Com. v. King, C.

J-A16043-21

                                   

  COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
  COLIN FRANK KING                              :
                                                :
                       Appellant                :    No. 34 MDA 2021

          Appeal from the PCRA Order Entered December 9, 2020
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0000723-2018


BEFORE:      KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED: August 13, 2021

       Appellant, Colin Frank King, appeals from the order entered in the Court

of Common Pleas of Schuylkill County dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, after an evidentiary hearing.            Herein, he contends the PCRA court

erroneously deemed meritless his ineffective assistance of trial counsel claims

assailing counsel’s advisement to elect a non-jury trial and decision against

appealing the denial of his motion to suppress. After careful consideration,

we affirm.

       On March 23, 2018, at approximately 1:45 p.m., Appellant was traveling

alone in a motor vehicle on Pennsylvania State Route 309 in the Borough of

Tamaqua when police clocked his speed of travel at 63.6 miles per hour in an

area with a posted speed limit of 45 miles per hour. N.T. 2/7/19, at 3-5, 7.
____________________________________________


* Former Justice specially assigned to the Superior Court.
J-A16043-21



Patrolman Richard Bekesy of the Tamaqua Police Department pursued

Appellant and activated the overhead lights to his patrol car, prompting

Appellant to drive onto the berm of the highway and stop his vehicle in front

of a driveway providing access to an automobile dealership. N.T. at 8-9.

      During the police/citizen encounter that followed, Officer Bekesy asked

for Appellant’s driver’s license, but Appellant produced a Pennsylvania ID card,

instead, and told Officer Bekesy that his license was not suspended and that

he was presently working with PennDOT to correct that. N.T. at 8. Officer

Bekesy performed a computer check of Appellant’s driver’s license and

discovered it was, in fact, suspended. The officer therefore called for backup

and, in the meantime, prepared two citations for speeding and driving with a

suspended license, respectively.     Tamaqua Police Officer Anthony Stanell

arrived shortly thereafter. N.T. at 9-10.

      Officer Bekesy advised Appellant of the two citations he was receiving

and asked him if he had a AAA or similar membership that provided towing

service, as Appellant was no longer permitted to operate the vehicle and the

officers could not drive the vehicle onto a private commercial lot for civil

liability reasons.   Appellant answered that his mother owned the vehicle and

had AAA coverage, but Officer Bekesy was unable to reach her at the number

provided by Appellant. Because Appellant and his mother were Philadelphia

residents, and he was unable to identify any other persons who could arrive

at the scene within 10 minutes and move the vehicle on Appellant’s behalf,

Officer Bekesy arranged to have the vehicle towed.

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J-A16043-21



       The officers told Appellant they were required to perform an inventory

search of the vehicle in preparation for the tow, to which Appellant nervously

responded that the officer did not need to take an inventory. N.T. at 13. The

search disclosed a marijuana grinder placed atop the center console, N.T. at

17-18, and a loaded .40 caliber pistol inside the center console. N.T. at 13-

14. Upon Officer Bekesy’s announcement of his discovery of the loaded gun,

Officer Stanell drew his pistol and ordered Appellant to place his arms behind

his head and drop to his knees. A Terry frisk of Appellant uncovered a small

bag of marijuana in Appellant’s front pants pocket, and Appellant was placed

under arrest. N.T. at 19.

       Appellant was charged with possession of a firearm by a person not to

possess,1 possession of a firearm without a license,2 possession of drug

paraphernalia,3 possession of a small amount of marijuana,4 driving while

operating privileges are suspended or revoked,5 carrying a loaded weapon in

a vehicle,6 and speeding.7 On February 7, 2019, Appellant was convicted on

all charges after a non-jury trial, and he was sentenced on March 25, 2019,

to an aggregate term of not less than four nor more than eight years of

incarceration, plus an additional two years’ probation.

____________________________________________


1 18 Pa.C.S. § 6105(a.1).
2 18 Pa.C.S. § 6106(a)(1).
3 18 Pa.C.S. § 3113(a)(32).
4 35 P.S. § 780-113(a)(31)(i).
5 75 Pa.C.S. § 1543(a).
6 18 Pa.C.S. § 6106.1(a).
7 75 Pa.C.S. § 3362(a)(3).


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      On direct appeal, this Court affirmed judgment of sentence after

dismissing as meritless Appellant’s challenges to the sufficiency of the

evidence offered to support his firearms convictions. See Commonwealth

v. King, 496 MDA 2019 (Pa. Super., Feb. 12, 2020) (unpublished

memorandum decision).       Appellant did not file a Petition for Allowance of

Appeal with the Pennsylvania Supreme Court.

