Com. v. Morris, E. ( 2023 )

J-S07035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERNEST REGINALD MORRIS :
:
Appellant : No. 1992 EDA 2022
Appeal from the PCRA Order Entered July 19, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005182-2005
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 24, 2023
Appellant, Ernest Reginald Morris, appeals pro se from the order entered
in the Montgomery County Court of Common Pleas, which denied his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant facts and procedural history of
this case as follows:
A jury found [Appellant] guilty of conspiracy, murder of the
first degree, murder of an unborn child, two counts of
murder of the second degree, kidnapping and related
offenses stemming from the January 31, 2005, shooting
deaths of Shawne Mims, Jennifer Pennington and
Pennington’s unborn child. He received three consecutive
terms of life imprisonment without the possibility of parole,
plus a consecutive term of incarceration of 43 to 90 years.
The Superior Court affirmed his judgment of sentence on
direct appeal [on November 1, 2010] and our Supreme
Court denied allowance of appeal on December 29, 2011.
J-S07035-23
[Appellant] filed a PCRA petition in July 2012, which this
court dismissed without an evidentiary hearing on August
20, 2013. The Superior Court affirmed the dismissal[ on
October 10, 2014, and our Supreme Court denied allowance
of appeal on February 4, 2015]. Commonwealth v.
Morris, 108 A.3d 110 (Pa.Super. [2014), appeal denied,
631 Pa. 712, 109 A.3d 679 (2015)]. [Appellant] filed a pro
se PCRA petition in June 2018, which this court dismissed
as untimely on February 13, 2019.
[Appellant] filed the instant serial pro se PCRA on December
14, 2021. He conceded the facial untimeliness of the
petition, but alleged he met the governmental interference
and newly discovered fact exceptions to the PCRA’s
limitations period codified at 42 Pa.C.S. § 9545(b)(1)(i, ii).
In particular, he claimed to have learned for the first time
on August 21, 2020, from fellow inmate Thomas Drew that
a trial witness against [Appellant], Wayne Caldwell,
allegedly had a history of informing for, and receiving
favorable treatment from, the government. [Appellant]
claimed he then pursued and eventually received records on
November 8, 2021, related to an open guilty plea involving
Caldwell and his sentencing on January 14, 2010.
The court gave [Appellant] notice on March [2], 2022, of its
intention to dismiss the serial petition without a hearing due
to untimeliness. [Appellant] subsequently received an
extension of 45 days in which to respond to the notice.
Rather than respond to the substance of the notice,
however, and without court permission, [Appellant] filed a
supplemental petition on March 23, 2022.1 He reasserted
the claims related to Caldwell and added similar claims
related to trial witness Laverne Brewer. Again without court
approval, [Appellant] filed a second supplemental petition
on May 12, 2022, reiterating the claims related to Caldwell
and Brewer and claiming governmental interference and
new facts related to trial witnesses Kristen Holmes and
Kathleen Somers-Wells.
1[Appellant] also filed a separate petition seeking the
recusal of the undersigned, which was denied on April
14, 2022.
This court dismissed the serial petition by Order dated July
-2-
J-S07035-23
19, 2022, for the reasons stated in the notice of intent to
dismiss.2 [Appellant] appealed and subsequently produced
a court-ordered Pa.R.[A].P. 1925(b) concise statement of
errors.
2 In dismissing the petition, the court considered
[Appellant’s] supplemental petition and second
supplemental petition, which were filed without leave
of court, only to the extent that they failed to respond
to the substance of the notice of intent to dismiss.
(PCRA Court Opinion, filed September 27, 2022, at 1-3).
Appellant raises the following issues for our review:
Did [Appellant] satisfy the governmental interference and
new facts exceptions to excuse a late PCRA petition, where
[Appellant] uncovered exculpatory evidence that was never
provided by the Commonwealth in violation of Brady[1]?
Did the Commonwealth violate [Appellant’s] due process
rights and violate the mandate of Brady by: a) failing to
disclose cooperation agreements with witnesses Wayne
Caldwell, Laverne Brewer, and Kristin Holmes; b) failing to
disclose Caldwell’s exceptionally long history and practice of
informant work in exchange for leniency in his own cases;
c) suppressing evidence of Caldwell’s extensive criminal
history; d) not informing [Appellant] that Brewer and
witness Kathleen Wells were ordered to have regular contact
with a member of the prosecution team for a period of three
years leading up to [Appellant’s] trial; e) never disclosing
Holmes’ psychiatric reports where she suffered from severe
mental illness?
