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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSEPH HALL

                        Appellant                   No. 437 WDA 2014


                Appeal from the PCRA Order March 6, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001967-2007


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 20, 2015

     Appellant, Joseph Hall, appeals from the order entered March 6, 2014,

in the Court of Common Pleas of Allegheny County, which dismissed his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546. We affirm.

     Hall is serving a sentence of 17½ to 35 years’ incarceration imposed

after a jury convicted him of third-degree murder and a violation of the

Uniform Firearms Act. A panel of this Court previously set forth the facts of

the case in its memorandum affirming the judgment of sentence. There is no

need to set forth the facts again here. See Commonwealth v. Hall, 545

WDA 2009, at 1-3        (Pa. Super., filed July 27, 2011) (unpublished

memorandum), appeal denied, 42 A.3d 291 (Pa. 2012) (Table).
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        Hall filed, through counsel, Paul R. Gettleman, Esquire, a timely PCRA

petition.     The   PCRA     court     held    two   evidentiary   hearings    and    then

subsequently entered an order denying the petition. This timely appeal

followed.

        Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well settled. We must examine whether the record

supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our

scope    of    review   is   limited    by     the   parameters    of   the   PCRA.   See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

        All seven1 of Hall’s issues raised on appeal concern the alleged

ineffective assistance of trial counsel. To determine whether the PCRA court


____________________________________________


1
  We remind Hall that “[w]hile criminal defendants often believe that the
best way to pursue their appeals is by raising the greatest number of issues,
actually, the opposite is true: selecting the few most important issues
succinctly   stated  presents    the    greatest   likelihood   of  success.”
Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citation
omitted). This is because “[l]egal contentions, like the currency, depreciate
through over issue.” Id. (quoting Robert H. Jackson, “Advocacy Before the
United States Supreme Court,” 25 Temple L.Q. 115, 119 (1951)). See also,
Ruggero J. Aldisert, J. “Winning on Appeal:           Better Briefs and Oral
Argument,” 129 (2d ed. 2003) (“When I read an appellant’s brief that
(Footnote Continued Next Page)


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erred in dismissing Hall’s petition on the claims of ineffectiveness of counsel,

we turn to the following principles of law:

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance 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. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted).

      Moreover, “[w]e presume counsel is effective and place upon Appellant

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008) (citation omitted). We may deny an

ineffectiveness claim if “the evidence fails to meet a single one of these

prongs.” Id., at 321 (citation omitted).

      Hall first argues that trial counsel rendered ineffective assistance of

counsel by denying him his Sixth Amendment right to a public trial. Hall

testified at the evidentiary hearing that he asked trial counsel if his mother

and grandparents could attend jury selection. See N.T., PCRA Hearing,
                       _______________________
(Footnote Continued)

contains more than six points, a presumption arises that there is no merit to
any of them.”).




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6/24/13, at 31. Hall explained that trial counsel informed him that they

could not. See id., at 31-32. Hall’s mother testified that trial counsel

informed her that she was not permitted to attend jury selection. See id., at

21. PCRA counsel asked trial counsel about Hall’s mother’s testimony and

while he did not have a “specific recollection” of what he told her, he had “no

doubt … I would have said you can’t.” N.T., PCRA Hearing, 7/14/13, at 22.

Hall’s PCRA counsel then asked trial counsel, “[y]ou’re not permitted?” and

trial counsel answered, “[y]eah.” Id. There is no dispute that the trial court

did not act in any way to close the courtroom to the public during jury

selection.

      A defendant has a Sixth Amendment right to a trial that is open to

members of the public. See Waller v. Georgia, 467 U.S. 39, 46 (1984).

The public trial guarantee is a right created for the benefit of the defendant.

See id. A public trial discourages perjury and ensures that “the public may

see he is fairly dealt with and not unjustly condemned, and that the

presence of interested spectators may keep his triers keenly alive to a sense

of their responsibility and to the importance of their functions....” Id.

(citations omitted). “Confidence in our system of jurisprudence is enhanced

by such openness.” Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa.

1985).

      The violation of the right to a public trial constitutes a structural

defect, a specific type of constitutional error. See Commonwealth v.


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Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013). “Structural defects defy

analysis by harmless-error standards because they affect the framework

within which the trial proceeds, and are not simply an error in the trial

process itself.” Id. (citation and internal quotation marks omitted). See also

Neder v. United States, 527 U.S. 1, 8 (1999). Structural defects “will

always invalidate the conviction.” Sullivan v. Louisiana, 508 U.S. 275, 279

(1993) (citations omitted).

