Com. v. Colon, J. ( 2022 )

J-S19030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE COLON :
:
Appellant : No. 1835 EDA 2021
Appeal from the PCRA Order Entered August 5, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006281-2016
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JULY 28, 2022
Appellant, Jorge Colon, appeals from the order entered on August 5,
2021, which dismissed his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court prepared the following summary of the relevant
historical and procedural facts.
On June 12, 2016, Kevin Clark and Joe Connelly were sitting
on a step at the corner of Harold and Thompson Streets in
Philadelphia. Appellant approached them and punched
Connelly four times with a closed fist, after which Clark and
Connelly attempted to walk away. When Clark, an elderly
disabled man, asked Appellant to leave them alone, Appellant
punched Clark approximately [30 to 40] times. As neighbors
intervened to restrain Appellant, he yelled “I’ll shoot him, I’ll
shoot him” and placed his hand inside his satchel. One
neighbor, Michael Fenerty, heard the commotion, went
outside and witnessed Appellant beating Clark. Fenerty told
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* Former Justice specially assigned to the Superior Court.
J-S19030-22
Appellant to leave Clark alone and then grabbed Appellant’s
arm. Appellant screamed at Fenerty that he was going to kill
him but began walking away.
Believing that the altercation was over, Fenerty returned to
his house, changed his clothes, and went outside to wait for
police. Appellant then charged towards Fenerty with an
aluminum baseball bat and struck Fenerty four times.
Fenerty shielded himself with his arms, suffering injuries to
his arms and elbow. Appellant fled when the police arrived.
Two officers pursued Appellant and apprehended him.
Fenerty testified that his arm was red and purple the next
morning and that its condition worsened in the ensuing days.
Later in the week, Fenerty went to an emergency room where
an X-ray revealed deep bruising in the arm and his elbow had
to be drained on two occasions.
Following a bench trial . . . , the trial court found Appellant
guilty of aggravated assault, simple assault, terroristic
threats, [recklessly endangering another person (“REAP”)
and possessing instruments of crime (“PIC”)]. On February
17, 2017, [the trial court] sentenced Appellant to [serve] an
aggregate term of five to ten years [in prison,] followed by
five years of probation.
PCRA Court Opinion, 9/30/21, at 1-3.
Following the nunc pro tunc restoration of Appellant’s direct appellate
rights, the Pennsylvania Superior Court affirmed Appellant’s judgment of
sentence on June 15, 2020. Commonwealth v. Colon, 237 A.3d 1058 (Pa.
Super. 2020) (non-precedential decision) at **1-23. Appellant filed the
current, counseled PCRA petition on June 26, 2020. As is relevant to the
current appeal, Appellant raised the following claims in his petition:
[1.] Trial counsel was ineffective for not requesting the trial
court to recuse [itself] as it was made clear on the record
that the witness, Michael Fenerty, and [the trial court judge]
knew each other.
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[2.] Trial counsel was ineffective for making the decision
himself whether to ask for a recusal. The right to ask or not
ask for a recusal when such a blatant conflict of interest is
raised[] should solely be the decision of the defendant and
not the attorney.
[3.] Trial counsel was ineffective for not informing his client
that he too knew the witness that was testifying.
Appellant’s PCRA Petition, 6/26/20, at 3-4 (some capitalization omitted).
On June 17, 2021, the PCRA court provided Appellant with notice that it
intended to dismiss the petition in 20 days, without a hearing, as the petition
was without merit. PCRA Court Notice, 6/17/21, at 1; see also Pa.R.Crim.P.
907(1). Appellant did not respond to the Rule 907 notice and, on August 5,
2021, the PCRA court finally dismissed Appellant’s petition. PCRA Court Order,
8/5/21, at 1. Appellant filed a timely notice of appeal. He numbers three
claims in his brief:
[1.] Did the PCRA court err in dismissing Appellant’s PCRA
petition as meritless with respect to trial [counsel’s]
ineffective assistance of counsel for not asking the trial court
to rescue [itself] due to [the] trial court knowing a witness
and his family that was called to testify by the
Commonwealth?
[2.] Did the PCRA court err in dismissing Appellant’s PCRA
petition as meritless with respect to trial counsel unilaterally
not asking for a court recusal, as it was [Appellant’s] right
and right alone to decide whether a recusal should be asked
for?
