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Commonwealth v. Fitzgerald

August 5, 2009

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
KENYA FITZGERALD APPELLANT



Appeal from the PCRA Order August 26, 2008 In the Court of Common Pleas of Allegheny County, Criminal No. CP-02-CR-0015800-2002.

The opinion of the court was delivered by: Kelly, J.

BEFORE: DONOHUE, CLELAND and KELLY, JJ.

OPINION

¶ 1 Appellant, Kenya Fitzgerald, appeals from the order denying his petition under the Post Conviction Relief Act (PCRA)*fn1 entered in the Court of Common Pleas of Allegheny County. This case challenges the effectiveness of trial counsel for failing to object to the waiver of the presence of the trial judge and a stenographer at voir dire. We affirm.

¶ 2 Appellant's conviction of first degree murder*fn2 and related offenses arose out of the shooting death of Allahtune Shelton. Before the trial commenced, Appellant and his trial counsel signed a waiver in which he waived his rights to have: (1) the judge present during voir dire; and (2) the voir dire proceedings recorded. (See Appellant's Brief, at 12).*fn3 The trial court sentenced Appellant to life imprisonment without the possibility of parole.

¶ 3 Appellant filed a timely direct appeal raising four issues for review, two of which are relevant to the instant appeal:

1) his constitutional rights were violated because there was neither a judge nor a court reporter present during jury selection; 2) his trial counsel ineffectively failed to object to the selection of a jury without a judge and court reporter Commonwealth v. Fitzgerald, 877 A.2d 1273 (Pa. Super. 2005), appeal denied, 891 A.2d 730 (Pa. 2005), cert. denied, 549 U.S. 833 (2006). This Court affirmed the judgment of sentence and dismissed Appellant's first two claims without prejudice because, under Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), "[a]s a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Fitzgerald, supra at 1274 (quoting Grant, supra at 739).

¶ 4 Appellant filed a timely petition for allowance of appeal to our Supreme Court; this petition was denied. Appellant's petition for writ of certiorari with the United States Supreme Court was deniedon October 2, 2006.

Thereafter, on September 7, 2007, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel for Appellant and an amended PCRA petition was filed on June 19, 2008. On August 26th, after issuing a notice of intention to dismiss, the PCRA court issued a final order dismissing the petition; Appellant subsequently filed a notice of appeal on September 16th. The PCRA court ordered Appellant to file a concise statement of errors, which he did on October 8th.

¶ 5 In the instant appeal, Appellant presents one issue for our review:

Whether trial counsel gave ineffective assistance for failing to object and demand that an on-the-record colloquy occur as to [his] waiver of his right to have the trial court and a stenographer at the voir dire of the jury? (Appellant's Brief, at 4). Specifically, he argues: (1) the waiver he signed was legally insufficient; (2) trial counsel had no reasonable basis for failing to request an on-the-record colloquy; (3) a post-conviction hearing was required for the court to determine whether counsel had a reasonable basis for his inaction; and (4) he was prejudiced because (a) he would not have waived his rights if an on-the-record colloquy was conducted; and (b) the error was a structural defect.

¶ 6 To obtain PCRA relief: the appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the following statutorily enumerated factors:

(ii) 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....

Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007) (quoting 42 Pa.C.S.A. ยง 9543(a)(2)). Our standard of review in assessing a PCRA appeal or ...


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