J-S39041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                 Appellee                      :
                                               :
                     v.                        :
                                               :
EDDIE RAY GRAY,                                :
                                               :
                 Appellant                     :   No. 213 WDA 2017

                    Appeal from the Order January 24, 2017
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000080-2013

BEFORE:      BENDER, P.J.E., BOWES, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED AUGUST 18, 2017

        Eddie Ray Gray (Appellant) appeals from the January 24, 2017 order

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

        On September 2, 2012, Appellant, then an inmate of the Warren

County Jail, disarmed and assaulted a corrections officer with the officer’s

own Taser. He then fled the scene and hid in the prison’s laundry. As a

result, he was charged with multiple offenses, including aggravated assault,

possession of an instrument of crime, and escape.          Following a jury trial,

Appellant was found guilty of the aforementioned offenses and, on August

16, 2013, he was sentenced to an aggregate term of 15 years and two

months of incarceration to 30 years and four months of incarceration. This
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*
    Retired Senior Judge assigned to the Superior Court.
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Court affirmed Appellant’s judgment of sentence on November 18, 2014.

Commonwealth v. Gray, 113 A.3d 352 (Pa. Super. 2014) (unpublished

memoranda). Appellant did not seek review by our Supreme Court.

     On November 17, 2015, Appellant filed a pro se PCRA petition.

Counsel was appointed, and an amended petition was filed. On January 24,

2017, the PCRA court held a hearing on Appellant’s PCRA claims. Following

the hearing, the court denied Appellant’s petition. This timely-filed appeal

followed. Both Appellant and the PCRA court complied with the mandates of

Pa.R.A.P. 1925.

     Appellant raises five issues for our review.

     [1.] Whether the [PCRA] court erred in not finding trial counsel
     to be ineffective when counsel failed to have [] Appellant
     evaluated to determine whether Appellant’s mental health issues
     should have been raised under an insanity defense?

     [2.] Whether the [PCRA] court erred in not finding trial counsel
     to be ineffective when counsel failed to raise on direct appeal the
     trial court’s refusal to allow trial counsel to withdraw from
     representation of [] Appellant when both trial counsel and []
     Appellant requested the court to do so?

     [3.] Whether the [PCRA] court erred in not finding trial counsel
     to be ineffective when counsel failed to raise on direct appeal the
     judge’s refusal to recuse himself from [] Appellant’s case when
     the trial judge had recused himself on another matter for which
     [] Appellant was on trial for threatening various [government]
     officials including the president judge of the Warren County
     Court of Common Pleas?

     [4.] Whether the [PCRA] court erred in not finding trial counsel
     to be ineffective when counsel failed to raise on direct appeal the
     trial court’s refusal to move [] Appellant’s trial outside of Warren
     County and/or have a jury pool from outside of Warren County
     brought in to hear [] Appellant’s matter since [] Appellant had

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      been convicted of threatening various [government] officials
      including the president judge of the Warren County Court of
      Common Pleas?

      [5.] Whether the trial court erred in not finding the jury was
      prejudiced by a jury instruction that stated the underlying crime
      [] Appellant had been incarcerated for under the charge of
      criminal attempt/escape as being the crime of “retaliation
      against prosecutor or judicial official and the crime of retaliation
      against witness or victim” when it was agreed not to include the
      underlying crime in the instruction?

Appellant’s Brief at 2-3 (unnecessary capitalization and PCRA court answers

omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      In his first four issues on appeal, Appellant contends that trial counsel

was ineffective.    Appellant’s Brief at 14-26.      We presume counsel is

effective. Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

To overcome this presumption and establish the ineffective assistance of

counsel, a PCRA petitioner must prove, by a preponderance of the evidence:

“(1) the underlying legal issue has arguable merit; (2) that counsel’s actions

lacked an objective reasonable basis; and (3) actual prejudice befell the

[appellant] from counsel’s act or omission.” Commonwealth v. Johnson,

966 A.2d 523, 533 (Pa. 2009) (citations omitted). “[A petitioner] establishes


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prejudice when he demonstrates that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. A claim will be denied if the petitioner fails to meet

any one of these requirements. Commonwealth v. Springer, 961 A.2d

1262, 1267 (Pa. Super. 2008).

      In his first issue, Appellant argues that counsel was ineffective for

failing to explore the possibility of an insanity defense at trial. Appellant’s

Brief at 14-18. Specifically, Appellant argues that counsel “failed to

investigate how [his] mental health condition would have been affected by

the removal of his medications,” despite being obligated to determine if

Appellant’s mental capacity prevented him from forming the mens rea

necessary to commit the crimes for which he was convicted. Id. at 15.