Did the PCRA court err by failing to conduct an evidentiary
hearing?
Did the PCRA court err by refusing to rule on [Appellant’s]
Motion for Discovery, in light of “exceptional
circumstances?”
____________________________________________
1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
-3-
J-S07035-23
Did the PCRA court err by denying [Appellant’s] Motion to
Recuse Judge Steven T. O’Neill?
(Appellant’s Brief at 4).
In his first issue, Appellant argues that he filed the current PCRA petition
within one year of obtaining the transcript of Caldwell’s guilty plea and
sentencing hearing that disclosed an agreement in place for Caldwell’s
cooperation, and that initiated Appellant’s investigation into Caldwell’s work
as an informant. Appellant asserts that the Commonwealth failed to disclose
that Caldwell received lenient treatment in his own case in exchange for his
testimony against Appellant. Appellant claims Caldwell also had a history of
being a state and federal government informant that remained undisclosed to
Appellant and hidden by the Commonwealth for over a decade. Appellant
maintains that Caldwell’s past cooperation included informant work for the FBI
in up to 60 investigations, and he repeatedly received consideration for that
cooperation in his own criminal cases. Appellant insists this information would
have been vital to the defense because Caldwell was a key Commonwealth
witness, and his testimony was the only evidence establishing Appellant’s
motive.
Prior to speaking with Thomas Drew in August 2020, Appellant contends
he had no facts or proof to support his mere belief that Caldwell was
cooperating with the government. Appellant posits that his mere belief could
not have formed the basis for an earlier PCRA petition. Appellant submits that
he did not have any information to establish a factual basis that an agreement
-4-
J-S07035-23
existed between Caldwell and the Commonwealth until Appellant acquired
Caldwell’s transcripts on November 8, 2021. Appellant emphasizes that the
transcripts were the material evidence which formed the basis for Appellant’s
claims.
Appellant further argues that he believed he attached a “request to
amend” to his supplemental PCRA petitions. Appellant asserts that he
ultimately discovered he did not file the request to amend. Nevertheless,
Appellant claims the court should have permitted Appellant to correct the
defect in the supplemental petitions by allowing Appellant to seek leave to
amend. Appellant emphasizes that when he learned he had not attached the
request for leave to amend to the supplemental petitions, he sought leave to
amend, but the court failed to rule on that request.
Appellant claims that his current PCRA petition satisfies the
governmental interference exception to the PCRA time-bar because the
Commonwealth interfered with Appellant’s ability to raise the claim sooner
because prosecutors suppressed exculpatory evidence demonstrating that
Caldwell was engaged in the practice of informing on others to Caldwell’s own
benefit. Appellant insists the Commonwealth further failed to disclose
Caldwell’s crimen falsi convictions and his extensive criminal history.
Appellant avers the Commonwealth failed to provide the following Brady
material: (1) Caldwell was a career criminal with crimen falsi convictions; (2)
had an extensive history of informing on others, assisting in as many as 60
-5-
J-S07035-23
FBI investigations; (3) had reached an actual agreement with the
Commonwealth where he was given a specific promise of leniency in exchange
for testifying against Appellant; and (4) had been encouraged and permitted
by the Commonwealth to give false testimony.
