J-S65026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

CLYDE ALEXANDER LONT,

                           Appellant                       No. 3068 EDA 2014


           Appeal from the Order Entered September 23, 2014
             In the Court of Common Pleas of Lehigh County
          Criminal Division at No(s): CP-39-CR-0003174-200921


BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED NOVEMBER 06, 2015

     Appellant,      Clyde   Alexander       Lont,   appeals   pro   se    from      the

September 23, 2014 order denying his first petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful

review, we affirm.

     We    previously      reported    the   facts   and   procedural     history,   as

summarized by the trial court, as follows:

     On the evening of April 20, 2007, Bethlehem Police responded to
     a residence at 1933 Hillcrest Road in the City of Bethlehem,
     Lehigh County, Pennsylvania. Officers discovered the victim,
     David Rivera, with multiple gunshot wounds to his torso.
     Mr. Rivera died as a result of his wounds. Witnesses indicated a
     vehicle, which was later identified as Appellant’s vehicle, was
     seen arriving at the residence around the time Mr. Rivera was
     last seen alive. Another individual, later identified as Matthew
     Hendricks, was also seen arriving in the area of the residence in
     that same vehicle. Subsequent evidence linked both Hendricks
     and Appellant to the car.        Several witnesses advised that
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     Appellant admitted he was involved in killing Mr. Rivera. One
     witness, Janelle Gordon, indicated she was contacted by
     Appellant and subsequently transported Mr. Hendricks to Easton
     where he met with Appellant. Additionally, Gordon observed
     Appellant with a gun and saw him dispose of the gun.

     Additional evidence and witness testimony showed that Appellant
     was voluntarily intoxicated on PCP at the time of the shooting.
     Other evidence showed that some planning occurred in this case,
     including the gathering of accomplices and phone calls placed to
     the victim by Mr. Hendricks. Based on witnesses’ statements,
     the motive in this case appeared to be a concern by Appellant
     that Mr. Rivera was after him.

     Following this incident, Appellant was charged in this case. On
     March 9, 2011, pursuant to a negotiated plea agreement,
     Appellant pleaded guilty to murder of the third degree and
     criminal conspiracy to commit first-degree murder. As part of
     the agreement, the minimum sentence would not exceed 16
     years, but the maximum sentence could be up to 40 years.
     Furthermore, the Commonwealth agreed that both sentences
     would run concurrently. At the time of his guilty plea, Appellant
     had a prior record score of 3, and the charges, both graded as
     felonies of the first-degree, carried an offense gravity score
     (OGS) of 14.

     At the guilty plea hearing, the trial court concluded a detailed
     colloquy with Appellant on the record. The trial court advised
     Appellant of the maximum penalties for each offense, and asked
     him if he understood; Appellant said, “Yes.” The trial court
     asked Appellant if he had any questions regarding the plea
     agreement or the maximum penalties; he stated, “No.” The trial
     court asked Appellant if he understood that the court could
     reject the plea, and if [the court] did, the trial court would allow
     him to withdraw his plea and go to trial; he stated, “Yes.” The
     trial court asked Appellant if he was ever treated for a mental
     illness, disability, or problem[s], or if he was ever diagnosed with
     a mental illness, disability, or problems; he stated, “No.” The
     trial court asked Appellant if he suffered from any physical or
     mental problems that prevented him from fully understanding
     everything that was going on; he said, “No.”

     Appellant also completed a written guilty plea colloquy, and
     indicated he went over each question with his attorney,
     understood each question, and answered each question


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     truthfully. Appellant acknowledged he completed the form by
     writing his answers to each question, initialing each page, and
     signing the form voluntarily.

     The attorney for the Commonwealth then read into the record a
     summary of the facts of the case as summarized above.
     Afterwards, Appellant indicated he understood the facts alleged,
     and he admitted doing the things alleged by the Commonwealth.
     The trial court reviewed the elements of the crimes charged with
     Appellant, and asked Appellant if he understood the elements.
     Appellant advised he understood the elements of each offense
     and discussed them with his attorney. The trial court asked
     Appellant if he understood what he was doing by pleading guilty
     and if he was pleading guilty voluntarily; he said, “Yes.” The
     trial court found the plea to be voluntarily and understandingly
     tendered, and the trial court accepted Appellant’s plea
     conditioned upon receipt and review of a presentence
     investigation report (PSI).

