Com. v. Griffin, G. (memorandum)

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J-S17017-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PEN N SYLVAN IA Appellee v. GREGORY T. GRIFFIN No. 578 WDA 2012 Appellant Appeal from the Judgment of Sentence October 17, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014151-2010 BEFORE: BENDER, J., MUNDY, J., and STRASSBURGER, J.* MEMORANDUM BY MUNDY, J.: Appellant, Gregory T. FILED: Griffin, judgment of sentence of 21 to 42 appeals from May 17, 2013 the October 17, months' incarceration followed 2011 by five years' probation, imposed following his conviction by a jury of delivery of a controlled subst ance.1 After careful review, we conclude Appellant's issue is without merit and affirm based on the thorough and well-reasoned August 9, 2012 opinion of the trial court. The trial court has fittingly summarized the factual and procedural history of this case in its August 9, 2012 opinion, and we need not reiterate * Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113( a)(30). J-S17017-13 th at history in full here. to this appeal, we See Tri al Court Opinion, 8/9/12, at 1-3.2 note that Appellant, at the Pertinent commencement of jury selection on October 13, 2011, signed a waiver, along with his counsel and the assistant district attorney, stating, °... I waive the presence of a Judge and Court Reporter for Voir Dire in [the instant case]." 1. Waiver, 10/13/11, at Following his conviction and sentencing, Appellant retained new counsel and filed a post-sentence motion raising a claim of ineffective assistance of trial counsel. On March 7, 2012, the trial court held a hearing on Appellant's motion at which he waived the right to pursue relief under the Post Conviction Relief Act,3 if permitted to pursue his ineffective assistance of trial counsel claim in his post-sentence motion and on direct appeal. Defendant's Consent to Unitary Review, See N.T., 3/7/12, at 3-8; 11/3/11, at 1-2. denied Appellant's post-sentence motion on March 13, 2012. The trial court Appellant filed a timely notice of appe al on April 5, 2012.4 On appeal, Appellant raises a single issue for our consideration. Did Appellant's Trial Counsel render ineffective assistance when he failed to ensure that Appellant's 2 The pages of the trial court's opinion are not numbered. We have supplied sequential pagination for reference, beginning with the cover page as page one. 3 42 Pa.C.S.A. §§ 9541-9546. 4 Appellant and the trial court have complied with Pa.R.A.P. 1925. - 2 - J-S17017-13 waiver of his right to have a Judge preside over the Jury Selection Hearing of his trial was an intelligent and Knowing waiver, and when he failed to object to Appellant's unintelligent and unKnowing waiver being accepted? Appellant's Brief at 3. We first address whether Appellant's claim of ineffective assistance of trial counsel is properly raised in this direct appeal. Appellant recognizes our Supreme Court's holding in Common wea/th v. Gra n t, 813 A.2d 726 (P a. 2002) that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel. Nevertheless, Appellant avers that this case is governed by the exception to the rule in Gra n t set forth in Common wea/th circumscribed (P a. Super. Supreme v. Boma r, 826 831 A.2d (P a. 2003), as further by this Court in Common wea/th v. Barn ett, 25 A.3d 2011) Court ( en ban c). an recognized Brief at Appellant's exception 19. Gra n t 's to In bar to 371 Bomar, a review our of ineffective assistance of counsel claims on direct appeal where the °claims have been raised and fully Bomar, supra at 855. further limitations developed at a hearing in trial the Additionally, this Court has recently recognized the imposed by our Supreme Court on the exception Bomar. Based on the opinion of a majority of participating justices in [ Common wea/th v. ] Wright, [961 A.2d 119 (2008)] and [ Common wea/th v. ] Liston , [977 A.2d 1089 (2009)], this Court cannot engage in review of ineffective assistance of counsel claims on direct court." appeal absent an °express, - 3 - Knowing and in J-S17017-13 voluntary waiver of PCRA review." Liston , [supra ] at 1096 (Castille, C.J., concurring). With the proviso that a defendant may waive further PCRA review in the trial absent further instruction court, from our Supreme Court, this Court, pursuant to Wrigh t and Liston, will no longer consider ineffective assistance of counsel claims on direct appeal. Ba rnett, supra at 377 (footnote omitted). Instantly, after sentencing, Appellant obtained new counsel who filed a timely post-sentence counsel. motion, which alleged ineffective assistance The trial court conducted a hearing, developing a record on the ineffectiveness of counsel