J-S70038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BILLY ALLEN VAN-ARSDALE                    :
                                               :
                       Appellant               :   No. 701 MDA 2017

                  Appeal from the PCRA Order March 28, 2017
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000678-2010


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 17, 2018

       Billy Allen Van-Arsdale appeals from the order entered March 28, 2017,

in the Court of Common Pleas of Adams County, that dismissed as untimely

his second petition filed pursuant to the Pennsylvania Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq.1 Van-Arsdale seeks relief from the

judgment of sentence of 14 years and 9 months’ to 30 years’ imprisonment,

after he was convicted in a non-jury trial of 17 counts of indecent deviate

sexual intercourse and other sexual related crimes. Van-Arsdale contends the

PCRA court erred in (1) dismissing his PCRA petition for lack of jurisdiction,

and (2) finding his issues waived. Based upon the following, we affirm.




____________________________________________


1For this second PCRA petition, the PCRA court appointed counsel to represent
Van-Arsdale.
J-S70038-17


      The PCRA court has thoroughly set forth the facts and procedural history

relevant to this appeal and therefore we discuss only the facts necessary to

our discussion. See PCRA Court Opinion, 3/28/2017, at 1-6.

      Van-Ardsale was sentenced on June 2, 2011. No post sentence motion

or appeal was filed. Sentencing counsel, who entered his appearance after

Van-Arsdale’s trial, filed a timely PCRA petition on behalf of Van-Arsdale. This

first PCRA petition was denied on August 8, 2013, and Van-Arsdale filed a pro

se, nunc pro tunc appeal on March 10, 2014. This Court, by order of April 28,

2014, directed the PCRA court to conduct a hearing to determine whether

Van-Arsdale had been abandoned in his PCRA appeal. On May 15, 2014, the

PCRA court found abandonment and directed the appointment of new PCRA

counsel. The PCRA court allowed Van-Arsdale to pursue his appeal of the

denial of his PCRA Petition and directed newly-appointed PCRA counsel to file

a Pa.R.A.P. 1925(b) concise statement. Thereafter, appointed PCRA counsel

filed a concise statement, identifying the matters complained of on appeal.

On January 30, 2015, this Court affirmed the PCRA court’s denial of PCRA

relief, and the Pennsylvania Supreme Court denied allowance of appeal on

September 23, 2015. See Commonwealth v. Van-Arsdale, 118 A.3d 459

(Pa. Super. 2015) (unpublished memorandum), appeal denied, 125 A.3d 777

(Pa. 2015).

      Van-Arsdale filed his second PCRA petition pro se on April 11, 2016,

asserting claims of trial court error, ineffectiveness of counsel, and illegal


                                     -2-
J-S70038-17


sentence.   The PCRA court appointed counsel to represent Van-Arsdale.

Thereafter, appointed counsel filed an amended second PCRA petition, alleging

ineffectiveness of sentencing counsel for pursuing PCRA relief, and not a direct

appeal. See Van-Arsdale’s Second Amended Petition, 11/14/2016, at ¶17.

On January 10, 2017, the PCRA court issued Rule 907 notice of intent to

dismiss, and both parties filed a response thereto. On March 28, 2017, the

PCRA court dismissed the petition without a hearing. This appeal followed.

      “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Cox, 146

A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).

      Although Van-Arsdale presents two claims in his brief, the only issue

preserved by Van-Arsdale’s Pa.R.A.P. 1925(b) statement is the issue of

jurisdiction. Specifically, in the concise statement Van-Arsdale asserts:

      [T]he Court committed an error of law in dismissing [Van-
      Arsdale’s] PCRA Petition for the following reasons [sic]:

      1. Abuse of [d]iscretion and error of law in finding that the court
      lacked jurisdiction to entertain [Van-Arsdale’s] petition under the
      unique factual circumstances of [Van-Arsdale’s] case.

Van-Arsdale’s Concise Statement, 5/22/2017.

