J-S26042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    JESSE LUMBERGER                                 :
                                                    :
                       Appellant                    :   No. 1884 WDA 2019

            Appeal from the PCRA Order Entered November 20, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0003088-2014


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                  FILED JUNE 23, 2020

        Jesse Lumberger (Lumberger) appeals from the order denying his first

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

9541-9546, in the Court of Common Pleas of Allegheny County (PCRA court).

After careful review, we affirm.

                                               I.

        We take the following factual background and procedural history from

the PCRA court’s January 28, 20191 opinion, this Court’s October 26, 2019

opinion in this matter, and our independent review of the record.                  On


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The court’s opinion is mistakenly dated 2018 but is time-stamped with the
correct year.
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December 1-2, 2014, the court held a waiver trial on the charges of Robbery,

Theft by Unlawful Taking, Terroristic Threats, Simple Assault and Recklessly

Endangering Another Person related to Lumberger’s robbery of Huntingdon

Bank in McKeesport, Pennsylvania, on May 15, 2013.               At trial, the

Commonwealth presented the testimony of Merlyn Fenton (the bank teller who

identified Lumberger as the robber at the preliminary hearing and trial), Jose

Vasquez (bank manager), Officer Thomas Greene (investigating officer who

found clothing with Lumberger’s DNA fifty yards from the bank), Officer Joe

Osinski (officer who found more clothing with Lumberger’s DNA in cemetery

across the street), and Officer James Reed (officer who interviewed Lumberger

and who witnessed Fenton’s reaction to him at the preliminary hearing). The

court sentenced him to a mandatory minimum term of not less than ten or

more than twenty years on the Robbery conviction, and a consecutive term of

five years’ probation for Terroristic Threats.   The court denied his post-

sentence motions and Lumberger timely appealed.

      On appeal, Lumberger challenged the sufficiency and weight of the

evidence, and also argued that the trial court erred in considering facts and

testimony from a prior jury trial in which he was acquitted of robbing the same

bank as the one involved herein on May 20, 2013 (five days after the robbery

in this case). On October 31, 2016, the Superior Court affirmed the judgment

of sentence, finding the discrete sufficiency challenge waived and that the




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verdict was not against the weight of the evidence. In rejecting Lumberger’s

claim of trial court error, the panel of observed:

             The record reflects that prior to conducting a waiver trial
      that is the subject of this appeal, the trial court presided over a
      jury trial where [Lumberger] was acquitted of a separate robbery
      that occurred on May 20, 2013. In that case, Christopher
      Gaspersz confessed to committing the May 20, 2013 robbery.

            The record further reflects that although Mr. Gaspersz did
      not testify at the trial that is the subject of this appeal, he was
      mentioned during its course, and the issue of whether Mr.
      Gaspersz could have perpetrated the May 15, 2013 robbery was
      before the trial court sitting as fact-finder. When a trial court sits
      as fact-finder, it “is presumed to know the law, ignore prejudicial
      statements,       and      disregard      inadmissible    evidence.”
      Commonwealth v. Konias, 136 A.3d 1014, 1021 (Pa. Super.
      2016) (citation omitted).

            In its opinion on this issue, the trial court stated:

            … The first reaction the Court has is that [Lumberger]
            is the one who injected the prior matter into this trial.
            During cross-examination of Detective Reed,
            [Lumberger’s] lawyer asked him about Mr. Gaspersz’s
            confession.[a] So [it is] a little hard for this Court to
            understand     the    current     argument     when     it
            [Lumberger] himself that brought this matter to the
            forefront.

                  [a]In rendering the verdict in this case,
                  the trial court provided further context to
                  this issue, as follows:

                         I believe when I look at the entirety
                  of    the     circumstances—and       it    is
                  circumstantial in some respects, but the
                  probability of [Fenton] having a visceral
                  reaction she had to [Lumberger] when
                  she saw him, for her having the
                  description she gives of him, for
                  [Lumberger’s] DNA to be on the blue shirt
                  in the concentration it is[,] with respect to

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               the scans from the bank, with respect to
               the distance to [Lumberger’s] mom’s
               house is almost a straight line, I believe
               that this issue about Gaspersz is a red
               herring.