     The PSI was prepared, and the trial court reviewed the report
     prior to the sentencing hearing on April 15, 2011. Additionally,
     the trial court received and reviewed “Materials in Aid of
     Sentencing,” prepared and submitted by Appellant’s counsel, and
     a number of letters written by the friends and family of David
     Rivera. The Commonwealth then presented the testimony of
     Pedro Fonseca, Mr. Rivera’s uncle; Steven Perez, Mr. Rivera’s
     nephew; and Lilliam Moraza, Mr. Rivera’s mother. The witnesses
     presented lengthy victim impact testimony, and expressed their
     disagreement with the guilty plea.       The parties made oral
     argument. After reviewing all the evidence and hearing from the
     parties, the trial court rejected the plea as to the binding
     minimum of 16 years.        Appellant’s counsel then moved to
     withdraw the guilty plea and to have the trial court recuse itself.
     After further discussion, the parties agreed to allow Appellant
     more time to consider his options, and a second sentencing
     hearing was scheduled.

     On April 25, 2011, Appellant was before the trial court again for
     sentencing. At the time, Appellant indicated he was willing to
     plead guilty with no agreement as to a minimum sentence.
     Additionally, Appellant indicated he was no longer asking that
     the trial court recuse itself.     The trial court then advised
     Appellant that it was accepting all aspects of the negotiated plea
     except for the binding 16 year minimum, and asked if he
     understood that; he stated, “Yes.”        The trial court asked

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       Appellant if he understood he could be sentenced up to a
       minimum of 20 years and a maximum of 40 years; Appellant
       said, “Yes.” Thereafter, the trial court sentenced Appellant on
       each count to a term of imprisonment of 20 to 40 years, to be
       served concurrently with each other.

       The trial court indicated on the record its reasons for imposing
       such a sentence, which included (1) the criminal conduct of
       Appellant caused harm to not only David Rivera, but also his
       family; (2) the nature and circumstances of Appellant’s criminal
       conduct showed a disregard for the safety of the community; (3)
       Appellant has a previous record of criminal activity; (4) Appellant
       is in need of correctional rehabilitation, which can be provided
       most effectively by commitment to a state correctional
       institution; (5) a lesser sentence would depreciate the
       seriousness of the crimes involved; and (6) the sentences were
       in accordance with the plea bargain, albeit the portion limiting
       the minimum sentence to 16 years.

       On May 4, 2011, Appellant filed a Post-Sentence Motion for
       Reconsideration of Sentence and Motion to Modify Sentence.
       Following a hearing on May 26, 2011, the trial court denied
       Appellant’s motion. The instant appeal followed.

       Trial Court Opinion, 8/11/2011, at 1-5 (footnote omitted).

Commonwealth v. Lont, 1584 EDA 2011, 64 A.3d 274 (Pa. Super. filed

January 11, 2013) (unpublished memorandum at 1–4).

       The PCRA court1 reported the ensuing procedural history as follows:

       Following a direct appeal, [Appellant’s] sentence was affirmed on
       January 11, 2013.      At all pertinent times, [Appellant] was
       represented by court-appointed counsel, Gavin P. Holihan,
       Esquire.

             On January 21, 2014, [Appellant] filed a pro se Post-
       Conviction Relief Act (PCRA) petition. I appointed Charles Banta,
       Esquire, to represent [Appellant], and on March 24, 2014,
       Attorney Banta filed a Petition to Withdraw as Counsel with an
____________________________________________


1
    The PCRA judge was also the trial judge in the instant case.



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       attached Finley[2] letter indicating the issues raised by
       [Appellant] were without merit. Following a hearing, I issued a
       notice of intent to dismiss the PCRA petition and allowed
       Attorney Banta to withdraw from the case. [Appellant] filed a
       response to my notice on August 6, 2014. After review of the
       response and the entire record, I dismissed [Appellant’s] PCRA
       petition on September 22, 2014.[3] This appeal followed.