issue, at which trial counsel testified. hearing, 5 of trial Appellant signed a°Consent to Unitary Review,"5 and The Consent to Unitary Review form provided as follows. DEFENDANT'S CONSENT TO UNITARY REVIEW I, Gregory T. Griffin, a/K/ a Gregory Tot, agree to forego litigation of a Post-Conviction Relief Action at Allegheny 14151 if County (A) I Criminal am Complaint permitted to No. raise 2010- claims of Ineffective Assistance of Pretrial Counsel, Ineffective of Assistance Assistance Trial of Counsel, Sentencing Ineffective and Counsel via a Post- Sentence Motion filed pursuant to Pa.R.Crim.P. 720, and I receive permitted Evidentiary to review do via Hearing of an into those action my claims; that (B) grants post-sentence I am me an claims; (C) my attorney is afforded a reasonable opportunity to secure and review Notes of Testimony from any pretrial hearing that was held in my case, from my trial, and from my sentencing hearing; and (D) I am permitted to t aKe a timely appeal from the denial of my Post-Sentence Motion or am otherwise afforded a (Foo tn o te Con tin ued Next Page) - 4 - Prior to the Appellant J-S17017-13 performed an on the record future Post Conviction acKnowledging colloquy Relief Act review. N.T., his intent 3/7/12, at 6-8. to waive The trial court ruled on Appellant's ineffective assistance of counsel claims and has included its analysis in its Rule 1925( a) opinion. we conclude that Bomar and Barne tt are Under these circumstances, applicable, and that we may address Appellant's ineffective assistance of counsel issue. We observe the following assistance of counsel claims. effective assistance." when standard reviewing ineffective °The law presumes that counsel has rendered Common wea/th v. Brooks, 839 A.2d 245, 248 (P a. 2003). Counsel will be found to be ineffective (1) where there is arguable merit to the underlying claim; (2) the chosen course by counsel does not have a reasonable strategic basis designed to advance the defendant's interests; and (3) the error of counsel prejudiced the petitioner, i. e . , there is a reasonable probability but for the that, error of counsel, of different. Counsel will not be deemed ineffective for the proceeding the outcome would have been failing to raise a baseless claim. Common wea/th v. Henke , 851 A.2d 185, 187 (P a. Super. 2004) (citations omitted), app eal denied, 863 A.2d 1144 (P a. 2004). °A claim of ineffectiveness may be denied by a showing that the petitioner's evidence (Foo tn o te Con tin ued) ~~~~~~~~~~~~~~~~~~~~~~~ remedy in the event my assigned attorney fails to perfect an appeal from the denial of said motion. Defendant's Consent to Unitary Review, 11/3/11, at 1-2. - 5 - J-S17017-13 fails to meet any of these prongs." Common wea/th v. Washington , 927 A.2d 586, 594 (P a. 2007) (citation omitted). The for procedure conducting jury selection Pennsylvania Rule of Criminal Procedure 631. is prescribed by Pertinent to this appeal, the Rule provides as follows. Rule 631. Examination and Challenges of Trial Jurors (A) Voir of dire trial prospective jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge's presence is waived by the attorney for attorney, and Commonwealth, the the with defendant, the defense the judge's consent. ... Voir (C) dire , including the judge's ruling on all proposed questions, shall be recorded in full unless the recording is waived. ... Pa.R.Crim.P. 631(A), (C). Appellant contends ascertain and presiding judge his trial counsel recognize that Appellant's and a court reporter was waiver of the be present proceedings was not Knowing and intelligent. argues trial counsel was therefore ineffective for failing necessity that the during jury selection Appellant's Brief at 21. ineffective for to failing to object He to proceeding with jury selection without the presence of the presiding judge and a court reporter. Id. - 6 - J-S17017-13 ineffectiveness Appellant's on grounded claim, assertion the however, Trial that is not Counsel ineffectively failed to ensure that Appellant's waiver of his Criminal 631(A) Rule right was valid; it is, instead, grounded on the assertion that Trial Counsel ineffectively failed to ensure that Appellant's waiver of his state judicial valid federal and constitutional presence at the jury selection a waiver that, he rights hearing believes, to was must be intelligent and Knowing, not merely voluntary. Id. at 24 (footnote omitted). Appellant's argument originates from his assertion that the presence of judge and court reporter at jury selection is a constitutional right requiring Knowing and intelligent waiver. Appellant argues as follows. Two questions arise from the foregoing The first is constitutional selection