      Upon our review of the record, Van-Ardsdale’s brief, and the relevant

statutes and case law, we conclude the PCRA court properly determined the

petition was untimely and therefore the court lacked jurisdiction. See PCRA

Court Opinion, 3/28/2017, at 6-11 (finding: (1) Van-Arsdale’s judgment of

                                     -3-
J-S70038-17


sentence became final on July 2, 2011, 30 days after sentencing, when no

direct appeal was filed, (2) the fact that Van-Arsdale’s appeal rights were

reinstated in the context of a PCRA appeal, does not render Van-Arsdale’s

present petition a first, timely PCRA petition, (3) the present, second PCRA

petition is patently untimely, (4) Van-Arsdale’s allegation of sentencing

counsel’s abandonment does not trigger the unknown facts exception, 42

Pa.C.S. § 9545(b)(1)(ii), because the instant petition was not filed “within 60

days of the date the claim could have been presented,” as required by 42

Pa.C.S. § 9545(b)(2),2 and (5) time for filing a PCRA petition cannot be

extended for equitable reasons).

       We agree with the PCRA court’s analysis and conclude no further

discussion is warranted. Accordingly, we affirm the dismissal of Van-Arsdale’s

second PCRA petition based upon the PCRA court’s March 28, 2017 opinion,

pages 1-11.3

       Order affirmed.


____________________________________________


2 As pointedly put by the PCRA court, the PCRA court, by order of May 15,
2014, found that counsel abandoned Van-Arsdale in his appeal from the denial
of his first PCRA petition. Thereafter, Van-Arsdale’s first PCRA petition was
resolved when the Pennsylvania Supreme Court denied allowance of appeal
on September 23, 2015. However, despite the May 15, 2014 finding of
abandonment, and the resolution of the first PCRA appeal by the Pennsylvania
Supreme Court on September 23, 2015, the issue of sentencing counsel’s
abandonment by filing a PCRA petition rather than a direct appeal was not
raised until this second petition was filed in April, 2016.

3In the event of further proceedings, the parties are directed to attach a copy
of the PCRA court’s opinion to this memorandum.

                                           -4-
J-S70038-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2018




                          -5-
                                                       Received 7/24/2017 11 :49:54 AM Superior Court Middle District
                                                                                     Circulated 12/20/2017 01:13 PM

                                                            Filed 7/24/2017 11 ·49·00 AM Superior Court Middle District
                                                                               . .                     701 MDA 2017



     IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                              CRIMINAL
                                                                                                    �


                                 �
COMMONWEALTH OF PENNSYLVANIA                                       CP-01-CR-678-2010                         j

                                                                                                    i€�
                                                                                                          �f:\I �
      BILL� ALLEN VANARSDALE                                                                        �

           I                                     OPINION                                            �               0


                                                                                               Bil yi1e1
                                                                                                            1
       Befo�e the Court for consideration is the second P.C.R.A. Petition of

Van Arsdal1 ("Defendant") challenging the effectiveness of first P.C.R.A counse� As .                            :.·.
    procedural
the            history is partially controlling of the resolution, it will briefly be

summariz,.
               I                                                                           ·

       By \minal complaint filed on June 25, 2010, Defendant was charged w�h 17

counts of indecent deviate sexual intercourse (18 Pa. C.S.A. § 3123) and several

other sexuJI related crimes for conduct alleged to have been committed with a

juvenile feJale on numerous occasions between June, 2007, and January, 2010.
                   I
           · alleged the juvenile victim was 13 years old at the time the conduct
The compla1nt

commenced.                   Defendant promptly retained private counsel who represented him

through the             reliminary hearing. At the time of Defendant's formal arraignment on

August 18, 2010, Public Defender Kristin Rice ("trial counsel") entered her

appearance on behalf of the Defendant.                     After resolution of pre-trial issues,

Defendant w ived his right to a jury trial on December 6, 2010. He was subsequently

convicted of           l11
              charges following a non-jury trial held on Dece�ber 15, 2010. Prior
  sentencinJ.
to                       the Defendant was referred to the Pennsylvania State Board of Sexual

Offenders to 6etermine whether or not he qualified. as a violent sexual predator. On

