Commonwealth v. Drayton

313 A.3d 954

COMMONWEALTH of Pennsylvania, Appellee

v.Lamarcus Eugene DRAYTON, Appellant

No. 83 MAP 2023

Supreme Court of Pennsylvania.

Submitted: January 1, 2024

Decided: April 25, 2024

Appeal from the order of the Superior Court at No. 229 MDA 2022 entered on January 23, 2023, Affirming the PCRA Order of the Dauphin County Court of Common Pleas at No. CP-22-CR-0002609-2016 entered on January 12, 2022, Richard A. Lewis, Senior Judge.

Ilion Ross Fish, Esq., for Appellant Lamarcus Eugene Drayton.

Francis T. Chardo III, Esq., Ryan Hunter Lysaght, Esq., Dauphin County District Attorney’s Office, for Appellee Commonwealth of Pennsylvania.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

OPINION

JUSTICE McCAFFERY

In this discretionary appeal, we granted review to consider the question of whether trial counsel’s failure to object, when a trial court provides certain written instructions to the jury during deliberations in contravention of Pennsylvania Rule of Criminal Procedure 646,¹ constitutes ineffective assistance of counsel per se such that a PCRA petitioner need not establish prejudice in order to obtain relief. We hold that counsel’s failure to object to a Rule 646 violation is not one of the limited bases establishing ineffectiveness per se. Accordingly, we affirm the decision of the court below.

In October of 2015, M.B., then 13 years old,² confided to a counselor that his uncle, Lamarcus Eugene Drayton (Drayton), had sexually assaulted him on more than one occasion. Drayton was subsequently arrested and charged with two counts of involuntary deviate sexual intercourse (IDSI), and one count each of unlawful contact with a minor, indecent assault, and conniption of minors.³ The case proceeded to a jury trial beginning on May 9, 2018. Drayton was represented by Jonathan Crisp, Esquire.

The Commonwealth presented three witnesses at trial: (1) B.L., M.B.’s paternal grandmother and legal guardian; (2) Linda Sharretts, the counselor to whom M.B. reported the sexual assault allegations; and (3) M.B., who described in detail the sexual abuse he endured from Drayton.

The trial testimony established that B.L. was granted guardianship of M.B. in November of 2013, after she learned M.B. was being physically abused in his mother’s home. In October of 2014, M.B. began meeting with Sharretts, a licensed professional counselor at Diakon Family Life Services, two to three times a month. During a session on October 12, 2015, M.B. disclosed that he had been repeatedly sexually abused by Drayton. As a mandatory reporter, Sharretts reported the allegations to Children and Youth Services that same day.

M.B. testified he had been involved with Children and Youth Services since he was five or six years old. He explained that he moved around quite a bit, and often missed school to babysit his six younger siblings. M.B. detailed the sexual acts Drayton committed against him at several different residences. He stated that the last incident occurred the day before he reported the abuse to Sharretts.

Drayton did not testify in his own defense. However, he presented two witnesses who claimed that in October of 2017, less than a year before trial, M.B. admitted to them that he fabricated the abuse allegations against Drayton to avoid returning to his mother’s home.

Following closing arguments, the trial court charged the jury on the pertinent issues of law. The court stated it would provide a written copy of the "same language that [it] used in the charges to refresh [the jury] on the charges themselves." N.T., 5/9-10/2018, at 223. Later, before the jury retired for the evening, the following exchange occurred on the record:

THE COURT: … Just for the record, before the jury comes in, they did send a note earlier that I discussed with counsel asking for [an exhibit,] and asking for the copy of the instruction on reasonable doubt, which I did send them.

[Trial Counsel]: You said presumption of innocence as well?

THE COURT: Yes.

[Trial Counsel]: Those are the three that I understood.

THE COURT: Correct.

Id. at 228-229.

The next day, the jury returned a verdict of guilty on all charges. The trial court sentenced Drayton to an aggregate term of 10 to 20 years’ imprisonment, followed by five years’ probation.

Drayton filed a direct appeal, asserting that the verdict was against the weight of the evidence, and that the trial court erred when it excluded an alleged prior inconsistent statement by M.B. The Superior Court affirmed the judgment of sentence, and Drayton did not seek allocatur review. See Commonwealth v. Drayton, 227 A.3d 436 (Pa. Super. 2020) (unpub. memo.).

On March 24, 2021, represented by Illion Ross Fish, Esquire (Attorney Fish), Drayton filed a petition pursuant to the Post Conviction Relief Act (PCRA),⁴ asserting trial counsel was ineffective for failing to object when the court sent written instructions to the jury in violation of Rule 646,⁵ and for failing to call three witnesses whom Drayton claimed would have testified Drayton had no opportunity to commit the sexual offenses.⁶ The PCRA court conducted a hearing on August 24, 2021.

