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COMMONWEALTH PENNSYLVANIA v. RICHARD BRANDT (02/24/86)

submitted: February 24, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RICHARD BRANDT, APPELLANT



Appeal from the PCHA of November 1, 1985 in the Court of Common Pleas of Allegheny County, Criminal No. 008102721A

COUNSEL

Paul R. Gettleman, Zelienople, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Olszewski, Hoffman and Roberts, JJ.

Author: Olszewski

[ 353 Pa. Super. Page 251]

Appellant challenges the decision of the PCHA court denying his petition in which he alleged ineffective assistance of counsel. The basis for the claim concerned trial counsel's failure to object to voir dire in chambers rather than in open court and trial counsel's error in not preserving this claim for appeal by raising it in post-verdict motions.

Our decision today affirming the PCHA ruling in no way undermines the importance of an open trial, including a jury voir dire in open court as enunciated in Commonwealth v. Johnson, 309 Pa. Super. 367, 455 A.2d 654 (1982). The right to a public voir dire, however, is not the issue. Rather, we are called upon decide only if counsel's actions taken in connection with the in-chambers questioning of potential jurors satisfies the applicable laws.

[ 353 Pa. Super. Page 252]

The procedural timetable involved is of great importance. After being arrested on May 11, 1981, appellant filed pretrial motions. Trial began on January 7, 1982 but ended in a mistrial on January 18, 1982 when the presiding judge was hospitalized. June 29, 1982 saw the beginning of appellant's second trial. At this time, thirty-five potential jurors were seated in the courtroom, leaving a small amount of open space. The jurors were interviewed individually in the judge's chambers, as was the practice at this time. See, Commonwealth v. Knight, 469 Pa. 57, n. 11, 364 A.2d 902, n. 11 (1976). No objection by trial counsel was made. This jury found appellant guilty on July 9, 1982. Post-verdict motions, filed July 16, 1982 with specific reasons filed December 2, 1982, were denied February 3, 1983. Appellant was sentenced several days later and timely filed a notice of appeal. This court affirmed sentence without an opinion. A Post-Conviction Hearing Act petition was filed December 12, 1984 and denied November 1, 1985. The issue of open voir dire was first raised in the PCHA petition.

On December 12, 1982, after appellant's trial but during the pendency of his appeal, the Pennsylvania Superior Court handed down the decision in Commonwealth v. Johnson, 309 Pa. Super. 367, 455 A.2d 654 (1982), which held that the selection of jury is part of trial for purposes of a criminal defendant's constitutional right to public trial; therefore, a defendant's right to a public trial includes the right to have the jury that is to try him selected in public. The case was remanded for new trial. On the same day that appellant's PCHA petition was denied, the Superior Court decided two cases, Commonwealth v. Johnson, 347 Pa. Super. 93, 500 A.2d 173 (1985); and Commonwealth v. Smith, 346 Pa. Super. 484, 499 A.2d 1104 (1985), holding that the right to open voir dire would not have retroactive effect. It is within this time frame that we assess appellant's claim concerning counsel's actions.

[ 353 Pa. Super. Page 253]

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Washington Page 253} v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant's interests. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa. Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes effective counsel and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Appellant's first issue in which he argues that trial counsel was ineffective for not protecting appellant's right to a public voir dire was raised and decided in Commonwealth v. Smith, supra. Following the opinion in Smith, we note that the accepted and usual method of selecting a jury at the time was the manner adhered to in this case.*fn1 In addition, appellant failed to show in this case that public voir dire would have offered a potential for success greater than the selection process actually utilized or that he was prejudiced in any way because his trial counsel failed to request an alternate procedure. "A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered ...


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