J-S13025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE L. CIURO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2756 EDA 2022

Appeal from the PCRA Order Entered February 10, 2020

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0006628-2016

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED JUNE 2, 2023

Jose L. Ciuro (Appellant) appeals nunc pro tunc from the order

dismissing his first petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

The PCRA court recounted the following facts:

[Appellant] was the complainant’s1 stepfather, residing with 

the complainant, her sister, brother and mother from 1992 

through 2003 in Philadelphia. (N.T. 6/12/2017, pp. 10-13, 27-

29). Starting when the child was seven, through the age of 

thirteen, the victim testified to increasing sexual assaults in the 

household by [Appellant]. ([Id. at] 10-21). The victim testified 

that it began in the stairway of their shared house when 

[Appellant] was in the bathroom wearing only a towel and he 

exposed himself to the child, then prompting her to kiss his penis. 

([Id. at] 11-13). The complainant testified that [Appellant] would 

expose himself whenever he had a chance, opening his towel or 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The complainant is also referred to as the victim, child, or stepdaughter.
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pulling down his pants. ([Id. at] 13). When the child was eight 

or nine, the assaults progressed to [Appellant] placing his penis in 

the child’s mouth, as well as touching the child’s clitoris a couple 

of times a week. ([Id. at] 13-15). The assaults expanded to 

[Appellant] placing his fingers inside the [child’s] vagina. ([Id. 

at] 15-16). Eventually the molestations progressed to oral sex 

and rubbing of [Appellant’s] penis on the outside of the child’s 

vagina as well as anus and finally anal intercourse. ([Id. at] 14-

22).

The complainant testified that she told her newly divorced 

mother about the incidents when she was about thirteen, but her 

mother did not want to believe the accusations. ([Id. at] 18-19). 

When the child was fifteen or sixteen, she told her best friend, 

whom she swore to secrecy. ([Id. at] 19-21). At age twenty, the 

complainant got married and although she told her husband that 

something occurred in her childhood, she refused to provide any 

details. When she was twenty-one, her mother brought the 

subject up again asking if she was going to pursue the charges 

against [Appellant] to gain closure. The victim testified that she 

was worried she would ruin her sibling’s relationship with 

[Appellant] if she did, but the incidents were weighing heavily 

upon her. Finally, when she was twenty-five, she reported the 

incidents to the police, resulting in the eventual arrest of 

[Appellant]. ([Id. at] 21-24).

PCRA Court Opinion, 11/18/22, at 2-3 (footnote added).

On June 28, 2015, the Commonwealth charged Appellant with two 

counts each of rape of a child and aggravated indecent assault of a child, as 

well as one count each of involuntary deviate sexual intercourse, sexual 

contact with a minor, sexual assault, endangering the welfare of a child, 

indecent exposure, indecent assault, and corruption of minors.2 Following a 

non-jury trial on June 12, 2017, the trial court convicted Appellant of all 

____________________________________________

2 18 Pa.C.S.A. §§ 3121(c), 3125(b), 3123(b), 6318(a)(1), 3124.1, 4304(a), 

3127(a), 3126(a)(1), 6301(a)(1).
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charges. On December 11, 2017, the trial court sentenced Appellant to an 

aggregate 5 - 20 years in prison, followed by 5 years of reporting probation. 

Appellant did not appeal.

Appellant timely filed a counseled PCRA petition on December 11, 2018. 

The PCRA court held a hearing on January 9, 2020. The court addressed 

Appellant’s decision to waive his right to a jury trial:

During the PCRA evidentiary hearing, the court heard the 

testimony of [trial counsel, Attorney Andrew Gay, (Attorney Gay)]

as well [Appellant], his wife, sister and stepfather. [Attorney Gay] 

testified that [Appellant] had expressed concerns to him on how 

a jury might receive the allegations being made against him by 

his stepdaughter. (N.T. 1/9/2020, pp. 9-12). [Appellant] alleged 

in his petition that trial counsel emphatically stated “I got this” to 

induce [Appellant] to waive his right to a jury. Under oath, trial 

counsel responded:

[]Your Honor, I have practiced law for two decades, 

and I have never used the language like that with a 

client concerning the possible outcome of any 

proceeding, whether it be a trial, a preliminary 

hearing, or any other type of matter that I’ve handled 

for a client.