PCRA Court Opinion, 12/24/14, at 1–2 (internal footnote omitted).        Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.4

       Appellant raises the following issues for our review:


____________________________________________


2
  Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3
  While the PCRA court’s dismissal order was dated September 22, 2014, it
was entered on the docket on September 23, 2014.
4
  This appeal is timely. The applicable thirty-day appeal period expired on
October 23, 2014. Our Supreme Court has held that a pro se prisoner’s
appeal shall be considered to be filed for purposes of Pa.R.A.P. 1514(a)
when such appeal is deposited with prison officials or placed in the prison
mailbox. Smith v. Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278,
283 (Pa. 1996).

  Appellant dated his notice of appeal October 18, 2014, and placed it into
the prison mail system on October 19, 2014. As shown by the Department
of Corrections Integrated Offender Case Management System, which is
attached to Appellant’s affidavit, United States first class postage was
deducted from Appellant’s inmate account on October 23, 2014. As such,
we will accept Appellant’s notice of appeal as timely. Commonwealth v.
Bradley, 69 A.3d 253, 254 n.3 (Pa. Super. 2013).                  See also
Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (pursuant to
prisoner mailbox rule, notice of appeal in PCRA case was timely);
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that
pursuant to the “prisoner mailbox rule,” direct appeals filed by pro se
appellants are deemed filed on the date that the prisoner deposits the
appeal with prison authorities or places it in a prison mailbox).



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      Whether the PCRA court erred as a matter of law and/or abused
      its discretion in denying and/or otherwise dismissing Appellant’s
      petition for PCRA relief without a hearing where Appellant’s
      claims, if proven, would entitle him to relief?

      Whether the PCRA court erred as a matter of law and/or abused
      its discretion in declining to grant Appellant’s request for judicial
      recusal?

Appellant’s Brief at 4 (full capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).        “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”    Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003)).




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      To be entitled to PCRA relief, an appellant must establish, by a

preponderance of the evidence, that 1) his conviction or sentence resulted

from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);

2) his claims have      not been previously litigated or        waived,   id. at

§ 9543(a)(3); and 3) the failure to litigate the issue prior to or during trial or

on direct appeal could not have been the result of any rational, strategic, or

tactical decision by counsel. Id. at § 9543(a)(4).

      Before going forward, it is important to note that this Court, in

Appellant’s direct appeal, reviewed his claim challenging the discretionary

aspects of his sentence.    Specifically, we addressed Appellant’s contention

that his sentence was “contrary to the fundamental norms of sentencing

because the trial court imposed ‘a sentence significantly greater than the

one sought and recommended by the investigating officers, the prosecuting

attorneys, the PSI reporter, and . . . counsel for Appellant.’”      Lont, 1584

EDA 2011 (unpublished memorandum at *7) (citing Appellant’s direct appeal

brief). We concluded that “the transcript of the sentencing hearing makes

clear that the trial court thoroughly considered and articulated the

sentencing needs and goals specific to Appellant.”             Id. (unpublished

memorandum at 10).

      Presently, Appellant asserts trial counsel’s ineffectiveness for failing to

raise on direct appeal that the trial court’s imposition of a minimum twenty-




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year sentence violated the terms of his plea agreement, which Appellant

contends was capped at sixteen years. Appellant’s Brief at 15–16.

      To plead and prove ineffective assistance of counsel a petitioner must

establish:   (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these

prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel

is   presumed     to   have   rendered    effective   assistance    of   counsel.

Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).                  We have

explained that trial counsel cannot be deemed ineffective for failing to

pursue a meritless claim.     Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

                    It is clear that a criminal defendant’s right to
             effective counsel extends to the plea process, as well
             as    during     trial.    However,    allegations    of
             ineffectiveness in connection with the entry of a
             guilty plea will serve as a basis for relief only if the
             ineffectiveness caused the defendant to enter an
             involuntary or unknowing plea. Where the defendant
             enters his plea on the advice of counsel, the
             voluntariness of the plea depends on whether
             counsel’s advice was within the range of competence
             demanded of attorneys in criminal cases.

      Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
      (citations, quotation, and quotation marks omitted). “The law
      does not require that the defendant be pleased with the outcome
      of his decision to enter a plea of guilty: All that is required is

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     that his decision to plead guilty be knowingly, voluntarily, and
     intelligently made.” [Commonwealth v.] Anderson, 995 A.2d
     [1184,] 1192 [(Pa. Super. 2010)] (citations, quotation, and
     quotation marks omitted).       Moreover, with regard to the
     prejudice prong, where an appellant has entered a guilty plea,
     the appellant must demonstrate “it is reasonably probable that,
     but for counsel’s errors, he would not have pleaded guilty and
     would have gone to trial.” Commonwealth v. Rathfon, 899
     A.2d 365, 370 (Pa. Super. 2006) (quotation and quotation marks
     omitted).

Commonwealth v. Timchak, 69 A.3d 765, 769–770 (Pa. Super. 2013).

     Regarding Appellant’s first issue, the trial court stated as follows:

     [T]here is no merit to [Appellant’s] claim that the sentence was
     in violation of the plea agreement. At the time of [Appellant’s]
     plea, I advised the parties that I was accepting the plea
     “conditioned upon the court, after a presentence investigation,
     agreeing to accept the binding plea agreement regarding the
     sentence to be imposed.” Notes of Testimony of Guilty Plea,
     March 9, 2011, p.30. [Appellant] acknowledged as much in his
     PCRA petition. Petition at p.2. At [Appellant’s] sentencing, after
     reviewing the PSI and the material presented by [Appellant], and
     after hearing from the victim’s family, I advised the parties I was
     rejecting the plea agreement as to the binding minimum of 16
     years. [Appellant] asked for more time to consider his options,
     and the sentencing was continued. When we reconvened for
     sentencing,     [Appellant]  agreed     to   proceed    with    the
     understanding that his minimum sentence could be 20 years.
     Notes of Testimony (Sentencing), April 25, 2011, p.5 -9. Based
     on the record, [Appellant] agreed to the modified plea
     agreement.

           Second, the record belies [Appellant’s] claim that his
     counsel’s ineffectiveness denied him appellate review of his
     sentence. The errors raised by counsel on [Appellant’s] direct
     appeal dealt only with the sentence.     The Superior Court
     reviewed the issues and determined I did not abuse my
     discretion in sentencing [Appellant].

PCRA Court Opinion, 12/24/14, at 2–3.




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      Appellant’s claim that the trial court violated the terms of his plea

agreement is wholly disingenuous and belied by the record.         On March 9,

2011, Appellant pled guilty to third-degree murder and criminal conspiracy.

At that time, the Commonwealth informed the trial court as follows:

            This is a proposed negotiated plea to Count 1 and Count 2
      of the information. In this case, Count 1 would be graded as
      murder of the third degree; Count 2 is criminal conspiracy to
      commit that crime.

           The further terms of the agreement are that the minimum
      sentence would be capped at 16 years and that the maximum
      would be left to you.

            I should say, at the outset, that I have discussed this plea
      with the prosecuting officer and he is in agreement with it. I
      have also discussed this plea with the victim’s family and they
      have indicated that they are not in favor of the plea agreement.

N.T. (Guilty Plea), 3/9/11, at 2.

      In subsequent questioning of Appellant, the trial court inquired:

      [By the trial court]: Now, do you understand that I can reject
      this plea agreement?

      [Appellant]: Yes.

      [By the trial court]: If I reject it, after you’ve entered your plea,
      I will allow you to withdraw your plea of guilty and go to trial.
      Do you understand that?

      [Appellant]: Yes.

N.T. (Guilty Plea), 3/9/11, at 5–6.

      A thorough and extremely detailed plea colloquy followed, and the trial

court advised:




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       [By the trial court]: And once again, do you understand that I
       do not have to accept the plea agreement reached by you and
       the district attorney?

       [Appellant]: Yes, sir.

       [By the trial court]:   Now, if I decline to follow the plea
       agreement, once again, and if you request, I will allow you to
       withdraw your plea of guilty and go to trial on the charges filed
       against you; do you understand that?

       [Appellant]: Yes.

N.T. (Guilty Plea), 3/9/11, at 29. Appellant tendered his guilty plea, and the

trial court responded:

       Then I find that the plea with respect to each count is voluntarily
       and understandingly tendered and I will accept the plea
       conditioned upon the court, after a presentence
       investigation, agreeing to accept the binding plea
       agreement regarding the sentence imposed.

