J-S66024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN NEDBY                                :
                                               :
                       Appellant               :   No. 3442 EDA 2017

                 Appeal from the PCRA Order September 15, 2017
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0000063-2007

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                FILED MARCH 20, 2019

        Appellant, Kevin Nedby, appeals from the order dismissing his petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. Appellant chiefly claims ineffectiveness of counsel. We affirm.

        The underlying facts are not in substantial dispute.1 Briefly summarized,

Appellant was a drug dealer. John Pellegrino, an addict, was both a sometime

customer and a seller for Appellant.2              Pellegrino had recently visited

Appellant’s home to look at a motorcycle that was for sale. See Appellant’s

Brief, at 5.


____________________________________________


1   See e.g., N.T. Trial, 7/22/09, at 126.

2Pellegrino’s first name is also occasionally given as “Joe” in the record before
us.
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         Shortly afterward, Appellant’s home was burglarized. The burglars took

a substantial amount of cash, drugs including Xanax and OxyContin, and the

keys to the motorcycle.3        Appellant suspected Pellegrino and a friend had

committed the crime. Acting on this suspicion, Appellant and a cohort, Ronald

Nichols, took Pellegrino to a secluded location on the Delaware River

waterfront in the Tacony neighborhood of Philadelphia in the middle of the

night.    There, Nichols first pistol-whipped, and then fatally shot Pellegrino

three times.

         After their arrest, both Nichols and Appellant gave statements to the

police.     Appellant confessed that he had conspired with Nichols, but

maintained that he had only expected Nichols to threaten Pellegrino with the

gun, not to kill him.

         Appellant and Nichols were set to be tried together in a capital murder

case. However, on July 21, 2008, Nichols separately entered a guilty plea to

murder of the first degree and conspiracy. After a colloquy, the Honorable

Shelley Robins New accepted the plea and sentenced Nichols to life without

parole for the murder and a concurrent sentence of twenty to forty years of

imprisonment for conspiracy.




____________________________________________


3 Appellant’s estimates of the cash stolen ranged from $5,400 to $80,000.
See PCRA Court Opinion, 4/20/18, at 3; see also Appellant’s Brief, at 6; N.T.
Trial, 7/21/09, at 49.


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        Appellant and his defense counsel had planned to ask for a jury trial.

However, the Commonwealth offered to withdraw the capital charge in return

for    Appellant’s   waiver    of   a   jury   trial.   Appellant   followed    counsel’s

recommendation and accepted the offer.

        Judge New presided over Appellant’s 2009 bench trial.                  She found

Appellant guilty of murder of the third degree, 18 Pa.C.S.A. § 2502(c);4

carrying a firearm without a license, 18 Pa.C.S.A. § 6106; and criminal

conspiracy, 18 Pa.C.S.A. § 903.           On September 11, 2009, the trial court

sentenced Appellant to an aggregate term of not less than twenty-two nor

more than forty-four years of imprisonment in a state correctional institution.

No post sentence motions nor direct appeal was filed.

        After Appellant’s direct appeal rights were reinstated nunc pro tunc, this

Court affirmed his judgment of sentence, on January 18, 2012.                        See

____________________________________________


4   Our Crimes Code classifies murder as follows:

               (a) Murder of the first degree.−A criminal homicide
        constitutes murder of the first degree when it is committed by an
        intentional killing.
               (b) Murder of the second degree.−A criminal homicide
        constitutes murder of the second degree when it is committed
        while defendant was engaged as a principal or an accomplice in
        the perpetration of a felony.
               (c) Murder of the third degree.−All other kinds of murder
        shall be murder of the third degree. Murder of the third degree is
        a felony of the first degree.

18 Pa.C.S.A. § 2502.




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Commonwealth v. Nedby, No. 1737 EDA 2010 (Pa. Super. filed January 18,

2012) (unpublished memorandum). The Pennsylvania Supreme Court denied

allowance of appeal. See PCRA Court Opinion, at 2.