I express what I believe are the risks and the choices 

that the client has to make. And I never make a 

guarantee. And I would never use language like, “I 

got this,” in order to influence a client to make a 

decision.[] ([Id. at] 14).

[Attorney Gay] further stated, unequivocally, that he never 

advised [Appellant] that if he waived his right to a jury trial and 

proceeded to a trial before the undersigned that he would be 

acquitted. ([Id. at] 14).

[Appellant’s] wife testified that trial counsel told them that 

“he’s got this” and that [Appellant] was nervous[,] so she gave 

him two Xanax pills, however when questioned several times as 

to whether [Appellant] seemed impaired after taking the drugs, 
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she claimed that she was unable to understand the questions. 

([Id. at] 20-26). [Appellant’s] sister testified that trial counsel 

was her attorney as well but that she was not present for all of 

the conversations between [Appellant] and the attorney. ([Id. at]

26-28). [Appellant’s] stepfather testified as well and stated he 

did not know why [Appellant] changed his mind from having a jury 

to a bench trial, that he had discussed the evidence in the case, 

but nothing about counsel saying, “he had this.” ([Id. at] 29-33).

[Appellant] took the witness stand, testifying that his 

attorney discussed the evidence with him, the benefits and 

disadvantages of a jury in his case[,] but [said] nothing about the 

attorney saying, “he had this.” ([Id. at] 34-38). [Appellant] 

claimed to be anxious, took Xanax provided by his wife, which 

made him drowsy[,] and [testified] that although he signed the 

waiver colloquy, he did not read the entire form. ([Id. at] 35-36). 

[Appellant] further stated the answers provided on the written 

form were not in his handwriting but that it was his signature on 

the fourth page, and his initials on every page of the colloquy. 

([Id. at] 38-42, 47). [...] When confronted with the notes of 

testimony from the oral colloquy conducted by this court, 

[Appellant] first answered that “No. I did not answer that.” ([Id. 

at] 40-44). [Appellant] then replied that his attorney told him 

what to say because he cannot hear and wears a hearing aid. 

([Id. at] 44).

PCRA Court Opinion, 11/18/22, at 6-8.

The PCRA court dismissed the petition on February 10, 2020. Appellant 

timely appealed. On September 17, 2020, this Court dismissed the appeal for 

failure to file briefs. Appellant filed a second PCRA petition seeking 

reinstatement of his appeal rights nunc pro tunc on November 12, 2021. By 

agreement of the parties, the PCRA court reinstated Appellant’s right to 

appeal. Appellant filed a notice of appeal.

3

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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Appellant raises four issues:

1. Whether the [PCRA] court erred in denying [Appellant’s PCRA

petition] since under the totality of circumstances, [Appellant’s] 

waiver of his right to a trial by jury was not voluntary, knowing 

and intelligent?

2. Whether the [PCRA] court erred in denying [Appellant’s PCRA 

petition,] since the findings of fact are not supported by the record 

and the legal conclusions drawn from those facts are incorrect, 

and as such, the decision of the [c]ourt was in error?

3. Whether the [PCRA] court erred and abused its discretion in 

denying [Appellant’s PCRA petition] since its credibility 

determinations were not supported by the record?

4. Whether the [PCRA] court erred and abused its discretion when 

it sustained the Commonwealth’s objection and refused to allow 

defense counsel to effectively cross-examine [Attorney Gay] on 

the testimony he gave in defense of his actions and inactions?

Appellant’s Brief at 6.

We begin by recognizing:

To be eligible for PCRA relief, a petitioner must prove by a 

preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated circumstances found 

at 42 Pa.C.S. § 9543(a)(2) (delineating the eligibility 

requirements of the PCRA). A petitioner also must demonstrate 

that the issues raised in his PCRA petition have not been 

previously litigated or waived. Id. at § 9543(a)(3).

***

... It is well-settled that counsel is presumed to have been 

effective and that the petitioner bears the burden of proving 

counsel’s alleged ineffectiveness. Commonwealth v. 

