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06/20/97 COMMONWEALTH PENNSYLVANIA VS LORI LASSITER

June 20, 1997

COMMONWEALTH OF PENNSYLVANIA VS LORI LASSITER, APPELLANT


Appeal from the Post Conv Relief Act June 25, 1996 in the Court of Common Pleas, Criminal Division, Philadelphia County, November Term, 1988 at No. 2156-2161. Before BRINKLEY, J.

Before: Cirillo, P.j.e., and Johnson and Hudock, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED June 20, 1997

Lori Lassiter appeals from an order of the Court of Common Pleas of Philadelphia County denying her petition filed under the Post Conviction Relief Act . 42 Pa.C.S.A. § 9541 et seq. We affirm.

William "Ricky" Carter owed money to Lori Lassiter. In order to pay the debt, Carter and Lassiter conspired to rob a cab driver. During the course of the robbery, the cab driver was shot and killed.

The prosecution agreed to refrain from seeking the death penalty in Lassiter's case if she agreed to waive her right to a jury trial. Lassiter agreed. Following a non-jury trial, Lassiter was convicted of second-degree murder, criminal conspiracy, robbery and possession of an instrument of crime. The court sentenced Lassiter to life imprisonment for second-degree murder, with concurrent terms of imprisonment of five to ten years for criminal conspiracy and two and one-half to five years for possession of an instrument of crime.

Lassiter filed a pro se petition for relief under the Post Conviction Relief Act. 42 Pa.C.S.A. § 9541 et seq. Thereafter, court-appointed counsel amended the petition. The petition was denied and Lassiter appealed to this court. On appeal, Lassiter raises two issues for our review:

1. Was trial counsel ineffective for failing to insure a proper waiver of jury trial colloquy because he allowed the Commonwealth to coerce a waiver of appellant's right to trial by jury by threatening her with the death penalty should she insist on a jury trial, but foregoing the death penalty should she proceed on a waiver?

2. Was trial counsel ineffective for failing to realize that appellant was not death eligible and that the Commonwealth lacked any aggravating circumstance in this case and, accordingly, the waiver of the jury trial right was predicated upon an erroneous assumption and could never be found to be intelligent?

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court's findings were supported by the record and whether the court's order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa. Super. 294, 647 A.2d 915 (1994). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client's interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The same showing of prejudice must be made by an appellant whether on direct appeal from a judgment of sentence or on appeal from denial of PCRA relief. Commonwealth v. Kimball, 453 Pa. Super. 193, 683 A.2d 666 (1996) (en banc).

Underlying both issues on appeal is whether Lassiter could legally be sentenced to the death penalty. Lassiter first contends that waiver of her right to a jury trial is not voluntary when motivated by avoidance of the death penalty. This argument has been considered and rejected by the Pennsylvania Supreme Court. See Commonwealth v. Bhillips, 475 Pa. 427, 380 A.2d 1210 (1977), cert. denied, 439 U.S. 1067, 59 L. Ed. 2d 32, 99 S. Ct. 832 (1979).

In Bhillips, the defendant argued that the waiver of his right to a jury trial was coerced because of the fear of a possible death penalty. The Pennsylvania Supreme Court disagreed, stating that this allegation was insufficient to establish that the waiver was unknowing or involuntary. Id. at , 380 A.2d at 1213. The Bhillips Court relied upon the United States Supreme Court's decisions in Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 ...


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