J-S51018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CORNELL PRINCE

                            Appellant                No. 2759 EDA 2014


                Appeal from the PCRA Order September 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001174-2009,
                            CP-51-CR-0001183-2009


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 06, 2016

        Cornell Prince appeals from the order of the Court of Common Pleas of

Philadelphia County that dismissed, without a hearing, his petition filed

pursuant to the Post Conviction Relief Act.1 After careful review, we affirm.

        This Court previously set forth the factual and procedural history of

this case as follows:

        At approximately 2:30 p.m. on October 15, 2008, Nora B. and
        her two-year-old granddaughter were struck by stray gunfire
        after shots were fired at a white Ford Victoria. Nora B. suffered
        a gunshot wound to her ankle and her granddaughter was shot
        in the thigh.    Around 8:30 p.m., Detective Glen MacClain
        received an anonymous telephone call reporting that [Prince]
        and his stepbrother, Hakim S., were involved in the shooting and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     that [Prince] was the shooter. Armed with only this information,
     four plain-clothes police officers arrived at the suspect’s home at
     approximately 2:00 a.m. The officers, who did not have an
     arrest warrant, placed Hakim S. and [Prince] into two separate
     police cruisers and transported them to the police station. Police
     handcuffed [Prince] but not Hakim S.

     Prior to the police interviewing [Prince], Hakim S. informed
     police that [Prince] fired the shots that wounded the victims
     herein. [Prince] remained in custody for approximately twelve
     hours, at which point the police provided Miranda warnings and
     [Prince] gave a written confession. Police also supplied Nora B.
     with a photographic array, including a picture of [Prince], but
     she was unable to identify [Prince].       At the time of the
     preliminary hearing, upon seeing [Prince] enter the courtroom in
     handcuffs, Nora B., who was unaware that [Prince] would be
     present, exclaimed that [Prince] was the perpetrator.

     [Prince] filed a motion to suppress, asserting that the police
     obtained his statement unlawfully as the result of an illegal
     arrest. The suppression court agreed that [Prince’s] arrest was
     unlawful but declined to suppress his statement to police.
     Although not specifically raised in the motion to suppress, the
     parties litigated the pre-trial identification at the suppression
     hearing.

     Immediately thereafter, [Prince] proceeded to a non-jury trial
     and the court found him guilty of [two counts of aggravated
     assault, possession of an instrument of crime (PIC), simple
     assault, recklessly endangering another person (REAP) and
     various violations of the Uniform Firearms Act (VUFA).] The trial
     court sentenced [Prince] to nine to eighteen years’ incarceration
     on one count of aggravated assault and to consecutive sentences
     of five to ten years and three and one-half to seven years for the
     two VUFA violations. Additionally, the court sentenced [Prince]
     to a consecutive term of imprisonment of one and one-half to
     three years for his PIC conviction.

Commonwealth          v.   Prince,    585      &   586    EDA   2010,    unpublished

memorandum at 2-3 (Pa. Super. filed May 16, 2011).

     Prince filed a timely PCRA petition on August 15, 2012, in which newly

obtained   counsel,    Nino    V.    Tinari,   Esquire,    alleged   trial   counsel’s


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ineffectiveness for failing to seek the recusal of the trial judge after he

denied the motion to suppress. On July 25, 2014, the court sent Prince a

notice pursuant to Pa.R.Crim.P. 907, informing him of its intent to dismiss

the petition without a hearing. On September 10, 2014, the court dismissed

Prince’s PCRA petition.

      Prince filed a counseled notice of appeal on September 11, 2014, and

shortly thereafter, the court ordered him to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). In an opinion filed

on December 19, 2014, the court stated that all issues on appeal were

waived because counsel did not file a Rule 1925(b) statement.

      On May 18, 2015, this Court granted Attorney Tinari’s motion to

withdraw and directed the trial court to appoint new counsel if Prince met

the eligibility requirements. On August 13, 2015, the court appointed John

Cotter, Esquire, to represent Prince. By order dated September 22, 2015,

this Court vacated the existing briefing schedule and remanded the matter

for the filing of a Rule 1925(b) statement.

      Prince filed a Rule 1925(b) statement on September 30, 2013 and on

October 13, 2015, the court filed its Rule 1925(a) opinion.

      On appeal to this Court, Prince raises the following issues for our

review:

      1. Did the trial court err in denying [Prince] an evidentiary
         hearing because the defense asserted in its PCRA petition that
         defense counsel was ineffective at trial for not requesting that
         the trial court recuse itself after the court heard and denied
         the motion to suppress both the defendant’s statement and

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          an unduly suggestive police identification procedure of the
          complainant?

        2. Did the trial court err in not sending a notice of intent to
           dismiss [Prince’s] PCRA petition on both cases on which
           [Prince] had filed his PCRA petition?

Appellant’s Brief, at 2.

        “Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   the    findings   in   the   certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).

        To be eligible for relief under the PCRA, Prince must prove by a

preponderance of the evidence that his conviction resulted from “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.”          42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”      Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).


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       Prince argues that the trial court erred by denying his request for an

evidentiary hearing to establish that counsel was ineffective for failing to

request that the trial judge recuse himself after he denied Prince’s motion to

suppress.2

       However, as this Court has noted:

       A party seeking recusal of the trial judge bears the burden of
       establishing the grounds for the recusal. Commonwealth v.
       Gibson, 567 A.2d 724, 727 (Pa. Super. 1989). “Even the fact
       that the trial judge may have been made aware of improper
       evidence does not require recusal; . . . a trial judge is presumed
       to be capable of disregarding improper evidence. . . .” Id. . . .
       Recusal is required only when the evidence brought to the
       attention of the trial court is both inadmissible and highly
       prejudicial.

