Opinion
J-S55029-15 No. 436 WDA 2015
11-17-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DREW PRITCHETT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the PCRA Order Entered March 11, 2014 in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0001813-2008 CP-02-CR-0016115-2007 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E, and STRASSBURGER, J. CONCURRING MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court. --------
I agree with the Majority that the trial court did not err in denying Appellant's PCRA petition, and I largely agree with the Majority's reasoning. The portion of the Majority Memorandum that I cannot join concerns Appellant's claim that Attorney McCune was ineffective for excluding Appellant's parents from jury selection.
There is no question that Appellant's right to a public trial extended to the jury selection process. Commonwealth v. Johnson , 455 A.2d 654, 661 (Pa. Super. 1982) ("[A]ppellant's right to a public trial, under both the United States Constitution and the Pennsylvania Constitution, included the right to have the jury that was to try him selected in public."). There also is no dispute that Attorney McCune misadvised Appellant concerning that right. N.T., 7/14/2014, at 20. Attorney McCune indicated that the reason he did so was because he was unaware at the time that the public was permitted in the jury selection room, and he had "never seen it happen." Id. Thus, Appellant established both that his claim had arguable merit and that counsel lacked a reasonable basis for his decision.
However, I agree with the Majority that Appellant is entitled to no relief on this claim because he was required to prove that he was prejudiced by counsel's deficient performance, and he failed to do so. Therefore, I respectfully concur.