      On July 20, 2020, Appellant filed a timely first PCRA petition alleging

ineffective assistance of counsel and improper obstruction of government

officials with his right to appeal. With respect to the ineffectiveness claims

raised, Appellant alleged that trial counsel had improperly advised him to

pursue a bench trial rather than a jury trial because he would likely not receive

a fair jury trial in Schuylkill County, as there may be some among its

predominantly white jury pool who secretly harbor prejudiced attitudes

against African Americans but would not admit this during voir dire. Appellant

also asserted that counsel ineffectively failed to take an appeal from the

court’s order denying his motion to suppress all evidence obtained from the

warrantless search of his vehicle.

      At the PCRA evidentiary hearing of September 21, 2020, trial counsel

disputed Appellant’s characterization of his advice.       Specifically, counsel

testified that in his 31 years as a practicing attorney in Schuylkill County,

serving as a public defender for over 20 years and an assistant District

Attorney for two years, he has participated in many criminal trials. He testified

that in his work as a public defender, he discusses ethnicity with his clients of

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J-A16043-21



color and advises them that he “cannot guarantee” what attitudes jurors

possess and whether they will accurately reveal such attitudes during voir

dire, where counsel always asks in a case involving an African American

defendant whether any prospective juror would be unable to serve as a fair

and impartial juror. N.T., 9/21/20, at 19        Counsel, however, denied ever

telling Appellant, or any other client, that they would not receive a fair trial in

Schuylkill County, and he noted that the trial court had addressed this issue

in a pre-trial hearing. Id. at 18-21.

      Specifically, the record of the pre-trial hearing reveals the trial court and

parties discussed this very issue as part of the colloquy necessary to verify

whether Appellant wished to accept the Commonwealth’s latest offer of 3 to 6

years’ incarceration and to advise Appellant of his right to a jury trial.

Appellant claimed that, despite his desire for a trial, he had initially accepted

an initial plea deal of 9 to 23 months’ incarceration—which the trial court later

rejected because it required an amended charge which the court decided did

not fit the facts—only because counsel had advised him that “12 white people

here in Schuylkill County was going to find me guilty just because of the color

of my skin.”    N.T. 12/10/18, at 2.      Counsel denied ever making such a

statement and maintained that he advised Appellant of his right to a jury trial,

N.T. at 3, but Appellant insisted on a bench trial based on counsel’s purported

advice about jury prejudice.

      On this point, a thorough discussion occurred, in which the court advised

Appellant that a Schuylkill County jury could render a fair and evidence-based

                                        -5-
J-A16043-21



verdict, that it would be counsel’s endeavor to secure for him a fair-minded

jury during voir dire, and that he was mischaracterizing counsel’s position on

the lack of guarantees in a trial:

      APPELLANT:         Only thing I’m saying is that I have a ADA
      assisting me. . . . He’s [defense counsel] only trying to send me
      up State. Any time he comes to see me and I open up my mouth
      to something that pertains to me and my case, he shuts me down
      and goes back to what the District Attorney wants. So I have no
      counsel when it comes to me. He’s hellbent on sending me up
      State even though the Commonwealth has [a] lack of evidence.
      They – you know what I mean? He’s looking at –-

      THE COURT:         All right, Mr. King.

      APPELLANT:        -- as a winnable case for me. It ain’t 100
      percent, but it’s not an open, slam dunk case for the district
      Attorney either.

      ...

      THE COURT:         You understand, Mr. King, that you are entitled
      to a jury trial?

      APPELLANT:        I’m entitled. If my attorney tell [sic] me I’m not
      going to have a fair trial here and 12 jurors going to find me guilty
      because of the color of my skin, why would I take 12?

      He ain’t – he’s not disputing what I am saying because he knows
      that’s what he said to me. There’s no way in the world. If my
      lawyer going to tell me I’m going to be a racist – there’s going to
      be a racist trial, why would I pick it? I’d rather go in front of the
      judge.

      THE COURT:         Attorney Burke, do you want to address that?

      MR. BURKE:          Yes, Your Honor.      Through my years of
      experience representing inmates at SCI Mahanoy and SCI
      Frackville, I did inform Mr. King that during the voir dire process
      I do ask the question would they be unable to serve as a fair and
      impartial juror due to his African American heritage.