Appellant maintains that he could not have discovered Caldwell’s
transcripts earlier with the exercise of due diligence. Appellant notes that
there is no longer a public record presumption, such that the court could have
presumed that Appellant could have gained access to transcripts contained in
Caldwell’s federal criminal case file. Appellant insists that he was entitled to
rely upon the Commonwealth’s assertion that all exculpatory materials had
been turned over; Appellant had no reason to believe that the Commonwealth
violated Brady until he reviewed Caldwell’s transcripts. Based on these
claims, Appellant suggests his PCRA petition also satisfies the “newly-
discovered facts” exception to the PCRA time-bar. Appellant concludes the
PCRA court erred by dismissing his petition as untimely, and this Court must
grant relief. We disagree.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Ballance, 203 A.3d 1027 (Pa.Super. 2019), appeal
denied, 654 Pa. 600, 216 A.3d 1044 (2019). A PCRA petition must be filed
within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the conclusion of direct
review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
-6-
J-S07035-23
9545(b)(3). Generally, to obtain merits review of a PCRA petition filed more
than one year after the judgment of sentence became final, the petitioner
must allege and prove at least one of the three timeliness exceptions:
(i) the failure to raise the claim previously was the result
of interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “Any petition invoking an exception
provided in paragraph (1) shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
“Although a Brady violation may fall within the governmental
interference exception, the petitioner must plead and prove the failure to raise
the claim was the result of interference by government officials, and the
information could not have been obtained earlier with the exercise of due
diligence.” Commonwealth v. Abu-Jamal, 596 Pa. 219, 227, 941 A.2d
1263, 1268 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d
201 (2008).
To meet the “newly-discovered facts” timeliness exception set forth in
-7-
J-S07035-23
Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those facts
earlier by the exercise of due diligence.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa.Super. 2015). Due diligence demands that a PCRA
petitioner take reasonable steps to protect his own interests. Id.Instantly, Appellant concedes that his current PCRA petition is facially
untimely. In addressing whether Appellant satisfied a timeliness exception,
the PCRA court reasoned:
Here, the petition filed on December 14, 2021, did not plead
a basis for this court to determine that he could not have
raised his claims related to Caldwell sooner. Indeed, while
[Appellant] asserted that he did not know about Caldwell’s
alleged history of testifying for the Commonwealth in
exchange for leniency until speaking with fellow inmate
Thomas Drew in August 2020, the affidavit from Drew that
[Appellant] attached to his petition belies that assertion.
Notably, Drew states in the affidavit that [Appellant] told
him on August 21, 2020, that [Appellant] already suspected
Caldwell had been given favorable treatment for his
testimony against [Appellant]. See Petition for Post-
Conviction Relief, filed 12/14/21, Exh. “A.” [Appellant] did
not plead, however, an explanation for why he did not act
on this prior suspicion with more diligence and in a more
timely manner. He, therefore, failed to demonstrate
through his own pleadings that he could not have discovered
sooner the purported new facts and governmental
interference allegedly related to Caldwell.
In addition, when advised in the notice of intent to dismiss
that he did not meet the asserted exceptions to the PCRA’s
limitations period, [Appellant] did not [seek] to address the
defect; instead he filed a series of supplemental petitions
without court permission, raising additional claims of
governmental interference and new facts in connection with
Brewer, Holmes and Somers-Wells. The failure to receive
court permission before supplementing his petition is fatal
-8-
J-S07035-23
to those additional claims. See Commonwealth v. Porter,
[613 Pa. 510, 523-24,] 35 A.3d 4, 12 ([2012]) (stating that
amendment of a PCRA is permitted only by direction or leave
of the court).4 This court, therefore, properly determined
that it lacked jurisdiction to consider [Appellant’s] untimely
claims.
4 Even had [Appellant’s] claims related to Brewer,
Holmes and Somers-Wells been properly asserted,
they fail for the same reasons as his claims related to
Caldwell. Indeed, while [Appellant] alleged that he
only learned of the claims related to Caldwell in
August 2020, he did not plead an explanation as to
why he could not have learned sooner of the claims
related to Brewer, Holmes and Somers-Wells.
(PCRA Court Opinion at 5-6). The record supports the court’s decision that
Appellant cannot satisfy a time-bar exception.
At the outset, Appellant’s proffered time-bar claim is more properly
construed as one under the “newly-discovered facts” exception. Although
Appellant also cites the “governmental interference” exception, Appellant does
not explain how government officials interfered with his ability to present his
claim sooner by somehow prohibiting Appellant from accessing Caldwell’s
transcripts. Rather, Appellant seeks to argue that the transcripts from
Caldwell’s guilty plea and sentencing proceedings constitute “new facts”
because they allegedly show that Caldwell received a lenient sentence in
exchange for his testimony against Appellant, that Caldwell had a significant
previous criminal history and history as an informant, and these facts were
not disclosed to Appellant at the time of his trial constituting a violation of
Brady.
