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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY GUNTER,
Appellant No. 58 EDA 2014
Appeal from the PCRA Order of December 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012990-2008
BEFORE: MUNDY, OLSON and WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 24, 2015
Appellant, Anthony Gunter, appeals from an order entered on
December 13, 2013, dismissing his first petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
affirm.
The PCRA court set forth the facts of this case as follows:
On September 15, 2008, [Appellant] rode his bicycle
toward [D.B., “the victim”], who was waiting for a bus at
the corner of 3rd and Catherine Streets in Philadelphia.
[Appellant] grabbed [the victim’s] handbag while still on his
bicycle and attempted to pedal away with it. [The victim]
tried to hold on to her handbag but ultimately [Appellant]
wrenched it away from her, tearing all the ligaments in one
of her fingers. A passerby pursued [Appellant] and saw him
enter a house [along] South 5th Street in Philadelphia.
Police Officers Chris Jackson and James Kimrey received
a radio call to investigate the robbery. Upon arriving at the
[] South 5th Street property, Officer Kimrey knocked on the
front door. A woman opened the door, told Officer Kimrey
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she lived at that address, and invited the officer into the
house. Officer Kimrey found [Appellant] sitting in the
kitchen and asked him to come outside. Once [Appellant]
went outside, [the victim] signaled to the officers that
[Appellant] was the man who robbed her. During the
arrest, [Appellant] pushed off a wall and knocked both
officers into a parked car, spraining Officer Kimrey’s hand.
Officer Jackson continued to struggle with [Appellant],
which led to both men falling to the ground. Officer Jackson
broke his ankle in the fall.
PCRA Court Opinion, 4/22/2014, at 2-3.
Procedurally, the case progressed as follows:
In a bench trial on October 6, 2009, the [trial court] found
[Appellant] guilty of aggravated assault, recklessly
endangering another person (REAP), two counts of simple
assault, and resisting arrest. On January 19, 2010, [the
trial court] sentenced [Appellant] to three (3) to six (6)
years[’] imprisonment for aggravated assault. No further
penalty was imposed on the remaining charges. […] On
December 16, 2010, the judgment of sentence was affirmed
by [this Court]. On January 10, 2011, [Appellant] filed a
petition for allowance of appeal with the Supreme Court,
which was denied on June 7, 2011.
On June 20, 2011, [Appellant] filed a pro se PCRA petition.
On March 4, 2013, appointed counsel for [Appellant] filed
an amended PCRA petition. On July 11, 2013, the PCRA
petition was reassigned [after the original judge retired].
On December 13, 2013, [the PCRA court] formally
dismissed [Appellant’s] petition. On January 7, 2014,
[Appellant] filed a notice of appeal. On that same day [the
trial court] issued a [Pa.R.A.P.] 1925(b) order. On January
28, 2014, [Appellant] filed a statement of [errors
complained of on appeal. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on April 22, 2014.]
Id. at 1-2 (superfluous capitalization omitted).
On appeal, Appellant presents the following issues for our review:
A. Whether the trial court erred in denying [Appellant’s]
PCRA [p]etition where trial counsel was ineffective for
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failing to subpoena and review the medical records of the
complainants where it would have shown that [Appellant]
did not commit serious bodily injury to the complainants?
B. Whether the trial court erred in denying [Appellant’s]
PCRA [p]etition where trial counsel was ineffective for
failing to explain the difference between a bench and jury
trial to [Appellant] and the impact of such a decision and
that [Appellant] was not properly colloquyed on the
issue?
Appellant’s Brief at 5 (proposed answers omitted).
Both of Appellant’s PCRA claims challenge trial counsel’s effectiveness.
Our standard of review is well-settled:
We review an order of the PCRA court to determine whether
the record supports the findings of the PCRA court and
whether its rulings are free from legal error. In order to
obtain relief under the PCRA premised upon a claim that
counsel was ineffective, a petitioner must establish beyond
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. When considering such a claim,
courts presume that counsel was effective, and place upon
the appellant the burden of proving otherwise. Counsel
cannot be found ineffective for failure to assert a baseless
claim. To succeed on a claim that counsel was ineffective,
Appellant must demonstrate that: (1) the claim is of
arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) counsel's
ineffectiveness prejudiced him.
Furthermore:
[t]o demonstrate prejudice, appellant must show
there is a reasonable probability that, but for
counsel's error, the outcome of the proceeding would
have been different. When it is clear the party
asserting an ineffectiveness claim has failed to meet
the prejudice prong of the ineffectiveness test, the
claim may be dismissed on that basis alone, without
a determination of whether the first two prongs have
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been met. Failure to meet any prong of the test will
defeat an ineffectiveness claim. Counsel is not
ineffective for failing to raise meritless claims.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)
(citations and quotations omitted).