                                      -6-
J-A16043-21



     What I did tell Mr. King was that I can’t guarantee that the
     response would be an accurate one or [that] you’d get a response
     at all. You can’t determine what – if a juror keeps their mouth
     shut, really, what their – what’s going through their head.

     He’s certainly entitled to a jury trial if he’d like, but I didn’t indicate
     that it was a slam dunk if he went to jury trial. I indicated a
     potential problem if people don’t speak up and speak up what they
     really think.

     THE COURT:       Well, I mean, that could be – I mean, people
     can be prejudiced for a number of reasons.

     MR. BURKE:         Absolutely, Your Honor. And some people are
     quick to raise their hands and others are not. And if a hand isn’t
     raised, I can’t guarantee that 12 people are going to be fair and
     impartial. It’s just – it’s just a danger of the process.

     THE COURT:       Well, you can’t guarantee it, but to say that an
     African American can’t have a –

     MR. BURKE:          I didn’t say that.

     APPELLANT:          You did say that, basically.

     MR. BURKE:         No, Your Honor. I said what it was. . . . If
     someone doesn’t raise their hand and admit to their prejudice, I
     can’t -- I can’t guarantee that they’re all fair and impartial jurors.

     APPELLANT:          Here in Schuylkill County.

     ...

     THE COURT:          That could be for any type of case.

     MR. BURKE:      Absolutely. Or a DUI case or any kind of case,
     Your Honor. You’re right, Your Honor.

     THE COURT:        Well, I mean obviously that was portrayed to
     your client and now he doesn’t feel that he can get a fair trial in
     Schuylkill County.




                                       -7-
J-A16043-21


     MR. BURKE:        Your Honor, that’s a question I have to ask. It’s
     a question that’s asked on a regular basis with regard to that.

     THE COURT:         I understand that, but the way it was conveyed
     to your client and now we have a situation where he doesn’t feel
     he can get a fair trial in Schuylkill County.

     You’re requesting a nonjury trial, Mr. King?

     APPELLANT:         I mean, yes. I mean, from this, my counsel,
     he’s telling me I’m not getting a fair trial here in Schuylkill County.
     And I look at Schuylkill County Prison, there’s no African
     Americans that works there. There’s no African Americans that
     work anywhere in Tamaqua Police Department, none here in the
     courthouse, none in the Probation Office. I mean, by looking at
     that and him telling me that, I have to be like – I’m not from here.
     I’m from Philadelphia, so . . .

     THE COURT:      I understand that, Mr. King. We’ve had many
     African Americans.   We’ve had Mexican and many other
     minorities.

     APPELLANT:         I’m African American. I’m not Mexican.

     THE COURT:         I understand that, but I’m using that as an
     example.

     APPELLANT:        I asked him, I have my right, it’s my right to be
     judged by my peers. He said, yeah, but I won’t. it would be 40
     white people to pick from so I will get 12 and went on about how
     they not going to be. So why would I take a jury trial when he
     already telling me that my chances just because they no – they
     not going to look at the evidence, they not going to look at any
     statement that hasn’t been made or anything like that. They just
     going to say, okay, I can be manipulated, he’s a convicted felon,
     you know what I’m saying, and already leaning towards guilty just
     because I’m black. So I’d rather take a judge.

     THE COURT:         All right, Mr. King, that’s your decision to make.
     Schuylkill County is predominantly a white population. So if the
     majority of jurors, if not maybe all of them, will be white and there
     will not be African American – there may not be on the jury panel.




                                      -8-
J-A16043-21


     APPELLANT:       I thought maybe I could get a jury sequestered
     from a county that do have African American citizens there that
     we can pick from a jury. Because if I’m picking from, I’m not
     being adjuged by my peers.

     THE COURT:        That’s not going to happen because if –

     APPELLANT:       That’s what he said. That’s exactly what he told
     me. So basically I want a judge. I’d rather for a judge to be a
     racist.

     THE COURT:       What I’m saying is that even though they’re not
     African American, jurors can still be fair and – fair and try you
     based on the evidence. And that’s your attorney’s job to make
     sure of that.

     APPELLANT:        I just –

     THE COURT:        He’s basically saying that he can’t guarantee
     that they don’t have prejudices that they don’t disclose when he
     asks questions.

     Your indicating to the court that you understand that, that your
     attorney will represent you and try to get a fair jury. You’re
     indicating you want a trial before –-

     APPELLANT:        Absolutely.

     THE COURT:        -- before a judge?

