Com. v. Lont, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLYDE ALEXANDER LONT,
Appellant No. 3068 EDA 2014
Appeal from the Order Entered September 23, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003174-200921
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2015
Appellant, Clyde Alexander Lont, appeals pro se from the
September 23, 2014 order denying his first petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful
review, we affirm.
We previously reported the facts and procedural history, as
summarized by the trial court, as follows:
On the evening of April 20, 2007, Bethlehem Police responded to
a residence at 1933 Hillcrest Road in the City of Bethlehem,
Lehigh County, Pennsylvania. Officers discovered the victim,
David Rivera, with multiple gunshot wounds to his torso.
Mr. Rivera died as a result of his wounds. Witnesses indicated a
vehicle, which was later identified as Appellant’s vehicle, was
seen arriving at the residence around the time Mr. Rivera was
last seen alive. Another individual, later identified as Matthew
Hendricks, was also seen arriving in the area of the residence in
that same vehicle. Subsequent evidence linked both Hendricks
and Appellant to the car. Several witnesses advised that
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Appellant admitted he was involved in killing Mr. Rivera. One
witness, Janelle Gordon, indicated she was contacted by
Appellant and subsequently transported Mr. Hendricks to Easton
where he met with Appellant. Additionally, Gordon observed
Appellant with a gun and saw him dispose of the gun.
Additional evidence and witness testimony showed that Appellant
was voluntarily intoxicated on PCP at the time of the shooting.
Other evidence showed that some planning occurred in this case,
including the gathering of accomplices and phone calls placed to
the victim by Mr. Hendricks. Based on witnesses’ statements,
the motive in this case appeared to be a concern by Appellant
that Mr. Rivera was after him.
Following this incident, Appellant was charged in this case. On
March 9, 2011, pursuant to a negotiated plea agreement,
Appellant pleaded guilty to murder of the third degree and
criminal conspiracy to commit first-degree murder. As part of
the agreement, the minimum sentence would not exceed 16
years, but the maximum sentence could be up to 40 years.
Furthermore, the Commonwealth agreed that both sentences
would run concurrently. At the time of his guilty plea, Appellant
had a prior record score of 3, and the charges, both graded as
felonies of the first-degree, carried an offense gravity score
(OGS) of 14.
At the guilty plea hearing, the trial court concluded a detailed
colloquy with Appellant on the record. The trial court advised
Appellant of the maximum penalties for each offense, and asked
him if he understood; Appellant said, “Yes.” The trial court
asked Appellant if he had any questions regarding the plea
agreement or the maximum penalties; he stated, “No.” The trial
court asked Appellant if he understood that the court could
reject the plea, and if [the court] did, the trial court would allow
him to withdraw his plea and go to trial; he stated, “Yes.” The
trial court asked Appellant if he was ever treated for a mental
illness, disability, or problem[s], or if he was ever diagnosed with
a mental illness, disability, or problems; he stated, “No.” The
trial court asked Appellant if he suffered from any physical or
mental problems that prevented him from fully understanding
everything that was going on; he said, “No.”
Appellant also completed a written guilty plea colloquy, and
indicated he went over each question with his attorney,
understood each question, and answered each question
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truthfully. Appellant acknowledged he completed the form by
writing his answers to each question, initialing each page, and
signing the form voluntarily.
The attorney for the Commonwealth then read into the record a
summary of the facts of the case as summarized above.
Afterwards, Appellant indicated he understood the facts alleged,
and he admitted doing the things alleged by the Commonwealth.
The trial court reviewed the elements of the crimes charged with
Appellant, and asked Appellant if he understood the elements.
Appellant advised he understood the elements of each offense
and discussed them with his attorney. The trial court asked
Appellant if he understood what he was doing by pleading guilty
and if he was pleading guilty voluntarily; he said, “Yes.” The
trial court found the plea to be voluntarily and understandingly
tendered, and the trial court accepted Appellant’s plea
conditioned upon receipt and review of a presentence
investigation report (PSI).