February 14, 2011, the Commonwealth provided notice pursuant to 42 Pa. C.S.A. §
9795.4 oft eir intent to have the Defendant classified as a sexually violent predator.
SentencinJ
           was scheduled for March 24, 2011. On March 2, 2011, trial counsel

moved to lithdraw as counsel an� privately hired counsel, John Elbert, Esquire
("sentencin�
                 counsel"), entered appearance on behalf of the Defendant.               Following

the entry   o,   appearance by sentencing counsel, and pursuant to the request of both

parties, sentencing was continued to April 21, 2011. At that time, after hearing, the
        deteriil ned
Court                    Defendant to be a sexually violent predator. With the agreement of

the parties, entencing was rescheduled to May 12, 2011. At the request of defense

counsel, sehtencing was again rescheduled to May 19, 2011. Due to medical
           loncerning
emergency             sentencing counsel, sentencing was rescheduled to June 2,

2011 at whidh time Defendant wa� sentenced to an aggregate sentence on all counts

of no less lhan 14 years and nine months nor more than 30 years in a state

correctional mstitution.       Despite being advised of his post-sentence rights on the

record, Defendant did not file post-sentence motions or direct appeal following

sentencing.

        Defendant, still represented by sentencing counsel, timely filed a P.C.R.A.

Petition.    A\ pre-hearing conference on the Petition was scheduled and, after

numerous coltinuance requests granted to Defendant, was held on March 25, 2013.

At conferenJ, the Defendant identifie� three issues for hearing: (1) voluntariness of
            try
his waiver of          trial; (2) ineffectiveness of trial counsel _in failing to �roperly raise an

available ahb1 defense; and (3) mef,fecbveness of trral counsel                  in   not properly
                  I
preparing for
                  tal.    By Amended Petition filed on May 1, 2013, Defendant withdrew

his challenge to the voluntariness of his jury trial waiver however added an additional



                                                  2
allegation , f trial counsel ineffectiveness in failing to present available character

evidence.     Following hearing, on August 8, 2013, the Court denied Defendant's

P.C.R.A. Petition.

       On Jarch 10, 2014, Defendant filed a prose Nunc Pro Tune Notice of Appeal
         sJperior
with the          Court. Noting Defendant was still represented by sentencing

counsel,    thJ Superior Court directed this Court to conduct hearing to determine
whether or �ot Defendant had been abandoned on appeal. On May 15, 2014, this

Court    deter1ined
                \ Defendant had beer abandoned by sentencing counsel on appeal
and reinstat d Defendant's right to appeal the dismissal of his P.C.R.A. Petition.
              the
Addttionally,     Court appointed new counsel ("P.C.R.A. counsel") to represent the

Defendant's interests in the appeal of dismissal of his P.C.R.A. Petition. Appeal was
subsequenU�
               perfected.    In his appeal, Defendant alleged trial court error in

dismissing hi� claim that trial counsel was ineffective in failing to properly present an

alibi defense! Defendant also resurrected his claim related to jury trial waiver
          phrJsed
however           the issue as one related to the ineffectiveness of trial counsel.
         Defe+ant
Finally,          raised three issues concerning sentencing counsel's performance.

By Memorandum Opinion filed January 30, 2015. the Superior Court affirmed this
                 I
Court.     In doing so, the Superior Court held the ineffectiveness claims related to

waiver of jury   rrial and sentencing counsel's stewardship were waived.    Defendant's
Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on

September 23,\ 2015.




                                           3
       On April 11, 2016, Defendant filed, pro se, a second Petition for Post

Conviction bonateral Relief. In his Petition, Defendant raises a number of issues as

follows:




                l
1.)    Did counsel improperly influence Defendant to waive his right to a jury
       trial;

2.)    Was ounsel ineffective in allowing "over sentencing" to occur;
           �e
3.)    Did     court abuse its discretion in allowing Defendant to appear in a
       non-jury trial in prison clothing;
                 I
           \
4.)    Was the trial court biased due to being aware of a polygraph
       examination;

5.)    Did t�e trial judge err by failing to recuse himself due to knowledge of
       the pdlygraph examination;