     APPELLANT:        I want a judge. I mean, he’s basically not
     representing me when the only thing he’s representing and
     putting on the table for me is to go up State. That’s it. The only
     thing he comes over to the jail to give me is a deal to go up State.
     And when I sit there and say I don’t want to take this deal, he
     gets upset and tell me, okay, go.

     When I start to talk about things, about let’s take it to trial, the
     Commonwealth don’t have any fingerprints or DNA or start talking
     about the case, he shuts me down and say, you want to take this
     up State offer or not? Then just go.




                                     -9-
J-A16043-21


      And you, being my attorney, the only thing he’s doing is the
      district attorney’s bid. And he was an ADA he told me once before,
      maybe four years ago.

      THE COURT:           All right.

      APPELLANT:       I’m looking at two ADAs. I got one on my side
      and one on the other side.

      THE COURT:       Mr. King, I think you’re mischaracterizing your
      conversations with Attorney Burke.

N.T., 12/10/18, at 3-10.

      After consideration of issues raised at the PCRA evidentiary hearing, the

PCRA court denied Appellant relief on his petition. In dismissing Appellant’s

claim of ineffective advice on whether to proceed to a jury trial, the PCRA

court reviewed testimony taken at both the evidentiary hearing and the pre-

trial status hearing where the trial court advised Appellant that he could

receive a fair and impartial jury in Schuylkill County. From this record, the

court determined that Appellant received fair advice from both defense

counsel and the trial court regarding the possibilities of hidden prejudice in a

jury, such that Appellant made a knowing and voluntary decision to proceed

with a bench trial.

      On whether counsel ineffectively failed to challenge on direct appeal the

trial court’s order denying the defense motion to suppress all evidence

obtained from the warrantless search of his vehicle prior to towing, the PCRA

court deemed counsel’s decision reasonable in light of pertinent authority that

supported the inventory search in question.      Noting that the Vehicle Code

prohibits a parked car from blocking a private driveway, see 75 Pa.C.S. §


                                        - 10 -
J-A16043-21



3353(a)(2)(i), the PCRA court observed that the officers were required to tow

Appellant’s vehicle and, thus, allowed to check the interior for inventory to

protect themselves against both claims of missing property and potential

dangers lying within the vehicle. See Commonwealth v. Hennigan, 

 (Pa. Super. 2000).

      Appellant files the present timely appeal from the PCRA court’s order

and raises the following two-prong issue for our consideration.

      1. Whether attorney William Burke was ineffective in his
         representation of the Appellant for failing to pursue a jury trial
         as opposed to a bench trial, and whether attorney Burke was
         ineffective in failing to appeal the trial court’s decision not to
         suppress evidence to the Superior Court.

Appellant’s brief, at 5.

      Our standard of review follows:

      [O]ur standard of review from the denial of a PCRA petition is
      limited to examining whether the PCRA court's determination is
      supported by the evidence of record and whether it is free of
      legal error. The PCRA court's credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court's legal
      conclusions.

      Furthermore, to establish a claim of ineffective assistance of
      counsel, a defendant must show, by a preponderance of the
      evidence, 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.        The burden is on the
      defendant to prove all three of the following prongs: (1) the
      underlying claim is of arguable merit; (2) that counsel had no
      reasonable strategic basis for his or her action or inaction; and
      (3) but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings
      would have been different.

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J-A16043-21



      We have explained that a claim has arguable merit where the
      factual averments, if accurate, could establish cause for relief.
      Whether the facts rise to the level of arguable merit is a legal
      determination.

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would
      have chosen that action or inaction, or, the alternative, not
      chosen, offered a significantly greater potential chance of
      success. Counsel's decisions will be considered reasonable if
      they effectuated his client's interests. We do not employ a
      hindsight analysis in comparing trial counsel's actions with other
      efforts he may have taken.

      Prejudice is established if there is a reasonable probability that,
      but for counsel's errors, the result of the proceeding would have
      been different. A reasonable probability is a probability sufficient
      to undermine confidence in the outcome.

      Boilerplate allegations and bald assertions of no reasonable basis
      and/or ensuing prejudice cannot satisfy a petitioner's burden to
      prove that counsel was ineffective. Moreover, a failure to satisfy
      any prong of the ineffectiveness test requires rejection of the
      claim of ineffectiveness.

Commonwealth v. Sandusky, 

 (Pa. Super. 2019)

(citations omitted).

      Counsel cannot be ineffective for failing to pursue a meritless claim.