-9-
J-S07035-23
Nevertheless, our review of the guilty plea and sentencing transcripts
from Caldwell’s proceedings makes clear that no deal was in place regarding
Caldwell’s testimony against Appellant. To be sure, Caldwell’s guilty plea
hearing transcript confirms that Caldwell entered an open guilty plea on
August 21, 2009, to access device fraud and related offenses, and there was
no agreement or promises made in exchange for Caldwell’s guilty plea. The
judge expressly stated that what the court would sentence Caldwell to had
“absolutely nothing to do with [Caldwell] being a witness in [Appellant’s] case
and what [the court] would give [as a sentence] in [Caldwell’s] case.” (N.T.
Caldwell’s Plea Hearing, 8/21/09, at 17, attached to Appellant’s PCRA Petition,
filed 12/14/21). The court went on to say that “even though I happen to be
presiding on [Appellant’s] case, I have nothing—I never knew anything about
this, this case just happens to be—so no expectation between you and I[.]”
(Id.) Following Caldwell’s guilty plea, the court deferred sentencing pending
a pre-sentence investigation report.
Following the plea, Caldwell testified against Appellant on September
17, 2009. Caldwell proceeded to sentencing on January 14, 2010, in his own
case. At that time, Caldwell’s counsel sought leniency based on Caldwell’s
testimony against Appellant. Specifically, Caldwell’s counsel noted that
Caldwell was in fear for his life that Appellant or others would seek to exact
revenge on Caldwell. The Commonwealth then confirmed that when Caldwell
pled guilty there were no deals in place and the court would be fashioning
- 10 -
J-S07035-23
Caldwell’s sentence. (See N.T. Caldwell’s Sentencing Hearing, 1/14/10, at
29, attached to Appellant’s PCRA Petition, filed 12/14/21). Nevertheless, the
Commonwealth acknowledged that Caldwell put his safety at risk by testifying
against Appellant, so the Commonwealth declined to seek a specific sentence.
(See id. at 31). In fashioning Caldwell’s sentence, the court noted the
dangers of being a “snitch” and the actual violence that might befall Caldwell
based on his testimony against Appellant. The court said it would impose a
mitigated sentence, by a few months, so that the court could keep Caldwell in
county jail instead of a state correctional institution for Caldwell’s own safety.
Thus, the court imposed concurrent terms of 11½ to 23 months’ imprisonment
for Caldwell’s convictions plus a lengthy probationary tail. The court warned
Caldwell that if he violated his probation, the court would not afford Caldwell
the same leniency again. (Id. at 37).
On this record, we cannot agree with Appellant that he has uncovered
any “new fact” based on Caldwell’s “deal” with the Commonwealth in exchange
for Caldwell’s testimony, to satisfy the first prong of the time-bar exception.
To the contrary, the transcripts from Caldwell’s guilty plea and sentencing
proceedings are consistent with Caldwell’s testimony at Appellant’s trial that
he merely hoped for leniency in his own case. In this respect, the transcripts
are merely a new source for previously known information (that Caldwell
hoped for leniency in his own sentence) and offer no “new facts.” See Brown,
supra (explaining that focus on exception set forth under Section
- 11 -
J-S07035-23
9545(b)(1)(ii) is on newly discovered facts, not on newly discovered or newly
willing source for previously known facts). Appellant’s interpretation of the
transcripts as demonstrating a deal in place between Caldwell and the
Commonwealth in exchange for Caldwell’s testimony is simply a misreading
of the transcripts or plucking sentences from those transcripts without proper
context.
Regarding Appellant’s remaining claims pertaining to Caldwell’s prior
criminal record and history of being an informant, we agree with the PCRA
court that Appellant has failed to show that he could not have uncovered the
transcripts in Caldwell’s case sooner by the exercise of due diligence. On this
point, Appellant makes much of our Supreme Court’s decision in
Commonwealth v. Small, 662 Pa. 309, 238 A.3d 1267 (2020). In Small,
our Supreme Court made clear there is no longer a “public record
presumption” pursuant to which a court may find that information available to
the public is not a fact that was previously “unknown” to the petitioner.
Nevertheless, the Court clarified, “that [Appellant] is relieved of the public
record presumption does not mean that [Appellant] prevails.… The textual
requirements of the time-bar exception remain.” Id. at 340, 238 A.3d at
1286. Therefore, “although Small eliminates the public record presumption,
it does not abrogate the requirement that petitioners perform due diligence to
discover the facts upon which their claim is predicated.” Commonwealth v.
