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[U] Commonwealth v. Mackie

Superior Court of Pennsylvania

March 3, 2014

ERIC MACKIE, Appellant


Appeal from the PCRA Order Entered February 8, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0000612-2007.




Appellant, Eric Mackie, appeals from the order entered February 8, 2013, denying him relief on his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

The PCRA court summarized the factual and procedural history of this case as follows:

On September 18, 2007, [A]ppellant was found guilty of third degree murder, carrying a firearm without a license, carrying a firearm on the public streets or public property and possessing an instrument of crime (PIC), for the shooting death of Henry Dennis. On November 30, 2007, [A]ppellant was sentenced to an aggregate of 18 ½ to 37 years incarceration. Post sentence motions were denied without a hearing. On October 16, 2009, the Superior Court affirmed the judgment of sentence. Appellant's petition for allowance of appeal to the Pennsylvania Supreme Court was denied on April 8, 2010.
On March 7, 2011, [A]ppellant timely filed a pro se petition for post conviction relief. PCRA counsel was appointed, and on February 14, 2011, filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (1988). On March 12, 2012, following an independent review, the Court notified PCRA counsel that his Finley letter was inadequate in that it provided insufficient analysis of the issues raised in appellant's pro se petition. On April 9, 2012, PCRA counsel filed an amended Finley letter and [A]ppellant's petition was scheduled for formal dismissal on June 15, 2012. However, on May 16, 2012, PCRA counsel filed an amended PCRA petition claiming that [A]ppellant's decision to forgo a jury trial was not knowing[, ] intelligent and voluntary because [A]ppellant, who was subsequently convicted of 3rd degree murder, had been assured that if he waived his right [to a jury trial], the Commonwealth would seek a degree of guilt no higher than voluntary manslaughter. Attached to the amended petition was a letter to trial counsel from investigator Richard Strohm dated September 17, 2007. The letter stated, in pertinent part, that he (Strohm) interviewed [A]ppellant on September 16, 2007 at the prison, and informed him that if he chose a waiver trial the district attorney would not pursue the charge above voluntary manslaughter. On September 24, 2012, [A]ppellant submitted a certification reiterating the information in the letter attached to the petition.

On February 8, 2013, an evidentiary hearing was conducted before the Court.

Trial Court Opinion, 5/17/13, at 1-2 (footnote omitted).

Following the hearing, Appellant's PCRA petition was dismissed. Appellant filed an appeal. Pursuant to court order, Appellant filed a Pa.R.A.P. 1925(b) statement, and the PCRA court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant presents the following issue for our review:

I. Did the trial court err in holding [A]ppellant's waiver of his Federal and State Constitutional rights to a jury trial was knowing and intelligent and voluntary?

Appellant's Brief at 2.

Appellant asserts the following in his brief:

In the case at bar both the written and oral colloquy of the [Appellant] was defective because the [Appellant] believed on advice of counsel's investigator that the prosecutor in the case would agree for no higher than voluntary manslaughter if he waived a jury trial, but that if he, the [Appellant] asserted his right to a jury trial then the prosecutor would argue for a first degree murder verdict.

Appellant's Brief at 6. Appellant maintains that based on this representation, Appellant was induced to waive his right to a jury trial. Id. Such information given by investigator Strohm was incorrect, however, because at trial, the prosecutor argued for third-degree murder instead of the lesser offense of voluntary manslaughter, and Appellant was subsequently convicted of third-degree murder. Id. at 7. Appellant refers to the September 17, 2007 letter from Strohm to trial counsel as proof of such inducement. Id.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. In evaluating a PCRA court's decision, our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa.Super. 2011). "We may affirm a PCRA court's decision on any grounds if it is supported by the record." Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).