Commonwealth v. Rykard, 

 (Pa. Super. 2012). While

claims of trial court error may support the arguable merit element of an

ineffectiveness claim, a petitioner must meaningfully discuss each of the three

prongs of the ineffectiveness claim to prove he is entitled to relief.

Commonwealth v. Reyes-Rodriguez, 

 (Pa. Super.

2015).   We presume that counsel has rendered effective assistance.          See

Commonwealth v. Treiber, 

 (Pa. 2015).

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J-A16043-21



      Appellant contends that counsel ineffectively failed to file an appeal from

the court’s order denying his motion to suppress evidence obtained from the

warrantless search of his car.       His claim essentially states police did not

lawfully impound his car where “Officer Bekesy, or another member of the

Tamaqua Police Department, could simply have pulled the Appellant’s vehicle

from its parking spot onto a nearby parking lot and allowed the Appellant to

contact the owner of the vehicle to come and pick it up.” Appellant’s brief, at

11-12.

      Officer Bekesy indicated at the evidentiary hearing, however, that

officers are not permitted to drive another person’s vehicle for reasons of

potential civil liability, and the PCRA court observed that towing the car from

the middle of the car dealership’s entrance was consistent with the Vehicle

Code’s proscription against parking in a manner that blocks a driveway.

Appellant     presents     no   argument     pertaining   to   the   Tamaqua        Police

Department’s impoundment policy in this regard.

      Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment       to   the   United   States    Constitution     protect   citizens    from

unreasonable searches and seizures. Commonwealth v. Richter, 

 (Pa. Super. 2002). Therefore, “[a] warrantless search or seizure

is per se unreasonable unless it falls within a specifically enumerated

exception.”     Commonwealth v. Lee, 

 (Pa. Super. 2009)

(citation omitted). An inventory search is one such exception to the warrant




                                       - 13 -
J-A16043-21



requirement.   See Commonwealth v. Lagenella, 

 (Pa.

2013).
           The purpose of an inventory search is not to uncover
     criminal evidence. Rather, it is designed to safeguard seized items
     in order to benefit both the police and the defendant. Inventory
     searches serve one or more of the following purposes: (1) to
     protect the owner's property while it remains in police custody;
     (2) to protect the police against claims or disputes over lost or
     stolen property; (3) to protect the police from potential danger;
     and (4) to assist the police in determining whether the vehicle was
     stolen and then abandoned.

Commonwealth v. Hennigan, 

 (Pa. Super. 2000)

(emphasis added; citations and quotation marks omitted).

            In determining whether a proper inventory search has
     occurred, the first inquiry is whether the police have lawfully
     impounded the automobile, i.e., have lawful custody of the
     automobile. The authority of the police to impound vehicles
     derives from the police's reasonable community care-taking
     functions. Such functions include removing disabled or damaged
     vehicles from the highway, impounding automobiles which violate
     parking ordinances (thereby jeopardizing public safety and
     efficient traffic flow), and protecting the community's safety.

     The second inquiry is whether the police have conducted a
     reasonable inventory search. An inventory search is reasonable if
     it is conducted pursuant to reasonable standard police procedures
     and in good faith and not for the sole purpose of investigation.

Lagenella, 

 (citation omitted) (concluding evidence did not

support a finding that the vehicle, operated by a defendant with a suspended

license, posed a public safety risk, where the vehicle was not disabled or

damaged, no items of value were in plain view; and the parked vehicle did not

impede the flow of traffic).   But see Commonwealth v. Peak, 

 (filed Mar. 30, 2020) (concluding police had authority to tow


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J-A16043-21



another’s vehicle driven by a defendant with suspended license and conduct

an inventory search, where the vehicle blocked access to a gas pump at a

commercial gas station, thus interfering with the regular course of the gas

station's business).

      In light of this precedent, we conclude the evidence established that

Tamaqua police officers properly impounded and towed Appellant’s vehicle, as

it posed a public safety risk. The vehicle blocked the access road to a car

dealership and neither Appellant nor anyone acting on his behalf was available

to move the car in a timely manner as required under police department

policy.   Notably, Appellant offers no developed argument with citation to

authority taking the opposing position that no public safety risk existed.

      To the extent that Appellant seems to suggest in the alternative that

Officer Bekesy’s search impermissibly preceded the proper impoundment of

the vehicle—again, a claim for which Appellant provides no citation to policy

or authority—we observe that even assuming, arguendo, the accuracy of such

a claim, the evidence in question would have been inevitably discovered

during a lawful inventory search. The inevitable discovery doctrine provides:

      [E]vidence which would have been discovered was sufficiently
      purged of the original illegality to allow admission of the
      evidence....[I]mplicit in this doctrine is the fact that the evidence
      would have been discovered despite the initial illegality.