Id. at 30 (emphasis added).

       The Pennsylvania Rules of Criminal Procedure grant the trial court

broad discretion in the acceptance and rejection of plea agreements. There

is no absolute right to have a guilty plea accepted.           Pa.R.Crim.P. 590(3)

(“The judge may refuse to accept a plea of guilty or nolo contendere, and

shall not accept it unless the judge determines after inquiry of the defendant

that    the    plea   is     voluntarily     and     understandingly      tendered.”);

Commonwealth v. Hudson, 820 A.2d 720, 727-28 (Pa. Super. 2003)

(same).       Accordingly,    our   courts    have    reaffirmed   that   “while   the

Commonwealth and a criminal defendant are free to enter into an

arrangement that the parties deem fitting, the terms of a plea agreement

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are not binding upon the court. Rather the court may reject those terms if

the court believes the terms do not serve justice.”       Commonwealth v.

Chazin, 873 A.2d 732, 737 (Pa. Super. 2005).

      Subsequently, Appellant appeared for sentencing. At that time, having

reviewed the presentence investigation report and other materials submitted

by defense counsel, and after considering the lengthy victim-impact

testimony, the trial court informed the parties that it rejected the portion of

Appellant’s plea agreement that bound the court to a minimum sentence of

sixteen years.    N.T. (Sentencing), 4/15/11, at 45.         Defense counsel

immediately moved to withdraw the plea, and defense counsel and the trial

court engaged in extensive discussion about the trial court’s rejection of the

plea. Id. at 45–50. The trial court continued the proceedings so Appellant

could discuss his options with counsel and determine whether he wanted to

withdraw his guilty plea and proceed to trial, or enter a guilty plea that the

court deemed acceptable.

      On April 25, 2011, Appellant again appeared before the trial court and

expressed his desire to plead guilty to third-degree murder and conspiracy

with no agreement regarding his minimum sentence.            Defense counsel

addressed the court as follows:

      [By Defense Counsel]: I’ve discussed it with [Appellant], he is
      not seeking to withdraw his guilty plea. He is not seeking the
      [c]ourt’s recusal in this matter. He is, in fact, prepared to
      proceed to sentencing despite the Court’s indications that it will
      be viewing the agreement disfavorably.


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     [By the trial court]: Well, my only exception was to the 16-year
     cap on the minimum.

     [By defense counsel]: Understood.

     [By the trial court]: All other aspects of the plea agreement are
     fine. Now, that being said, would you like to question your client
     and get everything on the record at this point?

N.T. (Continued Sentencing), 4/25/11, at 4-5.

     Thereafter, the trial court, addressing Appellant, inquired:

     [By the trial court]: Now, as far as the agreement is concerned,
     do you understand that I am accepting all aspects of the
     agreement except for that portion which limits the minimum
     sentence to 16 years? Do you understand that?

     [Appellant]: Yes.

Id. at 11.   The trial court determined that Appellant’s plea was knowing,

intelligent, and voluntary and accepted it.     Defense counsel presented a

passionate argument for imposition of a minimum sentence of sixteen years

of imprisonment.    Id. at 18–22.     Ultimately, the trial court sentenced

Appellant to twenty to forty years of imprisonment for third-degree murder.

     Appellant clearly was informed multiple times that the trial court was

not bound by the initially negotiated cap regarding his minimum sentence;

indeed, Appellant so acknowledged on the record.             N.T. (Continued

Sentencing), 4/25/11, at 8.   He is bound by the statements made under

oath, and is not entitled to relief based on post-sentence contentions

contradicting these statements. We have stated:

     The longstanding rule of Pennsylvania law is that a defendant
     may not challenge his guilty plea by asserting that he lied while

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      under oath. . . . A person who elects to plead guilty is bound by
      the statements he makes in open court while under oath[,] and
      he may not later assert grounds for withdrawing the plea which
      contradict the statements he made at his plea colloquy.

Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super. 2003). Here,

Appellant’s statements under oath during his guilty plea colloquy are

binding.    Therefore,    Appellant   has   failed   to    establish   his   claim   of

ineffectiveness has arguable merit. “Counsel cannot be deemed ineffective

for failing to raise a meritless claim.”       Commonwealth v. Treiber, 121

A.3d 435, 445 (Pa. 2015).