[3.] Did the PCRA Court [err] in dismissing [Appellant’s] PCRA
petition as meritless with respect to trial counsel’s
ineffectiveness for not informing Appellant that he knew the
same witness and family as the trial court?
Appellant’s Brief at 3 (some capitalization omitted).
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“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
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Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.Appellant’s first two claims contend that trial counsel was ineffective for
“not asking for a recusal [and] not consulting with [Appellant] prior to the
decision on whether to ask for a recusal,” after learning that the trial court
judge knew the victim, Michael Fenerty. See Appellant’s Brief at 6 (some
capitalization omitted). These claims fail, as they have no arguable merit.
Indeed, during Appellant’s direct appeal, Appellant claimed that the trial court
judge erred when he failed to recuse himself, as he knew Fenerty. As this
Court explained, Appellant’s recusal claim was “frivolous”:
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Prior to Fenerty’s testimony, the trial court acknowledged sua
sponte that the court had met Fenerty and knew members of
Fenerty’s family. After the court revealed its familiarity with
Fenerty, [Appellant’s] counsel stated: “On the record. That’s
fine. I have no objection, Your Honor, and I have no motion
with regard to that.” Accordingly, the issue of the trial court’s
recusal was not preserved for judicial review. . . .
Even if not waived, the record does not support a conclusion
that the trial court was required to recuse itself in this
instance. “The party who asserts that a trial judge must be
disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating
recusal.” Commonwealth v. Darush, 459 A.2d 727, 731
(Pa. 1983) (citation omitted).
“The acquaintance between a judge and a victim of a crime,
is not, in itself, sufficient to require the trial judge to recuse.”
Commonwealth v. Perry, 364 A.2d 312, 318 (Pa. 1976).
Because the relationship itself does not disqualify the judge,
we look beyond the connection to the victim “to determine if
any prejudice has actually accrued.” Id.After review, there is no showing that the trial court exhibited
favorable bias towards Fenerty or assessed his credibility
positively without justification. Accordingly, the issue is
frivolous.
Commonwealth v. Colon, 237 A.3d 1058 (Pa. Super. 2020)
(non-precedential decision) at **22-23 (some citations omitted).1
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1 Although this Court held that Appellant’s issue was waived, we alternatively
held that, even if Appellant preserved the issue, the issue was frivolous. The
decision on the merits constitutes an alternative holding and, as our Supreme
Court has held, “[w]here a decision rests on two or more grounds equally
valid, none may be relegated to the inferior status of obiter dictum.”
Commonwealth ex rel. Fox v. Swing, 186 A.2d 24, 26 (Pa. 1962); see
also Commonwealth v. Towles, 208 A.3d 988, 1005 (Pa. 2019) (holding
that the Supreme Court rendered an alternative holding, when, “despite the
determination of waiver, [the Supreme] Court nevertheless engaged in a
merits resolution of the underlying claim”).
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Within Appellant’s current appellate brief, Appellant similarly makes no
claim that the trial court judge “exhibited favorable bias towards Fenerty or
assessed his credibility positively without justification.” See id. at *23; see
also Appellant’s Brief at 8-11. As such, Appellant’s first two ineffectiveness
claims have no arguable merit and the claims necessarily fail.
Finally, Appellant claims that his trial counsel was ineffective because
counsel failed to timely inform Appellant that he also knew Fenerty. Appellant
has not supported his claim with any citation to legal authority and Appellant
neither claims nor argues that counsel’s alleged failure caused Appellant to
suffer prejudice. See Appellant’s Brief at 12. Therefore, Appellant’s final
claim on appeal is waived. See Commonwealth v. Miller, 212 A.3d 1114,
1131 (Pa. Super. 2019) (“[o]ur rules of appellate procedure require an
appellant to support his or her argument with pertinent analysis, including
citation to and discussion of relevant authority and facts of record. See
Pa.R.A.P. 2119. This [C]ourt will not become the counsel for an appellant and
develop arguments on an appellant's behalf, and waiver of an issue results
when an appellant fails to properly develop an issue or cite to legal authority
to support his contention in his appellate brief”) (quotation marks and some
citations omitted).
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2022
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