In his first issue presented, Appellant claims the PCRA court erred by
denying him relief on his claim that trial counsel was ineffective for failing to
subpoena the medical records of the complainants. Id. at 9-10. He claims
that “[t]he proper admission of the medical records wo[u]ld have shown that
the complainants suffered minor injuries and that the intent to cause serious
injury was not present.” Id. at 10. Thus, he contends that “[t]his failure
caused the court to convict [] Appellant of a more serious crime[,]”
aggravated assault rather than simple assault. Id.
We conclude that Appellant has failed to meet any of the prongs of the
test for counsel ineffectiveness. At trial, the victim testified that Appellant
rode past her on a bicycle and wrenched her pocketbook from her grasp.
N.T., 10/6/2009, at 16-18. “[W]hen [Appellant] tugged, [the Victim] tor[e]
all the ligaments in her finger and [] had to have surgery” wherein doctors
removed a ligament in her wrist, performed a bone graft and inserted a pin
in her finger which remained for six weeks. Id. at 18. Officer Chris Jackson
testified that Appellant attempted to flee when told he was a robbery
suspect; Officer Jackson broke his ankle when both men fell during the
scuffle. Id. at 25. Officer Jackson required an operation to insert a surgical
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pin in his ankle, had to wear a cast and a leg brace, and participated in six
to seven months of rehabilitative therapy. Id. at 26. The Commonwealth
presented the medical records of both the victim and Officer Jackson,
Appellant stipulated to their contents, and the trial court accepted them into
the record. Id. at 30.
Because the complainants’ medical records were entered into
evidence, there is no merit to Appellant’s ineffective assistance of counsel
claim. The Commonwealth produced the medical records for both victims;
defense counsel stipulated to the authenticity and entry of those records into
the certified record. Moreover, there was no reasonable basis to subpoena
medical records when they were already available and entered into evidence
by the Commonwealth. Finally, Appellant cannot show that he was
prejudiced, because the outcome of trial would not have been different. The
complainants’ medical records were already before the trial court. Appellant
does not suggest that there was additional information that would have been
available by subpoena or that trial counsel somehow erred by stipulating to
the admission of the evidence. Hence, Appellant’s first claim fails.
Next, Appellant argues, “trial counsel was ineffective for improperly
explaining the meaning of a bench trial and where a colloquy was not
conducted by the court” and, thus, he “did not make a voluntary and
knowing decision to waive his right to a jury trial.” Appellant’s Brief at 11.
“Appellant claims counsel did not explain that the judge would make the
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rulings on the evidence even though he would hear all the evidence whether
prejudicial or not and sit as the fact finder.” Id. at 12. Appellant also
contends “[t]his was further evident where the trial court did not colloquy []
Appellant on the record as to his right to a jury trial and that he fully
understood the impact of a jury trial on the outcome of trial.”1 Id.
Pursuant to Pennsylvania Rule of Criminal Procedure 620:
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 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.
In Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), our
Supreme Court addressed the issue of counsel ineffectiveness in connection
with the validity of a defendant's jury waiver. In that case, the defendants
executed extensive written jury waiver colloquies but did not request on-
the-record oral colloquies, and the trial court did not conduct such
colloquies. After their direct appeals were unsuccessful, the defendants filed
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1
Appellant waived this aspect of his claim by failing to raise trial court error
on direct appeal. See 42 Pa.C.S.A. § 9544 (“[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding.”)
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PCRA petitions, each alleging his trial counsel was ineffective for failing to
challenge the validity of his jury waiver on the grounds the trial court did not
conduct an oral colloquy pursuant to Pa.R.Crim.P. 620. The PCRA court held
the absence of such colloquies rendered the waivers invalid as a matter of
law and concluded counsel were ineffective. This Court reversed, finding the
defendants failed to demonstrate prejudice. Our Supreme Court accepted
review to address the proper analysis of the prejudice prong of the
ineffectiveness test in the context of the validity of a jury waiver.
The Mallory Court determined:
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.
* * *
A waiver colloquy is a procedural device; it is not a
constitutional end or a constitutional right. Citizens can
waive their fundamental rights in the absence of a colloquy;
indeed, waivers can occur by conduct or by implication.