      “[U]nder Pennsylvania law, mental illness is not a defense to criminal

liability unless the mental illness rises to the level of legal insanity under

[subs]ection 314(c)(2).” Commonwealth v. Andrews, 158 A.3d 1260,

1264 (Pa. Super. 2017). Legal insanity is established if, “[a]t the time of the

commission of the act, the defendant was laboring under such a defect of

reason, from disease of the mind, as not to know the nature and quality of

the act he was doing or, if he did know it, that he did not know he was doing

what was wrong.” 18 Pa.C.S § 314(c)(2).          After hearing the testimony

presented at the evidentiary hearing, the PCRA court rejected Appellant’s

claim, explaining as follows.


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           The evidence presented with respect to Appellant’s insanity
     was that he carried a number of mental health diagnoses, and
     that for some period of time from late August to early
     September he was withheld two medications, one of which
     appears to be a sleep medication, and the other, a medication
     that Appellant could not identify the reason for which he takes it.
     No expert testimony from a doctor or psychiatrist was presented
     to create a link between [] Appellant’s state of mind on
     September 2nd and the withholding of his medications. []
     Appellant’s own testimony and layperson diagnosis does not
     meet the burden of persuasion [under the] PCRA that an insanity
     defense would have been available and appropriate. Trial counsel
     cannot be held to be ineffective for failure to investigate and
     present a meritless defense.

            Further, based upon his testimony at the PCRA hearing []
     Appellant had a clear memory and understanding of the events
     that led to the present charges as well as his motivation for his
     conduct. [] Appellant testified that he was simply seeking his
     medications and did not assault any of the corrections officers or
     deploy a [T]aser upon them. While he did not testify at the time
     of his trial, clearly this type of defense - that [] Appellant did not
     commit any of the alleged acts - would not be consistent with an
     insanity defense. Also, Appellant testified that he took the
     witness stand to testify at his previous trial regarding the threats
     to the judicial officers, just a few days prior to the incident that
     led to these charges, further negating any assertion of insanity.
     It should also be noted that PCRA counsel did not call trial
     counsel as a witness to explore what the trial strategy may have
     been with respect to many of the assertions of ineffectiveness,
     including counsel’s failure to pursue an insanity defense. []
     Appellant has failed in his burden with respect to all three prongs
     of the ineffectiveness claim.

PCRA Court Opinion, 2/14/2017, at 4-5.

     In Commonwealth v. Smith, 17 A.3d 873, 901 (Pa. 2011), our

Supreme Court examined a claim similar to Appellant’s. In rejecting Smith’s

ineffective-assistance-of-counsel argument, the Court explained as follows.

          A defense of insanity acknowledges commission of the act
     by the defendant, while maintaining the absence of legal

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      culpability. Where a defendant has testified at trial and has
      denied committing a crime, this Court has declined to
      deem counsel ineffective for failing to present a defense
      that would have been in conflict with his client’s own
      testimony. Here, [a]ppellant did not admit to committing the
      act. Rather, he testified in his defense at trial that he did not
      participate in the crime and was not even near the crime scene
      at the time of the murder. Indeed, he continues to maintain his
      innocence to this Court. As [a]ppellant specifically denied having
      committed the offenses, under this Court’s precedent, counsel
      cannot be held ineffective for failing to present an inconsistent
      defense.

Smith, 17 A.3d at 901 (emphasis added; citations and footnotes omitted).

      As in Smith, Appellant’s first argument fails due to his own testimony

at the PCRA hearing, which did not meet the required threshold to establish

the viability of an insanity defense. Appellant did not present at the PCRA

hearing either expert testimony or any evidence of his mental health

diagnosis at the time of the assault, and he was unable to explain the

correlation of the withheld medications to that diagnosis. Furthermore, by

not calling trial counsel to testify at the hearing, Appellant failed to meet his

burden of proving that counsel did not have a reasonable basis for his

rejection of an insanity defense. Accordingly, we agree with the PCRA court

that Appellant is not entitled to relief.

      In his second claim of error, Appellant argues that trial counsel, who

represented Appellant on direct appeal, was ineffective for failing to raise on

direct appeal a challenge to the court’s refusal to allow counsel to withdraw

prior to trial. Appellant’s Brief at 18-20. Specifically, Appellant argues that

he “had a viable claim as to having new counsel appointed in that [he] was

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well aware that counsel was not investigating his matter and most

importantly that he was not employing a mental health professional to

discuss the possibility that with [] Appellant not receiving any medication for

his bipolar issue that he would not have been able to form the mens rea of

his crimes.” Id. at 20.