Both the United States and Pennsylvania Constitutions guarantee criminal defendants a right to a trial by jury. U.S. Const. amend. VI; Pa. Const. art. I, § 6. Our rules of criminal procedure provide that a defendant may waive a jury trial with approval by a judge of the court in which the case is pending. Pa.R.Crim.P. 620. To be valid, the waiver must be knowing and voluntary, and the defendant must be apprised of the essential elements of a jury trial: "1) that the jury be chosen from members of the community (i.e., a jury of one's peers), 2) that the accused be allowed to participate in the selection of the jury panel, and 3) that the verdict be unanimous." Commonwealth v. Houck, 948 A.2d 780, 787 (Pa. 2008). Notwithstanding the rule's reference to a "colloquy on the record, " the use of a written jury trial waiver form has been deemed sufficient in the absence of an oral jury trial waiver colloquy. Commonwealth v. Mallory, 941 A.2d 686, 696-697 (Pa. 2008). Further, to analyze whether the waiver was knowing, intelligent, and voluntary, we must examine the totality of the circumstances, including conversations between counsel and the defendant. Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011).

To prevail on an ineffective assistance of counsel claim, a petitioner must meet a three-prong test:

Specifically, a petitioner must show: (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's actions or inactions; and (3) counsel's error caused prejudice such that there is a reasonable probability that the result of the proceeding would have been different absent the error.

Commonwealth v. Fink, 24 A.3d 426, 430 (Pa.Super. 2011). Where the waiver of a jury is at issue, the three-prong test is often referred to as a two-prong test, requiring the petitioner show deficient performance by counsel and resulting prejudice. Mallory, 941 A.2d at 699. Further, prejudice, in terms of an allegedly improper jury waiver, means the petitioner must demonstrate, with reasonable probability, that but for counsel's deficient service, he would not have waived the jury. Id. at 704.

The record reflects that Appellant executed a thorough, valid written jury trial waiver colloquy. Waiver of Jury Trial, 9/17/07. In addition to apprising Appellant of the essential elements of a jury trial, the waiver form clearly provided that Appellant was being charged with first-degree murder, as well as listing the additional charges. Id. at ¶ 38. Prior to commencement of trial, the trial judge conducted an on-the-record oral colloquy. N.T., 9/17/07, at 3-10. Thus, Appellant's waiver is presumptively valid.

We must then determine whether there is any merit to Appellant's argument that counsel, and counsel's representative, induced him to unknowingly, unintelligently or involuntarily waive his right to a jury trial. The PCRA court made the following findings of fact based on testimony of the parties produced at the PCRA hearing:

At the hearing, [A]ppellant testified in conformity with his certified statement, namely that Strohm [trial counsel's investigator] visited him in the prison on September 16, 2007, and informed him that trial counsel wanted him to know that if he waived his right to a jury trial, the district attorney would not pursue a charge above voluntary manslaughter. However, if he chose a jury, the district attorney would be seeking a first degree murder conviction. Appellant was aware that counsel was attempting to reach a non-trial disposition and told Strohm that, before he made a decision, he wished to speak with trial counsel. The following day, prior to the beginning of trial, [A]ppellant spoke with counsel and apprised her of his conversation with Strohm. Appellant testified that counsel confirmed that, if he chose a waiver trial instead of a jury, and she did not prevail under the theory of self-defense, based upon the facts and circumstances of his case, the worst he faced was voluntary manslaughter. Appellant further testified that counsel explained what a waiver trial was, that counsel explained the jury waiver forms, and that he read and understood the jury waiver forms before he signed each of them. He acknowledged that the Court explained the rights that he was giving up prior to accepting his decision to waive his right to a jury trial and further explained that he was facing first degree murder and related charges, and the potential penalties for each charge. Appellant also testified that he was aware that he was charged with, and could be found guilty of first degree murder. Appellant also testified that he remembered the district attorney's closing statement where he argued for a third degree murder conviction but [A]ppellant never informed the Court of the alleged promise made by trial counsel. Even after being found guilty, he commented only that the verdict was against the weight of the evidence. Nevertheless, [A]ppellant testified, trial counsel promised him that, if he waived a jury trial and she could not win on a theory of self-defense, he would face no more than voluntary manslaughter upon conviction and, without counsel's promise, he would not have waived his right to a jury. Trial counsel's letter dated September 18, 2007, written after he was convicted, expressing disappointment with the verdict and explaining the difference between the sentencing guideline recommendations for third degree murder and voluntary manslaughter, [A]ppellant claims substantiates his claim that counsel promised that, upon conviction, he faced only voluntary manslaughter. Appellant testified that he did not raise this claim in his pro se PCRA petition because his issue was that his case was actually self-defense, and he had not seen the letter from Strohm until PCRA counsel showed it to him after finding it in the file trial counsel turned over to him.
Trial counsel testified that she made no promises to [A]ppellant that he would face no more than voluntary manslaughter, and did not discuss Strohm's letter with [A]ppellant because she did not know the letter had been sent; she received it after [A]ppellant's trial was over. Counsel further testified she sent Strohm to speak with [A]ppellant to confirm that he was still interested in a waiver trial and let him know that she was continuing to try to negotiate with the district attorney. After receiving the letter, counsel spoke with Strohm, about the misinformation in the September 17, 2007 letter, telling him that he had to be more careful. She took no further action because she had had lengthy discussions with [A]ppellant about the posture of his case, including the morning of trial. During the course of preparing for trial, she had extensive discussions with [A]ppellant regarding the differences between a waiver trial and a jury trial because the Commonwealth refused to make an offer for voluntary manslaughter; that while she was arguing for voluntary manslaughter, the district attorney was arguing for first degree murder. In addition, because [A]ppellant already had a conviction before the Court, counsel discussed with [A]ppellant whether he wanted to waive in front of the same judge. Counsel testified that she went over both the long and short waiver colloquy forms with [A]ppellant prior to the start of trial and he understood them and signed both forms.
Following presentation of the evidence, the Court found trial counsel's testimony credible and [A]ppellant's testimony incredible, stating that there was no basis to support the grant of PCRA relief as [A]ppellant testified and the trial record revealed that [A]ppellant was aware that he was facing a charge of first degree murder, not voluntary manslaughter.

PCRA Court Opinion, 5/17/13, at 2-5.

"A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). "Indeed, where the record supports the PCRA court's credibility determinations, such determinations are binding on a reviewing court." Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011).

The record supports the PCRA court's credibility determinations; thus, we are bound by them. Trial counsel testified that she had many conversations, starting months before trial, with Appellant regarding whether to waive a jury trial. N.T., 2/8/13, at 48, 51. Trial counsel and Appellant discussed the pending first-degree murder charge and the fact that counsel was negotiating with the D.A.'s office for a lesser charge. Id. at 49, 70. Appellant was made aware that the Commonwealth had not agreed to proceed with charges for voluntary manslaughter. Id. at 49-54. Trial counsel did not promise Appellant that he would face no more than voluntary manslaughter. Id. at 54, 58-59, 72. Counsel reviewed the written waiver colloquy with Appellant and Appellant signed it. Id. at 63. Furthermore, counsel did not discuss Strohm's September 17, 2007 letter with Appellant, because she did not receive the letter until after trial. Id. at 70, 73. Counsel testified that after reading Strohm's letter, she did not feel the need to take additional action because she had already had many conversations with Appellant and was confident that he understood the posture of his case. Id. at 73-74.

Applying the totality of the circumstances test in the instant case, we conclude that Appellant's waiver was knowing, voluntary, and intelligent. Thus, Appellant's claim lacks merit.

Moreover, Appellant has not explicitly argued in his brief that, without this alleged "'inducement, " he would have requested a jury trial. Because he has not demonstrated the required element of prejudice, his claim must fail. Mallory, 941 A.2d at 704. Having failed to demonstrate legal prejudice, Appellant has not met the requirements to obtain relief on a claim of ineffective assistance of counsel.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

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