Cooper, 596 Pa. 119, 941 A.2d 655, 664 (2007). To overcome 

this presumption, a petitioner must establish that: (1) the 

underlying substantive claim has arguable merit; (2) counsel did 

not have a reasonable basis for his or her act or omission; and (3) 

the petitioner suffered prejudice as a result of counsel’s deficient 

performance, “that is, a reasonable probability that but for 
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counsel’s act or omission, the outcome of the proceeding would 

have been different.” Id. A PCRA petitioner must address each 

of these prongs on appeal. See Commonwealth v. 

Natividad, 595 Pa. 188, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the [ineffective assistance of 

counsel] elements on appeal to this Court”). A petitioner’s failure 

to satisfy any prong of this test is fatal to the claim. Cooper, 941 

A.2d at 664.

When [an appellate c]ourt reviews an order dismissing or 

denying a PCRA petition, its standard of review is whether the 

findings of the PCRA court are supported by the record and are 

free from legal error. “The PCRA court’s credibility 

determinations, when supported by the record, are binding on this 

Court[.]” Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 

601, 617 (2015) (quoting Commonwealth v. Roney, 622 Pa. 1, 

79 A.3d 595, 603 (2013)). “Appellant has the burden to persuade 

this Court that the PCRA court erred and that such error requires 

relief.” Commonwealth v. Wholaver, 644 Pa. 386, 177 A.3d 

136, 144-45 (2018).

Commonwealth v. Reid, 259 A.3d 395, 405-06 (Pa. 2021).

In his first issue, Appellant claims his “waiver of a right to a jury trial 

was not voluntary, knowing and intelligent[.]” Appellant’s Brief at 25. 

Specifically, Appellant argues Attorney Gay was ineffective “in the advice and 

information he provided to [Appellant] that convince[d] him to waive his right 

to a jury trial.” Id. at 26. Appellant asserts Attorney Gay was ineffective for 

failing to object to a deficient on-record waiver colloquy. Id. at 26-27. Also, 
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Appellant avers Attorney Gay was ineffective for failing to adequately explain 

the written jury waiver colloquy to him.4 Id. at 29. 

The Pennsylvania Supreme Court has explained:

The right to trial by jury is enshrined in both the U.S. and 

Pennsylvania Constitutions. See U.S. CONST. amend. VI; PA. 

CONST. art. I, § 6. The importance of the right is recognized by 

the procedural protections in Rule 620 of this Court’s Criminal 

Procedural Rules, which provides that:

In all cases, the defendant and the attorney for the 

Commonwealth may waive a jury trial with approval 

by a judge of the court in which the case is pending, 

and elect to have the judge try the case without a jury. 

The judge shall ascertain from the defendant whether 

this is a knowing and intelligent waiver, and such 

colloquy shall appear on the record. The waiver shall 

be in writing, made a part of the record, and signed 

by the defendant, the attorney for the 

Commonwealth, the judge, and the defendant’s 

attorney as a witness.

Pa.R.Crim.P. 620. ...

The essential elements of a jury waiver, though important and 

necessary to an appreciation of the right, are nevertheless simple 

to state and easy to understand. “The essential ingredients, basic 

to the concept of a jury trial, are the requirements that the jury 

be chosen from members of the community (a jury of one’s 

peers), that the verdict be unanimous, and that the accused be 

allowed to participate in the selection of the jury panel.” 

Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597, 600 

(Pa. 1973); accord Commonwealth v. Smith, 498 Pa. 661, 450 

A.2d 973, 974 (Pa. 1982). Notwithstanding the Rule’s reference 

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4 Appellant has waived any direct challenge to the validity of his jury waiver 

and the adequacy of the oral and written colloquies because he did not raise

these issues in his direct appeal. See 42 Pa.C.S.A. § 9544(b) (“For purposes 

of this subchapter, an issue is waived if the petitioner could have raised it but 

failed to do so before trial, at trial, during unitary review, on appeal or in a 

prior state postconviction [sic] proceeding.”).
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to a “colloquy on the record,” the use of a written jury trial waiver 

form has been deemed sufficient in the absence of an oral jury 

trial waiver colloquy. Williams, 312 A.2d at 599-600 ....

Commonwealth v. Mallory, 941 A.2d 686, 696-97 (Pa. 2008) (footnote and 

brackets omitted).