6.)    Did   thb prosecuting Pennsylvania state trooper commit perjury;
7.)
                     I
       Was the polygraph examination conducted "legally";
           t�e
8.)    Did      arresting trooper fa!sify the affidavit of probable cause
       accompanying the complaint;

9.)    Did      thl
                affidavit of probable cause contain information which was not
       provert at trial;

10.)   Did      th1
               report completed by the Pennsylvania State Board of Sexual
                         I
       Offenders improperly rely upon a "falsified" affidavit;
            t�e
11.)   'Was     Defendant found guilty on every charge or was it just done by
       hearsay evidence?";

12.)   The oJfendant's sentence was illegal;                       ·

13.)   Was counset ineffective for not fighting for his appellate rights; and

14.)
                             I
       Was trial court biased by indicating that factual resolution involves
       "matterk of credibility."

In regard to the ineffectiveness claims, Defendant did not specifically identify

responsible co1unsel.
                                 i
                                            4
       In    (der to help focus Defendant's issues, second P.C.R.A. counsel was

appointed to represent the Defendant. A pre-hearing conference was conducted on

August 18) 2016 at which Defendant appeared through video conferencing.                 At

conference; the Commonwealth questioned this Court's jurisdiction in light of the

timeliness   lf   the Petition.   In addition, in order to clearly identify which claims of

ineffectivenkss Defendant was raising against which counsel, Defendant was granted

until Novejber 14, 2016 to file an amended second P.C.R.A. petition. In the timely

filed Amended Second Petition. Defendant targeted all claims of ineffectiveness
        seniencing
against            counsel claiming sentencing counsel was "ineffective in failing to

raise the trJr errors identified in Defendant's prose second Amended Petition." See

Amended      JrC.R.A.    Petition, paragraph 17.    Defendant, in his Amended Second

Petition, does not allege ineffectiveness of any other counsel.
          - I
      At a second pre-hearing conference held on November 17, 2016, Defendant
              I                       .
confirmed t e issues he intended to pursue as being solely related to the

ineffectivene s of sentencing counsel in failing to raise the following issues on direct

appeal:

1.)   Failur. of the trial judge to recuse himself on the basis that he was the
      judge lwho conducted a pre-trial suppression hearing exposing him to
      informktion inadmissible at non-jury trial;

2.)   Trial court error in permitting Defendant to appear at non-jury trial in
      prison clothing;

3.)    Imposition of an excessive sentence;
       FailurJ\
4.)            to suppress an illegally obtained statement from the Defendant
      on the basis that it was a custodial interview due to two troopers being
      in the room
             I
                    at the time of the statement and on the second basis that
      the Defendant did not sign any documents;




                                               5
5.)    Allegations in the affidavit of probable cause supporting the criminal
       comrlaint were falsified; and

6.)    The befendant involuntarily waived his right to a jury trial.


       By Jder dated January 10, 2017, the Defendant was provided notice of the

Court's inte�t to dismiss his second P.C.R.A. Petition without hearing on the basis

the Court   ralks jurisdiction pursuant to 42 Pa. C.S.A. § 9545; the issues raised by the
                tave
Defendant              been previously litigated or waived pursuant to 42 Pa. C.S.A. §

9544; and the
            I
              issues raised by the Defendant do not require factual development and

lack legal m\erit. The Defendant was granted 30 days within which to show cause

why the Petition should not be dismissed without hearing. Following Memorandum .

received   frol   both parties, and for the reasons set forth below, Defendant's second

P.C.R.A. Pet�tion will be dismissed.

       lnitiallt. the issue of jurisdiction must be resolved. The Commonwealth argues

that the PoJt Conviction Relief Act 'requires any petition, including a second or

subsequent J.etition. to be filed within one year of the date of final judgment unless an
           n+e
exception,       of which are currently applicable, exists. 42 Pa. C.SA § 9545(b)(1).

The Commoriwealth points out that since Defendant did not file a direct appeal, final

judgment    wal entered on July 2. 2011          which is 30 days following his date of

sentencing. !ecause the second P.C.RA. Petition was not filed until April 11, 2016,

and Defenda\nt has not alleged an exception to the timeliness requirements,

Commonwealth argues that pursuant to the provisions of the act, this Court lacks

jurisdiction.




