Com. v. Talley, A.

J-A18013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTRON TALLEY :
:
Appellant : No. 256 WDA 2021
Appeal from the PCRA Order Entered February 17, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001397-2014
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 30, 2021
Appellant, Antron Talley, appeals pro se from the order entered on
February 17, 2021, which denied his first petition filed under the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts and procedural history of Appellant’s case are as follows. On
April 18, 2017, a jury found Appellant guilty of assault by prisoner, two counts
of aggravated assault, and one count of simple assault1 stemming from a
December 19, 2013 incident in which Appellant, an inmate, attacked Jason
Arlotta, a correctional officer at the Allegheny County Jail (“ACJ”). Trial Court
Opinion, 9/20/17, at 1 and 4. Appellant represented himself at trial. Id. at
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1 18 Pa.C.S.A. §§ 2703(a), 2702(a)(2), 2702(a)(3), and 2701(a)(1),
respectively.
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1. On May 24, 2017, the trial court sentenced Appellant to an aggregate term
of eight to 16 years of imprisonment with credit for time served, followed by
an eight-year probationary sentence. Id. at 1-2. After the trial court denied
Appellant’s post-sentence motions, Appellant filed a timely appeal. Id. at 2.
This Court affirmed Appellant’s judgment of sentence on July 9, 2018. See
Commonwealth v. Talley, 2018 WL 3341922 (Pa. Super. 2018)
(unpublished decision).
On October 12, 2018, Appellant filed a timely pro se PCRA petition, his
first. He subsequently filed a pro se amended PCRA petition on January 18,
2019,2 and supplemental amendments on February 13, 2019, June 27, 2019,
August 9, 2019, March 2, 2020, and July 7, 2020. See PCRA Court Opinion,
2/17/21, at 1. The PCRA court granted Appellant leave to represent himself
on February 1, 2019. See PCRA Court Order, 2/1/19. Within his amended
PCRA petition and supplements thereto, Appellant raised a plethora of
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2 After Appellant filed his initial PCRA petition, the PCRA court appointed Scott
Coffey, Esquire, to represent Appellant in PCRA proceedings. See Trial Court
Order, 10/30/18. Appellant thereafter filed a pro se motion to waive counsel
on December 18, 2018. In addition, Appellant filed a pro se amended PCRA
petition on January 18, 2019, while still represented by counsel. See Trial
Court Docket Entries, 12/18/18 and 1/18/19. Despite our prohibition against
hybrid representation, our caselaw provides an exception in the case of pro se
filings requesting appointment of new counsel or leave to self-represent. See
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).
Therefore, the PCRA court properly considered Appellant’s pro se motion to
waive counsel. Moreover, because the PCRA court granted Appellant’s motion
on February 1, 2019 – before it adjudicated his claims for collateral
relief raised in the January 18, 2019 petition – we shall refrain from treating
the January 2019 amended petition as a legal nullity.
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unrefined allegations. In scheduling an evidentiary hearing, the PCRA court
narrowed the focus of Appellant’s claims:
Following a discussion with the parties on September 19, 2019,
the court issued an [o]rder on September 20, 2019, limiting the
scope of the PCRA [h]earing to the [Appellant’s] claim of
after-discovered evidence and his claims alleging ineffective
assistance of counsel (“IAC”) only as the IAC claims related to his
assertion of a violation of his right to a speedy trial.
PCRA Court Opinion, 2/17/21, at 2 (footnote omitted). The PCRA court further
clarified:
With respect to the IAC claims, the [Appellant] contends that he
received ineffective assistance from each of his trial attorneys due
to the number of postponements that they had requested, which
he argues resulted in a violation of his speedy trial rights under
Pa.R.Crim.P. 600. Relatedly, the [Appellant] alleged that his
appellate counsel provided ineffective assistance when she opted
to abandon the speedy trial issue in her appellate brief before [this
Court] following the issuance of the [trial court’s 1925(a) opinion
filed on September 20, 2017].
With respect to the [Appellant’s] after-discovered evidence claim,
the [Appellant] contends that two (2) of his fellow inmates at
[ACJ] witnessed the incident that led to his criminal charges and
conviction and that their testimony would establish that the
assault did not unfold in the manner testified to by the victim at
trial. A PCRA [h]earing on these claims was held on November
17, 2020.