In rejecting Appellant’s claim that trial counsel rendered ineffective

assistance relative to his jury waiver, the PCRA court observed that Appellant 

“fails to specify his reasons[.]” PCRA Court Opinion, 11/18/22, at 6. The 

PCRA court explained:

“Because ‘the decision to waive a jury trial is ultimately and 

solely the defendant’s ... a defendant must bear the responsibility 

for that decision. Counsel’s advice to waive a jury trial can be the 

source of a valid claim of ineffective assistance of counsel only 

when 1) counsel interferes with his client’s freedom to decide to 

waive a jury trial... or 2) appellant can point to specific advice of 

counsel so unreasonable as to vitiate the knowing and intelligent 

waiver of his right.” Commonwealth v. Boyd, 334 A.2d 610, 

616-617 (Pa. 1975) (quoting Commonwealth v. Stokes, 299 

A.2d 272, 276 n.1 (Pa. 1973). “Where an appellant merely claims, 

as in the present case, that his decision was a strategic error, and 

can point to no specific incidents of counsel impropriety, he must 

bear the responsibility for that decision and cannot shift the blame 

to counsel.” Id. Counsel’s testimony that [Appellant] expressed 

a lot of concern about how a jury would react to the testimony of 

his stepdaughter further evinces that [Appellant] waived his right 

to a jury a trial based upon a strategic decision and not a 

misunderstanding of his options.

“When a presumptively-valid waiver is collaterally attacked 

under the guise of ineffectiveness of counsel, it must be analyzed 

like any other ineffectiveness claim. Such an inquiry is not 

resolved by the mere absence of an oral waiver colloquy; instead, 

the analysis must focus on the totality of relevant circumstances.” 

[Mallory, 941 A.2d at 698]. The law is clear that a reviewing 

court is free to look at the totality of the circumstances 

surrounding the [colloquy] when assessing whether [it] was 

entered into in accordance with the law. Commonwealth v. 
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Allen, 732 A.2d 582, 588[-89] (Pa. 1999); Commonwealth v. 

Muhammad, 794 A.2d 378, 383-84 (Pa. Super. 2002); 

Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002). A 

defendant is obliged to tell the truth [...] and a trial court may rely 

on a properly executed written colloquy supplemented by an oral 

colloquy in deciding whether the waiver is knowing, intelligent and 

voluntary. See Commonwealth v. Cappelli, 489 A.2d 813 (Pa. 

Super. 1985); Commonwealth v. Nelson, 465 A.2d 1056 (Pa. 

Super. 1983). For [Appellant] to succeed in his claim, he would 

need [to] assert that he was lying under oath when he attested to 

the written waiver forms. He is barred from doing so. See

[Cappelli, supra, at 819]; Commonwealth v. Willis, 68 A.3d 

997 (Pa. Super. 2013).

This court has reviewed the totality of the circumstances 

relating to [Appellant’s] waiver of a jury [trial] and it is crystal 

clear that the waiver was knowing, intelligent, voluntary and 

entered into in accordance with the law. Additionally, this court 

found trial counsel’s testimony to be completely credible, while 

[Appellant’s] testimony lack[ed] almost all credibility. The signed 

written colloquy as well as the oral inquiry conducted by this court 

belie any of the allegations made by [Appellant] on this issue.

PCRA Court Opinion, 11/18/22, at 8-9 (parallel cites omitted).

 The PCRA court also rejected Appellant’s claims that Attorney Gay was 

ineffective for failing to object to alleged deficiencies in the oral colloquy and 

failing to adequately explain the written colloquy. The PCRA court continued:

[Appellant] next complains that the oral colloquy was somehow 

deficient. In his PCRA petition, [Appellant] contends that the court 

failed to address whether he was coerced, threatened or induced 

into making the waiver; promised anything in exchange for 

making the waiver; under any mental or psychiatric treatment or 

told that the decision was his to make; that the questions asked 

of [Appellant] were leading and lastly the court failed to question 

[Appellant] on the content of the written colloquy. (PCRA Petition, 

p. 12-13). All are without merit.

First, it must be noted that [Appellant] completed a four 

page “Written Jury Trial Waiver Colloquy” on the day of trial. 

[Appellant] admitted to initialing every page and signing the final 
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one. The written colloquy was attested to by his counsel, the 

attorney for the Commonwealth and the court. [...] In addition 

to the four page written colloquy, the following oral inquiry was 

made of [Appellant] prior to the commencement of trial:

....