                     I believe Gaspersz is a flunky and a
               friend that would say anything he could
               say to extricate his buddy, [Lumberger],
               from his liability in robbing this bank. And
               I think that that’s a nonissue in this
               case, because he didn’t testify here.

                       I believe if anyone looks through
               that cheap doo-rag hanging over his face,
               it’s clearly not Gaspersz who went into the
               bank. The same person that went in the
               bank is the person that had on the same
               clothing that were [sic] found in the
               cemetery, and it’s him. He knows it. I
               mean, I think we’re playing games. He
               knows he did it.

          (N.T. Trial, 12/02/14, at 198-99) (emphases added).

          That aside, this Court did what the law requires
          in such a situation-disregard material that it
          may know from other cases and judge guilt on
          what is properly before this Court. This was
          exemplified during closing argument and the
          Court’s summation. The government began its
          speech with an objection about Mr. Gaspersz not
          testifying in this case. The Court’s response was
          that it knows that.         Implicit to all in the
          courtroom, by tone and tenor, is that the Court
          would not be considering that material. Later,
          the Court described the Gaspersz matter as a
          “red herring” in this case. The assertion that this
          Court erred by considering evidence of the prior
          robbery is simply lacking in support.

     (Trial Court Opinion, 1/12/16, at 6) (citations to notes of
     testimony omitted; emphasis added).


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             After careful review of the record, we agree with the learned
      trial court that the record belies [Lumberger’s] contention that the
      trial court considered evidence of the May 20, 2013 robbery.
      Therefore, this claim lacks merit.

(Commonwealth v. Lumberger, No. 1238 WDA 2015, unpublished

memorandum, at **13-14 (Pa. Super. filed Oct. 31, 2016) (some record

citation formatting provided).

      Lumberger filed a timely pro se PCRA petition on October 24, 2017. On

July 27, 2018, appointed counsel filed an amended petition, arguing that trial

counsel was ineffective for failing to request that the trial court recuse itself

due to its bias from having presided over Lumberger’s trial for the May 20,

2013 robbery, for asking the court to consider evidence that was presented in

that prior trial, and for allowing Lumberger to enter an unknowing and

involuntary waiver of his right to a jury trial. The Commonwealth filed an

answer on November 13, 2018. On December 3, 2018, the PCRA court issued

notice of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P.

907(1). On January 28, 2019, the PCRA court issued an order in which it

stated that, “[b]ased upon the analysis set forth in the [Commonwealth’s]

Answer,” its inclination was to dismiss the PCRA petition without further

proceedings. (Order, 1/28/19). The court noted that “the recusal issue has

been resolved by this [c]ourt and addressed on direct appeal” and that “[t]he

waiver of jury trial issue is contradicted by the record facts.    Of particular

importance is the oral and written colloquy conducted with Mr. Lumberger’s

participation.” (Id.). On September 30, 2019, the PCRA court denied the

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petition. The court granted Lumberger’s petition to file an appeal nunc pro

tunc and he timely appealed.2 The court did not order a concise statement of

matters complained of and relied on its reasons stated in its January 28, 2019

Notice of Intent to Dismiss. See Pa.R.A.P. 1925.

                                               II.

        “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Commonwealth v. Johnson, 966 A.2d 523, 532

(Pa. 2009). To prove a claim of ineffective assistance of counsel, a petitioner

must establish:

        (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.



____________________________________________


2   Our standard of review of this matter is well-settled.

        The standard of review of an order dismissing a PCRA petition is
        whether that determination is supported by the evidence of record
        and is free of legal error. The PCRA court’s findings will not be
        disturbed unless there is no support for the findings in the certified
        record. Further, a PCRA court has discretion to dismiss a PCRA
        petition without a hearing if the court is satisfied that there are no
        genuine issues concerning any material fact; that the defendant
        is not entitled to post-conviction collateral relief; and that no
        legitimate purpose would be served by further proceedings.

Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019) (citations and
quotation marks omitted).


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Commonwealth v. Pier, 182 A.3d 476, 478-79 (Pa. Super. 2018) (citations

omitted).    “[F]ailure to prove any of these prongs is sufficient to warrant

dismissal of the claim without discussion of the other two.” Commonwealth

v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation omitted). “Counsel will

not   be    deemed   ineffective   for   failing   to   raise   a   meritless   claim.”

Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (citation

omitted).

      The court has the discretion to dismiss a PCRA claim without a hearing

when “there are no genuine issues concerning any material fact, the defendant

is not entitled to post-conviction collateral relief, and no legitimate purpose

would be served by further proceedings.”           Commonwealth v. Roney, 79

A.3d 595, 604 (Pa. 2013). “To obtain reversal of a PCRA court’s decision to

dismiss a petition without a hearing, an appellant must show that he raised a

genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a

hearing.” Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)

(quoting Roney, 79 A.3d at 604-05).

                                         A.

      Lumberger first argues that trial counsel was ineffective for failing to

move for recusal of the trial judge due to potential bias where he had presided

over Lumberger’s earlier jury trial and, therefore, was aware of evidence not




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admitted at the non-jury trial. This issue does not merit relief where he has

failed to establish prejudice.

      “Prejudice is established when [a defendant] demonstrates that

counsel’s chosen course of action had an adverse effect on the outcome of the

proceedings.” Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002)

(citation omitted).   “Prejudice in the context of ineffective assistance of

counsel means demonstrating that there is a reasonable probability that, but

for counsel’s error, the outcome of the proceeding would have been different.”

Commonwealth v. Cox, 863 A.2d 536, 546 (Pa. 2004).               “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Chambers, supra at 883 (citation omitted).

      As this Court noted on direct appeal, “[w]hen a trial court sits as fact-

finder, it is presumed to know the law, ignore prejudicial statements, and

disregard inadmissible evidence.”      (Lumberger, supra at *14) (citing

Konias, 136 A.3d at 1021) (internal quotation marks omitted). Recusal is

required when “there is a substantial doubt as to a jurist’s ability to preside

impartially.” Commonwealth v. Mickell, 598 A.2d 1003, 1006 (Pa. Super.

1991) (citation omitted).

      Lumberger observes that the trial court was the presiding judge at the

prior jury trial in which he was accused and found not guilty of robbing the

bank involved in this case five days later. He maintains that although the jury

found him not guilty, the judge had knowledge of facts not presented at the


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non-jury trial. Specifically, he observes that “the court was aware that the

appearance and actions of the perpetrator in both actions was similar” and

that his “DNA was found on items believed to be worn by the perpetrator.”3

(Lumberger’s Brief, at 12) (record citation omitted).4 He also notes that at

the jury trial, the trial court questioned a defense witness (Mr. Gaspersz)

about his confession and the fact that his version of events were different from

what was on a video that was presented as evidence. (See id.). He argues

that although Mr. Gaspersz did not testify at the non-jury trial and the video

was not presented, the court referenced both in the non-jury trial. Based on

the foregoing, Lumberger argues that “[t]he court’s knowledge of the other

case against [him], and the evidence presented in the other case predisposed

it to finding him guilty in the instant case.” (Lumberger’s Brief, at 14); (see

also id. at 13 (“Such intimate prior involvement at the time of the non-jury

trial cloaks the instant case with an appearance of impropriety that should

have been eliminated by counsel.”). We disagree.




____________________________________________


3 The DNA evidence was presented at the instant trial for the May 15, 2013
robbery.

4 The Commonwealth observes that Lumberger also cites to the April 2014
jury trial, which is not part of the record in this case so we cannot consider it.
(See Commonwealth’s Brief, at 8); Commonwealth v. Killen, 680 A.2d 851,
852 n.5 (Pa. 1996) (“As a general rule, matters not part of the record will not
be considered on appeal.”). However, this is not fatal to Lumberger’s claim
because we do not need to review that transcript to resolve this issue.


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      Our review of the record confirms the trial court’s recollection of the

discussions regarding Mr. Gaspersz’s confession. When Lumberger’s counsel

brought up Mr. Gaspersz, the court did engage in discussions, but repeatedly

stated that the testimony was not before it in this trial. Indeed, after its own

independent review of the record, a panel of this Court has already concluded

it belies Lumberger’s claim that the court improperly considered evidence from

the prior robbery trial.   (See Lumberger, supra at *15).       The trial court

expressly stated that it “did what the law requires” and “disregard[ed]

material that it may know from other cases and judge[d] guilt on what [was]

properly before the Court.” (Id.) (quoting Trial Ct. Op., 1/12/16, at 6). In its

summation, the court noted the substantial evidence against Lumberger and

that the “issue about Gaspersz is a red herring” and a “nonissue in this case

because he didn’t testify here.” (Id. at *14) (quoting N.T. Trial, 12/02/14, at

198-99).