                                            16
          Defendant argues that due to his appeal rights being reinstated nunc pro tune,
              I
the jurisdictional time limit within which to file a P.C.R.A. petition did not commence
            bppeflate
until after             review had concluded. Although not specifically identified,
presumablJ1
              Defendant is referring to the Pennsylvania Supreme Court's denial of his

Petition for !Allowance of Appeal on September 23, 2015. Jn support of his position,
             C�mmonwealth
he cites                             v. Tumer, 73 A.3d 1283 (Pa. Super. 2013), for the

proposition that when direct appeal rights are reinstated nunc pro tune as a result of
          p�oceedings,
P.C.R.A.                a subsequent P.C.R.A. petition will be considered a first

petition for timeliness purposes and the time for filing the subsequent P.C.R.A.

petition did not commence until resolution of the direct appeal rights which were

reinstated.       1   efendant claims that under this authority, his second P.C.R.A. Petition is

timely.

          Although Defendant accurately cites Commonwealth v. Turner for the




              It
proposition Jtated, Turner is factually distinguishable currently. In Commonwealth

v. Turner,             petitioner's appellate rights were reinstated ln order to pursue a direct

appeal from original trial proceedings. Instantly, although it is true that Defendant's

appellate   rtg1ts were reinstated, they were reinstated in the context of an appeal from
denial of hi! first P.C.R.A. Petition rather than a direct appeal from his original

conviction. \nder these circumstances, Turner is inapplicable. Rather, the issue is

one of whether Defendant's second Petition is timely where he is alleging
ineffectivena+
               of counsel who was both post-sentence counsel and P.C.R.A.

counsel and lvho opted to pursue P.C.RA. relief rather than direct appeal.                 After




                                                   7
    diligent search, it appears the uniqueness of this procedural posture has escaped

    appellate rlview. Nevertheless, a review of general concepts may be helpful.
           Unq! J
                estionably, under Pennsylvania law, the one year limitation on the filing

    of petitions under the P.C.R.A. is a jurisdictional rule that precludes consideration of

    the merits If an untimely P.C.R.A. petition.               Commonwealth v. Brown, 111 A.3d

    171, 175   (Pb.ubsequent
                    Super. 2015).          Moreover, it is well settled that any petition, including a
                    �
    second or                          petition, must be filed within the statutory time period.

    Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). Against this
            backdrop,
    general           in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our

    Supreme cJurt enunciated that attorney abandonment could possibly constitute an
    unknown tadt permitting an untimely petition provided the petition is filed within 60
            dislovery
    days of                       of the abandonment.         This precedent, when read together,
                     I                                .
    establishes that the jurisdictional time period for filing of a P.C.R.A. petition is
                                     aband onment
                                                      1




    mandatory �owever attorney                     may toll the statutory time period

    provided the untimely petition is filed within 60 days of discovery of counsel's

    abandonment.
.                        I
            Instantly, employing          a "counsel abandonment" strategy, Defendant alleges



                    +stch
    abandonmenJ by sentencing counsel. He claims sentencing counsel abandoned him

    in failing to                direct appeal from   denial of his first P.C.R.A. Petition. Indeed, this
    Court found                  abandonment by Order dated May 15, 2014; an Order that also

    reinstated Def\ndant's rights to appeal denial of his first P.C.R.A. Petition Nunc Pro

    Tune.    Howevrr, despite the factual reality of abandonment, Defendant's efforts to

    trigger exception to the current untimely filing lacks merit.                In order to succeed,
                             I
                                                          8
defendant must establish that the current filing occurred within 60 days of the

abandonment in order to trigger the exception. Commonwealth v. Bennett, supra.