Keener, No. 1165 WDA 2021, 2022 WL 2359373, at *4 (Pa.Super. June 30,
- 12 -
J-S07035-23
2022) (unpublished memorandum).2
Here, Thomas Drew’s affidavit attached to Appellant’s current PCRA
petition states that Appellant had suspicions about Caldwell’s cooperation with
the government. Appellant provides no explanation for why he could not have
accessed Caldwell’s criminal docket and transcripts in the decade between
Appellant’s trial and the filing of his current PCRA petition in an effort to
confirm or dispel his suspicions. See id. Had Appellant exercised due
diligence in accessing the criminal docket and transcripts for Caldwell’s case
sooner, he would have obtained the information on which his current claims
are predicated.
Regarding the other Commonwealth witnesses Brewer, Holmes, and
Somers-Wells, Appellant raised claims concerning those witnesses for the first
time in supplemental PCRA petitions filed without leave of court. The PCRA
court accurately observed that an “amendment [to a PCRA petition] is
permitted only by direction or leave of the PCRA court.” Porter, supra at
523-24, 35 A.3d at 12. Nevertheless, the record shows that Appellant filed a
motion on May 5, 2022, seeking an extension of time to supplement his PCRA
petition. Appellant filed another motion on July 8, 2022, seeking leave to
supplement or amend his PCRA petition. The PCRA court did not rule on these
motions. Because “[a]mendment[s to a PCRA petition] shall be freely allowed
____________________________________________
2 See Pa.R.A.P. 126(b) (stating we may rely on non-precedential decisions
from this Court filed after May 1, 2019, for persuasive value).
- 13 -
J-S07035-23
to achieve substantial justice,” (see Pa.R.Crim.P. 905(A)), we will not
disregard Appellant’s supplemental petitions.
Significantly, however, Appellant provides no analysis on appeal of a
time-bar exception concerning the information related to Brewer, Holmes, and
Somers-Wells. (See Appellant’s Brief at 12-18). Instead, Appellant dedicates
his argument concerning the proffered time-bar exceptions to the information
involving Caldwell. Appellant merely indicates that his investigation into
Caldwell “motivated him to learn more about the circumstances surrounding
the testimony of” Brewer, Somers-Wells and Holmes. (See Appellant’s Reply
Brief at 4). This statement is insufficient to constitute a developed argument
concerning a time-bar exception for the claims related to Brewer, Somers-
Wells and Holmes. Therefore, Appellant has not satisfied a time-bar exception
and Appellant’s current PCRA petition remains untimely.3
In his fifth issue, Appellant argues that the PCRA judge was the same
jurist who sentenced Caldwell. Appellant claims the PCRA court “inadvertently
____________________________________________
3 Based on our disposition that Appellant’s current petition is untimely and the
PCRA court lacked jurisdiction to adjudicate the merits of the underlying
Brady claims, we need not address Appellant’s second issue on appeal.
Likewise, we need not address Appellant’s third or fourth issues, seeking
discovery and an evidentiary hearing. See Pa.R.Crim.P. 902(E) (stating
discovery is not permitted during PCRA proceedings in non-capital cases,
absent showing of exceptional circumstances. See also Commonwealth v.
Maddrey, 205 A.3d 323 (Pa.Super. 2019), appeal denied, 655 Pa. 398, 218
A.3d 380 (2019) (stating PCRA court is not required to hold evidentiary
hearing where court is able to determine from record that relief is
unavailable).
- 14 -
J-S07035-23
became a witness of the Commonwealth’s concealment of exculpatory
evidence that was never disclosed to [Appellant].” (Appellant’s Brief at 34).
Further, Appellant insists the PCRA court has shown hostility toward Appellant
at various times over the life of his case, including in pre-trial hearings.4
Appellant concludes the court erred by denying his recusal motion, and this
Court must vacate the order denying PCRA relief, and remand for an
evidentiary hearing before a new jurist. We disagree.
With respect to Appellant’s recusal motion, our scope and standard of
review are as follows:
The standards for recusal are well established. 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.