whether not there right to judicial hearing, constitutional or or is assertions. in is fact a presence at the jury that right merely a non- right established by Rule 631(A) a matter of importance since, if no constitutional right exits, then Appellant's voluntary waiver of his Rule 631(A) right was [ Common wea/th v. ] Super. enough, good Ma//on , [421 A.2d given 234 (P a. 1980)] and thus there was no need for Trial Counsel to object to the waiver's acceptance or to provide information, more ineffective counsel claim. raises [sic] constitutional is, defeating the The second question that assuming right, thus the whether a existence of a waiver of that right must indeed be Intelligent and Knowing in order to be valid, as Appellant asserts. Id. at 24-25 The trial court determined that our decision in Common wea/th v. Fitzgera/d, 979 A.2d 908 (P a. Super. 2009), app eal denied, 990 A.2d 727 (P a. 2010) squarely addressed and rejected Appellant's contentions. - 7 - Trial J-S17017-13 Court Opinion, distinguish 8/9/12, at Fitzgera/d 5. We agree unavailing. and find Appellant Appellant's claims the attempt to appellant in Fitzgera/d argued only that counsel was ineffective for failing to insist that an on the record colloquy be made when the appellant waived the presence of the judge jury at selection. Contrastingly, Appellant insists his ineffectiveness claim is distinct and based on counsel's failure to object to an unKnowing and unintelligent waiver. That is to say, while the in appellant Fitzgera/d cared only about the fact that there was no oral onthe-record colloquy and cared not at all for whether the waiver Knowing, itself was or in the Appellant was not appeal intelligent and sub judice cares only about the fact that his waiver was unintelligent and unKnowing, and cares not at all whether or not an oral on-the-record addressed colloquy or was was not It is therefore a different claim than was conducted. by Fitzgera/d, m aKing thus that case inapplicable. Appellant's Reply Brief at 6-7 (footnote omitted). Contrary to Appellant's assertion, the appellant in Fitzgera/d assert his waiver was defective as unKnowing and unintelligent. supra at 910. The Fitzgera/d Court specifically held as follows. Contrary to Appellant's contention that voir dire requires similar procedures as waivers of the rights to counsel and a jury trial, where a defendant, in consultation with counsel, waives his right to have a judge nor present during any waiver case be law Knowing, voir dire, requires neither the statute that voluntary, the and defendant's intelligent confirmed by an on-the-record oral colloquy. Id, at 912. - 8 - or did Fitzgera/d, J-S17017-13 Accordingly, we agree with the trial court that Fitzgera/d controls, and that Appellant's voluntary waiver of the presence of the judge and court reporter during jury selection further agree that Appellant need has not failed be Knowing to establish asserting that if advised of certain facts he would waiver. and intelligent. prejudice by We merely not have executed the Appellant has not alleged any impropriety in the voir dire process or in the composition of the jury emp anelled in this c ase.6 See Fitzgera/d, supra (noting where an appellant °m aKes no assertion that his conviction was the product of [potentially] biased jurors," prejudice is not shown); cf. Common wea/th v. Noe/, 53 A.3d 848, 857 (Pa. Super. 2012) (requiring a showing of actual prejudice when counsel failed to object to incorrect voir dire procedure). The well-reasoned opinion of the trial court provides a thorough and accurate analysis of the law of this Commonwealth as it relates to the issues presented by Appellant in this case. Therein, the trial court wholly refutes each of Appellant's arguments. Accordingly, we conclude that the August 9, 2012 of 6 memorandum Appellant proceeds unKnowing and reach this issue. opinion with the unintelligent. the Honorable assumption that Thomas his waiver E. was Flaherty in fact In light of its ruling, the trial court did not We liKewise in no way endorse Appellant's conclusion that because he was not advised that prospective jurors might respond to voir dire differently in the presence of a judge, that a decision not to execute the waiver could not later be used against him, or that he could waiver, in fact resulted in an unKnowing and unintelligent waiver. - 9 - revoKe the J-S17017-13 comprehensively addresses and correctly disposes of Appellant's claims. Therefore, we adopt the trial court's memorandum opinion as our own for purposes of this appellate review. Judgment of sentence affirmed. Judge Strassburger files a concurring memorandum. J d t ~ t d Deputy Prothonotary Date: May 17, 