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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
NELSON MARTINEZ,                          :         No. 2140 EDA 2019
                                          :
                        Appellant         :


                 Appeal from the Order Entered July 16, 2019,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0002416-2013


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 22, 2020

      Nelson Martinez appeals from the July 16, 2019 order denying his

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

§§ 9541-9546. After careful review, we affirm.

      The relevant facts of this case were set forth by the trial court in its

opinion and need not be reiterated here. (See trial court opinion, 10/20/15

at 3-8.) The relevant procedural history of this case, as gleaned from the

certified record, is as follows: On August 7, 2014, a jury found appellant guilty

of rape of a child, involuntary deviate sexual intercourse with a child,

aggravated indecent assault of a child less than 13 years of age, sexual

assault, corruption of minors, and indecent assault of a child less than
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13 years of age.1    These convictions stemmed from appellant’s repeated

sexual assault of his 11-year-old stepdaughter (“the victim”) in the fall of

2012. Following a Sexual Offender Assessment Board Evaluation, the trial

court classified appellant as a sexually violent predator and sentenced him to

an aggregate term of 43½ to 87 years’ imprisonment on April 8, 2015. On

November 10, 2016, a panel of this court affirmed appellant’s judgment of

sentence, and our supreme court denied appellant’s petition for allocatur on

June 1, 2017. See Commonwealth v. Martinez, 159 A.3d 582 (Pa.Super.

2016), appeal denied, 169 A.3d 560 (Pa. 2017).

      On February 15, 2018, appellant filed a timely pro se PCRA petition,2

and the PCRA court appointed Alfred Stirba IV, Esq. (“PCRA counsel”), to

represent appellant.    PCRA counsel filed an amended PCRA petition on

appellant’s behalf on April 16, 2018. The PCRA court held evidentiary hearings

in this matter on June 22, 2018, September 7, 2018, January 4, 2019, and

March 22, 2019. Thereafter, on April 29, 2019, appellant filed a pro se motion

wherein he sought the removal of PCRA counsel and requested to proceed


1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3124.1, 6301(a)(1)(ii), and
3126(a)(7), respectively.

2 Appellant styled his pro se petition as a “Motion for Relief from (SORNA),”
but the PCRA court properly treated this matter as a PCRA petition. See
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (stating, “the
PCRA is intended to be the sole means of achieving post-conviction relief.”);
see also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.Super. 2011)
(stating that, “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition[]”), appeal denied, 47 A.3d 845 (Pa.
2012).


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pro se. Following a PCRA/Grazier3 hearing on May 17, 2019, the PCRA court

granted appellant’s request to proceed pro se.       The PCRA court provided

appellant 60 days to prepare and file an amended PCRA petition, but appellant

failed to timely amend his petition nor identify any additional issues.

       On June 13, 2019, appellant filed a pro se motion arguing that the PCRA

court judge, the Honorable Kelly L. Banach (“Judge Banach”), was biased and

that she should recuse herself. The PCRA court denied appellant’s motion on

June 17, 2019. Thereafter, on July 2, 2019, appellant filed a pro se motion

to subpoena witnesses and compel discovery of various documents. The PCRA

court denied appellant’s motion on July 8, 2019. On July 16, 2019, the PCRA

court denied appellant’s PCRA petition. This timely appeal followed.4, 5

       Appellant raises the following issues for our review:

             I.    Whether [PCRA counsel] was effective in filing
                   an amended PCRA petition [o]n behalf of his
                   client?

3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On July 29,
2019, the PCRA court entered an order indicating that it was relying on the
reasoning set forth in its July 16, 2019 order and that no Rule 1925(a) opinion
would be forthcoming.

5 The record reflects that on November 22, 2019, this court entered a
per curiam order denying appellant’s November 4, 2019 pro se “Application
For Relief” without prejudice to his right to raise the issues in the application
in his appellate brief. Additionally, on April 13, 2020, this court entered a
per curiam order denying appellant’s March 26, 2020 pro se “Application for
Dismissal,” on the basis that all filing deadlines have been extended in light of
the COVID-19 Statewide Judicial Emergency, and accordingly, the
Commonwealth’s March 26, 2020 brief was timely filed.


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             II.    Whether a subpoena duces tecum is allowed
                    pro se, pursuant to 42 [Pa.C.S.A. §] 9545?

             III.   Whether the production of documents is allowed
                    pro se under Pa.R.Crim.P.[] 902(E) for
                    exceptional    circumstances   pursuant     to
                    42 [Pa.C.S.A. §] 9545(d)(2)?

             IV.    Whether the PCRA hearing judge exceeded
                    jurisdiction in acting as a judge in a motion for
                    recusal?

Appellant’s brief at 1 (extraneous capitalization omitted; emphasis added).

        Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that her conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

        In his first claim, appellant baldly contends that PCRA counsel was

ineffective “in submitting an amended PCRA petition on [his] behalf.”

(Appellant’s brief at 4 (extraneous capitalization omitted).) Appellant avers

that:


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            a brief consultation was conducted with []appellant,
            [and] there [were] several issues that were discussed
            as to what []appellant wanted filed in his amended
            PCRA petition by [PCRA counsel]. Those issues were
            never submitted in the amended PCRA petition[.]

Id. (extraneous capitalization omitted).