As the currlnt P.C.R.A. Petition was not filed until approximately 23 months later on

April 11,    2616.    exception to the \imeliness requirements on this basis is not

appropriate   ·l
       Neve heless, Defendant argues that absent the opportunity to have the issues

raised in his\ second P.C.R.A. Petition currently addressed, the procedural history of

this matter
              lhas    effectively precluded those issues     from   judicial review.   More

pointedly, D fendant claims sentencing counsel's strategy in foregoing direct appeal
            hhallenging
m favor of               trial counsel's effectiveness in P.C.R.A. proceedings has

precluded    hil   of the ability to challenge trial court error. Additionally, he suggests
               I
that due to the lapse of time, sentencing counsel's strategy has also precluded him
     challenJing
from              sentencing counsel's stewardship in pursuing the strategy.
       AlthoJgh,
                  as previously mentioned, the procedural posture of this matter is

unique, simillr procedural pattern was recently addressed by the Superior Court in

Commonwe1lth v. Callahan, 101 A.3d 118 (Pa. Super. 2014).                  In Callahan, the
             soJght
petitioner            P.C.R.A. relief on the basis of trial counsel's alleged ineffectiveness

for failing tol�ile post-sentence motions, failing to preserve a sufficiency of the

evidence clail on appeal, failing to call an alibi witness, and failing to pursue a

motion to suJpress. Id. at 120. P.C.RA counsel was appointed and an evidenliary



motions and        direct appeal     but denied     petitioner's claims of trial counsel

ineffectivenes related to trial error. Id. Instead of filing a post-sentence motion and



                                               9
direct appeal, P.C.R.A counsel chose to appeal the P.C.R.A. court's denial of the

ineffective�ess claims relating to counsel's trial error. Id. at 121. On direct appeal to
     Superiir
the           Court, the P.C.RA court's denial of claims related to trial error on the

part of counsel was affirmed. Id. Appellant thereafter filed a second P.C.R.A.
         allJging
petition          P.C.R.A. counsel's ineffectiveness for failing to file post-sentence

motions anjd direct appeal nunc pro tune. Id. Following denial of the second
         p1tition,
P.C.R.A.           the petitioner once again appealed to the Superior Court. Id.
       conJidering
Before              the merits of the appeal, the Superior Court dismissed the second

P.C.R.A. pe�ition on timeliness grounds. Id. at 122. In doing so, the court opined:

      "The plain language of the p.C.R.A. provides that a judgement o'f
      sentence becomes final at the conclusion of direct review or when the
      time for seeking direct review expires. See 42 Pa. C.S.A. § 9545(b)(3).
      In fixihg the date upon which a judgment of sentence becomes final, the
      P.C.R.A. does not refer to the conclusion of collateral review or the time
      for abpealing a collateral review determination.          Thus, the plain
      language of the P.C.R.A. statute shows that a judgment of sentence
      becorhes final immediately upon expiration of the time for seeking direct
      revie'1.1 even if other collateral proceedings are still ongoing. As this
      result is not absurd or unreasonable, we may not look for further
      manifestations of legislative intent."                               ·

Id. at 122. The Callahan Court further noted that the period for filing a P.C.R.A.

petition cannot be extended for equitable reasons absent existence of a statutorily

enumerated lxception. _Id.at 123. T�is reasoning is persuasive instantly.

      Defenbant's judgment of sentence became final on July 2, 2011 when

Defendant chose not to file direct appeal with the Superior Court.          Defendant's

decision to flrego direct appeal and pursue relief through P.C.R.A. proceedings is

factually indiltinct from the decision in Callahan to pursue P.C.R.A. proceedings

rather than t�e reinstated rights to file post-sentence motions and direct appeal. As



                                           10
the factual circumstances to which the Superior Court applied its reasoning are

substantially similar to those currently before the Court, the result shall likewise be

the same.

