Com. v. Lynch, J.

J-A11027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA LYNCH
Appellant No. 953 EDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001696-2014
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED June 24, 2016
Appellant, Joshua Lynch, appeals from the March 4, 2015 aggregate
judgment of sentence of 3 to 23 months’ incarceration, imposed after the
trial court convicted Appellant of one count each of fleeing or attempting to
elude police, failing to stop at a red signal, and careless driving. 1 After
careful review, we affirm.
The trial court recounted the facts of record as follows.
On August 2, 2013, Officer Thomas Phillips and
other officers from the Bristol Township Police
Department attempted to effectuate an arrest
warrant for Appellant. The Officers began
surveillance at 605 Winder Ave., Bristol, PA in an
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3733(a), 3112(a), and 3714(a), respectively.
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attempt to locate Appellant. During his
reconnaissance and while attempting to take
Appellant into custody, Ofc. Phillips observed
Appellant several times, including while driving a
silver Toyota Camry, registration JCF-2006. This
Camry was the same vehicle that was used by
Appellant in a drug transaction days prior.
At approximately 8:34 PM, there were enough
[o]fficers present in the area to effectuate a traffic
stop of Appellant, who was then driving the same
Toyota Camry. Ofc. Phillips was driving directly
behind Appellant in his own vehicle, followed directly
by an undercover police vehicle occupied by Officers
Durle and O’Brien. At a steady red light, Ofc. Phillips
moved his vehicle alongside Appellant’s, ultimately
maneuvering it past the front corner of the target
vehicle, so as to block Appellant’s forward path.
Officers Durle and O’Brien then initiated the
overhead lights of their undercover vehicle, and the
Officers left their vehicles to effectuate an arrest of
Appellant. The Officers were each wearing their
badges around their necks overtop of black bullet-
proof vests with the word “Police” displayed in large
white lettering on the front and back. At this point,
Appellant was the driver and sole occupant of the
Camry.
Ofc. Phillips approached the driver’s side door
of the vehicle, announcing “Police.” Meanwhile, Ofc.
Durle exited his vehicle and approached the
passenger’s side of Appellant’s vehicle. As the
Officers advanced, Appellant “immediately put his
car in Reverse, backed up, turned his vehicle to the
right, jumped the curb onto the sidewalk, drove
down the sidewalk, back onto the roadway and
began fleeing.” Appellant drove between a building
and a telephone pole while driving along the
sidewalk in an attempt to avoid the Police. The
Officers did not have time to draw their weapons as
Appellant was fleeing.
As Appellant pulled away, Ofc. O’Brien began
pursuit in the undercover vehicle. As Ofc. O’Brien
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followed Appellant, the overhead lights of his vehicle
remained active, and the Officer further engaged the
vehicle’s audible siren. Ofc. O’Brien pursued
Appellant for approximately six (6) blocks until
Appellant began to drive down a one-way street
against the flow of traffic. At that point, Ofc. O’Brien
discontinued the pursuit due to safety concerns.
Based on the above evidence, th[e trial c]ourt
found Appellant guilty on the charge of Fleeing or
Attempting to Elude Police and the Summary
Offenses of Failure to Stop at a Red Signal and
Careless Driving.
Trial Court Opinion, 6/30/15, at 1-3 (citations to notes of testimony
omitted). Upon rendering its verdict, the trial court on March 4, 2015,
sentenced Appellant to 3 to 23 months’ incarceration. Appellant filed a
timely notice of appeal on April 1, 2015.2
On appeal, Appellant presents three issues for our review.
[1.] When prejudicial evidence is introduced at a
jury trial presided over by a Judge, is it
error for that Judge not to voluntarily
recuse himself in a subsequent non-jury
trial on the charge of “eluding police”
stemming from the prior drug charge
resulting in a guilty verdict at trial?
[2.] When a defendant is serving a short
sentence of incarceration and his trial
counsel’s ineffectiveness is so blatant,
voluminous and cumulative as to deprive
defendant of constitutionally protected due
process, shouldn’t the ineffective assistance
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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of counsel be decided on direct appeal
rather than deferred to PCRA review?
[3.] Was [A]ppellant adequately colloqued [sic]
on his jury trial waiver to determine if it was
an intelligent and knowing waiver inasmuch
as the Trial Judge had recently presided at a
trial at which [A]ppellant was found guilty,
allowing the Trial Judge to hear evidence
related to this case and have knowledge of
his conviction and prior criminal record[?]
Appellant’s Brief at 3.
In his first issue, Appellant argues that the trial court judge “was
obligated to recuse himself and allow another Judge to preside over the non-
jury trial.” Appellant’s Brief at 14. The Commonwealth counters that
Appellant has waived this issue because Appellant did not raise the recusal
issue with the trial court and cannot raise it for the first time on appeal.