       Here, Hall maintains that he need not establish prejudice as trial

counsel’s actions resulted in a structural defect. Unquestionably, trial counsel

was completely mistaken in his belief that family members of the defendant

were not permitted in the courtroom during jury selection. However, in

Pennsylvania, petitioners alleging ineffective assistance of counsel in

connection with the right to a public trial must establish prejudice. See

Commonwealth v. Rega, 70 A.3d 777, 787 (Pa. 2013) (“Since Appellant

did not object to the after-hours courtroom arrangements, the only

cognizable aspect of his claim is that of deficient stewardship, as to which he

must establish prejudice.”); Commonwealth v. Brandt, 509 A.2d 872, 874

n.2 (Pa. Super. 1986) (“We choose to follow the general rules of ineffective

assistance and those cases which find prejudice a necessary element.”).2

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2
  But see Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007) (“[A]
defendant who is seeking to excuse a procedurally defaulted claim of
structural error need not establish actual prejudice.”); McGurk v.
(Footnote Continued Next Page)


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      Hall fails to establish prejudice. In his brief, he relies solely on his

argument that the structural defect itself mandates a new trial. He presumes

prejudice. See Appellant’s Brief, at 6-10. He in no way explains how the

absence of his mother and grandparents adversely affected the jury

selection. Therefore, this claim fails.

      In his next issue, Hall argues that trial counsel was ineffective for

failing to object to the trial court’s alibi instruction. In his brief, Hall fails to

provide a citation to a page in the notes of testimony where we can find the

allegedly defective instruction. “If reference is made to the pleadings,

evidence, charge, opinion or order, or any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or

in a footnote thereto, a reference to the place in the record where the

matter referred to appears[.]” Pa.R.A.P. 2119(c) (emphasis added). This

Court has consistently held that failure to comply with Rule 2119(c) results

in the waiver of the issue on appeal. See, e.g., Commonwealth v. Hetzel,

822 A.2d 747, 765 (Pa. Super. 2003). Accordingly, we find this claim

waived.




                       _______________________
(Footnote Continued)

Stenberg, 163 F.3d 470, 475 (8th Cir. 1998) (“[W]e hold that when
counsel’s deficient performance causes a structural error, we will presume
prejudice under Strickland.”).




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      We note that Hall claims that “[t]he instruction in this case shifts the

burden to the appellant to prove that he is not guilty when in fact that

burden remains with the Commonwealth at ll [sic] times.” Appellant’s Brief,

at 11. If we were to address this claim on the merits, we would find that the

alibi instruction, see N.T., Trial, 11/6-17/08, at 843, does no such thing.

See Commonwealth v. Saunders, 602 A.2d 816, 818 (Pa. 1992) (“An

instruction is proper if it expressly informs the jury that the alibi evidence,

either by itself or together with other evidence, could raise a reasonable

doubt as to the defendant’s guilt and clearly directs the jury to consider this

evidence in determining whether the Commonwealth met its burden of

proving beyond a reasonable doubt that the crime was committed by the

defendant.”) (emphasis in original).

      Hall next argues that trial counsel provided ineffective assistance by

failing to present character witnesses. At trial, the trial court engaged in a

thorough colloquy with Hall whereby he waived his rights to present

character witnesses. See N.T., Trial, 11/14/08, at 714-716. During this

colloquy he was asked two times if this was a “free and voluntary” decision

on his part not to present character witnesses and he answered that it

indeed was his decision. See id., at 716.

      Curiously, at the PCRA evidentiary hearing, Hall explained that he did

not understand at the time of trial when he was asked if his decision was

“free and voluntary” that they were asking for his decision, not counsel’s.


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For instance, he claimed, “I didn’t know what the [c]ourt’s question was,

was the waiver mine voluntarily.” PCRA Hearing, 7/24/13, at 35. And, “I

didn’t know what that meant at the time, ma’am.” Id., at 38.

      Not surprisingly, the PCRA court found Hall’s testimony at the

evidentiary hearing unconvincing, “not viewed as credible” in the PCRA

court’s words. PCRA Court Opinion, 3/5/15, at 5 (unnumbered). Based on

the   PCRA’s court’s credibility    determination,      the   methodical colloquy

conducted at trial and Hall’s answers thereto, this claim fails.

      In the next issue, Hall contends that trial counsel was ineffective for

failing to move to sever his case from his co-defendant, Lamont Hall. Hall

maintains that trial counsel should have moved for severance so that he

could have called Lamont as a witness. Hall alleges that Lamont would have

testified that Hall was not involved in the shooting.