THE COURT: You are here for a trial. Do you understand that?

[Appellant]: Yes, sir.

THE COURT: It is my understanding you want to do a waiver trial,

a trial by judge alone, is that correct?

[Appellant]: Yes, sir.

THE COURT: I am going to ask you a couple of questions. How 

old are you?

[Appellant]: I’m 60.

THE COURT: How far did you go in school?

[Appellant]: I graduated high school.

THE COURT: Do you read, write and understand English?

[Appellant]: Yes.

THE COURT: Are you under the influence of any drugs or 

alcohol?

[Appellant]: No, sir.

THE COURT: Have you ever been diagnosed with any mental 

disability?

[Appellant]: No, sir.

THE COURT: I show you this written waiver colloquy. Did 

you go over this with your attorney?

[Appellant]: I did.

THE COURT: Did you read and understand every paragraph?
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[Appellant]: Yes, sir.

THE COURT: Do you have any questions for either Mr. Gay 

or myself on what is contained in here?

[Appellant]: I did not hear.

THE COURT: Do you have any questions about what is 

contained in here to either Mr. Gay or myself?

[Appellant]: No, I don’t.

THE COURT: I show you the back page. Is that your 

signature?

[Appellant]: Yes, sir.

THE COURT: Now, you know that if you had a jury trial, in order 

to be convicted all 12 jurors would have to be agreed; do you 

understand that?

[Appellant]: Yes, sir.

THE COURT: In order to be acquitted all 12 jurors would have to 

be agreed; do you understand that.

[Appellant]: Yes.

THE COURT: In a jury trial sometimes the jurors can’t agree and 

that becomes a hung jury and the Commonwealth has a right to 

try you again; do you understand that?

[Appellant]: Yes, sir.

THE COURT: And that can’t happen if I try the case as a judge 

alone.

[Appellant]: Yes, sir.

THE COURT: All your rights remain the same. You have a right 

to take the stand in your own defense, you have [the] right not to 

take the stand in your own defense, you are presumed innocent 

unless and until proven guilty. All the other rights you have in a 
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trial remain the same except I will hear the case rather than 12 

people, do you understand?

[Appellant]: Yes, sir.

THE COURT: Are you satisfied with Mr. Gay’s representation 

up until this point?

[Appellant]: Yes, sir.

THE COURT: And it is your desire to have a trial with [a] 

judge alone? 

[Appellant]: Yes, sir.

(N.T. 6/12/2017, pp. 4-7 [emphasis added]).

Pennsylvania requires that a jury trial waiver be knowing, 

intelligent and voluntary. Commonwealth v. Eichinger, 108 

A.3d 821, 831 (Pa. 2014) (citing Commonwealth v. O ’Donnell, 

740 A.2d 198, 208 (Pa. 1999)). “The essential ingredients in a 

jury trial, which are necessary to understand the significance of 

the right a defendant is waiving include: the jury will be chosen 

from members of the community, the verdict will be unanimous, 

and the accused will be allowed to participate in the selection of 

the jury panel.” Commonwealth v. Hayes, 596 A.2d 874, 876 

(Pa. Super. 1991) (citing Commonwealth v. Lott, 581 A.2d 612 

(Pa. Super. 1990); [Williams, 312 A.2d 597]. The combined oral 

and written inquiries in the case at bar were obviously in 

compliance with the mandates of the rule. Furthermore, our 

appellate courts have determined that a written waiver is 

sufficient in the absence of an oral inquiry. Commonwealth v. 

Smith, 181 A.3d 1168, 1175 (Pa. Super. 2018). Clearly, a review 

of the combined oral and written colloquies demonstrates that 

[Appellant’s] waiver was knowing, intelligent and voluntary, and 

[Appellant’s] claim that it was deficient, and counsel ineffective 

for failing to object, are without merit.

* * *

Next [A]ppellant contends the written waiver colloquy was 

deficient, and counsel constitutionally ineffective for failing to 

object, in that it failed to adequately advise him of the rights he 

was giving up. A review of the written colloquy [...] categorically 
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contradicts this claim. The right to a trial, by judge or by jury, the 

presumption of innocence, the burden of proof beyond a 

reasonable doubt, the right to a jury of your peers and to 

participate in its selection and requirement of an unanimous 

verdict, as well as all the other relevant rights of a defendant, are 

spelled out in the written colloquy, signed and admittedly read by 

[Appellant], and as such these claims by [Appellant] are meritless.