Pa.R.A.P. 302(a). Specifically, the Commonwealth states that neither
“Appellant nor [trial] counsel filed any motions seeking removal of the trial
court,” and at “no point did Appellant request [the trial judge] recuse
himself, nor did Appellant state an objection to the trial court as factfinder.”
Commonwealth’s Brief at 10.
Our review of the certified record, including the trial court docket and
notes of testimony from Appellant’s March 4, 2015 trial and sentencing,
confirms the Commonwealth’s assertions. We recently explained as follows.
“A party seeking recusal or disqualification [is
required] to raise the objection at the earliest
possible moment, or that party will suffer the
consequence of being time barred.” In re Lokuta,
11 A.3d 427, 437 (Pa. 2011) (emphasis added)
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(quoting Goodheart v. Casey, 565 A.2d 757, 763
(Pa. 1989)). Once a party has waived the issue, “he
cannot be heard to complain following an
unfavorable result.” Commonwealth v. Stanton,
440 A.2d 585, 588 n.6 (Pa. Super. 1982) (citations
omitted).
Lomas v. Kravitz, 130 A.3d 107, 120 (Pa. Super. 2015) (en banc) (parallel
citations omitted).
Based on the foregoing, we agree with the Commonwealth that
Appellant has waived his first issue regarding recusal, such that we decline
to address it further.
In his next issue, Appellant argues that he is entitled to a judicial
determination of trial counsel ineffectiveness on direct appeal where
Appellant “is serving a short sentence of incarceration” and trial counsel’s
ineffectiveness was “so blatant, voluminous and cumulative as to deprive
[Appellant] of constitutionally protected due process.” Appellant’s Brief at
20.
The trial court properly declined to address the merits of this claim,
citing prevailing case law, as follows.
As a general rule, the Pennsylvania Supreme
Court has held that “a petitioner should wait to raise
claims of ineffective assistance of trial counsel until
collateral review. Thus, any ineffectiveness claim
will be waived only after a petitioner has had the
opportunity to raise that claim on collateral review
and has failed to avail himself of that opportunity.”
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002); See Commonwealth v. Liston, 977 A.2d
1089, 1094 (Pa. 2009). The Supreme Court further
held that absent certain narrow circumstances,
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“claims of ineffective assistance of counsel are to be
deferred to PCRA review; trial courts should not
entertain claims of ineffectiveness upon post-verdict
motions; such claims should not be reviewed on
direct appeal.” Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa. 2013). An exception to the
general rule exists when any such claims have been
raised and fully developed by hearings at the trial
court level. See Commonwealth v. Bomar, 826
A.2d 831, 853-54 (Pa. 2003).
In the case sub judice, Appellant raises
[numerous] separate claims of ineffective assistance
of trial counsel on direct appeal. The general rule
established by the Pennsylvania Supreme Court
prevents th[e trial c]ourt from addressing Appellant’s
claims at this level. Moreover, these claims do not
fall into the exception to the general rule, as
Appellant’s contentions have not been fully
developed through a hearing or by any other
process. Therefore, we submit that Appellant’s
claims of ineffective assistance of counsel are
premature and better suited for post-conviction
review, in accordance with established law.
Trial Court Opinion, 6/30/15, at 6.
We agree with the trial court that pursuant to the dictates of our
Supreme Court, we are precluded from considering Appellant’s ineffective
assistance of counsel claim on direct appeal. Therefore, we decline to
address Appellant’s second issue.
In his third and final claim, Appellant argues that his jury waiver
colloquy “was not voluntarily, knowingly and intelligently made since the
consequences of the waiver were never fully explained to him.” Appellant’s
Brief at 11. In referencing his first issue concerning recusal, Appellant
maintains the waiver colloquy “was inadequate and failed to sufficiently
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advise [A]ppellant that he could be prejudiced by evidence learned by [the
trial judge] as a result of presiding at [a prior jury] trial.” Id.
Again, the Commonwealth asserts waiver and we agree. The
Commonwealth states, “Appellant’s [Pa.R.A.P.] 1925(b) statement contained
two grounds for appeal; however, the voluntariness of his waiver of the right
to a trial by jury was not among them.” Commonwealth’s Brief at 19. Our
review of the certified record confirms that Appellant did not raise his waiver
issue in his Rule 1925(b) statement. See Appellant’s Statement of Errors
Complained of on Appeal, 6/5/15, at 1-4. The absence of this issue is
evidenced further in the trial court opinion, which included and addressed
Appellant’s two issues, “verbatim,” pertaining to recusal and trial counsel
ineffectiveness. Trial Court Opinion, 6/30/15, at 3-4. Accordingly,
Appellant’s third issue is waived. Commonwealth v. Webbs Super Gro
Products, Inc., 2 A.3d 591, 593-594 (Pa. Super. 2010) (any issues not
raised in a statement of matters complained of on appeal will be waived).
In sum, we conclude that Appellant’s three issues on appeal are
without merit because they are either waived or not properly before us for
disposition on direct appeal. We thus affirm the March 4, 2015 judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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