      Accordingly, based on the foregoing and our own independent review of

the record, we conclude that Lumberger is due no relief on his claim that trial

counsel provided ineffective assistance when he failed to file a motion seeking

the trial judge’s recusal in this matter.     He cannot establish that he was




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prejudiced by this decision where the court did not, in fact, consider evidence

from his prior trial.5

                                               B.

       We turn next to Lumberger’s claim that “counsel’s failure to ensure a

knowing and informed waiver of a jury trial was, under the circumstances,

ineffective assistance of counsel.” (Lumberger’s Brief, at 16). He maintains

that counsel “assured him that the judge could base its decision at the nonjury

trial on a finding that the witness who admitted to committing the crime at

the jury trial was credible.” (See id. at 18). He further asserts that “[c]ounsel

also told Mr. Lumberger that the judge would find him not guilty because he

knew the jury had done so.” (Id.) (See Amended PCRA Petition).

       A criminal defendant has a constitutional right to a jury trial. See Pa.

Const. art. I §§ 6, 9; United States Const. amends. VI, XIV. In deciding to

waive this right, a defendant should have the effective assistance of counsel,




____________________________________________


5 Lumberger fails to make any argument to support his claim that counsel was
ineffective for “asking the court to consider evidence not presented at the
nonjury trial.” (Lumberger’s Brief, at i). He makes bald assertions that
“[c]ounsel erroneously believed that the judge could base its decision at the
nonjury trial upon a finding that the witness who admitted to committing the
crime at the jury trial was credible[]” and “assumed that the judge would find
[him] not guilty because he knew that the jury had done so.” (Id. at 13-14).
To the extent we can interpret this as an inartful attempt to support his issue,
his bald statements utterly fail to meet his burden of pleading and proving the
merit of this claim, and he cannot establish prejudice where the court did not
consider the evidence. Therefore, this argument fails.


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although the final decision is the defendant’s responsibility. Commonwealth

v. Martin, 499 A.2d 344, 351 (Pa. Super. 1985).

             Counsel’s advice to waive a jury trial can be the source of a
      valid claim of ineffective assistance of counsel only when 1)
      counsel interferes with his client’s freedom to decide to waive a
      jury trial, or 2) appellant can point to specific advice of counsel so
      unreasonable as to vitiate the knowing and intelligent waiver of
      the right. Where an appellant merely claims, as in the present
      case, that his decision was a strategic error, and can point to no
      specific incidents of counsel impropriety, he must bear the
      responsibility for that decision and cannot shift the blame to
      counsel.

Commonwealth v. Martin, 499 A.2d 344, 351 (Pa. Super. 1985) (citations

omitted).

      Here, Lumberger claims that he waived his right to a jury trial because

of counsel’s erroneous advice that “the judge could base its decision at the

nonjury trial on a finding that the [jury trial] witness who admitted to

committing the [same] crime [five days later] was credible.” (Lumberger’s

Brief, at 18). If counsel gave this erroneous advice to Lumberger to induce

him to waive his jury trial rights, Lumberger’s claim could arguably meet the

underlying merit prong of the ineffectiveness test because this advice is

contrary to well-established law.     However, this does not end our inquiry

because Lumberger has failed to prove he was prejudiced by proceeding with

a bench trial.

      However, the trial court expressly relied only on evidence presented in

the trial, just as a jury would have done, and a panel of this Court found that

the trial court’s verdict was not against the weight of the evidence where it

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consisted of the bank teller’s eyewitness identification, corroborating

photographic evidence, and an “overwhelming amount of DNA evidence.”

