Commonwealth v. Collins

687 A.2d 1112, 546 Pa. 616, 1996 Pa. LEXIS 2569

• Court: Supreme Court of Pennsylvania
• Decided: December 30, 1996
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NEWMAN, Justice.

Lawrence Collins (Collins) appeals from the Superior Court Order affirming the Order of the Court of Common Pleas of Dauphin County denying his petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm.

In 1991, Collins sold merchandise, including more than eighty bottles of cologne, wallets, cordless crimping irons and a Tourister briefcase, on four separate occasions to a Pennsylvania State Trooper who was working in a surplus store as a “fence,” someone who buys stolen property. The items were new, and many had the price tags from retail stores still attached.

The Commonwealth charged Collins with four counts of receiving stolen property.¹ At trial, the Commonwealth’s witnesses included the undercover officer, the director of security for People’s Drug Stores, the loss prevention manager from a local Sears department store, and the loss prevention manager from a local Thrift Drug store. Collins did not testify.

The jury convicted Collins on four counts of theft by receiving stolen property. The trial court denied Collins’ post-verdict motions and, on December 21, 1992, sentenced Collins to a term of imprisonment of two to four years and a fíne of $100.00. Collins took no further appeals.

On April 26, 1998, Collins filed a pro se PCRA petition in the Court of Common Pleas of Dauphin County (PCRA Court). Appointed counsel filed a Supplemental Petition on November 7, 1994, alleging ineffective assistance of trial counsel for failing to request a jury instruction on Collins’ right against self-incrimination and for failing to file a timely appeal to the Superior Court.1 ² On March 15, 1995, the PCRA court issued an Order dismissing Collins’ Supplemental Petition without a hearing. Collins appealed this Order to the Superi- or Court, which affirmed the PCRA court. We granted allowance of appeal on both issues on February 15, 1996. We now affirm.

The first issue before us is whether the Superior Court erred in affirming the trial court’s ruling that trial counsel was not ineffective for failing to request a curative instruction on Collins’ right against self-incrimination and the effect of Collins’ decision not to testify at trial. Also presented is whether the Superior Court erred in affirming the lower court’s ruling that trial counsel was not ineffective for failing to file a timely appeal in the Superior Court of Pennsylvania.

In the context of a PCRA claim, to establish ineffective assistance of counsel an appellant must prove the following: (1) the underlying issue has arguable merit; (2) counsel had no reasonable basis for the decision, Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); and (3) counsel’s error prejudiced appellant and so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995).

Collins argues that trial counsel was ineffective for failing to request a “no adverse inference” charge concerning Collins’ right not to testify at trial because of his right against self-incrimination. Even if this issue had arguable merit because trial counsel did not, in fact, request a no adverse inference charge on the record, a defendant must also establish that trial counsel’s failure to timely request a no adverse inference charge prejudiced him to such a degree that the adjudication of guilt was unreliable. Buehl.

An appellate court must assess the jury instructions as a whole to determine whether they are fair and impartial.³ Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). The trial court has broad discretion in “phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990). We have held that:

[t]he specific constitutionally mandated “no-adverse inference” charge may not be replaced by a patchwork of less direct instructions.... Juries must be told in no uncertain terms that no adverse inference may be drawn from the defendant’s failure to take the stand.

Commonwealth v. Lewis, 528 Pa. 440, 450, 598 A.2d 975, 980 (1991).⁴

In Lewis, the trial court only instructed the jury that the defendant has no burden of proof because the Commonwealth has the burden to establish the guilt of the defendant beyond a reasonable doubt. The trial court in Lewis did not specifically instruct the jury that it could not draw an adverse inference from the defendant’s failure to testify during either its opening instructions or in its final charge to the jury. This Court held that the trial court’s less direct instructions could not be patched together to replace a specific no-adverse inference instruction.

In the present case, the trial court instructed the jury at the start of trial as follows:

[I]f the Defendant [Collins] elects not to testify, we don’t know whether he will or not, and we don’t need to know. We are simply saying to you whatever his election is, if he decides not to testify, it simply means he is availing himself of the protection afforded him by the law and you cannot draw a negative inference from the fact that he may not elect to testify because the law doesn’t require him to testify. He is presumed to be innocent and, therefore, he is not required to be a participant. When he comes into the courtroom and takes a seat, that is all that the law requires him to do.