             To prevail on a claim of appellate counsel ineffectiveness
      for failure to raise an allegation of trial counsel ineffectiveness on
      direct appeal, a PCRA petitioner must present a “layered” claim
      by presenting argument as to each of the three prongs of the
      [ineffective assistance of counsel] test for each layer of allegedly
      ineffective representation. To demonstrate the arguable merit
      prong of a derivative claim of appellate counsel ineffectiveness,
      the petitioner must prove that trial counsel was ineffective under
      the three-prong [ineffective assistance of counsel] standard. If
      the petitioner cannot prove the underlying claim of trial counsel
      ineffectiveness, petitioner’s derivative claim of appellate counsel
      ineffectiveness fails.

Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012) (citations and

footnotes omitted).

      Appellant’s layered claim fails, for a number of reasons. As the PCRA

court explained, “[i]t is clear that [] Appellant had the right to free counsel

…. However, an indigent criminal defendant does not enjoy the unbridled

right to be represented by counsel of his own choosing.” PCRA Court

Opinion, 2/14/2017, at 6 (quotation marks omitted). Rather, “a motion for

change of counsel by a defendant for whom counsel has been appointed

shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(c).

“To satisfy this standard, a defendant must demonstrate that he has an

irreconcilable   difference   with   counsel   that   precludes   counsel      from

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representing him. The decision of whether to appoint new counsel lies within

the sound discretion of the trial court.” Commonwealth v. Keaton, 45 A.3d

1050, 1070 (Pa. 2012).

      Here,   the    record   indicates    that,   two   days   before   Appellant’s

preliminary hearing, counsel filed a motion which included a request to

withdraw as counsel and have out-of-county counsel appointed to represent

Appellant. In support of this motion, counsel indicated that “based on his

prior encounters with the criminal court system in Warren County,

[Appellant] does not feel comfortable with locally appointed counsel.”

Motion, 2/25/2013. The court denied the motion. In its opinion, the PCRA

court held that Appellant’s assertions “that trial counsel could not effectively

represent him because he is from Warren County and had lost confidence in

him does not qualify as a substantial reason” under Rule 122(c). PCRA Court

Opinion, 2/14/2017, at 6. We find no abuse of discretion on the part of the

trial court and reiterate that counsel cannot be ineffective for failing to raise

a meritless claim.

      Moreover, despite his claims on appeal that he wished for new counsel

because his trial attorney failed to investigate the matter or hire an expert to

testify as to his mental health, at the PCRA hearing, Appellant gave only two

reasons for wanting new counsel: (1) his attorney’s “attitude toward the

case,” stating that he felt as though counsel “didn’t want to” represent him

and (2) that counsel “never really discussed the case” with him. N.T.,


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1/24/2017, at 20-19.       Simply put, the bases for which Appellant now

contends he wanted new trial counsel were not raised or developed prior to

or during the PCRA hearing.       Moreover, as with his first issue, Appellant

failed to call trial counsel to testify as to this issue and is unable to establish

counsel’s reasonable basis for declining to include this issue on appeal. For

all of the forgoing reasons, Appellant’s claim fails.

      In this third issue, Appellant claims that counsel was ineffective for

failing to raise on direct appeal a challenge to the trial court’s denial of his

motion to recuse.      Specifically, Appellant contends that there was “an

appearance of bias and prejudice” in the court’s refusal to recuse in light of

the fact that the presiding judge had granted a separate motion to recuse on

a previous, unrelated case where Appellant was tried, and later convicted, of

threatening Warren County government officials. Appellant’s Brief at 20-22.

      The standard for recusal is well-settled:

             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.
      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.... 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 overturned on
      appeal but for an abuse of discretion.


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           Furthermore, [a]ny tribunal permitted to try cases
      and controversies must not only be unbiased but must
      avoid even the appearance of bias. There is no need to
      find actual prejudice, but rather, the appearance of
      prejudice is sufficient to warrant the grant of new
      proceedings.

Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006) (citations and

quotation marks omitted; emphasis added).

      Appellant focuses his argument on the appearance of impropriety due

to the presiding judge’s prior recusal.         “It has long been held that trial

judges, sitting as factfinders, are presumed to ignore prejudicial evidence in

reaching a verdict.” Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa.

Super. 1990). Additionally, and significantly here, our Supreme Court has

stated,   “[a]   jurist’s   former   affiliation,   alone,   is   not   grounds   for

disqualification.” Commonwealth v. Abu–Jamal, 720 A.2d 79, 90 (Pa.

1998). Compare Commonwealth v. Debose, 833 A.2d 147, 150 (Pa.