      Appellant next asserts that the PCRA court erred in denying Appellant’s

recusal request in his response to the PCRA court’s Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s PCRA petition.           The basis for Appellant’s

recusal request was the court’s refusal to accept the sixteen-year cap of the

minimum sentence.        [Appellant’s] Response to June 17, 2014 Notice of

Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907, 8/6/14, at 17.                  We

have already dismissed any impropriety concerning the sentencing issue.

      Our Supreme Court has discussed the standards governing recusal, as

follows:

            “A trial judge should recuse himself whenever he has
            any doubt as to his ability to preside impartially in a
            criminal case or whenever he believes his
            impartiality    can   be   reasonably    questioned.”
            Commonwealth v. Goodman, 454 Pa. 358, 311
            A.2d 652, 654 (1973). It is presumed that the judge
            has the ability to determine whether he will be able
            to rule impartially and without prejudice, and his
            assessment is personal, unreviewable, and final.

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            Commonwealth v. Druce, 577 Pa. 581, 848 A.2d
            104, 108 (2004). “Where a jurist rules that he or
            she can hear and dispose of a case fairly and without
            prejudice, that decision will not be overturned on
            appeal    but   for   an   abuse    of    discretion.”
            Commonwealth v. Abu–Jamal, 553 Pa. 485, 720
            A.2d 79, 89 (1998).

      Commonwealth v. Blakeney, 946 A.2d 645, 662 (Pa. 2008)
      (alteration in original). Additionally, “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.”    Commonwealth v.
      White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting
      Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89
      (1998)).

Commonwealth v. Tedford, 960 A.2d 1, 55–56 (Pa. 2008).                 Without

doubt, our standard of review of a trial court’s determination not to recuse is

exceptionally deferential, because we recognize that our trial judges are

“honorable, fair and competent.”     Commonwealth v. Harris, 979 A.2d

387, 391 (Pa. Super. 2009); see also Commonwealth v. Postie, 110 A.3d

1034, 1037 (Pa. Super. 2015) (“We recognize that our trial judges are

‘honorable, fair and competent’”). Thus, “although we employ an abuse of

discretion standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.”   Harris, 979 A.2d at

392; Postie, 110 A.3d at 1037. Moreover:

      The party who asserts that a trial judge should recuse bears the
      burden of setting forth specific evidence of bias, prejudice, or
      unfairness. “Furthermore, a decision by the trial court against
      whom the plea of prejudice is made will not be disturbed absent
      an abuse of discretion.”

Postie, 110 A.3d at 1037 (quoting Harris, 979 A.2d at 392).


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      In response to this claim, the PCRA court stated as follows:

            I do not find recusal was necessary in this case, as I was
      capable of rendering a fair decision. The defendant bears the
      burden of showing bias, prejudice, or unfairness necessitating
      recusal. Commonwealth v. Miller, 951 A.2d 322 (Pa. 2008).
      [Appellant] appears to take issue with me rejecting his plea
      agreement, but does not offer any evidence establishing bias or
      prejudice on my part. My rejection of [Appellant’s] plea did not
      affect my ability to be impartial regarding his subsequent plea,
      sentencing, or the PCRA matter. As such, recusal was not
      warranted.

PCRA Court Opinion, 12/24/14, at 3–4.

      Appellant has not met the burden for demonstrating partiality, bias, or

an abuse of discretion.   As we stated in Harris, “An appellate brief must

provide citations to the record and to any relevant supporting authority.”

Id., 979 A.2d at 393 (citing Commonwealth v. Einhorn, 911 A.2d 960,

970 (Pa. Super. 2006)). See also Commonwealth v. Tielsch, 934 A.2d

81, 93 (Pa. Super. 2007) (claim rejected where record lacked support);

Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa. Super. 2006) (issue

waived where brief lacked supporting citations). In short, Appellant fails to

support his allegations of bias.   Nothing Appellant has cited persuades us

that the PCRA court’s determination was an abuse of its discretion. The trial

judge concluded that he could preside impartially. Our review of the record

reveals only support for that conclusion.

      Order affirmed.




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J-S65026-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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