Opinion
J-S80041-17 No. 857 EDA 2017
02-27-2018
COMMONWEALTH OF PENNSYLVANIA v. BRIAN HOOK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 17, 2017 in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0013429-2009 BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Brian Hook ("Hook") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
See 42 Pa.C.S.A. §§ 9541-9546.
In its Opinion, the PCRA court set forth the factual and procedural background of this case, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 5/26/17, at 1-5.
On appeal, Hook raises the following issue for our review: "Whether trial counsel was ineffective for not objecting to the trial court's instructions after jurors had informed the trial court they were 'solidly' deadlocked at 6- 6[,] and for not requesting the trial court to issue a Spencer instruction[?]" Brief for Appellant at 3 (capitalization omitted, footnote added).
Commonwealth v. Spencer , 275 A.2d 299 (Pa. 1971).
A Spencer instruction is a non-coercive charge given to a deadlocked jury which informs the jury of the following:
(i) that in order to return a verdict, each juror must agree thereto; (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors; (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
The Commonwealth contends that Hook waived the issue by failing to raise it in his court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. See Commonwealth's Brief at 4; see also Pa.R.A.P. 1925(b)(3)(vii) (providing that "issues not included in the Statement ... are waived."). While Hook's Spencer claim was framed in his Concise Statement solely as trial court error, without any reference to trial counsel's ineffectiveness, Hook raised his ineffectiveness claim before the PCRA court, and the PCRA court addressed it in its Pa.R.A.P. 1925(a) Opinion. Thus, we decline to find waiver on this basis. See Commonwealth v. Smith , 955 A.2d 391, 393 (Pa. Super. 2008) (declining to find waiver, despite a vague concise statement, where the trial court filed an opinion which meaningfully addressed the Commonwealth's arguments); see also Commonwealth v. Laboy , 936 A.2d 1058, 1060 (Pa. 2007) (stating that this Court can review an issue, despite a vague Rule 1925(b) statement, where trial court readily apprehends appellant's claim and addresses it in substantial detail.). --------
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Hook contends that, on the afternoon of December 9, 2010, during his criminal trial, the jury indicated to the trial court that it was deadlocked at 6- 6. Brief for Appellant at 8, 16. Hook states that the trial court then instructed the jury as follows:
Well, what I am going to do at this time is to send you home to kind of think about what your fellow jurors have had to say[,] and to mull over the facts and circumstances[,] and have you come back at nine o'clock tomorrow morning[,] when you will resume deliberating. And[,] if after coming back and having slept on it[,] you're still at 6-6 or not close to anything, let me know and I will give you an additional charge at that time.Id. at 8-9, 16-17 (citing N.T., 12/9/10, at 140). Hook indicates that the trial court further instructed the jurors that "you will not be permitted to resume your deliberations until [tomorrow, when] you have been specifically instructed to do so by the [c]ourt ...." Brief for Appellant at 17 (citing N.T., 12/9/10, at 142). Hook further indicates that, after the jury had been excused on the afternoon of December 9, 2010, the trial court stated to defense counsel and the prosecutor, "I don't know if counsel wants the Spencer charge given. Decide both of you in the morning, if they are still deadlocked." Brief for Appellant at 9-10, 20 (quoting N.T., 12/9/10, at 142).
Hook claims that the trial court's instructions to the jury, "were internally inconsistent[,] and it is reasonably likely the inconsistency confused the jurors into thinking they were permitted to privately deliberate about the case while at home on the night of December 9th." Brief for Appellant at 18 (emphasis in original); see also id. at 10 (wherein Hook claims that "[t]here is a reasonable likelihood that jurors interpreted the trial court's late[-]day instructions on December 9th to permit, if not require, them to continue their deliberations at home - without input from their fellow jurors."). Hook asserts that his counsel was ineffective for failing to object to the instructions provided by the trial court, and for failing to request a Spencer charge before the trial court dismissed the jurors for the evening. Id. at 9, 11, 19. Hook also claims that his trial counsel was ineffective for failing to request the trial court to instruct the jurors to take an initial vote on the morning of December 10, 2010, to determine if they were still deadlocked and, if so, to issue a Spencer charge at that time. Id. at 10. According to Hook, the jury began deliberating at 9:00 a.m. on the morning of December 10, 2010, and reached a unanimous verdict of guilty by 11:39 a.m. Id. Hook argues that
[i]t is reasonably likely that the combination of the trial court's inappropriate "mull it over" instruction and trial counsel's failure to request an instruction informing jurors not to surrender their honest convictions[,] played a substantial role in convincing the six "not guilty" jurors to flip their votes to guilty in such a short period of time on December 10th.Id. (emphasis in original); see also id. at 22-23. Hook asserts that, had his counsel objected to the trial court's instruction and requested a Spencer instruction before the jurors were excused on December 9, 2010, there is a reasonable probability that the outcome of his trial would have been different, "either resulting in an acquittal or mistrial based on the jury's inability to render a unanimous verdict." Id. at 11-12, 23.
To succeed on an ineffectiveness claim, appellant must demonstrate by the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Ali , 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible , 30 A.3d 426, 439 (Pa. 2011).
In its Opinion, the PCRA court addressed Hook's issue, set forth the relevant law and concluded that the issue lacks merit because, inter alia, the trial court had instructed the jury "using substantially the same language" as included within a Spencer instruction. See PCRA Court Opinion, 5/26/17, at 8-10. Specifically, the trial court instructed the jury as follows prior to dismissing them on the afternoon of December 9, 2010:
Review the evidence impartially with the other jurors and do not hesitate to reexamine your own views and change your opinion if the others convince you that you made a mistake. But[,] each of you must finally decide the case for himself or herself. Try to come to a unanimous conclusion if you can do that honestly and with self-respect.See id. at 9 (citing N.T., 12/9/10, at 122-23). On this basis, the PCRA court determined that Hook's counsel had no basis to object to the trial court's instructions, and was not ineffective for failing to do so. See id. at 9, 10. As we discern no abuse of discretion or error of law, we affirm the PCRA court's ruling. See id.; see also Commonwealth v. Jones , 912 A.2d 268, 278 (Pa. 2006) (holding that counsel cannot be found ineffective for failing to challenge legally proper jury instructions).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/18
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Commonwealth v. Greer , 951 A.2d 346, 387 (Pa. 2008) (quoting Spencer , 275 A.2d at 304 n.7).