Moreover, the absence of an on-the-record colloquy
concerning the fundamentals of a trial by jury does not
prove, in an absolute sense, that a defendant failed to
understand the right he waived by proceeding non-jury.
Consider, for example, a criminally-accused lawyer who
waives a jury. Or, consider a career criminal defendant with
previous, first-hand experience with jury trials. Or, imagine
a reasonably intelligent client whose lawyer informed him,
off the record, of the three basics of a jury trial. The record
colloquy contemplated by Pa.R.Crim.P. 620 serves a
salutary prophylactic purpose, as it makes it plain that a
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jury waiver is knowing and voluntary, and it creates a
record in the event of a later, collateral attack upon the
waiver. For the same twin reasons, an on-the-record
colloquy is a useful procedural tool whenever the waiver of
any significant right is at issue, constitutional or otherwise,
e.g., waiver of a trial, waiver of the right to counsel, waiver
of the right to call witnesses, waiver of the right to
cross-examine witnesses, waiver of rules-based speedy trial
time limits, etc. But the colloquy does not share the same
status as the right itself.
The right to a jury trial in criminal cases, unlike the Rule-
based requirement of a waiver colloquy, does implicate
constitutional concerns. If this case involved direct
governmental denial of an explicit request for a jury—if
appellants had demanded a jury and the trial judge said,
“No”—appellants would have a valid claim that they were
denied their constitutional right to trial by jury. But that is
not the claim presented here. Appellants explicitly waived
their rights to a jury, in writing, on the record. Appellants'
shared collateral claim (the [the other appellants] have an
added burden concerning appellate counsel which we will
address below) is that, notwithstanding their explicit written
waiver colloquies, which were attested by their lawyers, the
prosecutor and (in two of three cases) the trial judge, those
waivers were the product of the ineffectiveness of their trial
counsel. Specifically, they allege that their lawyers failed to
object when the trial court failed to conduct an on-
the-record oral waiver colloquy to supplement the written
waivers. If they had been so queried in open court, all three
appellants claim, they would have contradicted their written
waivers and demanded a jury. This not uncommon my-
record-waiver-was-my-lawyer's-fault claim is far removed
from the constitutional, structural error that would be at
issue if a timely jury demand was wrongly denied.
Mallory, 941 A.2d at 696–697 (citations, quotations, brackets and ellipsis
omitted).
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The Mallory Court also stressed the importance of recognizing the
distinct analysis required when a jury waiver colloquy claim is litigated
through the guise of counsel ineffectiveness:
Recognizing that the claim here involves a collateral attack
focusing upon the Sixth Amendment right to counsel, and
that the collateral attack only indirectly implicates the
distinct constitutional right to a jury trial and the Rule-based
right to an oral waiver colloquy, is paramount to its proper
evaluation. Of course, lawyers have an obligation to counsel
their clients in conjunction with the waiver of basic rights,
including the waiver of a jury; but the mere absence of a
record oral waiver colloquy does not automatically prove
that a right was relinquished unknowingly or involuntarily
and that the trial lawyer was ineffective for causing the
waiver. When a presumptively-valid 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.
Id. at 698 (internal citations and quotation omitted).
The Mallory Court adopted the totality of the circumstances approach:
[A]bsence of an oral colloquy alone does not prove that a
jury waiver was in fact unknowing or involuntary; rather,
the PCRA court must look to the totality of the
circumstances ... including the discussions between the
lawyers and their clients regarding the jury waiver.... The
analysis regarding the underlying merits of appellants'
ineffectiveness challenge must be more precise and must
account for all relevant circumstances surrounding the
waiver.
Id. at 704.
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Here, the record belies Appellant’s claim that counsel did not explain
Appellant’s jury trial rights prior to his waiver. The certified record contains
a written jury trial waiver colloquy executed on October 6, 2009. Prior to
trial, the trial court identified the written colloquy and asked Appellant “did
your lawyer explain this form to you?” N.T., 10/6/2009, at 14. Appellant
responded “yes.” Id. The trial court also confirmed Appellant: (1) was 48
years old at the time; (2) completed 11th grade; (3) could read, write and
understand English, and; (4) did not suffer from mental deficiencies. Id.
Moreover, the written colloquy form set forth Appellant’s constitutional right
to a jury trial. Appellant stated on the record that counsel had explained the
form to him and that he understood his rights. Appellant then waived those
rights and proceeded to a bench trial. Based upon the totality of
circumstances, there is no merit to Appellant’s ineffective assistance of
counsel claim for failing to explain Appellant’s right to a jury trial. Thus,
Appellant’s second claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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