       On May 14, 2012, Appellant timely filed a pro se PCRA petition. Counsel

entered an appearance and filed an amended petition on November 7, 2015.5

       On July 14, 2017, the PCRA court advised Appellant that the issues

raised in his PCRA petition were without merit, and that it intended to dismiss

it pursuant to Pennsylvania Rule of Criminal Procedure 907(1).          The court

subsequently dismissed the petition.           This timely appeal followed.   Both

Appellant and the PCRA court complied with Rule 1925. See Pa.R.A.P. 1925.

       Appellant presents four questions on appeal:

              I. Did the PCRA [c]ourt violate Appellant’s constitutional
       rights to a fair trial and due process of law and abused its’ [sic]
       discretion when it did not recuse itself from deciding the PCRA
       petition?

              II. Did the PCRA [c]ourt err and violate Appellant’s
       constitutional rights under the Sixth Amendment when it found
       that trial counsel was not ineffective for failing to move to have
       the trial judge recuse herself?

              III. Did the PCRA [c]ourt err and violate Appellant’s
       constitutional rights under the Sixth Amendment when it found
       that trial counsel was not ineffective for being unprepared during
       sentencing?

             IV. Did the PCRA [c]ourt err and violate Appellant’s
       constitutional rights under the Sixth Amendment when it found
____________________________________________


5 The gaps in the time sequence appear caused at least in part by several
changes of counsel, numerous amendments of the PCRA petition, and
attendant requests for continuances.

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      that trial counsel, who remained counsel on direct appeal, was not
      ineffective for waiving a claim that the guilty verdict as to third
      degree murder and conspiracy to commit murder/assault was
      against the weight of the evidence by failing to argue it on appeal?

Appellant’s Brief, at 3-4.

      Our standard of review is well-settled.

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination “is supported by the record and free
      of legal error.” Commonwealth v. Sepulveda, 618 Pa. 262, 55
      A.3d 1108, 1117 (2012) (citing Commonwealth v. Rainey, 593
      Pa. 67, 928 A.2d 215, 223 (2007)). The PCRA provides that to be
      entitled to relief, a petitioner must establish, by a preponderance
      of the evidence, that his conviction or sentence resulted from one
      or more of the enumerated errors in Section 9543(a)(2), and his
      claims have not been previously litigated or waived. 42 Pa.C.S. §
      9543(a)(2).

                                   *    *    *

      To prevail on a claim of ineffective assistance of counsel, a PCRA
      petitioner must satisfy the performance and prejudice test set
      forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
      2052, 80 L.Ed.2d 674 (1984). Sepulveda, 55 A.3d at 1117. [Our
      Supreme] Court has described the Strickland standard as
      tripartite by dividing the performance element into two distinct
      components. Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d
      35, 45 (2012); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975 (1987). Accordingly, to prove counsel ineffective, the
      petitioner must demonstrate: (1) the underlying claim has
      arguable merit; (2) no reasonable basis existed for counsel’s
      actions or failure to act; and (3) the petitioner suffered prejudice
      as a result of counsel’s error such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Sepulveda, 55 A.3d at 1117 (citing
      Pierce, 527 A.2d at 975). Counsel is presumed to have rendered
      effective assistance. Sepulveda, 55 A.3d at 1117.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead, if
      a claim fails under any necessary element of the ineffectiveness
      test, the court may proceed to that element first. Id. at 1117–

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      18; Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
      (1998). Finally, counsel cannot be deemed ineffective for failing
      to raise a meritless claim. Commonwealth v. Jones, 590 Pa.
      202, 912 A.2d 268, 278 (2006).

Commonwealth v. Tharp, 101 A.3d 736, 746–47 (Pa. 2014) (footnote

omitted).

      [W]e continue to adhere to the principle that the trial court is in
      the best position to review claims related to trial counsel’s error
      in the first instance as that is the court that observed firsthand
      counsel’s allegedly deficient performance[.] Accordingly, where,
      as here, the same judge presided at the trial and the PCRA
      proceedings, we give great deference to the PCRA court’s findings.

