The Pennsylvania Superior Court has decided the case of Commonwealth v. King, holding that the trial court erred in dismissing the defendant’s Post-Conviction Relief Act Petition without an evidentiary hearing. In King, the defendant filed a PCRA challenging his conviction for felony Fleeing on the basis that his trial attorney failed to request a jury instruction related to the statutory defense that a person may not be guilty of fleeing if the pursuing police officer is driving an unmarked car and not in uniform. The Superior Court mostly agreed with the defense and remanded the case for an evidentiary hearing on whether the trial attorney had a reasonable, strategic basis for failing to request the instruction.
The Facts of King
In King, the defendant was charged in Allegheny County with Fleeing and Attempting to Elude Police. At trial, the Commonwealth introduced evidence showing that the defendant was pursued by plain-clothes officers in an unmarked car. The defense attorney never requested a jury instruction related to the statutory defense that fleeing from a plain-clothes officer in an unmarked car may not constitute the crime of Fleeing and Eluding. Accordingly, the defendant was found guilty and sentenced to a period of incarceration.
Following his conviction, the defendant filed a Post-Conviction Relief Act Petition arguing that his trial attorney was ineffective. The fleeing statute generally makes the following conduct a felony:
(a) Offense defined.--Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2).
However, the statute also provides a defense to the charges:
(1) It is a defense to a prosecution under this section that the pursuing police officer’s vehicle was not clearly identifiable by its markings or, if unmarked, was not occupied by a police officer who was in uniform and displaying a badge or other sign of authority.
When a statute provides a defense of this nature and there is evidence in the record to suggest that the defense may apply, defense counsel generally needs to request that the trial judge read a jury instruction to the jury at the close of the trial so that the jury can evaluate whether the defense applies. The failure to request the right jury instructions can be the ineffective assistance of counsel. Here, the defendant’s trial lawyer failed to request an instruction for this defense. Thus, the defendant’s PCRA Petition alleged that his trial lawyer was ineffective in failing to request the appropriate jury instruction for this defense.
What is ineffective assistance of counsel?
There are two primary ways to challenge a conviction in Pennsylvania state court. The first method of challenging a conviction is to file a direct appeal to the Superior Court. A direct appeal focuses on whether the trial judge committed legal error – meaning did the judge overrule objections that should have been sustained or permit the Commonwealth to introduce evidence that was seized in an unconstitutional manner. In order to raise an issue on direct appeal, the defense attorney must have made the appropriate objection or request so that the trial judge could rule on the issue. Otherwise, the issue will be waived on appeal. Here, the defense never requested the jury instruction, so this issue could not be litigated in a direct appeal. If the defense had requested the instruction and the judge had refused to give it, then the issue would have been addressed in a direct appeal.
The second method for challenging a conviction, which typically places after a direct appeal has been denied, is to file a Post-Conviction Relief Act Petition. A PCRA Petition allows a defendant to receive a new trial if the defendant can show that the trial attorney provided the ineffective assistance of counsel.
In order to win a PCRA Petition based on a claim of ineffective assistance of counsel, a defendant must plead and prove three things:
- The underlying claim has arguable merit;
- No reasonable basis existed for counsel’s action or failure to act;
- The petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.
The Superior Court’s Decision
Here, the defendant alleged that the defense attorney was ineffective at trial in failing to request the jury instruction. The trial court denied the petition, finding that the defense did not apply because the testimony showed that the police officers had lights and sirens on their car and had used the lights and sirens during the chase. The trial judge ruled that he would not have provided the jury instruction even if defense counsel had requested it because the cars were marked by the lights and sirens.
After the trial court denied the defendant’s Petition, the defendant appealed to the Superior Court. The Superior Court reversed the decision of the PCRA Court, finding that the defendant’s claim both had arguable merit and that the defendant had suffered prejudice. The court noted that the defense is available when a defendant can show two things: 1) that the police vehicle was “unmarked,” and 2) that it was not occupied by a police officer who was in uniform. The Superior Court further concluded that the lights and siren do not qualify as a marking for purposes of the statute. The statute itself does not define markings. However, the Pennsylvania Administrative Code contains a section governing the use of unmarked police vehicles. It defines a marked police vehicle and unmarked police vehicle as follows:
Marked police vehicle--A police vehicle that is equipped with at least one light-bar assembly anddisplays graphics, markings or decals identifying the agency or department on a minimum of three sides (front, rear, left or right).
Unmarked police vehicle--A police vehicle not equipped with a roof mounted light-bar assembly. The vehicle may display graphics, markings or decals, identifying the agency or department.
Given this definition, it is clear that a marked police vehicle must have both lights and decals that identify the agency or department on at least three sides. Therefore, the term markings as included in the statute’s defense requires more than just the lights and siren. Thus, defense counsel probably should have requested the jury instruction for the statutory defense because it would have applied.
Although the Superior Court agreed with the defendant, it did not immediately reverse his conviction. Instead, the court recognized that PCRA litigation also requires a consideration of whether defense counsel had some reasonably strategic basis for the decision made. The court remanded the case to the trial court for an evidentiary hearing on whether the defense attorney had some strategic reason for failing to request the instruction. If the defense attorney did not, then the trial court should vacate the conviction and order a new trial.
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