The PSI was prepared, and the trial court reviewed the report
prior to the sentencing hearing on April 15, 2011. Additionally,
the trial court received and reviewed “Materials in Aid of
Sentencing,” prepared and submitted by Appellant’s counsel, and
a number of letters written by the friends and family of David
Rivera. The Commonwealth then presented the testimony of
Pedro Fonseca, Mr. Rivera’s uncle; Steven Perez, Mr. Rivera’s
nephew; and Lilliam Moraza, Mr. Rivera’s mother. The witnesses
presented lengthy victim impact testimony, and expressed their
disagreement with the guilty plea. The parties made oral
argument. After reviewing all the evidence and hearing from the
parties, the trial court rejected the plea as to the binding
minimum of 16 years. Appellant’s counsel then moved to
withdraw the guilty plea and to have the trial court recuse itself.
After further discussion, the parties agreed to allow Appellant
more time to consider his options, and a second sentencing
hearing was scheduled.
On April 25, 2011, Appellant was before the trial court again for
sentencing. At the time, Appellant indicated he was willing to
plead guilty with no agreement as to a minimum sentence.
Additionally, Appellant indicated he was no longer asking that
the trial court recuse itself. The trial court then advised
Appellant that it was accepting all aspects of the negotiated plea
except for the binding 16 year minimum, and asked if he
understood that; he stated, “Yes.” The trial court asked
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Appellant if he understood he could be sentenced up to a
minimum of 20 years and a maximum of 40 years; Appellant
said, “Yes.” Thereafter, the trial court sentenced Appellant on
each count to a term of imprisonment of 20 to 40 years, to be
served concurrently with each other.
The trial court indicated on the record its reasons for imposing
such a sentence, which included (1) the criminal conduct of
Appellant caused harm to not only David Rivera, but also his
family; (2) the nature and circumstances of Appellant’s criminal
conduct showed a disregard for the safety of the community; (3)
Appellant has a previous record of criminal activity; (4) Appellant
is in need of correctional rehabilitation, which can be provided
most effectively by commitment to a state correctional
institution; (5) a lesser sentence would depreciate the
seriousness of the crimes involved; and (6) the sentences were
in accordance with the plea bargain, albeit the portion limiting
the minimum sentence to 16 years.
On May 4, 2011, Appellant filed a Post-Sentence Motion for
Reconsideration of Sentence and Motion to Modify Sentence.
Following a hearing on May 26, 2011, the trial court denied
Appellant’s motion. The instant appeal followed.
Trial Court Opinion, 8/11/2011, at 1-5 (footnote omitted).
Commonwealth v. Lont, 1584 EDA 2011, 64 A.3d 274 (Pa. Super. filed
January 11, 2013) (unpublished memorandum at 1–4).
The PCRA court1 reported the ensuing procedural history as follows:
Following a direct appeal, [Appellant’s] sentence was affirmed on
January 11, 2013. At all pertinent times, [Appellant] was
represented by court-appointed counsel, Gavin P. Holihan,
Esquire.
On January 21, 2014, [Appellant] filed a pro se Post-
Conviction Relief Act (PCRA) petition. I appointed Charles Banta,
Esquire, to represent [Appellant], and on March 24, 2014,
Attorney Banta filed a Petition to Withdraw as Counsel with an
____________________________________________
1
The PCRA judge was also the trial judge in the instant case.
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attached Finley[2] letter indicating the issues raised by
[Appellant] were without merit. Following a hearing, I issued a
notice of intent to dismiss the PCRA petition and allowed
Attorney Banta to withdraw from the case. [Appellant] filed a
response to my notice on August 6, 2014. After review of the
response and the entire record, I dismissed [Appellant’s] PCRA
petition on September 22, 2014.[3] This appeal followed.
