Appeal from the Memorandum Opinion and Order of the Superior Court at No. 2980 EDA 2009, dated July 20, 2010, affirming the PCRA Order of the Bucks County Court of Common Pleas at No. CP-09-CR-0007762-2005, dated September 21, 2009
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
SUBMITTED: October 26, 2011
The question presented here is whether a criminal defendant's right to be present in the courtroom at every critical stage of his or her trial, including during the impaneling of a jury, categorically mandates the defendant's personal ability to hear each venireperson who is questioned at sidebar during voir dire proceedings conducted by the court, his counsel, and the prosecuting attorney as to substantive issues. We conclude that it does not based upon the principle that a defendant's right to be present in the courtroom at every stage of his or her trial is not absolute, and that under certain circumstances, including where the defendant is physically present in the courtroom and is represented by counsel, the right to be present at every stage of trial is vindicated without the defendant's being personally able to hear the questioning of each venireperson at sidebar. Because Appellant Christian Hunsberger was physically present in the courtroom during sidebar voir dire proceedings, was represented by counsel, and interacted with counsel during these proceedings, his claim that counsel was ineffective for failing to advise him that he had a right to be present at sidebar is without arguable merit. Accordingly, we affirm the order of the Superior Court denying relief.
On October 14, 2005, following an argument over noise coming from Carlucci's Tomato Bistro, a restaurant/bar in Bucks County, Appellant fired two shots from his handgun at the proprietor of the establishment, Carlo Corsino, Jr. Both shots were fired at close range, with one hitting Mr. Corsino in the abdomen and the other going past his head. After the shooting, which took place on Appellant's property, Mr. Corsino managed to cross the street and enter his restaurant/bar, where he waited for police and medical personnel to arrive. Appellant returned to his house, where state police soon arrested him and transported him to police barracks. Mr. Corsino's abdominal injuries were life-threatening and required multiple surgeries.
At trial in May 2006, Appellant did not deny that he had shot Mr. Corsino, but, relying primarily on his own testimony, claimed that he had acted in self-defense. The jury found Appellant guilty of aggravated assault by causing serious bodily injury, by causing bodily injury with a deadly weapon, and by attempting to cause bodily injury with a deadly weapon; simple assault by causing bodily injury and by attempting to cause bodily injury; and recklessly endangering another person;*fn1 however, the jury acquitted Appellant of attempted murder; aggravated assault by attempting to cause serious bodily injury; and possession of an instrument of crime.*fn2 On July 18, 2006, Appellant was sentenced to serve not less than five nor more than ten years in prison, and to pay restitution in the amount of $119,946.49. On direct appeal, the Superior Court affirmed his judgment of sentence. Commonwealth v. Hunsberger, 932 A.2d 254 (Pa.Super. 2007) (Table), petition for allowance of appeal denied, 946 A.2d 685 (Pa. 2008) (Table).
Subsequently, Appellant filed a petition for collateral relief pursuant to the Post-Conviction Relief Act ("PCRA"),*fn3 raising ten claims of trial counsel ineffectiveness. Following an evidentiary hearing, the PCRA court, which was the same as the trial court, denied the petition, finding that all of Appellant's claims lacked merit. Appellant appealed to the Superior Court, which affirmed the order of the PCRA court in a memorandum opinion. Commonwealth v. Hunsberger, 6 A.3d 567 (Pa.Super. 2010) (Table). Appellant then sought allowance of appeal to this Court, which we granted as to one claim, to wit, whether Appellant's constitutional and procedural rights were violated by his exclusion from a portion of voir dire during which the court and counsel substantively questioned several individual venirepersons at sidebar. Commonwealth v. Hunsberger, 21 A.3d 679 (Pa. 2011) (per curiam).