PCRA Court Opinion, 11/18/22, at 9-12 (parallel citations omitted).

 The PCRA court’s thorough reasoning is supported by the record, and 

refutes Appellant’s claim that Attorney Gay was ineffective in advising 

Appellant about his right to a jury trial. Appellant’s additional claims that he 

was under the influence of Xanax, unable to hear the oral colloquy, and did 

not read the written colloquy are negated by his sworn testimony. We thus 

affirm on the PCRA court’s reasoning.

In his second issue, Appellant contends the factual findings of the PCRA 

court are not supported by the record, and “the legal conclusions drawn from 

those facts are incorrect[.]” Appellant’s Brief at 30; see id. at 30-31. The 

PCRA court suggests Appellant has waived this issue because his Rule 1925(b) 

statement failed to “sufficiently, concisely, and coherently” identify the basis 

for this claim. PCRA Court Opinion, 11/18/22, at 12; see id. at 12-13. We 

agree.

 Rule 1925(b) mandates that the “Statement shall concisely identify 

each error that the appellant intends to assert with sufficient detail to 

identify the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii) 

(emphasis added). Rule 1925(b) “is a crucial component of the appellate 
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process because it allows the trial court to identify and focus on those issues 

the parties plan to raise on appeal.” Commonwealth v. Bonnett, 239 A.3d 

1096, 1106 (Pa. Super. 2020); see also Pa.R.A.P. 302(a) (issues cannot be 

raised for the first time on appeal). A Rule 1925(b) statement that is too 

vague to afford the court an opportunity to identify the issues raised on appeal 

“is the functional equivalent of no statement at all.” Commonwealth v. 

Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008); see also Commonwealth 

v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (“if a concise statement is 

too vague, the court may find waiver.”). 

Here, Appellant merely alleged the PCRA court’s “findings of fact are not 

supported by the record and the legal conclusions drawn from those facts are 

incorrect[.]” Concise Statement of [Errors] Complained of on Appeal, 

11/3/22, at 2. As this statement is improperly vague, Appellant’s second issue 

is waived.

5

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5 Appellant’s argument is also undeveloped, as it consists of a recitation of our 

standard of review. Appellant’s Brief at 30-31. Appellant does not identify 

specific findings of fact or legal conclusions he believes to be incorrect. See 

id. This Court will not act as counsel and will not develop arguments for an 

appellant. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007); 

Bombar v. West American Insurance Company, 932 A.2d 78, 94 (Pa. 

Super. 2007). Waiver is proper when deficiencies hinder our ability to conduct 

meaningful appellate review. Pa.R.A.P. 2101; Hardy, supra.
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In his third issue, Appellant asserts the PCRA court’s “credibility 

determinations were not supported by the record.” Appellant’s Brief at 31. 

Appellant has waived this issue as well.

Appellant’s argument is simply that “the record does not support the 

[PCRA c]ourt’s finding that counsel is credible.” Appellant’s Brief at 31. It is 

well-settled that “mere issue spotting without analysis or legal citation to 

support an assertion precludes appellate review of a matter.” Coulter v. 

Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014) (citation omitted); see also

Pa.R.A.P. 2119(a) (stating the appellant’s brief “shall have ... such discussion 

and citation of authorities as are deemed pertinent.”). Appellant’s third issue 

is waived. 

In his final issue, Appellant avers the PCRA court erred when it 

“sustained the Commonwealth’s objection and refused to allow defense 

counsel to effectively cross-examine [Attorney Gay] on the testimony he gave 

in defense of his actions and inactions.” Appellant’s Brief at 32. Appellant 

asserts the PCRA court erred in sustaining an objection as to “whether or not 

the decision to waive the jury trial could be affected by the trial judge assigned 

to the case, namely, Judge [Diana L.] Anhalt.” Id. (emphasis added). 

