Commonwealth v. Michaud
70 A.3d 862
| Pa. Super. Ct. | 2013Background
- Appellant Joseph H. Michaud (born 1935) was charged with sexual offenses arising from touching a then‑9/10‑year‑old neighbor between 2006–2007; he admitted touching the child but contested penetration.
- Bench trial occurred May 18, 2011; Appellant convicted of all counts and sentenced July 25, 2011 to a mandatory 5–15 years.
- New counsel pursued post‑verdict motions and a PCRA petition alleging trial counsel ineffective for (1) not presenting character witnesses, (2) advising Appellant to waive/testify, and (3) failing to secure an on‑record jury waiver before bench trial.
- PCRA hearings were held; trial counsel testified that strategy focused on contesting penetration rather than character evidence and that Appellant agreed not to testify to avoid impeachment on incriminating statements.
- The trial court conducted an on‑the‑record jury‑waiver colloquy belatedly (at close of Commonwealth’s case); Appellant declined a jury retrial.
- PCRA court denied relief; Superior Court affirmed, finding trial strategy reasonable, Appellant’s testimony not credible on the right‑to‑testify issue, and no merit to the jury‑waiver ineffective‑assistance claim.
Issues
| Issue | Michaud's Argument | Commonwealth / Trial Court Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not presenting character witnesses | Counsel should have called three witnesses to attest to good character; their testimony would create reasonable doubt on credibility/penetration | Counsel reasonably focused on contesting penetration given appellant’s admission; character testimony unlikely to help and was trial strategy | Denied —reasonable strategy; failure to call them not ineffective assistance |
| Whether counsel was ineffective in advising Appellant to waive his right to testify | Counsel merely told him not to testify and failed to explain it was Appellant’s decision; would have testified if properly advised | Counsel had multiple discussions, warned about prosecutor impeaching with incriminating statements; Appellant expressly agreed not to testify | Denied —PCRA court credited counsel; no evidence counsel interfered or gave unreasonable advice |
| Whether counsel/trial court erred by failing to conduct on‑record jury waiver colloquy prior to trial | Lack of pre‑trial colloquy rendered the waiver unknowing; tardy colloquy required mistrial or invalid waiver | Waiver can be established by totality of circumstances; written/off‑record discussions and belated on‑record colloquy showed waiver was knowing; issue waived for PCRA as could have been raised on direct appeal | Denied —claim waived for PCRA; on merits, belated colloquy and record show knowing, voluntary waiver |
| Whether counsel was ineffective for not advising option of jury retrial during belated colloquy | Counsel limited choice to new bench trial before different judge; Appellant misunderstood options | Record shows court explicitly offered jury retrial and Appellant declined; no evidence of misunderstanding | Denied —record contradicts claim; no ineffective assistance established |
Key Cases Cited
- Mallory v. Commonwealth, 941 A.2d 686 (Pa. 2008) (analyzing on‑record jury waiver requirement and holding absence of colloquy does not automatically invalidate a waiver; assess totality of circumstances)
- Nieves v. Commonwealth, 746 A.2d 1102 (Pa. 2000) (defendant ultimately decides whether to testify; counsel ineffective only if counsel interfered or advice was unreasonably wrong)
- Williams v. Commonwealth, 732 A.2d 1167 (Pa. 1999) (strategic decisions by counsel not ineffective unless an alternative offered substantially greater chance of success)
- Payne v. Commonwealth, 794 A.2d 902 (Pa. Super. 2002) (PCRA ineffective‑assistance standard: must show counsel undermined truth‑determining process)
- Wright v. Commonwealth, 961 A.2d 119 (Pa. 2008) (prejudice prong: petitioner must show reasonable probability outcome would differ but for counsel’s error)
- Albrecht v. Commonwealth, 720 A.2d 693 (Pa. 1998) (failure to meet any prong of ineffectiveness test defeats claim)
- Clark v. Commonwealth, 961 A.2d 80 (Pa. 2008) (when alleging counsel failed to call a witness, must prove availability and that testimony would have mattered)
- Brown v. Commonwealth, 767 A.2d 576 (Pa. Super. 2001) (elements required to prove failure to call witness constituted ineffective assistance)
- Fletcher v. Commonwealth, 750 A.2d 261 (Pa. 2000) (standards for assessing omitted witness testimony in ineffectiveness claims)
- Auker v. Commonwealth, 681 A.2d 1305 (Pa. 1996) (failure to call a witness generally a strategic choice, not per se ineffective)
- Allen v. Commonwealth, 833 A.2d 800 (Pa. Super. 2003) (three‑prong test for counsel ineffectiveness)
- Fiore v. Commonwealth, 780 A.2d 704 (Pa. Super. 2001) (appellate standard of review for PCRA denials)