2013 - 10 - IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA, CC No: 2010 - 14151 Superior Court No: 578 WDA 2012 v. Gregory Griffin, Defendant OPINION JUDGE THOMAS E. FLAHERTY Copies to: Counsel for Commonwealth/Appellee: Office of the District Attorney 303 Courthouse 436 Grant Street Pittsburgh, PA 15219 {~, Counsel for Defendant/Appellant: Scott Rudolf, Assistant Public Defender Office of the Public Defender 542 Forbes Avenue, Suite 400 Pittsburgh, PA 15219 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA, CC No: 2010 - 14151 Superior Court No: 578 WDA 2012 v. Gregory Griffin, OPINION FLAHERTY, 1. August 9, 2012 Defendant Gregory Griffin (Defendant) appeals from this Court's March 13, 2012 Order of Court denying his Post-Sentence Motion for a new trial based on a claim of ineffective assistance of trial counsel. On August 26, 2010, the Defendant was arrested and charged with one count of Delivery of a Controlled Substance (35§780-113§§A30), one count of Possession of a Controlled Substance with Intent to Deliver (35§780-113§§A30), and one count of Possession ofa Controlled Substance (35§780-113§§AI6). A jury trial commenced on October 14, 2011. At voir dire, the Defendant waived his right to have the judge and court reporter present during jury selection. On October 17, 2011, the jury returned a verdict of guilty as to the charges of Delivery of a Controlled Substance and Possession of Controlled Substance. The Defendant was found not guilty on the charge of Possession of a Controlled Substance with Intent to Deliver. On October 17,2011 the Defendant was sentenced to a minimum of twenty-one (21) months to a maximum of forty-two (42) months of confinement at a State Correctional Institution on the Delivery of a Controlled Substance conviction - with credit for time previously served. Additionally, a consecutive term offive years of probation was imposed. No punishment was imposed on the Possession of a Controlled Substance conviction. The following were the facts as presented at trial. On June 24, 2010 the Mount Oliver Police Department conducted an undercover narcotics operation in which an infonnant purchased crack cocaine from the Defendant. The transaction was conducted by Officer Matthew Juzwick. Prior to the buy, Officer Juzwick searched the informant for contraband and found none. Officer Juzwick then gave the infOlTIlant $40.00 in official police funds to purchase crack cocaine. Officer Juzwick then followed the informant to the location of the purchase and witnessed the transaction take place. Officer Juzwick watched the Defendant approach the informant, and observed the informant hand Griffin the official police funds and receive crack cocaine from the Defendant in return. After the Defendant left the area, Officer Juzwick followed the infOlTIlant back to the predetermined meeting place. Then, Officer Juzwick searched the informant and recovered the two bags of crack cocaine which were purchased from the Defendant. The Defendant, through new counsel, timely filed his Post-Sentence Motion on October 27,2011 in which he requested a new trial based on a claim of ineffective assistance of trial counsel. Ultimately, the Defendant's Post Sentence Motions were denied and this appeal followed. On April 12, 2012, the Defendant filed his Concise Statement of Errors, wherein he raised the following three issues: 1. Whether the Defendant's rights under Pennsylvania Constitution Art. I, §9 and United States Constitution Amend. VI and XIV were violated when he was convicted at a trial in which the judge and court reporter were not present during voir dire. II. Whether the Defendant's right to have ajudge and court reporter present during voir dire are fundamental rights which require a voluntary, knowing, and intelligent waiver in order for the waiver to be valid. III. Whether the Court erred in denying Defendant's Post-Sentence Motion. First, the Defendant claims that the right to have a judge present during jury selection cannot be waived. To begin, "the manner in which voir dire will be conducted is left to the discretion of the trial court." Com. v. Moore, 756 A.2d 64,66 (Pa.Super.2000). Thus, if "it is customary in this county not to have ajudge or court reporter present during jury selection in non-capital cases, [an] Appellant is not [] entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial." Com. v. Wright, 961 A.2d 119, 135 (Pa. 2008). Additionally, in Pennsylvania, the voir dire of jurors is governed by Pa.R Crim.P. 631, which states, in pertinent part: Voir dire of prospective trial jurors ... shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge's presence is waived by the attorney for the