J-S55032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

RONALD DOUGLAS JANDA

                            Appellant                       No. 57 EDA 2014


                Appeal from the PCRA Order December 24, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000703-2008
                            CP-39-CR-0004266-2008


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED FEBRUARY 24, 2015

       Ronald Douglas Janda appeals from the order entered in the Lehigh

County Court of Common Pleas, dated December 24, 2013, dismissing his

first petition filed under the Post-Conviction Relief Act (“PCRA”), submitted

as a “petition in coram norbis.”1              Janda seeks relief from the amended

judgment of sentence of an aggregate 144 months’ (minus five days) to 312

months’ (minus five days) imprisonment imposed on May 16, 2011,

following his jury conviction of four counts of burglary, four counts of theft

by unlawful taking, and nine counts of receiving stolen property.2             On

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 3502(a), 3921(a), and 3925(a), respectively.
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appeal, he raises three ineffective assistance of counsel claims.       Based on

the following, we affirm.

       Janda’s convictions stem from a string of nine burglaries in the Lehigh

County area from March 8 to August 8, 2007. Each of the burglaries was of

a home, and the homes were located within five or six miles of one another.3

The court originally imposed an aggregate sentence of 156 to 312 months of

incarceration on June 3, 2009. On February 10, 2011, a panel of this Court

vacated the judgment of sentence and remanded for fact-finding relating to

Janda’s prior record score (“PRS”).            See Janda I, supra.4   On remand,

during re-sentencing, the trial court recalculated Janda’s PRS, lowering it

from four to three, and incorporated evidence from the original sentencing

hearing.    The court then imposed an aggregate sentence of 144 months

____________________________________________


3
   A full factual history was previously set forth by a panel of this Court on
direct appeal, and we need not restate it here. See Commonwealth v.
Janda, 14 A.3d 147 (Pa. Super. 2011) (“Janda I”).
4
   Nevertheless, the panel found Janda’s remaining arguments lacked merit
based on the following: (1) the trial court did not abuse its discretion
pursuant to Pa. R. Crim. P. 582(A) by joining Janda’s two indictments for
one trial because he did not establish prejudice under Pa. R. Crim. P. 583;
(2) the court did not err in refusing to suppress evidence obtained during the
execution of search warrants for Janda’s apartment and a rented storage
unit; (3) the court did not err under Pa.R.E. 1002 by admitting printed
photos, rather than a memory card, from a victim’s digital camera; (4) the
court did not err in declining to remove a certain juror from the jury panel;
(5) the trial court did not err in declining to give a requested instruction
regarding missing evidence and improper cumulation of evidence; (6) there
was sufficient evidence to support all convictions; and (7) the court did not
err in denying Janda’s motion for return of property under Pa.R.Crim.P. 588.



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minus five days’ to 312 months minus five days’ imprisonment.5 Janda filed

a post-sentence motion, which was denied. He then filed his direct appeal,

challenging discretionary aspects of sentencing. On April 26, 2012, a panel

of this Court affirmed the judgment of sentence. See Commonwealth v.

Janda, 48 A.3d 486 [2026 EDA 2011] (Pa. Super. 2012) (unpublished

memorandum) (“Janda II”).

       Janda did not file a petition for allowance of appeal (“PAA”) with the

Pennsylvania Supreme Court, but did file a pro se “petition in coram nobis”

on April 17, 2013. The court considered the pro se petition as a request for

relief under the PCRA6 and appointed new counsel, Robert Long, Esquire.

On September 3, 2013, counsel filed an amended PCRA petition, alleging

ineffective assistance of counsel.7 A hearing was held on November 4, 2013,

____________________________________________


5
   Specifically, on each of the four counts of burglary, the court imposed a
sentence of 21 to 48 months’ incarceration. For five of the receiving stolen
property counts, the court sentenced Janda, on each count, to a term of 12
months’ (minus one day) to 24 months (minus one day). The court ran all
of the sentences consecutive to one another.
6
   The writ of coram nobis “provides a way to collaterally attack a criminal
conviction for a person ... who is no longer ‘in custody’ and therefore cannot
seek habeas relief....” Commonwealth v. Descardes, 101 A.3d 105, 109
(Pa. Super. 2014) (en banc), quoting Chaidez v. United States, 133 S.Ct.
1103, 1106 n.1 (U.S. 2013). Based on the docket and the transcript from
the PCRA evidentiary hearing, it appears that Janda is still in custody, and
therefore, a writ does not apply.
7
   Carol Marciano, Esquire, represented Janda at trial and on both direct
appeals. For purposes of this appeal, she will be referred to as “trial
counsel.”