Super. 2003) (holding that “recusal is required if there is a running, bitter

controversy between the judge and offender.”). As the PCRA court explained

“[t]he judges and other judicial officers who were victims of the first case

were not victims or witnesses in the present matter,” thus, recusal was not

necessary as there was no appearance of impropriety. PCRA Court Opinion,

2/14/2017, at 7. We agree.           Appellant’s argument, that a judge once

recused must always recuse, without more, does not warrant reversal in this

instance. Accordingly, Appellant has failed to meet his burden of proof and

counsel cannot be deemed ineffective.

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      In his fourth issue, Appellant argues that counsel was ineffective for

failing to challenge on direct appeal the trial court’s denial of his motion for

change of venue or change of venire. Appellant’s Brief at 22-24.

             A request for a change of venue or venire is addressed to
      the sound discretion of the trial court, which is in the best
      position to assess the atmosphere of the community and to
      judge the necessity of the requested change. Absent an abuse of
      discretion, the trial court’s decision will not be disturbed.

            A change of venue becomes necessary when the trial court
      determines that a fair and impartial jury cannot be selected in
      the county in which the crime occurred. … Ordinarily, however, a
      defendant is not entitled to a change of venue unless he or she
      can show that pre-trial publicity resulted in actual prejudice that
      prevented the impaneling of an impartial jury. The mere
      existence of pre-trial publicity does not warrant a presumption of
      prejudice.

            There is an exception to the requirement that the
      defendant demonstrate actual prejudice. Pre-trial publicity will
      be presumed to have been prejudicial if the defendant is able to
      prove that the publicity was sensational, inflammatory, and
      slanted toward conviction, rather than factual or objective; that
      such publicity revealed the defendant’s prior criminal record, if
      any, or referred to confessions, admissions, or reenactments of
      the crime by the defendant; or that it was derived from official
      police and prosecutorial reports. Even if the defendant proves
      the existence of one or more of these circumstances, a change
      of venue or venire is not warranted unless he or she also shows
      that the pre-trial publicity was so extensive, sustained, and
      pervasive that the community must be deemed to have been
      saturated with it, and that there was insufficient time between
      the publicity and the trial for any prejudice to have dissipated.

Commonwealth v. Chmiel, 30 A.3d 1111, 1152–53 (Pa. 2011) (citations

omitted).

      In rejecting Appellant’s claim, the PCRA court noted that




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     [f]or whatever reason, PCRA counsel did not request that the
     transcript of Appellant’s voir dire proceeding be prepared to be
     part of the record at the PCRA record. As the appellate cases
     indicate, this is the venue at which any potential juror knowledge
     of pre-trial publicity, let alone bias resulting therefrom, can be
     ascertained. Appellant did not even bother to review that
     transcript. The only reference to the voir dire [in Appellant’s
     PCRA petition] was the trial court’s comments to counsel during
     the pre-trial conference that the court was surprised nobody
     knew who the Appellant was.

           In addition, Appellant did not introduce any evidence of
     the alleged pre-trial publicity. No copies of newspaper articles or
     broadcast accounts of either the initial trial involving the threats
     against the judicial officers or the present case were introduced
     into the record at the PCRA proceeding. Appellant has failed to
     prove the existence of any adverse pre-trial publicity, the nature
     of that publicity, the date or dates of the publicity, or that any of
     the selected jurors was even aware of any such publicity. Clearly
     the Appellant has failed to meet his burden of proof.

PCRA Court Opinion, 2/14/2017, at 9.

     We agree with the court’s assessment.       Appellant has failed to meet

his burden of proving his underlying issue of trial counsel ineffectiveness;

thus, appellate counsel could not have been ineffective for failing to raise

this issue on direct appeal. Busanet, 54 A.3d at 46.

     Appellant’s final issue concerns a jury instruction on the charge of

criminal attempt to commit escape.     Appellant’s Brief at 24-26.    Appellant

argues that, despite an agreement between the parties for the court to omit

the portion of the escape instruction that specified why Appellant was being

held in the Warren County Jail at the time of this incident, the trial court

permitted to go out with the jury a written instruction that detailed the

reason for Appellant’s incarceration. Id. However, Appellant concedes that

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the court gave an edited instruction and stipulation during its charge, and

further admits that he does not have a copy of any written instructions given

to the jury. Id. at 25-26. Nonetheless, he argues that “a possibility does

exist that the jury was given the instruction which stated the charge the

Appellant was incarcerated for,” thus, the trial court erred in denying his

request for a new trial. Id. Notably, Appellant does not couch this claim as

one of ineffective assistance of counsel; rather, he argues that the trial court

erred in the first instance. Because such a claim could have been raised on

direct appeal, and was not, it is waived. See 42 Pa.C.S. § 9544 (b) (“[A]n

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”).

      For all of the forgoing reasons, we affirm the PCRA court’s order

denying Appellant relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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