J-S52022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DEREK WASHINGTON                         :
                                          :
                    Appellant             :   No. 2200 EDA 2018


            Appeal from the PCRA Order Entered June 25, 2018,
           in the Court of Common Pleas of Montgomery County,
           Criminal Division at No(s): CP-46-CR-0008218-2014,
                         CP-46-CR-0008223-2014.


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DEREK WASHINGTON                         :
                                          :
                    Appellant             :   No. 2202 EDA 2018


            Appeal from the PCRA Order Entered June 25, 2018,
           in the Court of Common Pleas of Montgomery County,
           Criminal Division at No(s): CP-46-CR-0008218-2014,
                         CP-46-CR-0008223-2014.


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JULY 28, 2020

      Derek Washington appeals pro se from the order that denied his first

petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-

46. We affirm.
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        The pertinent facts and procedural history are as follows: This matter

arose from three separate incidents occurring in Norristown, Montgomery

County, during which Washington took cash or property from another person.

Following his arrest, and after the police provided Miranda1 warnings,

Washington made inculpatory statements to the police. The Commonwealth

charged Washington with multiple offenses at two separate dockets.

        On April 17, 2015, Washington filed motions to suppress the statements

that he made as fruit of an illegal arrest, contending the identification

procedure utilized by the police was unduly suggestive. The trial court denied

relief following an evidentiary hearing. On August 8, 2015, the trial court held

a stipulated bench trial. The Commonwealth offered the notes of testimony

of the suppression hearing, the victims’ statements to police, and other

exhibits, which the court entered into the record without objection.       After

reviewing this evidence, the court found Washington guilty of one count of

robbery as it related to each victim, and other related charges. Thereafter,

the trial court sentenced Washington to an aggregate term of seven to fifteen

years of imprisonment.

        Washington filed a timely direct appeal to this Court. In an unpublished

memorandum filed on August 7, 2017, we affirmed his judgment of sentence.

Washington did not seek further review.


____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).


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       On October 24, 2017, Washington filed a timely pro se PCRA petition.

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

petition on February 27, 2018. Thereafter, the Commonwealth filed an answer

and motion to dismiss the petition. On May 22, 2018, the PCRA court issued

Pa.R.A.P. 907 notice of its intent to dismiss Washington’s petition without a

hearing. Washington filed a response. By order entered June 25, 2018, the

PCRA court dismissed Washington’s petition. PCRA counsel filed a notice of

appeal.    On July 31, 2018, following a Grazier2 hearing, the PCRA court

granted Washington’s request to proceed pro se. This timely appeal followed.3

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

       Washington now raises the following issues on appeal:

          1. The [PCRA] court erred by denying [Washington’s] PCRA
             petition alleging trial counsel was ineffective for failing to
             argue and advocate a defense during the stipulated
             bench trial; advising [and] inducing [Washington] to
             waive his right to a jury trial in exchange for [a]
             stipulated bench trial.

          2. The [PCRA] court erred by denying [Washington’s] PCRA
             petition alleging trial counsel and [his] associate [was]
____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

3  Although Washington included both trial court docket numbers on his
separate appeals, this fact no longer requires quashal. See Commonwealth
v Johnson, ___ A.3d ___, ___ (Pa. Super. 2020) (en banc), Slip Opinion at
12 (partially overruling Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019), to the extent that Creese interpreted Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), as requiring Superior Court to quash
appeals when appellant filed multiple notices of appeal and each notice lists
all of the appealed from docket numbers). See also Commonwealth v.
Larkin, ___ A.3d ___, ___ (Pa. Super. 2020), Slip Opinion at 3 (accord).


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               ineffective for failing to object to hearsay testimony by
               police during [the] motion to suppress [hearing] and
               failing to object to the admission of hearsay during the
               stipulated bench trial.

Washington’s Brief at 4.

         Our scope and standard of review is well settled:

            This Court analyzes PCRA appeals in the light most favorable
            to the prevailing party at the PCRA level. Our review is
            limited to the findings of the PCRA court and the evidence
            of record and we do not disturb a PCRA court’s ruling if it is
            supported by the record and is free of legal error. Similarly,
            we grant great deference to the factual findings of the PCRA
            court and will not disturb those findings unless they have no
            support in the record.       However, we afford no such
            deference to its legal conclusions. Where the petitioner
            raises questions of law, our standard of review is de novo
            and our scope of review is plenary. Finally, we may affirm
            a PCRA court’s decision on any grounds if the record
            supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation

omitted).

         Washington’s issues involve his claim of ineffective assistance of trial

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

“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

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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.

        The PCRA court concluded that Washington’s first claim that trial

“counsel was ineffective for inducing him to proceed to a stipulated bench trial

and for not mounting a defense at said bench trial” was “belied by the record.”

PCRA Court Opinion, 11/19/18, at 7. The PCRA court opinion reproduced in

detail the court’s colloquies with Washington regarding the waiver of a jury

trial and how a stipulated bench trial would take place, Washington’s

responses the he understood, and that no one forced or threatened him to

proceed in this fashion. See id. at 7-10. The PCRA court then explained:

              All of the foregoing illustrates that [Washington] was fully
          aware of his absolute right to proceed to a jury trial and that
          he knowingly, voluntarily and intelligently waived the same.
          This Court extensively colloquied [Washington] on the
          waiver of his right to a jury trial, and explained the process
          for a stipulated bench trial and questioned [him] about his
          satisfaction with this attorney. [Washington] is bound by
          his answers under oath during that colloquy. [He] indicated
          that [trial counsel] represented him on all of his cases and
          that he was happy with his representation and had no
          further questions of [trial counsel]. [Washington] was
          aware that the stipulated trial was akin to a guilty plea and
          that the Commonwealth would meet its burden and that he
          would be convicted. Further, [Washington] was aware that
          the primary purpose of the stipulated bench trial in lieu of a
          guilty plea was to preserve his right to appeal this Court’s
          pretrial suppression ruling, a reasonable, strategic choice by
          [trial counsel]. Upon withdrawal of trial counsel, appellate
          counsel challenged the court’s suppression ruling on direct
          appeal.       [Washington’s] appellate rights were both
          preserved and exercised.