      If the prosecution can establish by a preponderance of the
      evidence that the illegally obtained evidence ultimately or
      inevitably would have been discovered by lawful means, the
      evidence is admissible. The purpose of the inevitable discovery



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J-A16043-21


       rule is to block setting aside convictions that would have been
       obtained without police misconduct.

Commonwealth v. Bailey, 

 (Pa. Super. 2009).

       Here, because Appellant’s vehicle was parked illegally along State Route

309 in obstruction of an adjacent commercial driveway, and no one was

available to drive it to an appropriate location, impoundment and towing of

the vehicle was required. As such, the firearm in the vehicle would have been

procured pursuant to a lawfully executed inventory search. See 

(“[B]ecause the police conduct routine inventory searches whenever a car is

towed, and an inventory search includes looking into obvious storage places

... the gun would have inevitably been discovered absent police error or

misconduct.”).      See also Commonwealth v. Parker, 

 (Pa.

Super. filed Jan. 27, 2021) (unpublished memorandum applying inevitable

discovery doctrine to hold even if officer's warrantless search were unjustified,

the illegally obtained evidence inevitably would have been discovered by an

inventory search pursuant to a lawful impoundment and towing of the car).8

Therefore, Appellant is entitled to no relief on his challenge asserting that

counsel should have moved to suppress evidence obtained during the

inventory search conducted of his vehicle.

       Appellant’s second claim centers on trial counsel’s advisement that he

could not guarantee an entirely evidence-based verdict free from racial
____________________________________________


8 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).


                                          - 16 -
J-A16043-21



prejudice. In this regard, however, he offers merely bare assertions that “his

chances at acquittal would have been higher at a jury trial,” Appellant’s brief,

at 12, and that “the Commonwealth would have had a more difficult time

convincing a jury of the facts of constructive possession [of the gun hidden in

the center console], than it would have a single judge.” Id. at 13.

      Because Appellant, therefore, fails to develop a meaningful argument

with citation to pertinent decisional law as is his obligation under our

precedent, we find this issue waived.     See Commonwealth v. McGrath,

 (June 28, 2021) (citing to Commonwealth v.

Perez, 

 (Pa. 2014) (the failure to develop an appellate

argument with citations to supporting authorities and the record is waived));

Commonwealth v. Donoughe, 

 (Pa. Super. 2020)

(acknowledging, “It is not the role of this Court to formulate an appellant’s

arguments for him.”). See also Pa.R.A.P. 2119(a) (requiring the argument

to include “such discussion and citation of authorities as are deemed

pertinent.”).

      Even if we were to review Appellant’s claim on the merits, we would

reject it. Initially, we agree with the trial court’s assessment, adopted by the

PCRA court, that Appellant mischaracterized defense counsel’s advisement

regarding the risks associated with opting for a jury trial. Moreover, the PCRA

court observed in this regard that counsel’s advice was offered in the context

of his recommendation that Appellant accept the Commonwealth’s offer of a

negotiated sentence of 3 to 6 years, which, counsel predicted correctly, was

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J-A16043-21



likely to be favorable to a sentence he would receive if he took his case to trial

and was found guilty. Counsel’s advisement about the risks of a jury trial

were, thus, couched in terms of what counsel considered to be the better

option presented with the Commonwealth’s offer, not counsel suggesting the

people of Schuylkill County are incapable of rendering a fair and impartial

verdict.

       Furthermore, as demonstrated in the record discussed supra, Appellant

was properly advised by both the trial court and defense counsel at the pre-

trial status hearing that while there are no guarantees of an impartial jury,

mechanisms such as voir dire and a counsel’s continuing obligation to

advocate for a fair trial on a defendant’s behalf are in place, along with

procedural and other safeguards to ensure a fair trial.

      To accept Appellant’s position would be to denigrate the entire jury trial

process which has numerous safeguards built in to assure fair trials, including

review by appellate courts.     Appellant clearly understood the trial court’s

message on this point, but he elected to stay with his choice of proceeding

with a non-jury trial, a decision made knowingly, voluntarily and intelligently.

Accordingly, Appellant’s second ineffectiveness claim fails.

      For the foregoing reasons, we discern no error with the PCRA order

denying Appellant relief.

      Order affirmed.




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J-A16043-21




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2021




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