Our standard of review regarding the admissibility of 

evidence is an abuse of discretion. The admissibility of evidence 

is a matter addressed to the sound discretion of the [PCRA] court 

and ... an appellate court may only reverse upon a showing that 

the trial court abused its discretion. An abuse of discretion is not 

a mere error in judgment but, rather, involves bias, ill will, 

partiality, prejudice, manifest unreasonableness, or 

misapplication of law. 
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Commonwealth v. Collins, 70 A.3d 1245, 1251–52 (Pa. Super. 2013)

(citations omitted).

Our review discloses the PCRA court never sustained an objection to a 

question about Judge Anhalt. The following exchange occurred at the start of 

PCRA counsel’s cross-examination of Attorney Gay:

Q. All the conversations you had with [Appellant] regarding 

waiver of a jury trial was when the case was assigned to Judge 

[Donna M.] Woelpper, correct?

A. I believe that that is accurate. There is a lot of information in 

your petition ... about conversations that I had with [Appellant]

about talking him into a non-jury trial in front of Judge Anhalt. 

And the allegations in the PCRA petition that you signed and filed 

were that that would be an unreasonable position for me to take 

with [Appellant], that I should recommend to him that he proceed 

to a non-jury trial with someone who previously worked in the 

Family Violence and Sexual Assault Unit of the District Attorney’s 

Office. So that is completely untrue.

[B]ut to answer your question, I believe that those 

conversations must have taken place with him prior to proceeding 

or appearing for trial in front of Judge Woelpper, because I don't 

think that there was another trial judge assigned.

N.T., 1/9/20, at 16 (emphasis added); see also PCRA Petition, 12/11/18, at 

4 (unnumbered) and 13 (unnumbered) (recounting alleged conversations 

between Attorney Gay and Appellant about the merits of waiving a jury trial 

and having the case heard by Judge Anhalt). Our review of the trial court 

docket reveals Attorney Gay was correct and Judge Anhalt was never assigned 

to Appellant’s case.
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However, the record reflects that the PCRA court sustained an objection 

to a question about Judge Ann Marie B. Coyle: 

Q. [PCRA Counsel:] All right. But my question is all of the

conversations you had with regard to a waiver of a jury were while 

the case was pending before Judge Woelpper, correct?

A. [Attorney Gay:] No. I can’t say that because the

conversations concerning the waiver trial or a jury trial started 

from the beginning of my representation of [Appellant]; from the 

time of the preliminary hearing and afterwards. So we had 

conversations throughout my representation of him concerning 

the differences and the benefits or drawbacks of a non-jury trial 

or jury trial.

Q. And that was even before it was assigned to Judge Woelpper?

A. That’s correct.

Q. What if the case was assigned to Judge [Ann Marie B.] 

Coyle, would that be your same advice?

[The Commonwealth]: Your Honor, I’m going to object to 

the relevance of this question.

[PCRA Counsel]: I say that, Judge, with all candor because 

of that judge’s lack of reasonable doubt, so we’re discussing --

THE COURT: How about we rephrase it into, “Would it make 

a difference which judge it was assigned to?” Rather than naming 

a particular judge.

...

Q. [PCRA Counsel:] Would it make a difference of what judge it

was assigned to?

A. [Attorney Gay:] Absolutely.

Q. And would it be a fair statement that if it were assigned to 

certain judges in this county, your advice would be, take a jury?
J-S13025-23

- 18 -

A. That is exactly correct. I can tell you my general practice, and 

what I did with [Appellant] as well, is to let him know that, you 

know, you have to make a decision about whether to choose a 

jury or a non-jury based on the judge before whom you are

scheduled for trial. And you have to also assume in making that

decision that you will receive your average jury. And whether or 

not the court that is going to preside over the trial, in your opinion 

or your experience with that judge, is going to give you at least 

as fair of a shake at trial as your standard jury would. Then many 

times it’s advisable to go with a non-jury trial in those

circumstances.

[PCRA Counsel]: Okay. And that’s all I have, Judge.

Id. at 16-18 (emphasis added).

The record shows that the PCRA court did not err in sustaining the

objection to the question about Judge Coyle, who was also not involved in this 

case. The court permitted PCRA counsel to inquire about Attorney Gay’s tact 

in advising clients about whether to waive the right to a jury trial, and his 

views regarding judges. Because we discern no error, Appellant’s fourth issue 

does not merit relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2023