PCRA Court Opinion, 12/24/14, at 1–2 (internal footnote omitted). Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.4
Appellant raises the following issues for our review:
____________________________________________
2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3
While the PCRA court’s dismissal order was dated September 22, 2014, it
was entered on the docket on September 23, 2014.
4
This appeal is timely. The applicable thirty-day appeal period expired on
October 23, 2014. Our Supreme Court has held that a pro se prisoner’s
appeal shall be considered to be filed for purposes of Pa.R.A.P. 1514(a)
when such appeal is deposited with prison officials or placed in the prison
mailbox. Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278,
283 (Pa. 1996).
Appellant dated his notice of appeal October 18, 2014, and placed it into
the prison mail system on October 19, 2014. As shown by the Department
of Corrections Integrated Offender Case Management System, which is
attached to Appellant’s affidavit, United States first class postage was
deducted from Appellant’s inmate account on October 23, 2014. As such,
we will accept Appellant’s notice of appeal as timely. Commonwealth v.
Bradley, 69 A.3d 253, 254 n.3 (Pa. Super. 2013). See also
Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (pursuant to
prisoner mailbox rule, notice of appeal in PCRA case was timely);
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that
pursuant to the “prisoner mailbox rule,” direct appeals filed by pro se
appellants are deemed filed on the date that the prisoner deposits the
appeal with prison authorities or places it in a prison mailbox).
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Whether the PCRA court erred as a matter of law and/or abused
its discretion in denying and/or otherwise dismissing Appellant’s
petition for PCRA relief without a hearing where Appellant’s
claims, if proven, would entitle him to relief?
Whether the PCRA court erred as a matter of law and/or abused
its discretion in declining to grant Appellant’s request for judicial
recusal?
Appellant’s Brief at 4 (full capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014). “There is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.
2003)).
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To be entitled to PCRA relief, an appellant must establish, by a
preponderance of the evidence, that 1) his conviction or sentence resulted
from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);
2) his claims have not been previously litigated or waived, id. at
§ 9543(a)(3); and 3) the failure to litigate the issue prior to or during trial or
on direct appeal could not have been the result of any rational, strategic, or
tactical decision by counsel. Id. at § 9543(a)(4).
Before going forward, it is important to note that this Court, in
Appellant’s direct appeal, reviewed his claim challenging the discretionary
aspects of his sentence. Specifically, we addressed Appellant’s contention
that his sentence was “contrary to the fundamental norms of sentencing
because the trial court imposed ‘a sentence significantly greater than the
one sought and recommended by the investigating officers, the prosecuting
attorneys, the PSI reporter, and . . . counsel for Appellant.’” Lont, 1584
EDA 2011 (unpublished memorandum at *7) (citing Appellant’s direct appeal
brief). We concluded that “the transcript of the sentencing hearing makes
clear that the trial court thoroughly considered and articulated the
sentencing needs and goals specific to Appellant.” Id. (unpublished
memorandum at 10).
Presently, Appellant asserts trial counsel’s ineffectiveness for failing to
raise on direct appeal that the trial court’s imposition of a minimum twenty-
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year sentence violated the terms of his plea agreement, which Appellant
contends was capped at sixteen years. Appellant’s Brief at 15–16.
To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act. Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to meet any one of these
prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel
is presumed to have rendered effective assistance of counsel.
Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015). We have
explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc).
It is clear that a criminal defendant’s right to
effective counsel extends to the plea process, as well
as during trial. However, allegations of
ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an
involuntary or unknowing plea. Where the defendant
enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
(citations, quotation, and quotation marks omitted). “The law
does not require that the defendant be pleased with the outcome
of his decision to enter a plea of guilty: All that is required is
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that his decision to plead guilty be knowingly, voluntarily, and
intelligently made.” [Commonwealth v.] Anderson, 995 A.2d
[1184,] 1192 [(Pa. Super. 2010)] (citations, quotation, and
quotation marks omitted). Moreover, with regard to the
prejudice prong, where an appellant has entered a guilty plea,
the appellant must demonstrate “it is reasonably probable that,
but for counsel’s errors, he would not have pleaded guilty and
would have gone to trial.” Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa. Super. 2006) (quotation and quotation marks
omitted).