Commonwealth v. Solano, 129 A.3d 1156, 1194 (Pa. 2015) (citations and

internal quotation marks omitted).

      Preliminarily, in this appeal, we note that Appellant has failed to comply

with Pennsylvania Rule of Appellate Procedure 2119(a):

            (a) General rule. The argument shall be divided into as
      many parts as there are questions to be argued; and shall have
      at the head of each part−in distinctive type or in type distinctively
      displayed−the particular point treated therein, followed by such
      discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a).

      Instead, Appellant combines the argument for his first and second

claims.     Appellant’s brief not only joins two distinguishable arguments, it

intersperses additional argument for unrelated issues as well. See Appellant’s




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Brief, at 13-22.6 Notably, Appellant simultaneously adds claims that he was

pressured into waiving a jury trial, a separate issue, and that the trial court

impermissibly reviewed Nichol’s inculpatory statement. See id. at 13, 15, 19.

       “The failure to develop an adequate argument in an appellate brief
       may [ ] result in waiver of the claim” under Pa.R.A.P. 2119.
       Commonwealth v. Gonzalez, 415 Pa. Super. 65, 608 A.2d 528,
       531 (1992). We shall not develop an argument for an appellant,
       nor shall we scour the record to find evidence to support an
       argument; instead, we will deem issue to be waived. See
       Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super.
       2007).

Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018), appeal denied, 199

A.3d 340 (Pa. 2018).

       Furthermore, Appellant fails to identify where the claim of recusal was

raised with the PCRA court. See Pa.R.A.P. 2117(c) (Statement of place of

raising    or   preservation       of   issues.);   see   also   Pa.R.A.P.   2119(c)

(Reference to record).          This is perhaps unsurprising, as Appellant faults

defense counsel for not raising the issue.           See Appellant’s Brief, at 16.

Because Appellant failed to raise the issue of the PCRA court’s recusal with the

PCRA court, that issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).

       Appellant fails to develop any argument that would establish the Judge

had a duty to recuse herself sua sponte.            Nor does Appellant develop an


____________________________________________


6Counsel for Appellant claims the two issues are “directly related, interrelated
and co-dependent[.]”      Appellant’s Brief, at 13 n.6.      The argument is
unsupported and unpersuasive.

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argument of counsel ineffectiveness according to the three-pronged Pierce

test. Accordingly, Appellant’s first and second arguments are both waived.

Moreover, even if properly and timely raised, neither issue would merit relief.

      Our standard of review for a denial of recusal is well-settled.

      [Our Supreme] Court presumes judges of this Commonwealth are
      “honorable, fair and competent,” and, when confronted with a
      recusal demand, have the ability to determine whether they can
      rule impartially and without prejudice.      Commonwealth v.
      White, 557 Pa. 408, 734 A.2d 374, 384 (1999). The party who
      asserts a trial judge must be disqualified bears the burden of
      producing evidence establishing bias, prejudice, or unfairness
      necessitating recusal, and the “decision by a judge against whom
      a plea of prejudice is made will not be disturbed except for an
      abuse of discretion.” [Commonwealth v.] Darush, [501 Pa. 15,
      459 A.2d 727,] 731 [ (1983) ].

      Commonwealth v. Druce, 577 Pa. 581, 848 A.2d 104, 108
      (2004).

         As a general rule, a motion for recusal is initially directed to
         and decided by the jurist whose impartiality is being
         challenged. In considering a recusal request, the jurist must
         first make a conscientious determination of his or her ability
         to assess the case in an impartial manner, free of personal
         bias or interest in the outcome. The jurist must then
         consider whether his or her continued involvement in the
         case creates an appearance of impropriety and/or would
         tend to undermine public confidence in the judiciary. This
         is a personal and unreviewable decision that only the jurist
         can make. Where a jurist rules that he or she can hear and
         dispose of a case fairly and without prejudice, that decision
         will not be overruled on appeal but for an abuse of
         discretion.

      Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89
      (1998) (citations omitted).

           “[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

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     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. [ ] Druce, [supra at] 108 [ ]. “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.” [ ] Abu–Jamal, [supra at] 89.

     Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 662
     (2008), cert. denied, 555 U.S. 1177, 129 S.Ct. 1317, 173 L.Ed.2d
     596 (2009).

                                 *    *    *

     Preliminarily, we note that it is well-settled that “[e]ven if
     prejudicial information was considered by the trial court, a judge,
     as fact finder, is presumed to disregard inadmissible
     evidence and consider only competent evidence.”
     Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 71 n. 19
     (2003), cert. denied, 545 U.S. 1141, 125 S.Ct. 2956, 162 L.Ed.2d
     891 (2005) (citation omitted).

     Next, we observe that our Supreme Court has “tentatively
     accepted the extra-judicial source doctrine, noting that it is
     significant if the information at the root of the recusal motion was
     obtained in a prior proceeding of the case, and not from any
     pretrial bias or personal disdain.” Druce, supra at 110 (citing
     Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250, 252 n. 6
     (1982)). The Court explained that “[u]nder the extra-judicial
     source doctrine, alleged bias stemming from facts gleaned from
     the judicial proceeding will rarely be grounds for recusal.” Id. at
     110 n.3. In further explanation, the Court cited with approval
     Liteky v. U.S., 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474
     (1994). See id. Liteky elaborated:

        [O]pinions formed by the judge on the basis of facts
        introduced or events occurring in the course of the current
        proceedings, or of prior proceedings, do not constitute a
        basis for a bias or partiality motion unless they display a
        deep-seated favoritism or antagonism that would make fair
        judgment impossible. Thus, judicial remarks during the
        course of a trial that are critical or disapproving of, or
        even hostile to, counsel, the parties, or their cases,

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          ordinarily do not support a bias or partiality
          challenge. They may do so if they reveal an opinion that
          derives from an extrajudicial source; and they will do so
          if they reveal such a high degree of favoritism or antagonism
          as to make fair judgment impossible. . . . Not establishing
          bias or partiality, however, are expressions of
          impatience, dissatisfaction, annoyance, and even
          anger, that are within the bounds of what imperfect men
          and women, even after having been confirmed as [ ] judges,
          sometimes display. A judge’s ordinary efforts at
          courtroom administration—even a stern and short-
          tempered judge's ordinary efforts at courtroom
          administration—remain immune.

      Liteky, supra at 555–56, 114 S.Ct. 1147 (some emphasis in
      original, some emphasis deleted, some emphasis added)
      (citations omitted).

Commonwealth v. Kearney, 92 A.3d 51, 60–62 (Pa. Super. 2014).

      Here, Appellant offers no specific examples of bias, partiality or

prejudice. The trial court’s mere observation that the respective statements

of the codefendants were “credibly similar,” (PCRA Court Opinion, at 7), is a

simple statement of opinion which falls far short of establishing bias or

partiality.

      Additionally, counsel cannot be faulted for failing to raise a meritless

claim.    Counsel properly declined to ask the judge to recuse herself.

Appellant’s first and second claims would merit no relief.

      In his third claim, Appellant argues that defense counsel was ineffective

by not being prepared during sentencing. See Appellant’s Brief, at 3. He

maintains that counsel should have rebutted evidence that in his youth,

Appellant had been adjudicated delinquent for bringing a handgun to school.


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See id. at 22-25. He concludes that a vigorous rebuttal “would have likely

impacted on the determination of the sentence.” Id. at 24. We disagree.

       There is no dispute the juvenile record is accurate. Rather, Appellant

posits that a vigorous rebuttal to the evidence of his juvenile record would

have convinced the judge that Appellant was not “the type of youth who

would conspire to commit the instant crime.”        Appellant’s Brief, at 24

(emphasis added). Appellant claims, with no evidence in support, that the

gun was unloaded.