Notes of testimony, January 7, 1992, at 21 (emphasis added).⁵ Thus, unlike Lewis, the trial court here clearly instructed the jury that there can be no adverse inference from a defendant’s failure to testify.⁶ During jury instructions at the end of trial, the trial court elaborated as follows concerning a defendant’s right to remain silent at trial:

Now, we said to you at the outset that in a criminal case the presumption is that the Defendant is innocent and that presumption persists unless and until you, ladies and gentlemen of the jury, have had an opportunity to consider the case and you decide that you are satisfied that the Commonwealth had proven its case beyond a reasonable doubt ... it is important that you understand that a Defendant is not required to be a participant in a trial where he is accused with the commission of a crime, that he has no burden of proof to prove anything, that the burden is on the Commonwealth ....

N.T., January 10, 1992, at 188 (emphasis added). The trial court’s jury charge in the beginning of trial specifically instructed the jury not to draw a “negative inference” from Collins’ decision not to testify and was a sufficient no adverse inference charge. Lewis. We should not let “magic words” get in the way of common sense. Because the trial court gave a sufficient no adverse inference charge, counsel’s failure to request the charge did not prejudice Collins. Thus, this claim fails.

Coffins next argues that his trial counsel was ineffective for faffing to file a direct appeal from the trial court’s judgment of sentence. Again, we first assess whether the underlying issue has merit. Durst. A defendant has a right to appeal from a court of record as provided by Article V, Section 9 of the Pennsylvania Constitution:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be such other rights of appeal as may be provided by law.

Coffins asserts in his Supplemental Petition that he requested that his trial counsel file an appeal from his judgment of sentence. However, a petitioner must present the facts supporting each issue asserted in his PCRA Petition, and if they do not appear on the record, a petitioner must identify affidavits, documents or other evidence proving the alleged facts. Pa.R.Crim.P. 1502(a)(12) and (d). Here, Coffins’ alleged request, that trial counsel file an appeal, was not in the record and Coffins did not provide the PCRA court with any affidavit or other document to prove that he requested that his counsel file a direct appeal. Therefore, pursuant to Pa.R.Crim.P. 1502, this issue has no arguable merit and the Superior Court properly affirmed the PCRA court’s dismissal of Collins’ PCRA petition.

Accordingly, we affirm the Superior Court’s Order of August 18, 1995, affirming the Order of the Court of Common Pleas of Dauphin County denying Collins’ PCRA petition.

ZAPPALA, J., concurs in the result. NIGRO, J., files a concurring and dissenting opinion. CAPPY, J., files a dissenting opinion.

1 . 18 Pa.C.S. § 3925.

2 . Before the PCRA Court ruled on Appellant’s Supplemental Petition, Appellant filed a second pro se Petition under the PCRA. The PCRA Court denied Appellant’s second Petition on March 27, 1995. That second Petition is not relevant to the instant case.

3 . "The trial judge may give instructions to the jury before the taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury’s guidance in hearing the case.” Pa. R.Crim.P. 1119(d).

4 . Recently, in Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217 (1996), this Court established a new rule of law concerning the no adverse inference instruction: “from this day forward the no adverse inference instruction shall be given absent an express on the record colloquy by the defendant waiving the charge.” Id. at 644, 674 A.2d at 222. The Court did not apply the rule to the defendant in Thompson, holding instead that the defendant had failed to establish that the failure to give the instruction had prejudiced hirri. Because Thompson is to be prospectively applied, its rule of law does not apply here. See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).

5 . The Pennsylvania Suggested Standard Criminal Jury Instructions include a no adverse inference charge for preliminary and cautionary instructions as follows: "The defendant has the right to remain silent and to present no-evidence. You must not hold it against the defendant if he happens to choose not to testify at this trial.” 2.01. Clearly the trial court here gave an even more explicit charge.

6 . The dissenting opinion implies that, contrary to Lewis, we are patching together a no adverse inference instruction from less direct instructions concerning the Commonwealth’s burden of proof. However, the specific instruction in the instant case, that the jury should not draw any negative inferences from a defendant’s failure to testify, was clearly a direct no adverse inference instruction. Further, Lewis did not address the adequacy of a no adverse inference instruction when it is given during opening instructions. Therefore, the specific no adverse inference instruction in the present case was clear, and entirely consistent with our holding in Lewis.