Our review of the entire voir dire proceedings reveals the following. The approximately sixty venirepersons were first asked to fill out a questionnaire. They then were questioned as a group in open court by the trial judge concerning any hardship or disability that might preclude jury service and concerning their ability to refrain from assigning determinative credibility to the testimony of a police officer over that of another witness merely because of the fact that the individual is a police officer. Notes of Testimony ("N.T.") Voir Dire, 5/8/06, at 3-10. At that point, the proceedings moved to sidebar with the judge, the prosecutor, defense counsel, and the court reporter all present for individual questioning of some of the venirepersons regarding answers they had given in their questionaires. Id. at 14-34. Although Appellant remained in the courtroom, he could not hear the proceedings at sidebar, which were conducted approximately 15 feet from where he sat. PCRA Court Opinion, dated 12/10/09, at 11. During the sidebar questioning, Appellant did communicate with his counsel and told him that he knew one of the venirepersons. N.T. Voir Dire at 13, 34.
Sixteen persons in the jury pool were individually questioned at sidebar, each person being asked only one or two questions. Among the types of inquiries were whether the prospective juror had a physical or psychological disability or used medication that affected the ability to concentrate, id. at 15, 19, 21; had been a victim of a crime, id. at 16-17, 26, 29; had been an eyewitness to a crime, id. at 21-22; had been charged with a crime, id. at 28, 29, 30-31; was more or less likely to believe the testimony of a police officer, id. at 18-19, 23-24, 32-33; believed that an innocent defendant should testify at trial, id. at 19-20; understood the concept that a defendant is innocent until proven guilty beyond a reasonable doubt, id. at 22; and could be fair and impartial, id. at 24-25, 25-27.
When the questioning at sidebar was completed, the jury selection process resumed in open court, and the prosecutor and defense counsel asked some additional questions of the jury pool as a group. The prosecutor related to the jury pool the allegation in the case, i.e., that the defendant had shot the victim following a neighborhood argument over noise from the victim's restaurant; the prosecutor then asked whether, in light of this allegation, anyone in the jury pool could not be fair and impartial. Id. at 36. The prosecutor also asked whether anyone had read any press accounts of the case; whether anyone knew him, the victim, or the witnesses who would be called at trial; whether anyone owned a firearm; whether anyone had ever been shot; and whether anyone had had a negative experience with law enforcement or the district attorney's office. Id. at 39-42. Defense counsel then questioned the jury pool as to whether anyone had had any contact with him or his law firm; whether anyone knew Appellant, his wife, or the defense's expert witness; and whether anyone, or someone he or she was close to, had worked in law enforcement or the criminal justice system. Id. at 42-54.
Appellant took notes during jury selection in order to share information with his counsel about the prospective jurors. N.T. PCRA Hearing, 7/10/09, at 173-74. Appellant acknowledges that he and his counsel discussed which venirepersons to strike, that they worked together to pick the jury, and that Appellant had input into each strike. Id. at 176-77. At the end of this process, twelve jurors, only one of whom had been questioned individually at side bar, and two alternates were chosen to serve. At no time during the proceedings did defense counsel or Appellant object to any aspect of voir dire.
After his convictions, Appellant appealed his judgment of sentence to the Superior Court, alleging, inter alia, that the trial court had erred by excluding Appellant from the questioning of individual venirepersons at sidebar, in violation of his right to participate fully in jury selection. The Superior Court declined to grant relief, holding that the claim was waived because the certified record did not contain a transcript of the jury selection proceedings, and thus the court could not assess or review the claim.
In Appellant's PCRA petition, he raised the matter again, specifically alleging that his trial counsel was ineffective for failing to advise him of his right to participate in all aspects of jury selection, including the individual questioning at sidebar, in violation of the United States Constitution, the Pennsylvania Constitution, and Pennsylvania Rule of Criminal Procedure 602. The PCRA court denied relief, noting that the manner in which voir dire is conducted rests within the discretion of the trial court and that "the defendant's presence [is] not required during the questioning of [a] juror when[, as here, the defendant is] represented by counsel;" and concluding that Appellant had not established prejudice. PCRA Court Opinion at 10-12. Appellant appealed the PCRA court's order to the Superior Court, which also denied relief. The Superior Court held that Pennsylvania does not ...