          Even if this Court concluded that Defendant's Petition was timely on equitable

grounds, he is still not entitled to relief. The Defendant's claims of trial court error in

permitting him to appear at a non-jury trial in prison clothing was not preserved by

trial counsli through objection, and Defendant does not currently claim
ineffectivenJss
                on the part of trial counsel related to this error. As such, the issue is

waived.    seJ  Commonwealth v. Tedford, 960 A.2d 1. 13 (Pa. 2008) (a petitioner
           layetd
raising            ineffectiveness claim must plead ineffectiveness of all preceding

counsel and present argument of ineffectiveness as to each relevant layer of
representanon).
                Similarly, Defendant's claims related to falsification in the affidavit of

probable cause and failure to file suppression motion relate to trial counsel's, in
            slntencing
addition to              counsel's, ineffectiveness. Yet, the current P.C.R.A. Petition
           chJllenge
does not             trial counsel's stewardship. Accordingty, Defendant's failure to

plead trial ceunsere ineffectiveness in, failure to preserve these issues precludes a

layered claim ag�inst sentencing counsel pursuant to the instruction of Tedford.

          Defendant's claim that the trial judge erred in failing to recuse himself is
              P�nnsylvania
frivolous.                     law presumes that judges have the ability to determine

whether or nit they can rule impartially and without prejudice.       Commonwealth v.

Kearney, 92      l.3d   51, 60 (Pa. Super. 2014). As a general rule, a motion for recusal

is decided by the judge whose impartiality is being challenged. Commonwealth v.

Abu-Jamal, 7i20 A.2d 79, 89 (Pa. 1998). In considering the motion, the judge must



                                              11
conscientio1usly determine whether his or her ability to assess the case in an impartial

manner an� free of personal bias or interest can be achieved. Id. The judge must

also consider whether continued involvement in the case creates an appearance of

impropriety or would otherwise tend to undermine public confidence in the judiciary.
                                              '


Id. These decisions are personal in nature and unreviewable absent an abuse of

discretion. 1d.                           .

         lnstahtly. Defendant complains this writer was unable to preside fairly over trial
              I                   .
              I
because of involvement in pre-trial suppression motions. The irony of Defendant's
              I

allegation isj that this Court ruled in his favor on the suppression motion. Under this

circumstance, the claim, without any support. that this Court was unable to assess

                l
evidence in an impartial manner and dispose of issues fairly and without prejudice

defies the rlcord.       As indicated at the time the Motion to Recuse was made, the

Court was    ablI e to disregard any information which was suppressed.       Defendant has

failed to poi     ht out any evidence of prejudice or pre-disposition to the contrary.    He

has also ftled to identify any legal support for his position.          Conversely,
Pennsylvanii                                holding-
             jurisprudence is unwavering in          that a judge, as fact-finder, is

presumed to disregard inadmissible evidence and consider only admissible evidence.

Commonwealth v. Fears, 836 A.2d 52, 71 n. 19 (Pa. 2003). Since the Defendant
    pointlto
cannot               any instances of bias �r prejudice on the part of the trial judge in his

Petition, his , laim is meritless.

         Defen6ant's claim that sentencing counsel was ineffective in failing to

challenge    hil waiver of the right to a jury trial is also insufficient to justify relief.


                                                  12
Indeed, this precise issue was addressed by the Superior Court when considering his

appeal froj his first P.C.R.A. Petitio�. Therein, the Court noted:

       We
            4o1e  that in waiving his right to a jury trial, Van-Arsdale testified that
       he understood that a jury would be chosen from members of the
       community. the verdict had to be unanimous, and that he would be
       aflo�ed to participate in the selection of the jury. See N.T., 12/6/10, at
       4-5; see
             I
                   also CommonwealthI v. Mallory, 941 A.2d 686, 696-97 (Pa.
       2008� (stating that a valid jury trial waiver requires that a defendant is
       informed "that the jury be chosen from members of the community (a
       jury bf one's peers), that the verdict be unanimous, and that the
       accused be allowed to participate in the selection of the jury panel.")
       (citati'on omitted). Van-Arsdale also stated that nobody promised him
       anytHing in exchange for giving up his jury trial rights, that nobody
       threatened him, that he spoke with trial counsel about the decision, that
       he was  I
                  satisfied with trial counsel's representation, and that he was
       voluntarily waiving his jury trial rights. See N.T., 1216/10, at 9-10.

Commonwlalth v. Van-Arsdale, No. 438 MDA 2014 (January 30, 2015). This
review by thi Superior Court accurately summarizes the record and confirms the lack

of any basiJ for relief had direct appeal raising the issue been filed by sentencing
           Si1ce
counsel.           counsel cannot be deemed ineffective for failing to raise a meritless

claim, Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012), Defendant's

allegation is ot a basis for relief.

