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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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
____________________________________________


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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J-A11027-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




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