Commonwealth v. Brown, J-S17023-15

COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM BROWN, Appellant

J-S17023-15

No. 801 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 24, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order April 14, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0004266-2005, CP-02-CR-0013412-2003, CP-02-CR-0015665-2003

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,^* JJ.

MEMORANDUM BY SHOGAN, J.:

Appellant, William Brown, appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ We affirm.

Having waived his right to a jury trial on March 31, 2009, Appellant was tried in a nonjury proceeding from April 7, 2009, to April 16, 2009, on charges filed under three informations. At No. CC 200313412, filed October 27, 2003, Appellant was charged with one count of criminal homicide and two counts of murder of an unborn child in connection with the deaths of Tiffany Griffin and her unborn twins. The Commonwealth gave notice of its intention to seek the death penalty in this case. At No. CC 200315665, filedJanuary 6, 2004, Appellant was charged with one count each of criminal attempt (homicide), aggravated assault, and burglary, relative to the assault upon Carmen Griffin, Tiffany's mother, which occurred at the same time as the incident involving Tiffany Griffin. Prior to trial, Carmen Griffin died as a result of her injuries. As a result, the trial court granted the Commonwealth's motion to withdraw the attempt and aggravated assault charges at this information. Appellant was thereafter charged with the homicide of Carmen Griffin by information No. CC 200504266, filed April 8, 2005.

At the close of trial, Appellant was convicted of one count of first-degree murder in the death of Tiffany Griffin, two counts of first-degree murder for the deaths of her unborn children, and one count of third-degree murder in the death of Carmen Griffin. Appellant was adjudged not guilty of burglary.

Appellant was sentenced on May 28, 2009, to three consecutive terms of life imprisonment for the deaths of Tiffany Griffin and her unborn twins and a consecutive term of twenty to forty years of imprisonment for the third-degree-murder conviction. Although the Commonwealth had originally sought the death penalty, the trial court found that the mitigating circumstances were not outweighed by the aggravating circumstances.

Appellant filed a direct appeal and this Court affirmed the judgment of sentence. Commonwealth v. Brown, 1021 WDA 2009, 31 A.3d 746 (Pa. Super. filed June 16, 2011) (unpublished memorandum). Appellant filed atimely petition for allowance of appeal, which was denied on October 25, 2011. Commonwealth v. Brown, 358 WAL 2011, 31 A.3d 290 (Pa. 2011).

On July 13, 2012, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition. On February 10, 2014, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, advising Appellant that he could file a response to the notice within thirty days.² On April 14, 2014, the PCRA court issued a final order dismissing Appellant's amended petition.³

On April 17, 2014, counsel filed an untimely reply to the PCRA court's Rule 907 notice. The reply submitted for the PCRA court's consideration included additional issues Appellant sought to add in an amended petition. The PCRA court had already issued its final order, and the issues raised in Appellant's reply were not considered by the PCRA court. Appellant filed a motion to reconsider on May 5, 2014, requesting that the PCRA court consider and address the issues presented in his reply. The PCRA court allowed the motion for reconsideration to go unaddressed. Appellant filed a notice of appeal on May 16, 2014.

Appellant presents the following issues for our review:

I. Whether the lower court accepting [Appellant's] jury waiver, knowing that [Appellant] was conceded to be of "borderline intellectual functioning," was a violation of [Appellant's] constitutional right to a jury guaranteed by both federal and state constitutions?

II. Whether [Appellant's] Amended PCRA Petition raised a genuine issue of material fact to warrant a post-conviction hearing under Rule of Criminal Procedure 908?

III. Whether, in light of Rule of Criminal Procedure 905's liberal-amendment policy to post-conviction claims, the lower court abused its discretion when it denied [Appellant's] leave to amend his Amended PCRA Petition?

Appellant's Brief at 7.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

Appellant first argues that the PCRA court erred in permitting Appellant to waive his right to a jury trial. Appellant's Brief at 19. Appellant cites to the language in Pa.R.Crim.P. 620 which requires that, before a jury trial may be waived, the judge of the court in which the case is pending must approve such waiver. Id. Appellant contends that the trial court failed to take intoaccount Appellant's borderline intellectual functioning in permitting Appellant to waive his right to a jury trial. Id. at 20. Appellant asserts that because the trial court failed to safeguard Appellant's right, Appellant's state and federal constitutional rights have been violated, and accordingly, Appellant is entitled to relief under the PCRA. Id.

We first note that this claim is waived for failure to raise it on direct appeal. In order to be eligible for relief under the PCRA, the error asserted must not have been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). The PCRA provides that issues are waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(B); Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007). Thus, because Appellant could have raised this issue on direct appeal but failed to do so, we conclude that this issue is waived.

Furthermore, had this issue not been waived, it provides Appellant no basis for relief. Rule 620 of the Pennsylvania Rules of Criminal Procedure addresses a defendant's right to waive a jury trial and provides as follows:

In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant's attorney as a witness.

Pa.R.Crim.P. 620.

In addressing waivers of jury trials, our Supreme Court has explained the following:

[C]riminal defendants have a constitutionally guaranteed right to a trial by jury. In all cases, a defendant may waive a jury trial with approval by a judge of the court in which the case is pending. To be valid, it is well settled that a jury waiver must be knowing and voluntary, and the accused must be aware of the essential ingredients inherent to a jury trial. [. . .] the three ingredients are: 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) (internal citations omitted). Furthermore, "it is the defendant's burden, and not the Commonwealth's, to establish that a jury waiver is invalid." Id. at 788.

On March 31, 2009, the trial court conducted a lengthy and thorough oral colloquy of Appellant regarding his waiver of a jury trial. N.T., 3/31/09, at 5-29. The trial court made the accused aware of the essential ingredients inherent to a jury trial. Id. Throughout the proceeding, the trial court judge and Appellant communicated with each other, and the transcript reveals that Appellant appropriately responded to the various questions, indicating his understanding of the trial court judge's statements. Id. The trial court also indicated that it would incorporate the written colloquy into the record. Id. at 31. Appellant's counsel stated, and Appellant confirmed, that counsel had read the written colloquy to Appellant and that Appellant had initialed the statements. Id.

The written colloquy consisted of fifty-six questions that Appellant answered individually by hand-writing "yes" or "no" to each. Waiver of jury trial and explanation of Defendant's rights, 3/30/09, at 1-8. Specifically, paragraph forty-five stated: "Your waiver must be voluntarily, knowingly, and intelligently waived. Do you fully understand this?" Id. at 7. Appellant answered with a hand-written "yes." Id. As previously noted, during the oral colloquy, counsel confirmed that he had read the written colloquy to Appellant and that Appellant understood and completed the written colloquy. N.T., 3/31/09, at 31. Appellant did not dispute this statement at the oral colloquy before the court.

Additionally, of relevance is the fact that a hearing on Appellant's motion to bar imposition of the death penalty was held on July 23, 2007. N.T., 7/23/07. The subject of that hearing was Appellant's level of intellectual functioning and whether he had mental retardation, and therefore was not eligible for the death penalty. Id. Several experts testified. Id. Following the hearing, the trial court issued...