Commonwealth v. Timchak, 69 A.3d 765, 769–770 (Pa. Super. 2013).
Regarding Appellant’s first issue, the trial court stated as follows:
[T]here is no merit to [Appellant’s] claim that the sentence was
in violation of the plea agreement. At the time of [Appellant’s]
plea, I advised the parties that I was accepting the plea
“conditioned upon the court, after a presentence investigation,
agreeing to accept the binding plea agreement regarding the
sentence to be imposed.” Notes of Testimony of Guilty Plea,
March 9, 2011, p.30. [Appellant] acknowledged as much in his
PCRA petition. Petition at p.2. At [Appellant’s] sentencing, after
reviewing the PSI and the material presented by [Appellant], and
after hearing from the victim’s family, I advised the parties I was
rejecting the plea agreement as to the binding minimum of 16
years. [Appellant] asked for more time to consider his options,
and the sentencing was continued. When we reconvened for
sentencing, [Appellant] agreed to proceed with the
understanding that his minimum sentence could be 20 years.
Notes of Testimony (Sentencing), April 25, 2011, p.5 -9. Based
on the record, [Appellant] agreed to the modified plea
agreement.
Second, the record belies [Appellant’s] claim that his
counsel’s ineffectiveness denied him appellate review of his
sentence. The errors raised by counsel on [Appellant’s] direct
appeal dealt only with the sentence. The Superior Court
reviewed the issues and determined I did not abuse my
discretion in sentencing [Appellant].
PCRA Court Opinion, 12/24/14, at 2–3.
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Appellant’s claim that the trial court violated the terms of his plea
agreement is wholly disingenuous and belied by the record. On March 9,
2011, Appellant pled guilty to third-degree murder and criminal conspiracy.
At that time, the Commonwealth informed the trial court as follows:
This is a proposed negotiated plea to Count 1 and Count 2
of the information. In this case, Count 1 would be graded as
murder of the third degree; Count 2 is criminal conspiracy to
commit that crime.
The further terms of the agreement are that the minimum
sentence would be capped at 16 years and that the maximum
would be left to you.
I should say, at the outset, that I have discussed this plea
with the prosecuting officer and he is in agreement with it. I
have also discussed this plea with the victim’s family and they
have indicated that they are not in favor of the plea agreement.
N.T. (Guilty Plea), 3/9/11, at 2.
In subsequent questioning of Appellant, the trial court inquired:
[By the trial court]: Now, do you understand that I can reject
this plea agreement?
[Appellant]: Yes.
[By the trial court]: If I reject it, after you’ve entered your plea,
I will allow you to withdraw your plea of guilty and go to trial.
Do you understand that?
[Appellant]: Yes.
N.T. (Guilty Plea), 3/9/11, at 5–6.
A thorough and extremely detailed plea colloquy followed, and the trial
court advised:
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[By the trial court]: And once again, do you understand that I
do not have to accept the plea agreement reached by you and
the district attorney?
[Appellant]: Yes, sir.
[By the trial court]: Now, if I decline to follow the plea
agreement, once again, and if you request, I will allow you to
withdraw your plea of guilty and go to trial on the charges filed
against you; do you understand that?
[Appellant]: Yes.
N.T. (Guilty Plea), 3/9/11, at 29. Appellant tendered his guilty plea, and the
trial court responded:
Then I find that the plea with respect to each count is voluntarily
and understandingly tendered and I will accept the plea
conditioned upon the court, after a presentence
investigation, agreeing to accept the binding plea
agreement regarding the sentence imposed.
Id. at 30 (emphasis added).