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where both Janda and trial counsel testified.      On December 24, 2013, the

PCRA court entered an order and opinion, denying Janda’s petition.         This

timely appeal followed.8

       Janda raises the following three claims:          (1) trial counsel was

ineffective for failing to request a missing or destroyed evidence charge,

pursuant to Pennsylvania Suggested Standard Jury Instruction 3.21B

(Crim),9 concerning the media cards from a camera owned by two of the

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8
   On January 6, 2014, the PCRA court ordered Janda to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Janda filed a concise statement on January 17, 2014. The court entered an
order on January 23, 2014, indicated that its December 24, 2013,
companion opinion satisfied the requirements of Rule 1925(a).
9
    Suggested Standard Jury Instruction 3.21B provides:

       Failure to Produce Document or Other Tangible Evidence

       1. There is a question about what weight, if any, you should give
       to the failure of the Commonwealth to produce an item of
       potential evidence at this trial [the District Attorney did not
       request certain items for forensic testing].

       2. If three factors are present, and there is no satisfactory
       explanation for a party's failure to produce an item, the jury is
       allowed to draw a common-sense inference that the item would
       have been evidence unfavorable to that party. The three
       necessary factors are:

          First, the item is available to that party and not the other;

          Second, it appears the item contains or shows special
          information material to the issue; and

          Third, the item would not be merely cumulative evidence.
(Footnote Continued Next Page)


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victims, Mr. and Mrs. Glenn Wotring; (2) counsel was ineffective for failing to

request that the trial judge recuse himself from the matter; and (3) counsel

was ineffective for failing to file a PAA with the Pennsylvania Supreme Court

regarding an evidentiary issue. See Janda’s Brief at 9-14.

      Our well-settled standard of review is as follows: When reviewing an

order dismissing a PCRA petition, we must determine whether the ruling of

the PCRA court is supported by record evidence and is free of legal error.

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). “Great

deference is granted to the findings of the PCRA court, and these findings

will not be disturbed unless they have no support in the certified record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted). Moreover, because all three claims concern ineffective assistance

of counsel, we note the following:

      We begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective.       To prevail on his
      ineffectiveness claims, [an a]ppellant must plead and prove, by
      a preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) [a]ppellant
                       _______________________
(Footnote Continued)


      3. Therefore, if you find these three factors present and there is
      no satisfactory explanation for the Commonwealth's failure to
      produce [the fact that they chose not to test certain items], at
      this trial, you may infer, if you choose to do so, that it would
      have been evidence unfavorable to the Commonwealth.

Pa. SSJI 3.21B (Crim).




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       suffered prejudice because of counsel’s action or inaction. With
       regard to the second, i.e., the “reasonable basis” prong, we will
       conclude that counsel’s chosen strategy lacked a reasonable
       basis only if [a]ppellant proves that “an alternative not chosen
       offered a potential for success substantially greater than the
       course actually pursued.”      To establish the third, i.e., the
       prejudice prong, [a]ppellant must show that there is a
       reasonable probability that the outcome of the proceedings
       would have been different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”      Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the PCRA court, we

conclude there is no merit to Janda’s claims.      The PCRA court’s opinion

comprehensively discusses and accurately disposes of the first and second

issues presented.      See PCRA Court Opinion, 12/24/2013, at 2-9 (finding:

(1) with respect to the jury instruction issue, that while there was arguable

merit to the claim because counsel failed to properly preserve a missing

evidence instruction, such failure did not constitute ineffectiveness because

(a) Janda was not entitled to a “failure to produce document or other

tangible evidence at trial” instruction,10 and (b) any potential error was

____________________________________________


10
    Specifically, Janda was unable to demonstrate any bad faith on the part
of the Commonwealth in reviewing and then returning the media card to the
Wotrings.     The PCRA court noted that the victims, the Wotrings, had
(Footnote Continued Next Page)


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harmless in light of the item in question and the overwhelming evidence;

and (2) with regard to the recusal issue, Janda did not meet his burden in

demonstrating “bias, prejudice, or unfairness” as to the trial judge’s ability

to preside impartially where it was Janda who showed hostility toward the

judge and “attempted to manipulate the criminal justice system in an effort

to ‘judge shop.’”11). Accordingly, we affirm on the basis of the PCRA court’s

opinion.

       We write separately to address the third issue of counsel’s alleged

ineffectiveness, namely his failure to file a PAA regarding the admissibility of

a notebook. Janda claims that when he spoke to trial counsel about filing a
                       _______________________
(Footnote Continued)

cameras installed on the property to observe wildlife. See PCRA Court
Opinion, 12/24/2013, at 6. Nevertheless, the camera also captured Janda’s
vehicle. With the assistance of the Wotrings, the police were able to find the
vehicle, which then led to Janda and the multiple stolen items from the
victims. Id. Photographs from the Wotrings’ camera were introduced into
evidence at trial but not the actual memory card from the camera. Id.

      The court pointed out that the charge requires the item contain
“special information material to the issue” before determining a jury
instruction is warranted. Id. at 7. Here, the court found:

             [T]he photographs of [Janda’s] Red Lumina were
       preserved, but any other photographs captured by the camera,
       such as outdoor wildlife, were not. Furthermore, the media card
       was an investigative tool which led to [Janda], and the mountain
       of stolen items under his possession and control. A missing
       evidence instruction would have been based on speculation that
       the media card contained “special information.”

Id.
11
     See id. at 4.



