Commw. v. Janda, PICS Case No. 14-0156 (C.P. Lehigh Dec. 24, 2013) Steinberg, J. (9 pages).

COURTS OF COMMON PLEAS

The Legal Intelligencer

CRIMINAL LAW

Ineffective Assistance of Counsel • Recusal • Jury Instructions

Commw. v. Janda, PICS Case No. 14-0156 (C.P. Lehigh Dec. 24, 2013) Steinberg, J. (9 pages).

The court reviewed Janda's challenges to his multiple convictions of burglary, theft by unlawful taking and receiving stolen property and found that his allegations of ineffective assistance of counsel by not seeking recusal of the trial judge, failing to request a missing or destroyed evidence jury charge and not filing a petition for allowance of appeal lacked merit. Amended post-conviction petition denied.

The claims regarding the petition for allowance of appeal were meritless where Janda admitted in testimony at his PCRA hearing that he consulted with counsel and made an informed decision not to appeal. Trial counsel testified that after receiving the Superior Court decision, she sent a letter to Janda outlining the appeal process and set up a video conference with Janda during which he declined to file an appeal. Counsel could not be deemed ineffective for not filing an appeal which Janda voluntarily decided to forego.

Prior to trial, Janda mailed a letter to the court, which PCRA counsel described as "inflammatory," in a deceptive attempt to seek recusal. Trial counsel, who had no part in the plan, refused to file a motion for recusal after receiving a copy of the letter. Janda falsely alleged at the PCRA hearing that the court reacted to his letter in the presence of counsel. Janda also sent a letter to his trial counsel in which he stated the purpose of the letter to the court was to force a recusal and prejudice the judge and thus manipulate the criminal justice system. Throughout the proceedings the court displayed no hostility to Janda, he did not demonstrate any basis for recusal and counsel was not ineffective by not pursuing the claim and maintaining her integrity.

Trial counsel requested and was denied a missing evidence instruction pertaining to the memory card from the camera belonging to one of the crime victims. A wildlife camera installed on the victims' property showed Janda's vehicle, which led the police to Janda and the discovery of the stolen property The memory card had been returned to the victims by the police and was subsequently "written over", except for the photos of the vehicle. Photographs from the memory card were introduced into evidence at trial over defense counsel's objections. Counsel lodged no objections after the charge to the jury. The failure to preserve this issue does not constitute ineffective assistance because the failure to produce instruction was not proper and the error, if any, was harmless in light of the remaining overwhelming evidence.

The missing evidence adverse inference rule requires that the item contain special information. In this case, only the photos of the vehicle were preserved. Additionally the media card was an investigative tool which led to Janda and the stolen property. A missing evidence instruction would have been based on mere speculation that the media card contained "special information." Janda demonstrated no bad faith on the part of the prosecution in reviewing and returning the card to the victims. Additionally, the requested charge did not involve a fundamental matter and would have had almost no effect on the jury in light of the overwhelming evidence of guilt. The error, if any, was harmless.