Commonwealth v. King

259 A.3d 511

COMMONWEALTH of Pennsylvania

v.Colin Frank KING, Appellant

No. 34 MDA 2021

Superior Court of Pennsylvania.

Submitted August 4, 2021

Filed: August 13, 2021

Jeffrey M. Markosky, Mahanoy City, for appellant.

Michael A. O'Pake, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

Michael J. Stine, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

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

OPINION BY STEVENS, P.J.E.:

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. 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.

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.

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 , 2020 WL 730914 (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 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 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.

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

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