Commonwealth v. Lott, 581 A.2d 612, 616 (Pa. Super. 1990) (emphasis

in original).

       With respect to a claim similar to the one Prince raises in his PCRA

petition, this Court has stated:

       [W]hile it may be the better practice to have a different judge
       preside over trial than presided over pre-trial proceedings, such
       a practice is not constitutionally required and has not been made
       the basis for setting aside a verdict reached in an otherwise
       proper trial. Commonwealth v. Baxter, 422 A.2d 1388 (Pa.
       1980). Commonwealth v. Williams, 410 A.2d 835 (Pa. Super.
       1979). This principle appears to be based on “the prevailing
       view that judicial fact-finders are capable of disregarding most

____________________________________________


2
 Pa.R.Crim.P. 907(1) provides, in relevant part, that after reviewing a PCRA
petition, the Commonwealth’s answer and any other matters of record, a
court may dismiss the petition without further proceedings if it determines
such proceedings would serve no purpose.



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      prejudicial evidence.” Commonwealth v. Council, 421 A.2d.
      623[,] 625 [(Pa. 1980)].”

Commonwealth v. Lewis, 460 A.2d 1149, 1152 (Pa. Super. 1983).

      Lewis held that absent a showing of prejudice, counsel was not

ineffective for failing to seek recusal of the judge who presided over the

suppression hearing. “To demonstrate prejudice, the petitioner must show

that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome

of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)

(quotations and citations omitted).

      Prince’s petition and letter brief in support thereof do not discuss how

the results of the proceeding would have been different but for counsel’s

decision not to seek recusal.

      With respect to the facts of the instant matter, the trial court noted:

      Here, [Prince] signed a “Waiver of Jury Trial” form and was
      colloquied by the trial court, electing to be tried before Judge
      O’Grady.    He was aware that counsel was going to argue
      motions to suppress before trial, the motions to suppress were
      denied, and [Prince’s] statement and the in-court identification
      by the victim were ruled admissible at trial. Because there was
      no suppression, there was no evidence admitted before Judge
      O’Grady during the motion that would not have been admitted
      before another judge hearing the case in the event of recusal.
      Based on all of the facts set out above, it is clear that [Prince]
      did not wish that Judge O’Grady be recused, and [Prince] cannot
      prove that he was prejudiced by trial counsel’s decision to
      proceed to a waiver trial rather than request recusal.

Trial Court Supplemental Opinion, 10/13/15, at 6.



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       Because the evidence was admissible, recusal was not required. Lott,

supra.

       As to whether Prince was prejudiced, his petition neither pleads nor

offers to prove that counsel lacked a reasonable basis for not seeking

recusal. He simply asserts that “the failure to litigate issues . . . could not

have been the result of any rational, strategic or tactical decision by

counsel.”   PCRA Petition, at 2.    This statement does not meet the strict

requirements of the PCRA as developed through case law.             “Boilerplate

allegations and bald assertions of no reasonable basis and/or ensuing

prejudice cannot satisfy a petitioner’s burden.” Commonwealth v. Paddy,

15 A.3d 431, 433 (Pa. 2011).       Furthermore, Prince failed to attach to his

petition an affidavit from trial counsel addressing the matter at issue. Our

Supreme Court has declined to find ineffectiveness where a petitioner failed

to include an affidavit from prior counsel or explain why he did not provide

one.     Commonwealth v. Marshall, 812 A.2d 539, 548 (Pa. 2002),

overruled on other grounds, Commonwealth v. Tharp, 101 A.3d 736 (Pa.

2014).

       Accordingly, the PCRA court did not err by dismissing the petition

without a hearing.

       With respect to Prince’s next claim, Pa.R.Crim.P. 907(1) provides, in

relevant part, that if a judge intends to dismiss a PCRA petition without a

hearing, “the judge shall give notice to the parties . . . and shall state in the

notice the reasons for the dismissal.” The instant matter bore two docket

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numbers in the trial court: CP-51-0001174-2009 and CP-51-0001183-2009.

However, when the trial court sent its Rule 907 notice to Prince, it did so

only for CP-51-0001183-2009.       Because a Rule 907 notice is mandatory,

Prince seeks a remand to allow the court to comply with Rule 907 with

respect to CP-51-0001174-2009. He has not established his entitlement to

relief.

          “The purpose behind a Rule 907 pre-dismissal notice is to allow a

petitioner an opportunity to seek leave to amend his petition and correct any

material defects, the ultimate goal being to permit merits review by the

PCRA court of potentially arguable claims.” Commonwealth v. Rykard, 55

A.3d 1177, 1189 (Pa. Super. 2011) (citation omitted). Here, Prince filed one

PCRA petition raising one claim of trial counsel ineffectiveness that applied to

the two shootings that were the subject of the individual docket numbers.

The Rule 907 notice informed Prince that the court intended to dismiss the

sole petition before it and afforded him the opportunity to respond. Because

the purpose behind Rule 907 was met, we decline to remand the case for

entry of a separate Rule 907 notice.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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