Commonwealth, the defense attorney, and the defendant, with the judge's consent. Pa.RCrim.P. 631(A) (emphasis added). The Defendant also argues that the right to have voir dire recorded cannot be waived. As stated earlier, the voir dire of jurors is governed by Pa.RCrim.P. 631. Specifically, Pa.RCrim.Pa. 631(C), states: Voir dire, including the judge's ruling on all proposed questions, shall be recorded in full unless the recording is waived. The record will be transcribed only as upon written request of either party or order of the court. Pa.R.Crim.P. 631(C) (emphasis added). The Rule that governs the voir dire of jurors, Pa.R. Crim.P. 631, explicitly allows for the waiver of the presence of the judge and the court reporter during jury selection. Moreover, "Pemlsylvania law does not require an oral colloquy when a defendant waives the presence of the court and a court reporter during voir dire and the court finds that such a colloquy is unnecessary." Corn. v. Fitzgerald, 979 A.2d 908 (Pa. Super. 2009), citing, PCRA Ct. Op., 11110/08, at 2. In Allegheny County, waiver of the presence ofthe judge and court reporter is made by executing a form prior to selection ofthe first juror. In addition, a vast majority of the jury trials commenced in Allegheny County do not have the judge and court reporter present during jury selection. On October 13, 2011, the Defendant, with his attorney, and the attorney for the Commonwealth signed a waiver in which the Defendant waived his right to have the judge and court reporter present during jury selection. Thus, the Defendant satisfied the requirements of Pa.R. Crim.P. 631 and properly waived his right to have the judge and court reporter present during voir dire Next, the Defendant claims that in order to validly waive the right to have ajudge and court reporter present during voir dire, the waiver must be voluntary, knowing, and intelligent. In Corn. v. Fitzgerald, 979 A.2d 908 (Pa. Super. 2009), the Defendant was convicted of first degree murder and filed a petition under the Post Conviction Relief Act ("PCRA"). The trial court denied his PCRA Petition and the Defendant appealed. On appeal, the Defendant raised an ineffective assistance of trial counsel claim and asserted that his constitutional rights were violated when there was neither a judge nor a court reporter present during jury selection and that his counsel was ineffective for failing to object to such proceedings. Fitzgerald, 979 A.2d, at 909. Additionally, the defendant claimed that a waiver of these rights required a voluntary, knowing, and intelligent waiver. Id. at 909. The Fitzgerald court found that Pa.R.Crim.P. 631 governs voir dire and stated that Rule 631 "provides no requirements that the waiver be in v,Titing, on the record, or knowing, voluntary, and intelligent." Id. at 912. Furthermore, "where a defendant, in consultation with counsel, waives his right to have a judge present during voir dire, neither the statute nor any case law requires that the defendant's waiver be knowing, voluntary, and intelligent." Id. at 912 (emphasis added). As indicated by Rule 631 and the Fitzgerald court, there is no requirement that a waiver of the aforementioned rights be voluntary, knowing, and intelligent. All that is required is that the Defendant, his attorney, and the attorney for the Commonwealth sign a waiver indicating the Defendant's desire to waive the presence of the judge and court reporter during voir dire. As noted earlier, the Defendant, his attorney, and the attorney for the Commonwealth did sign such a waiver on October 13,2011. Therefore, the Defendant satisfied the requirements of Rule 631 and properly waived his right to have the judge and court reporter present during jury selection. The Defendant's final claim is that the Court erred in denying his Post-Sentence Motion for a new trial based on a claim of ineffective assistance of trial counsel. Specifically, the Defendant claims his trial counsel was ineffective for his failure to object to an unrecorded andjudgeless voir dire. Until a decade ago, a defendant's new counsel was to raise claims of previous counsel's ineffectiveness at the first opportunity, even if that first opportunity was on direct appeal and the claims of ineffectiveness were not raised in the trial court. Com. v. Hubbard, 372 A.2d 687 CPa. 1977). Then, in 2002, the Supreme Court of Pennsylvania overruled Hubbard in Com. v. Grant, 813 A.2d 726 CPa. 2002). Consequently, now ineffective assistance of counsel claims must be brought at the collateral review stage and not on direct appeal. Grant, 813 A.2d at 739. However, this Court permitted the Defendant to raise an ineffective assistance of counsel claim in his Post-Sentence Motion hearing, even though this Court does not believe that the issue is raised at the appropriate time. To prevail on a claim of ineffective assistance of counsel, the Defendant must overcome the presumption of competence by showing that: (1) his 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 challenged proceedings would have been different. Com. v. Pierce, 527 A.2d 973 CPa. 1987). Failure to satisfy any prong ofthe Pierce Test results in rejection of the claim. Com. v. Hammond, 953 A.2d 544,556 CPa.Super. 