      To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove that: “(1) the underlying legal claim was

of arguable merit; (2) counsel had no reasonable strategic basis for his action

or inaction; and (3) the petitioner was prejudiced—that is, but for counsel’s

deficient stewardship, there is a reasonable likelihood the outcome of the

proceedings would have been different.”       Commonwealth v. Simpson,

66 A.3d 253, 260 (Pa. 2013) (citation omitted). This court has explained that

a petitioner “must meet all three prongs of the test for ineffectiveness[.]”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation and internal quotation marks omitted), appeal denied, 104 A.3d

523 (Pa. 2014). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”        Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal

denied, 30 A.3d 487 (Pa. 2011).

      Preliminarily, we recognize that following a Grazier hearing in this

matter, the PCRA court granted appellant’s request to remove PCRA counsel

and permitted him to proceed pro se. At no time did appellant raise any

issues challenging PCRA counsel’s stewardship before the PCRA court. Nor did



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appellant take the opportunity to amend his petition.      This court has long

recognized that “claims of PCRA counsel’s ineffectiveness may not be raised

for the first time on appeal.” Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super. 2014) (citations omitted), appeal denied, 101 A.3d 785 (Pa.

2014).

      In any event, we note that appellant does not acknowledge, let alone

discuss, any of the three prongs of the ineffectiveness test in the “Argument”

section of his appellate brief.   (See appellant’s brief at 4-5.)     Nor does

appellant identify the specific issues he informed PCRA counsel to raise in his

amended petition. (Id.) “[W]here Appellant has failed to set forth all three

prongs of the ineffectiveness test and meaningfully discuss them, he is not

entitled to relief, and we are constrained to find such claims waived for lack

of development.” See Commonwealth v. Steele, 961 A.2d 786, 797 (Pa.

2008), abrogated on other grounds sub nom, Pena-Rodriguez v.

Colorado, 137 S.Ct. 855 (2017); see also Commonwealth v. McDermitt,

66 A.3d 810, 813-814 (Pa.Super. 2013) (affirming dismissal of claims of

ineffective assistance of counsel where, inter alia, allegations in petition did

not explain specifics of underlying claim or establish prejudice). Accordingly,

we find appellant’s bald claims of PCRA counsel’s ineffectiveness waived for

lack of development.




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      The crux of appellant’s next two claims is that the PCRA court erred in

denying his motion to subpoena witnesses and compel discovery of various

documents. (Appellant’s brief at 5-9.) For the following reasons, we disagree.

      Discovery in the PCRA context “is only permitted upon leave of court

after a showing of exceptional circumstances.”           Commonwealth v. Frey,

41 A.3d 605, 611 (Pa.Super. 2012) (citations omitted), appeal denied,

65 A.3d 413 (Pa. 2013).            Pursuant to the Pennsylvania Rules of Criminal

Procedure, “[e]xcept as provided [on the first counseled petition in a death

penalty     case],    no   discovery    shall   be   permitted    at     any   stage   of

[post-conviction] proceedings, except upon leave of court after a showing of

exceptional circumstances.”          Pa.R.Crim.P. 902(E)(1), (2).        It is the PCRA

court’s discretion to determine whether “exceptional circumstances” exist, and

“mere speculation that exculpatory evidence might exist does not constitute

an exceptional circumstance warranting discovery.”                Frey, 41 A.3d at

611-612. “[W]e review a PCRA court’s denial of discovery for an abuse of

discretion.” Commonwealth v. Reid, 99 A.3d 470, 486 (Pa. 2014) (citation

omitted).

      Here, a cursory review of appellant’s brief confirms that he failed to

establish    the     exceptional     circumstances   necessary     for    discovery    in

post-conviction proceedings. Likewise, his subpoena requests were nothing

more than an impermissible “fishing expedition.”                 This court has long

recognized that “subpoenas are not to be used to compel production of



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documents       merely   for   inspection   or   for   a   fishing   expedition.”

Commonwealth v. Cook, 865 A.2d 869, 877 (Pa.Super. 2004) (citation and

brackets omitted), appeal denied, 880 A.2d 1236 (Pa. 2005). Based on the

foregoing, appellant’s claim that the PCRA court erred in denying his motion

to subpoena witnesses and compel discovery must fail.

      In his final claim, appellant argues that Judge Banach was biased against

him and erred by denying his motion that she recuse herself. (Appellant’s

brief at 10.)   In support of this contention, appellant baldly contends that

Judge Banach conspired to suppress the juvenile records of another individual

who allegedly sexually assaulted the victim. (Id. at 10-11.) This claim is

meritless.

      “We review the PCRA court’s denial of the recusal motion for abuse of

discretion.” Commonwealth v. Brown, 141 A.3d 491, 498 (Pa.Super. 2016)

(citation and brackets omitted).    “It is the burden of the party requesting

recusal to produce evidence establishing bias, prejudice or unfairness which

raises a substantial doubt as to the jurist’s ability to preside impartially.”

Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006) (citation omitted).

      Here, our independent review of the multiple PCRA hearing transcripts

in this matter does not reveal a scintilla of evidence to support appellant’s

contention that Judge Banach, in her “lust for power, deliberately exceeded

her jurisdiction as a judge.” (See appellant’s brief at 10.) Nor does appellant

identify any specific comments or instance in the record where the PCRA court



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demonstrated bias against him. Accordingly, appellant’s claim that the PCRA

court erred in denying his recusal motion must fail.

      Based on the foregoing, we affirm the July 16, 2019 order denying

appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/22/20




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