The Pennsylvania Rules of Criminal Procedure grant the trial court
broad discretion in the acceptance and rejection of plea agreements. There
is no absolute right to have a guilty plea accepted. Pa.R.Crim.P. 590(3)
(“The judge may refuse to accept a plea of guilty or nolo contendere, and
shall not accept it unless the judge determines after inquiry of the defendant
that the plea is voluntarily and understandingly tendered.”);
Commonwealth v. Hudson, 820 A.2d 720, 727-28 (Pa. Super. 2003)
(same). Accordingly, our courts have reaffirmed that “while the
Commonwealth and a criminal defendant are free to enter into an
arrangement that the parties deem fitting, the terms of a plea agreement
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are not binding upon the court. Rather the court may reject those terms if
the court believes the terms do not serve justice.” Commonwealth v.
Chazin, 873 A.2d 732, 737 (Pa. Super. 2005).
Subsequently, Appellant appeared for sentencing. At that time, having
reviewed the presentence investigation report and other materials submitted
by defense counsel, and after considering the lengthy victim-impact
testimony, the trial court informed the parties that it rejected the portion of
Appellant’s plea agreement that bound the court to a minimum sentence of
sixteen years. N.T. (Sentencing), 4/15/11, at 45. Defense counsel
immediately moved to withdraw the plea, and defense counsel and the trial
court engaged in extensive discussion about the trial court’s rejection of the
plea. Id. at 45–50. The trial court continued the proceedings so Appellant
could discuss his options with counsel and determine whether he wanted to
withdraw his guilty plea and proceed to trial, or enter a guilty plea that the
court deemed acceptable.
On April 25, 2011, Appellant again appeared before the trial court and
expressed his desire to plead guilty to third-degree murder and conspiracy
with no agreement regarding his minimum sentence. Defense counsel
addressed the court as follows:
[By Defense Counsel]: I’ve discussed it with [Appellant], he is
not seeking to withdraw his guilty plea. He is not seeking the
[c]ourt’s recusal in this matter. He is, in fact, prepared to
proceed to sentencing despite the Court’s indications that it will
be viewing the agreement disfavorably.
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[By the trial court]: Well, my only exception was to the 16-year
cap on the minimum.
[By defense counsel]: Understood.
[By the trial court]: All other aspects of the plea agreement are
fine. Now, that being said, would you like to question your client
and get everything on the record at this point?
N.T. (Continued Sentencing), 4/25/11, at 4-5.
Thereafter, the trial court, addressing Appellant, inquired:
[By the trial court]: Now, as far as the agreement is concerned,
do you understand that I am accepting all aspects of the
agreement except for that portion which limits the minimum
sentence to 16 years? Do you understand that?
[Appellant]: Yes.
Id. at 11. The trial court determined that Appellant’s plea was knowing,
intelligent, and voluntary and accepted it. Defense counsel presented a
passionate argument for imposition of a minimum sentence of sixteen years
of imprisonment. Id. at 18–22. Ultimately, the trial court sentenced
Appellant to twenty to forty years of imprisonment for third-degree murder.
Appellant clearly was informed multiple times that the trial court was
not bound by the initially negotiated cap regarding his minimum sentence;
indeed, Appellant so acknowledged on the record. N.T. (Continued
Sentencing), 4/25/11, at 8. He is bound by the statements made under
oath, and is not entitled to relief based on post-sentence contentions
contradicting these statements. We have stated:
The longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while
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under oath. . . . A person who elects to plead guilty is bound by
the statements he makes in open court while under oath[,] and
he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.
Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super. 2003). Here,
Appellant’s statements under oath during his guilty plea colloquy are
binding. Therefore, Appellant has failed to establish his claim of
ineffectiveness has arguable merit. “Counsel cannot be deemed ineffective
for failing to raise a meritless claim.” Commonwealth v. Treiber, 121
A.3d 435, 445 (Pa. 2015).