(Lumberger, supra at *12). Based on the substantial amount of evidence

both scientific and testimonial that the Commonwealth presented, we

conclude that Lumberger has failed to meet his burden of proving there is a

reasonable probability that the outcome of the proceeding would have been

different had he not elected to proceed in a waiver trial.6 Therefore, he has

failed to plead and prove the prejudice prong of the ineffectiveness test.

                                               C.

       Lumberger argues that his decision to waive his right to a jury trial was

uninformed, unknowing and unintelligent where the “waiver colloquy was

minimal.”       (Lumberger’s Brief, at 17).         Although he does not phrase this

argument as one of ineffective assistance of counsel, we interpret it as another

reason he claims counsel was ineffective for advising him to waive his right to

a jury trial.

       Pursuant to the Pennsylvania Rules of Criminal Procedure:

       In all cases, the defendant and the attorney for the
       Commonwealth may waive a jury trial with approval by a judge of
       the court in which the case is pending, and elect to have the judge
       try the case without a jury. The judge shall ascertain from the
       defendant whether this is a knowing and intelligent waiver, and
____________________________________________


6The panel found that Lumberger’s sufficiency challenge was waived where it
was on a discrete issue that he failed to preserve. (See Lumberger, No.
1238 WDA 2015, at *10). This waiver would still have occurred whether
Lumberger proceeded in a jury or a bench trial.


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      such colloquy shall appear on the record. The waiver shall be in
      writing, made a part of the record, and signed by the defendant,
      the attorney for the Commonwealth, the judge, and the
      defendant’s attorney as a witness.

Pa.R.Crim.P. 620.

      The essential elements for a valid jury trial waiver “are the requirements

that the jury be chosen from members of the community (a jury of one’s

peers), that the verdict be unanimous, and that the accused be allowed to

participate in the selection of the jury panel.” Commonwealth v. Smith,

181 A.3d 1168, 1175 (Pa. Super. 2018) (citation omitted).

      Here, Lumberger was provided both a written and oral guilty plea

colloquy.   The written Explanation of Defendant’s Rights Non-Jury Trial

advised Lumberger that he was entitled to a jury trial of his peers, had the

right to participate in jury selection, that the verdict had to be unanimous,

that he understood the waiver proceedings and was voluntarily waiving his

constitutional right to a jury trial. (See Explanation of Defendant’s Rights

Non-Jury Trial, at 2-3). He confirmed that he “discussed with [his] attorney

[his] intention to waive [his] constitutional right to a trial by jury and proceed

in what we call a non-jury or bench trial before a judge only, who will decide

[his] guilt or innocence from the evidence presented[.]”        (Id. at 3).    He

answered that he was completely satisfied with counsel’s representation and

advice, and that no one forced him to waive his right to a jury trial or promised




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him anything for doing so. (See id. at 4).7 The court confirmed on the record

that Lumberger was aware he had a right to a jury trial and he could

participate in jury selection, the jury would consist of twelve of his peers who

would have to reach a unanimous verdict, and the court would interpret the

facts presented. (See N.T. Trial, 12/01/14, at 9-10).8 Therefore, the trial

court’s colloquy properly apprised Lumberger of the essential elements of a

jury trial and any claim of counsel’s ineffectiveness on this basis lacks merit.

       Based on all of the foregoing, we affirm the order of the PCRA court

denying Lumberger’s petition.

       Order affirmed.




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7 On the written guilty plea colloquy, Lumberger indicated he had a question
for the court. (See Defendant’s Rights Non-Jury Trial, at 4). At the oral
colloquy, he asked the court about introducing his cousin, Michelle Flewellen,
as an alibi witness. He had not advised the Commonwealth about her and had
only told his counsel about her the day before in contravention of his notice
obligations. (See N.T. Trial, 12/01/14, at 12); Pa.R.Crim.P. 567(A), 579(A).
Although the Commonwealth objected to her testifying because of the lack of
sufficient notice, the court did provide Lumberger with the opportunity to
present this witness, but she was unavailable when called. (See id. at 16,
175-76).

8 Lumberger claims that counsel did not tell him about the advantages of a
jury trial. (See Lumberger’s Brief, at 18). However, the trial court expressly
advised Lumberger in its colloquy that many believe a jury trial has
advantages over a bench trial, a fact which he acknowledged. (See N.T. Trial,
12/01/14, at 9).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




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