       In his final issue, Defendant claims sentencing counsel was ineffective in

failing to ch llenge his sentence as an abuse of discretion. Appellate authority on

this subject Jeaches that, in the context of a P.C.R.A. petition, the determination of.

whether a sehtence is manifestly excessive can be reached, as a matter of law, upon

a review of t�e record as it already exists.   Commonwealth v. Jones, 942 A.2d 903,
         suf
906 (Pa.        r. 2008). " ... [l]f the P .C.R.A. court can determine from the record that

the sentence was not excessive, ... , then there is no underlying merit to the

ineffectiveneJs claim and the claim must fail." Id.


                                             13
        Inst ntly, Defendant was convicted of 15 counts of involuntary deviate sexual

intercoursejwith a minor as a felony of the first degree,1 one count of unlawful contact

with   a minJ as a    felony of the first _degree,2 one count of statutory sexuaf assault as

a felony of the second degree,3 five counts of aggravated indecent statutory assault

as felonies of the second degree,4 one count of corruption of minors as a

misdemeanor of the first degree,5 and two counts of indecent assault as

misdemeanbrs of the second degree.6                   Following Defendant's conviction, the

commonwealth provided notice of its intent to seek mandatory sentences of no less
              I
than ten years on each of the 15 felony counts pursuant to law applicable at the time

of Defendaru's conviction.7 Independent of the mandatory sentencing sought by the

Commonwelith, the Pennsylvania Sentencing Guidelines recommended a standard
          slntencing
range for            between 48 months and 66 months for each of the 15

felony/one convictions. 8 Armed with this information as well as a pre-sentence
investigation!
               the Court structured sentencing through a combination of concurrent

and consecutive sentences applxing a standard guideline range as to each

conviction fo� an aggregate sentence of no less than 14 years and nine months nor

more than 3J years. In doing so, the Court noted the need to take into account the



1                 I
  18 Pa. C.S.A. § 3123 {a)(7)
2
3
                  s
  18 Pa. C.S.A. 6318{a)(1)
  18 Pa. C.S.A. § 3122.1
  18 Pa. C.S.A. § 3125 (a)(8)
4
5
  18 Pa. C.S.A. § 6301(a)(1)
618
     Pa. C.S.A. § 3126 {a)(8)
7
  At the time oflsentencing, the Commonwealth proceeded under 42 Pa. C.S.A. § 9718(a)(1) which
provided that a conviction for the crime of involuntary deviate sexual intercourse when the victim is
Jess than 16 ye rs of age required a mandatory minimum term of imprisonment of at least ten years.
In CommonweMth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), the Superior Court determined the
section to be u�constitutional pursuant to the United States Supreme Court's decision in Alleyne v.
United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013}.


                                                 14
                        I
                        i
                        I
    rehabilitatil needs of the Defendant, the impact on the victim, and the need for

    community safety and protection.                Nevertheless, the Court exercised restraint in
                        l
    refraining from imposing an overly punitive sentence.                For instance, if mandatory

    sentences were consecutively imposed on each of the 15 felony/one counts,

    Defendant aced exposure of 150 to 300 years' incarceration. Indeed, at the time of
                        f l




    sentencing, the Commonwealth was seeking essentially a life sentence of 20 to 50
            TJking
    years.          into account the i�dividual circumstances before the Court, this

    request wal not honored by the sentencing court. Thus, it is clear as a matter of law

    that the sJandard guideline range sentences imposed by the Court were neither

    excessive           tar   an abuse of discretion'. As previously mentioned, since counsel cannot

    be deemed ineffective for failing to pursue a frivolous issue, the Defendant is not

    entitled to Jelief on this claim.

              For       the foregoing reasons, the attached Order is entered.

                                                       BY THE COURT:




    Date filed: March 28, 2017




    8
        The Deferldant's prior record score was zero with offense gravity score of 12 for a conviction of
    involuntary deviate sexual intercourse.




I
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