In considering a recusal request, the jurist must first
make a conscientious determination of his or her
ability to assess the case in an impartial manner, free
of personal bias or interest in the outcome. The jurist
must then consider whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make.
Where a jurist rules that he or she can hear and
dispose of a case fairly and without prejudice, that
decision will not be overruled on appeal but for an
abuse of discretion. In reviewing a denial of a
disqualification motion, we recognize that our judges
____________________________________________
4 Appellant did not make this particular claim in his recusal motion filed March
23, 2022. As Appellant raises this claim for the first time on appeal, it is
waived and we will give it no further attention. See Pa.R.A.P. 302(a) (stating
issues raised for first time on appeal are waived).
- 15 -
J-S07035-23
are honorable, fair and competent.
Commonwealth v. Dip, 221 A.3d 201, 206 (Pa.Super. 2019), appeal denied,
658 Pa. 542, 229 A.3d 567 (2020) (internal citations omitted).
Further, a recusal request must be timely made. Commonwealth v.
Blount, 207 A.3d 925, 930 (Pa.Super. 2019), appeal denied, 655 Pa. 583,
218 A.3d 1198 (2019). “[A] party must seek recusal of a jurist at the earliest
possible moment, i.e., when the party knows of the facts that form the basis
for a motion to recuse. If the party fails to present a motion to recuse at that
time, then the party’s recusal issue is time-barred and waived.” Id. at 930-
31.
Instantly, the court addressed Appellant’s claim for recusal as follows:
[Appellant] claimed in a motion to recuse…that the
undersigned had a duty to recuse himself because he
presided over an open guilty plea and sentencing involving
Caldwell in 2010. As an initial matter, the motion is
untimely. [Appellant] alleged in his petition, filed on
December 14, 2021, that Caldwell had received leniency in
exchange for his testimony against [Appellant], but he did
not move for the undersigned’s recusal until March 23,
2022, after issuance of the notice of intent to dismiss on
March 2, 2022. The motion, therefore, raises the…troubling
concern…where a defendant moves for recusal after
receiving an adverse ruling.
Additionally, the undersigned made a conscientious
determination that recusal was not warranted because the
undersigned was able to adjudicate the petition in an
impartial manner and the undersigned’s continued
involvement would create neither an appearance of
impropriety nor tend to undermine public confidence in the
judiciary. [Appellant], therefore, is not entitled to relief on
this final claim.
- 16 -
J-S07035-23
(PCRA Court Opinion at 9) (emphasis in original).
Initially, Appellant’s recusal issue is arguably moot, as he seems to claim
the PCRA judge should recuse himself if further proceedings continue upon
remand. (See Appellant’s Brief at 33). As we are not remanding for an
evidentiary hearing, there are no further proceedings that will occur. To the
extent Appellant argues that the court should not have ruled on Appellant’s
PCRA petition because it had previously presided over matters involving
Caldwell, we observe that Appellant attached the guilty plea and sentencing
transcripts involving Caldwell to his current PCRA petition. Those transcripts
make clear that the PCRA judge involved in Appellant’s case (who also
presided over Appellant’s jury trial) presided over Caldwell’s proceedings.
Thus, Appellant could have moved for recusal at that time. Instead, Appellant
did not seek recusal until after the court issued Rule 907 notice. Under these
circumstances, we agree with the PCRA court that the recusal motion was
untimely. See Blount, supra.Moreover, as discussed above, the transcripts from Caldwell’s
proceedings belie Appellant’s contention that the Commonwealth made
Caldwell any deal in exchange for his testimony against Appellant. Thus, even
if Appellant’s recusal motion was timely, we would see no abuse of discretion
in the court’s denial of the motion, as there was no appearance of impropriety
- 17 -
J-S07035-23
in this case.5 See Dip, supra. Accordingly, we affirm the order denying PCRA
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2023
____________________________________________
5 Appellant has filed two applications for relief in this Court, alleging that
during the pendency of this appeal he has uncovered additional evidence of
Brady violations. Appellant asked us to remand to the PCRA court so that he
can further pursue these claims. Based on our disposition, we deny
Appellant’s requests for remand. Appellant is free to raise his new claims in
a serial PCRA petition, where he must first plead and prove the court’s
jurisdiction to consider same.
- 18 -