Id. at 2-3 (citations to the record and footnote omitted).
At several points throughout the PCRA proceedings, Appellant moved,
either in written or oral form, for the PCRA Court, the Honorable Judge Beth
A. Lazzara, to recuse herself. See Petitions for Recusal filed 8/29/19 and
9/30/19; N.T. Hearing, 9/19/19, at 11, 14-15. The PCRA court denied
Appellant’s motions. At the conclusion of an evidentiary hearing on November
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17, 2020, the PCRA court expressly permitted Appellant and the
Commonwealth to submit post-hearing memoranda. PCRA Court Opinion,
2/17/21, at 1. On February 17, 2021, the PCRA court denied, by opinion and
order, Appellant’s PCRA petition. Id. This appeal followed.3
Appellant, proceeding pro se,4 raises 26 issues before this Court. See
Appellant’s Brief at 6-9. Appellant takes issue with the PCRA court’s denial of
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3 Appellant filed a timely pro se notice of appeal on February 22, 2021 and
subsequently, on March 1, 2021, filed an unsolicited concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 14,
2021, the PCRA court entered an order pursuant to Pa.R.A.P. 1925(b) and
allowed Appellant time to file amendments to his March 1, 2021 concise
statement. Appellant timely filed his amended concise statement on April 19,
2021. Within his two concise statements, Appellant raised “a total of 31
allegations of error on appeal relating to the denial of his PCRA petition.” PCRA
Court Opinion, 4/28/21, at 1. The PCRA Court issued an order on April 28,
2021 adopting its February 17, 2021 opinion as its 1925(a) opinion.
4 On March 31, 2021, this Court issued a per curiam order directing the PCRA
court to confirm that it conducted a Grazier hearing to determine if
Appellant’s requests to proceed pro se were knowing, voluntary, and
intelligent. See Per Curiam Order, 3/31/21. The PCRA court filed a response
with this Court on April 16, 2021, wherein it included a copy of the transcripts
of Appellant’s January 31, 2019 Grazier hearing. See PCRA Court Response,
4/16/21. Moreover, the PCRA court issued an order on March 15, 2021,
directing Appellant to confirm in writing whether he intends to continue to
represent himself in the present appeal. On March 25, 2021, Appellant
responded in the affirmative. The PCRA court noted its understanding that
Appellant “has been adamant about representing himself for years” at both
the state and federal levels. Id. It concluded:
In light of the clear waiver colloquy that was executed at the
Grazier [h]earing on January 31, 2019, [Appellant’s] recent
stated intent to continue his pro se representation, and [the PCRA]
court’s familiarity with [Appellant] over the last several years, the
[PCRA] court is confident that [Appellant] wishes to continue
(Footnote Continued Next Page)
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his motion to recuse. Id. at 9. He further contests the PCRA court’s rejection
of his ineffective assistance of trial and direct appellate counsel claims as they
relate to an underlying violation of his right to a speedy trial and its rejection
of his after-discovered evidence claim. Id. at 6-8. We will review these issues
in succession. Appellant’s remaining claims, numbers 11-20, 24, and 26, see
id. at 7-9,5 are waived as each involve freestanding allegations of trial court
error that Appellant raised or could have raised before trial, at trial, or on
appeal. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived [for purposes of
PCRA relief] if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal, or in a prior state
postconviction proceeding”). Consequently, Appellant is not entitled to relief
on these claims and we will not discuss them further. See 42 Pa.C.S.A.
§ 9543(a)(3) (PCRA petitioner has burden to prove allegation of error has not
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representing himself in this appeal, that he fully understands all
the rights and risks attendant to self-representation, and that no
further waiver colloquy is necessary.
Id. Based on our review of the certified record, including the notes of
testimony from Appellant’s Grazier hearing, the PCRA court’s order,
Appellant’s response, and the PCRA court’s explanation to this Court, we are
satisfied that Appellant knowingly, voluntarily, and intelligently waived his
right to counsel in order to represent himself pro se throughout his PCRA
proceedings before both the PCRA court and this Court.
5 Appellant takes issue with the trial court’s actions in granting continuances
in his absence, amending Appellant’s charges, allegedly participating in plea
negotiations, and otherwise allegedly violating his self-representation and
speedy trial rights. See Appellant’s Brief at 7-9.