At the beginning of the hearing, Attorney Fish informed the PCRA court that he did not "need to take any testimony" on the ineffectiveness claim concerning the written jury instructions. N.T., 8/24/2021, at 6-7. Instead, he indicated the court could rely on his exhibits — which included the portion of the transcript where trial counsel failed to object — and his "legal argument[.]" Id. at 6. Attorney Fish then called the three witnesses in support of Drayton’s second claim before announcing that was "all the live testimony" he intended to present. Id. at 31.

The Commonwealth called trial counsel to explain his defense strategy and why he chose not to present the three potential fact witnesses. Attorney Fish cross-examined trial counsel regarding the missing witness issue before briefly questioning him about the jury instructions claim. After trial counsel acknowledged the court provided the jury with written instructions on "reasonable doubt" and, upon counsel’s request, the "presumption of innocence," Attorney Fish asked counsel: "And you would have done that because you wanted it to be highlighted … that Mr. Drayton has a presumption of innocence?" N.T., 8/24/2021, at 44-45. Trial counsel replied, "Yes." Id.

Following the testimony, Attorney Fish argued to the PCRA court that Rule 646 directly prohibits a trial court from sending those written instructions to the jury, and, in this case, it was "impossible to review" the written instructions provided because they were not preserved in the record. N.T., 8/24/2021, at 47-48. The Commonwealth responded that the jury was properly instructed on the law, and Drayton could not demonstrate he was prejudiced. Id. at 52.

Five months later, the PCRA court issued an opinion and order dismissing Drayton’s petition. On the written jury instructions claim, the court emphasized that Drayton was unable to "identify any specific objectionable written [ ] instructions that were sent to the jury," and, therefore, could not satisfy his burden to demonstrate prejudice. PCRA Court Opinion, 1/12/2022, at 8. The PCRA court also found trial counsel provided a reasonable basis for not calling the three fact witnesses who testified at the hearing, and, moreover, Drayton failed to establish the absence of their testimony prejudiced him. Id. at 10.

Drayton appealed both claims to the Superior Court, which affirmed in an unpublished memorandum opinion. See Commonwealth v. Drayton, 292 A.3d 1114, 2023 WL 355446 (Pa. Super. 2023) (unpub. memo.). Relying upon this Court’s decision in Commonwealth v. Karaffa, 551 Pa. 173, 709 A.2d 887 (1998), Drayton argued the trial court committed reversible error when it provided the jury with the written instructions, and trial counsel’s failure to object was "inherent[ly] prejudic[ial,]" relieving Drayton of the burden to demonstrate he was prejudiced by counsel’s omission. Drayton, 292 A.3d at *6 (citing Karaffa, 709 A.2d at 888, 890). See also Commonwealth v. Young, 767 A.2d 1072, 1075-1076 (Pa. Super. 2001) (applying Karaffa when trial court provided jury with written copy of defendant’s confession, and rejecting harmless error analysis because court’s actions were "inherently prejudicial" and counsel was ineffective for failing to object). The Superior Court, however, rejected Drayton’s reliance on Karaffa because it was decided prior to the 2009 amendment to Rule 646, which now permits trial courts to provide juries with certain written instructions, specifically those concerning the elements of the offenses charged. See Drayton, 292 A.3d at *6. The Superior Court observed that at the time Karaffa was decided, former Pennsylvania Rule of Criminal Procedure 1114⁷ "did not permit any written material to be in the jury’s possession when it deliberated aside from ‘such exhibits as the trial judge deem[ed] proper,’ with any transcripts of trial testimony, a written copy of a confession by the defendant, or a copy of the bill of information being specifically prohibited[.]" Drayton, 292 A.3d at *6 (emphasis added).

Rather, the Court turned to its own en banc decision in Commonwealth v. Postie, 200 A.3d 1015 (Pa. Super. 2018) (en banc), which "expressly rejected" a defendant’s contention that trial counsel was per se ineffective when counsel, absent objection, sanctioned the trial court’s decision to send a copy of the defendant’s written statement to the jury during deliberations. Drayton, 292 A.3d at *6 (citing Postie, 200 A.3d at 1030). The Postie Court determined counsel provided a reasonable strategic basis for the decision and refused to presume prejudice, noting "our courts have presumed prejudice in only the rarest of circumstances." Id.

Applying Postie to the facts before it, the Superior Court reasoned that while Drayton’s ineffectiveness claim had arguable merit, he failed to establish trial counsel lacked a...