2008). Furthermore, "in accord with these well-established criteria for review, an appellant must set forth and individually discuss substantively each prong of the Pierce test." Com. v. Steel, 961 A.2d 786, 797 CPa. 2008). If the Defendant "fails to prove by a preponderance of the evidence any of the Pierce prongs, the Court need not address the remaining prongs of the test." Com. v. Rios, 920 A.2d 790, 799 CPa. 2007). The Defendant must demonstrate that his claim has arguable merit to satisfy the first prong. Rios, 920 A.2d at 799. In this case, the Defendant's claims fail to overcome the presumption that counsel is effective. Defendant's claims - that voir dire must be conducted on the record and in the presence of a qualified judge or waived voluntarily, knowingly, and intelligently -lack arguable merit. As stated earlier, "Pelllsylvania law does not require an oral colloquy when a Defendant waives the presence of the court and a court reporter during voir dire and the trial court finds that such a colloquy is unnecessary." Com. v. Fitzgerald, 979 A.2d 908 (Pa. Super. 2009), citing, PCRA Ct. QQ., 1111 0/08, at 2. Moreover, the Defendant, his attorney, and the attorney for the Commonwealth all signed a waiver wherein the Defendant waived his right to have the judge and court reporter present during jury selection - the only requirement that must be satisfied to validly waive such rights. Therefore, because Rule 631 does not require a voluntary, knowing, and intelligent waiver and, the Defendant, his trial counsel, and the Commonwealth agreed to waive the presence of the judge and court reporter during voir dire, his claim lacks arguable merit, and thus, fails to meet the first prong of the Pierce test. As the Defendant failed to satisfy the first prong of the Pierce test, the Court need not determine whether the Defendant has met his burden with respect to the other two prongs. Rios, A.2d at 799. However, this Court finds that Defendant also failed to meet his burden with respect to these prongs. To establish the second prong, the Court does not "question whether there were other more logical courses of action which counsel could have pursued; rather [it] must examine whether counsel's decisions had any reasonable basis." Id. at 799. In Allegheny County, it is customary to not have the court and court reporter present during jury selection. Additionally, Pa.R. Crim.P. 631 explicitly allows for the waiver of said rights. Clearly, trial counsel had reasonable basis for not objecting to a waiver of the Defendant's right to have the judge and court reporter present for purposes of voir dire. Thus, the Defendant failed to satisfy the second prong of the Pierce test. Moreover, the Defendant's prejudice argument is misplaced. To prove prejudice, "the appellant must show that but for the act or omission in question, the outcome of the proceedings would have been different." Rios, 579 A.2d at 799. The Defendant argues that he was prejudiced because there is a reasonable probability that, had he been informed of his rights, he would not have agreed to an unrecorded and judgeless jury selection proceeding. However, when the right at issue is not a constitutional right, the proper standard of prejudice is whether the outcome of the proceedings would have been different but for counsel's ineffective assistance, not whether the Defendant would have chosen not to waive the right in question. Fitzgerald, 979 A.2d at 912. Here, there is no indication that the outcome of the jury selection proceedings would have been different had the Defendant's trial counsel objected to the waiver ofthe presence of the judge and court reporter during voir dire. There are no signs that the panel was not impartial and there was no reason to believe that a different panel would have been selected had trial counsel objected to the waiver. Thus, the Defendant fails to satisfY the last prong of the Pierce test, prejudice. For the foregoing reasons, this Court's denial of Defendant Gregory Griffin's Post-Sentence Motions should be affirmed. y Thomas E. Flaherty Court of Common Pleas

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