Appellant concerning that right.

N.T., 7/14/2014, at 20. Attorney McCune indicated that the reason he did

so was because he was unaware at the time that the public was permitted in

the jury selection room, and he had “never seen it happen.”      Id.   Thus,

Appellant established both that his claim had arguable merit and that

counsel lacked a reasonable basis for his decision.

      However, I agree with the Majority that Appellant is entitled to no

relief on this claim because he was required to prove that he was prejudiced

by counsel’s deficient performance, and he failed to do so.    Therefore, I

respectfully concur.




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