       It bears noting that this claim arises out of the sentencing hearing.

Appellant is no longer a youth. Appellant was already convicted. There was

no need to disprove that Appellant was “the type of youth who would conspire

to commit the instant crime” for which he already stood convicted. In reality,

there was no more than a passing reference at sentencing to Appellant’s

juvenile record. See N.T. Sentencing 9/11/09, at 49; see also id. at 1-76.7

       Much more important to the sentencing court, in addition to the victim

impact statements, was the evidence of Appellant’s adult lifestyle (age

twenty-seven at sentencing) as a seller of drugs, with firearms in his home,


____________________________________________


7 It bears noting that the sentencing court judge confirmed that she had
received and read a pre-sentence investigation report for Appellant. See N.T.
Sentencing Hearing, 9/11/09, at 71. “[W]here the sentencing judge had the
benefit of a presentence investigation report, it will be presumed that he or
she was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).


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who planned and orchestrated the entire pursuit and transport of the victim,

and who stood by while Nichols executed Mr. Pellegrino. See id. at 72.

      In any event, on independent review of the sentencing hearing, we

agree with the PCRA court that defense counsel demonstrated full familiarity

with Appellant’s record, and presented his arguments “intelligibly and

forcefully.” PCRA Court Opinion, at 11. Appellant fails to present and prove

a claim of arguable merit that counsel was ineffective at sentencing. His third

issue fails.

      Finally, in his fourth claim, Appellant asserts counsel was ineffective by

failing to argue a weight claim. See Appellant’s Brief, at 3. Appellant notes,

correctly, that on direct appeal this Court found the weight claim waived for

failure to present it to the trial court and to develop a weight argument on

appeal. Nedby, No. 1737 EDA 2010, at 6.

      Appellant maintains that counsel should “have argued that the weight

of the evidence was insufficient [sic] to convict Appellant of conspiracy to

commit murder.” Appellant’s Brief, at 26. Once again, Appellant declines to

establish by a preponderance of the evidence that defense counsel’s actions

were ineffective under the three-pronged Pierce test. It fails on that basis

alone. See Tharp, 101 A.3d at 746–47.

      Moreover, even if properly presented, it would not merit relief.

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the

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      verdict winner. An allegation that the verdict is against the weight
      of the evidence is addressed to the discretion of the trial court. A
      new trial should not be granted because of a mere conflict
      in the testimony or because the judge on the same facts would
      have arrived at a different conclusion.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations

and footnote omitted) (emphasis added).

      An appellate court’s standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

      Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the
      verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court's determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the evidence
      and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting Widmer,

supra at 753 (emphasis added in original)) (citation omitted).

      In this case, Judge New, who presided at the waiver trial as well as the

PCRA court, confirms on appeal that if a weight claim had been timely raised,

the verdict would not have shocked the conscience of the court. See PCRA

Court Opinion, at 12.

      On independent review, we discern no proper basis on which to disturb

the verdict either. The evidence supports the conclusion that Appellant acted


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with malice before, during, and after the killing. He orchestrated the hunt for

the victim, summoned the assistance of his co-conspirator, Nichols, and took

them to an isolated location on the waterfront in the middle of the night. He

stood by while Nichols pistol-whipped the victim, as the victim begged for his

life.

          Appellant was not the shooter, but he engaged in a conspiracy where

the victim’s death was a natural and foreseeable consequence of his co-

conspirator’s conduct. It was the role of the trial court sitting as factfinder in

the bench trial to weigh the evidence and to accept all, part or none of it. The

trial court’s verdict does not shock the conscience of this Court. Nor is there

any discernible basis to assert abuse of discretion. Appellant fails to prove

that if defense counsel had preserved a weight claim, it would have merited

relief.

          Appellant’s claims are waived.   Moreover, none of them would merit

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19



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