Appellant next asserts that the PCRA court erred in denying Appellant’s
recusal request in his response to the PCRA court’s Pa.R.Crim.P. 907 notice
of intent to dismiss Appellant’s PCRA petition. The basis for Appellant’s
recusal request was the court’s refusal to accept the sixteen-year cap of the
minimum sentence. [Appellant’s] Response to June 17, 2014 Notice of
Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907, 8/6/14, at 17. We
have already dismissed any impropriety concerning the sentencing issue.
Our Supreme Court has discussed the standards governing recusal, as
follows:
“A trial judge should recuse himself whenever he has
any doubt as to his ability to preside impartially in a
criminal case or whenever he believes his
impartiality can be reasonably questioned.”
Commonwealth v. Goodman, 454 Pa. 358, 311
A.2d 652, 654 (1973). It is presumed that the judge
has the ability to determine whether he will be able
to rule impartially and without prejudice, and his
assessment is personal, unreviewable, and final.
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Commonwealth v. Druce, 577 Pa. 581, 848 A.2d
104, 108 (2004). “Where a jurist rules that he or
she can hear and dispose of a case fairly and without
prejudice, that decision will not be overturned on
appeal but for an abuse of discretion.”
Commonwealth v. Abu–Jamal, 553 Pa. 485, 720
A.2d 79, 89 (1998).
Commonwealth v. Blakeney, 946 A.2d 645, 662 (Pa. 2008)
(alteration in original). Additionally, “it is the burden of the
party requesting recusal to produce evidence establishing bias,
prejudice or unfairness which raises a substantial doubt as to the
jurist’s ability to preside impartially.” Commonwealth v.
White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting
Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89
(1998)).
Commonwealth v. Tedford, 960 A.2d 1, 55–56 (Pa. 2008). Without
doubt, our standard of review of a trial court’s determination not to recuse is
exceptionally deferential, because we recognize that our trial judges are
“honorable, fair and competent.” Commonwealth v. Harris, 979 A.2d
387, 391 (Pa. Super. 2009); see also Commonwealth v. Postie, 110 A.3d
1034, 1037 (Pa. Super. 2015) (“We recognize that our trial judges are
‘honorable, fair and competent’”). Thus, “although we employ an abuse of
discretion standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially.” Harris, 979 A.2d at
392; Postie, 110 A.3d at 1037. Moreover:
The party who asserts that a trial judge should recuse bears the
burden of setting forth specific evidence of bias, prejudice, or
unfairness. “Furthermore, a decision by the trial court against
whom the plea of prejudice is made will not be disturbed absent
an abuse of discretion.”
Postie, 110 A.3d at 1037 (quoting Harris, 979 A.2d at 392).
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In response to this claim, the PCRA court stated as follows:
I do not find recusal was necessary in this case, as I was
capable of rendering a fair decision. The defendant bears the
burden of showing bias, prejudice, or unfairness necessitating
recusal. Commonwealth v. Miller, 951 A.2d 322 (Pa. 2008).
[Appellant] appears to take issue with me rejecting his plea
agreement, but does not offer any evidence establishing bias or
prejudice on my part. My rejection of [Appellant’s] plea did not
affect my ability to be impartial regarding his subsequent plea,
sentencing, or the PCRA matter. As such, recusal was not
warranted.
PCRA Court Opinion, 12/24/14, at 3–4.
Appellant has not met the burden for demonstrating partiality, bias, or
an abuse of discretion. As we stated in Harris, “An appellate brief must
provide citations to the record and to any relevant supporting authority.”
Id., 979 A.2d at 393 (citing Commonwealth v. Einhorn, 911 A.2d 960,
970 (Pa. Super. 2006)). See also Commonwealth v. Tielsch, 934 A.2d
81, 93 (Pa. Super. 2007) (claim rejected where record lacked support);
Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa. Super. 2006) (issue
waived where brief lacked supporting citations). In short, Appellant fails to
support his allegations of bias. Nothing Appellant has cited persuades us
that the PCRA court’s determination was an abuse of its discretion. The trial
judge concluded that he could preside impartially. Our review of the record
reveals only support for that conclusion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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