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been waived); see also Commonwealth v. Keaton, 45 A.3d 1050, 1060
(Pa. 2012) (claims that could have been raised at trial or on direct appeal are
waived). Thus, we turn to Appellant’s three reviewable claims on appeal.
We review an order denying collateral relief to determine “whether the
PCRA court’s determination is supported by the record and free of legal error.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Commonwealth v. Lawson,
90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). “This Court grants great
deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation
omitted). In contrast, we review the PCRA court’s legal conclusions de novo.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc),
appeal denied, 101 A.3d 785 (Pa. 2014).
A petitioner is eligible for relief under the PCRA if the petitioner pleads
and proves by a preponderance of the evidence, inter alia, that his or her
conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States 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.
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(ii) Ineffective 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.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have changed
the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S.A. § 9543(a)(2)(i-viii).
Regarding recusal, our Supreme Court has stated:
A party that seeks recusal of a judge bears the burden to produce
evidence establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.
[An appellate court] reviews a jurist’s denial of a motion to recuse
for abuse of discretion. In addition, [our Supreme Court has]
concluded that, in general, it is preferable for the judge who
presided at trial to preside over any post-conviction proceedings
because his or her familiarity with the case will likely assist the
proper administration of justice.
Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (internal
citations and quotations omitted). We have further clarified our standard of
review:
[O]ur review of a trial court’s denial of a motion to recuse is
exceptionally deferential. We extend extreme deference to a trial
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court’s decision not to recuse. We recognize that our trial judges
are honorable, fair[,] and competent, and[,] although we employ
an abuse of discretion standard, we do so recognizing that the
judge himself [or herself] is best qualified to gauge his [or her]
ability to preside impartially. Hence, a trial judge should grant to
motion to recuse only if a doubt exists as to his or her ability to
preside impartially or if impartiality can be reasonably questioned.
Interest of D.R., 216 A.3d 286, 292 (Pa. Super. 2019), aff’d, 232 A.3d 547(Pa. 2020) (citation omitted).
Here, Appellant contends that Judge Lazzara “held [a] resentment, or
harbored some type of ill-will or bias toward the Appellant” because he filed a
complaint with the Judicial Conduct Board and “informed the federal court[]
of her actions in a habeas corpus [action.]” Appellant’s Brief at 22. In so
arguing, Appellant fails to produce evidence establishing bias, prejudice, or
unfairness on the part of the PCRA court judge that would raise a substantial
doubt as to the jurist’s ability to preside impartially. Moreover, most instances
which Appellant cites as examples of Judge Lazzara’s alleged ill-will or bias
occurred within the context of Appellant’s original trial proceedings. Thus,
they do not support a recusal requested years later within his PCRA
proceedings. See Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (“[i]in
this Commonwealth, 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.”). Plainly,
Appellant simply disagrees with, and is dissatisfied with, the disposition of his
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various motions and the outcome of his original trial and his collateral relief
proceedings. Therefore, Appellant’s recusal claim is without merit.
Finally, we conclude that the remaining reviewable claims presented on
appeal, to wit trial and appellate counsel’s alleged ineffectiveness and
after-discovered evidence, lack merit. We have carefully reviewed the
certified record, the submissions of the parties, and the Rule 1925(a) opinion
issued by the PCRA court. Based upon our review, we conclude that the PCRA
court adequately and accurately examined the remaining two claims raised in
this appeal and that Appellant is not entitled to relief for the reasons expressed
in the PCRA court’s opinion.6 Accordingly, we adopt the PCRA court’s opinion
as our own. The parties are directed to attach a copy of the PCRA court’s
opinion to all future filings pertaining to the disposition of this appeal.
Order affirmed. Jurisdiction relinquished.
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6 We add only that the PCRA court did not abuse its discretion in denying the
instant petition without convening an evidentiary hearing to address all of
Appellant’s claims; rather, it correctly limited the scope of the evidentiary
hearing to the two cognizable and non-waived issues that called for
adjudication upon a fully developed record. See Commonwealth v. Hand,
252 A.3d 1159, 1165 (Pa. Super. 2021) (PCRA court may exercise its
discretion and decline to conduct a hearing where collateral claims lack merit
and enjoy no record support).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2021
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