      As the PCRA court notes, Lamont did not testify at the evidentiary

hearings and “no evidence exists to establish that Lamont Hall was prepared

to testify on Hall’s behalf at trial.” PCRA Court Opinion, 3/5/15, at 5

(unnumbered). We agree with the PCRA court that whether Lamont would

have testified is “mere speculation.” Id.

      To succeed on this claim, Hall had to prove, among other things, that

the witness was available to testify, was willing to testify, and that the

absence of the testimony was so prejudicial to the defendant to deny him a




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fair trial. See Commonwealth v. Puksar, 951 A.2d 267, 277 (2008). Hall

proved none of this. He offers instead “mere speculation.”3

       In his next issue, Hall alleges that trial counsel was ineffective for “not

investigating” the incident Officer Ronald Shaullis testified about at trial.

Appellant’s Brief, at 23. But trial counsel testified that he conducted an

investigation. See PCRA Hearing, 7/14/13, at 12-13, 20-21. Unfortunately

for Hall, trial counsel explained, “I just remember being disappointed and

saying that’s not going to pan out.” Id., at 13. Interestingly, on appeal, Hall

himself does not come forward with any favorable information whatsoever

that trial counsel missed by conducting an allegedly shoddy investigation.

This claim has no merit, let alone has Hall established any prejudice.

       Hall next maintains that trial counsel was ineffective for interfering

with his right to testify on his own behalf. Hall discusses testimony from the

evidentiary hearings, but fails to provide any citation to the notes of

testimony. We refuse to comb through the record to look for the testimony
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3
  In his brief, Hall also claims that trial counsel was ineffective for failing to
move for severance to be able then to offer into evidence a letter sent by
Lamont. This particular claim is not alleged as a basis for finding ineffective
assistance of counsel in Hall’s petition. The petition alleges just that he
wanted to call Lamont as a witness. See PCRA Petition, 11/19/12, at ¶ 7.
Accordingly, we will not consider this claim. See Pa.R.Crim.P. 902(B)
(“Failure to state … a ground [for relief] in the [PCRA] petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.”).




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he summarizes in his brief. This claim is waived. See Pa.R.A.P. 2119(c);

Hetzel, 822 A.2d at 765.

      In any event, at trial, the trial court conducted two colloquies with Hall

concerning his decision to testify on his own behalf. See N.T., Trial,

11/13/08, at 536-540; 11/14/08, at 713-716. During the first colloquy, trial

counsel also spoke. He noted that the decision as to whether Hall testifies at

trial is Hall’s alone. See N.T., Trial, 11/13/08, at 540. At the end of the first

colloquy, Hall indicated he needed more time to think about his decision.

See id.

      The next day the trial court conducted a second colloquy. The trial

court explained to Hall that the decision to testify on his own behalf is his

alone and that counsel may not make the decision for him. See N.T., Trial,

11/14/08, at 713. Hall answered, “[y]es” he understood. Id. The trial court

asked if his decision not to testify was “free and voluntary” on his part. Id.

Hall answered, “[y]es.” Id. The trial court then asked if “anybody forced,

threatened or coerced” him into making that decision. Id. Hall answered,

“[n]o.” Id. We are in complete agreement with the PCRA court that no one

interfered with Hall’s right to testify on his own behalf.

      Lastly, Hall argues that trial counsel was ineffective for failing to renew

an objection to the trial court’s refusal to give jury instructions on voluntary

manslaughter and justification. The PCRA court aptly explained why this

claim has no merit.


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            It is clear … that the defense theory was that Hall was not
     in the car at the time of the shooting. The defense sought to
     pursue an alibi defense rather one of self-defense. It should be
     noted that counsel initially sought a charge on voluntary
     manslaughter and justification. The record reflects that the
     [c]ourt denied those requests. The reason these requests were
     denied was based on the defense theory that Hall was not in the
     car and was pursuing an alibi defense. Providing the jury with a
     justification defense when Hall claimed he was not even there
     could readily lead to jury confusion. Under the circumstances,
     such a charge would not have been granted, and the [c]ourt
     specifically advised trial counsel of that fact. Hall was not entitled
     to a self-defense instruction when he claimed not to have been
     present. The [c]ourt properly refused such an instruction and
     counsel cannot be deemed to have been ineffective in failing to
     again request such a charge at the end of the [c]ourt’s
     instructions.

PCRA Court Opinion, 3/5/15, at 7-8 (unnumbered) (citations omitted). We

agree with the PCRA court’s reasoning as to why this issue has no merit.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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