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PCRA Court Opinion, 11/19/18, at 10-11 (citation to record omitted).

      The PCRA court then concluded that Washington could not establish his

ineffectiveness claim:

             [Washington] cannot show that he was prejudiced by
         proceeding to a stipulated bench trial at counsel’s advice.
         [T]he evidence against [Washington] was overwhelming
         and included a confession. Therefore, [Washington] cannot
         prove that there is a reasonable probability of a different
         outcome if he had proceeded to a regular bench trial or a
         jury trial. As [Washington] cannot meet his burden to show
         that counsel was ineffective in advising him to proceed to a
         stipulated bench trial, the Court did not err in dismissing this
         claim without a hearing.

Id., at 11. Our review of the record supports the PCRA court’s conclusion.

      In arguing to the contrary, Washington essentially asserts that trial

counsel convinced him to pursue a stipulated bench trial because Washington

could not afford to pay the sum counsel would charge to represent him in a

jury trial. According to Washington, because he was unable “to continue to

pay [trial counsel] the necessary fees, he was thrown to the wolves.”

Washington’s Brief at 14 (footnote omitted).     In addition, Washington claims

that his case is “on all-fours” with our Supreme Court’s decision in

Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000), wherein the High

Court concluded that trial counsel gave the defendant advice that vitiated a

knowing and intelligent decision to forgo his right to testify. Like in the Nieves

decision, Washington asserts that that the advice that trial counsel gave him

“was unreasonable and nullified the colloquy.”       Washington’s Brief at 14.

Finally, Washington contends that given the circumstances of his case

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prejudice should be presumed pursuant to U.S. v. Cronic, 466 U.S. 684

(1984). Washington’s Brief at 15.

      Washington’s claims are without merit. In Pennsylvania, the waiver of

a jury trial is governed by Rule 620 of the Pennsylvania Rules of Criminal

Procedure, which provides:

         Rule 620. Waiver of a Jury Trial

           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 writing 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.

      This Court has recently explained the purpose and function of the waiver

colloquy as follows:

            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. 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.




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Commonwealth v. Smith, 181 A.3d 1168, 1175-76 (Pa. Super. 2018)

(citation omitted).

       Our review of the record clearly reveals counsel chose to pursue a

stipulated bench trial in order to preserve his suppression issue, and there is

no evidence to support Washington’s claim that trial counsel was only

motivated by Washington’s inability to continue to pay him.4 Moreover,

contrary to the claims in his brief, Washington was fully colloquied regarding

a jury trial, and, that same day, he signed a written waiver form that explained

all the elements of a jury trial. Smith, supra.

       Washington’s reliance upon our Supreme Court’s decision in Nieves,

supra, is misplaced because it is easily distinguishable. In Nieves, the High

Court found that counsel’s advising the defendant not to testify because he

could be impeached by his prior record was in error because the defendant’s

prior crimes were not admissible as crimen falsi.         Here, trial counsel’s

advocating for a stipulated bench trial actually preserved Washington’s

challenge to the trial court’s suppression ruling for appellate review.

       Finally, Washington cites no case authority for his claim that prejudice

should be presumed with regard to his jury waiver pursuant to Chronic,

supra. Rather, Washington was required to prove prejudice, and we agree




____________________________________________


4 Washington claims he was unsuccessful in his attempt to supplement the
record with letters from trial counsel that allegedly would support this claim.
See Washington’s Brief at 14 n.4.

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J-S52022-19



with the PCRA court that he failed to do so. Thus, for all of these reasons,

Washington’s first ineffectiveness claim fails.

      In his second issue, Washington asserts that trial counsel was ineffective

for failing to object to hearsay testimony from the police officers introduced

during the suppression motion and reintroduced as part of his stipulated bench

trial. We cannot agree.

      Among the twelve issues Washington raised in his direct appeal was his

claim that the “trial court erred in allowing the suppression hearing to be based

upon unrebutted and unsubstantiated hearsay, as the live testimony of the

alleged   victims   was    absent.”      Washington,      supra,     unpublished

memorandum at 7. We found this issue waived, because trial counsel did not

object to these statements during the suppression hearing.         See id. at 21

(citing Commonwealth v. Richard, 150 A.3d 504, 511 (Pa. Super. 2016).

However, we further stated:

             Assuming, arguendo, that this matter was properly
          before us, [Washington] would not be entitled to relief. We
          have long held that “certain out-of-court statements offered
          to explain the course of police conduct are admissible
          because they are offered not for the truth of matters
          asserted but rather to show the information upon which
          police acted.” Commonwealth v. Trinidad, 96 A.3d 1031,
          1037 (Pa. Super. 2014). Here, the officers who testified
          during the suppression hearing relied on the statements
          made by [the robbery victims], and the individual in the
          grocery store as part of the search for, and investigation of,
          a suspected criminal. Hence, such testimony was offered
          only to show the information upon which the police acted,
          and this claim fails.

Washington, supra, unpublished memorandum at 20-21.

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      Here, the PCRA court cited the above passage to conclude that

Washington’s second issue fails, because counsel cannot be found ineffective

for failing to raise a meritless claim. PCRA Court Opinion, 11/19/18, at 11-

12. We agree. Thus, Washington’s second ineffectiveness claim does not

entitle him to post-conviction relief.

      Order affirmed.

      Judge Ott did not participate in the consideration or decision of this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2020




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