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PAA, “he was under the impression that it was in the context of a sentencing

appeal only[,]” and not any other aspect of his direct appeal. Janda’s Brief

at 13. He states that while counsel may have timely consulted with him, it

cannot be said that “she adequately consulted with him” based on “the

ambiguity of which [direct] appeal she was talking about[.]”      Id. at 13

(emphasis added).

      We are governed by the Pennsylvania Supreme Court’s decision in

Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003), which held that the

failure of counsel to seek allowance of appeal before the Supreme Court

constitutes ineffectiveness where (1) the defendant asked counsel to file

such a petition and (2) counsel unjustifiably disregarded the request. Id. at

635. To succeed on this type of ineffectiveness claim, the petitioner must

show that he asked counsel to file a PAA, counsel failed to do so, and such

failure was “unjustified.”   Commonwealth v. Ellison, 851 A.2d 977, 980

(Pa. Super. 2004), aff’d on other grounds, 902 A.2d 419 (Pa. 2006).

Moreover, a petitioner needs to demonstrate “there is some chance that the

Supreme Court would have taken his case, i.e., his claims are not completely

frivolous.” Id. at 981.

      Here, a review of the record reveals that on his first direct appeal,

Janda presented eight questions concerning challenges to the joinder of his

two indictments, suppression rulings, evidentiary rulings, juror bias, jury

instructions, sufficiency of the evidence, a motion regarding return of


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property, and legality of the sentence.       A panel of this Court vacated his

judgment of sentence as to the sentencing issue. See Janda I, supra.

Janda did not file a PAA with the Pennsylvania Supreme Court. After remand

and resentencing, Janda challenged only the discretionary aspects of his

sentence.     A panel of this Court affirmed the judgment of sentence.        See

Janda II, supra. He again did not file a PAA.

        At the PCRA hearing, testimony was elicited as to why the PAA was not

filed. Janda testified that after his first sentence was vacated, they did not

discuss filing a PAA because they were concerned about resentencing. See

N.T., 11/4/2013, at 8. However, after his new sentence was affirmed, he

stated:

              I remember [trial counsel] teleconferenced me and asked
        me -- she was prepared to take the matter to the Supreme
        Court. We discussed the timeframe involved. I said it entails
        too much time, it would delay my PCRA relief, another year I
        would languish in prison needlessly. I said, no, I said, that it
        seems like a moot issue, we agreed and that was pretty much a
        forgone conclusion and we just left it at that.

Id. at 9-10. When asked if Janda wanted counsel to appeal the “notebook”

evidentiary issue, he testified:     “Uhm -- I really didn’t have a position on

that.     Uhm -- and I believe I left under the impression that – that she

believed that it would be a better matter to take up on PCRA.” Id. at 10-11.

        Trial counsel then testified to the following:

              Well … I had a telephone conference with him and he
        indicated to me he didn’t want to file a petition to the Supreme
        Court -- I did explain to him the process and I did say, look, they
        take a small -- very small number of cases, they only take

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      certain kinds of cases like where there’s a conflict in the panels
      of the Superior Court or it’s a -- a case of first impression or
      something along those lines. And he said at the end -- and I --
      and I had researched ahead of time that him skipping the
      Supreme Court step wouldn’t affect any Federal habeas because
      he had talked about that at one time. So, I had researched that
      issue and I told him that. At the end, he said he wants to go
      forward with the PCRA, he doesn’t want to waste any more time
      because he wanted to get to his PCRA issues.

                                      …

      And I heard what he said on direct and I don’t remember
      specifically what issues that we talked about. My notes indicated
      we talked about in general does he want to go to the next step
      to the Supreme Court. You know, I -- the only time I could
      appeal any issues or file a petition for appeal from the Superior
      Court was at this point.

            I couldn’t have filed anything after the remand because it
      wasn’t a final order. So, we had to wait until this point to even
      be able to go to the Supreme Court so I don’t specifically
      remember what issues we talked about, my notes indicated it
      was a general conversation about whether he wanted to go [to]
      the next step to the Supreme Court.

Id. at 29-31.

      Based on the testimony, the PCRA court found Janda “consulted with

counsel, and made an informed decision not to seek relief in the Supreme

Court.”   PCRA Court Opinion, 12/24/2013, at 3 (footnotes omitted).        It is

evident from this determination that the PCRA court accepted trial counsel’s

recollection of events, in so far as counsel generally discussed the aspects of

filing a PAA with Janda.     Absent his own self-serving testimony, Janda

presented no evidence that counsel interfered with his right to file a PAA.

Accordingly, we agree with the court that Janda’s claim is without merit.


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See Libel, supra.    Furthermore, we note Janda has made no attempt to

persuade this Court that the evidentiary issue he wished to pursue in a PAA

was not completely frivolous. See Ellison, supra. Indeed, a review of his

amended PCRA petition and his appellate brief reveals that he failed to

include any discussion of the “notebook” issue that he originally raised on

direct appeal. Therefore, his final ineffectiveness argument fails.

      Accordingly, we conclude that the PCRA court properly denied Janda’s

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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