J-S86025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER THOMAS

                            Appellant                   No. 561 WDA 2016


                   Appeal from the PCRA Order March 24, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0001010-2011
                                           CP-02-CR-0009188-2011


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                                 FILED MAY 1, 2017

       Christopher Thomas appeals from the March 24, 2016 order of the

Allegheny County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. In our prior memorandum, we affirmed the PCRA court’s1 denial of

Thomas’s ineffective assistance of counsel claim with respect to trial

counsel’s closing argument2 and remanded this matter for a supplemental

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
       Because the PCRA court also presided over Thomas’s trial, we use
the terms “PCRA court” and “trial judge” interchangeably in this
memorandum.
       2
      See Commonwealth v. Thomas, 561 WDA 2016, unpublished
memorandum at 5-7 (Pa.Super. filed Feb. 15, 2017).
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Pennsylvania     Rule    of    Appellate   Procedure   1925(a)   opinion   regarding

counsel’s alleged ineffectiveness in failing to request the trial judge’s recusal.

We now affirm the PCRA court’s denial of Thomas’s ineffectiveness claim

with respect to recusal.

       In our prior memorandum, we set forth a detailed factual and

procedural     history    of    this   case,   which   we   adopt   herein.     See

Commonwealth v. Thomas, 561 WDA 2016, unpublished mem. at 1-3

(Pa.Super. filed Feb. 15, 2017).

       We asked the PCRA court on remand to address “the arguable merit

and prejudice prongs[3] of Thomas’s recusal ineffectiveness claim[,] . . .

[b]ecause the trial judge’s reasons as to why he would or would not have

granted a recusal motion had one been made are not of record.” Id. at 10-

11. The PCRA court filed its supplemental Rule 1925(a) opinion on March

21, 2017.

       In our prior memorandum, we set forth Thomas’s argument on his

recusal ineffectiveness claim as follows:

           . . . Thomas argues that he is entitled to relief or, at a
           minimum, a hearing because his trial counsel was
____________________________________________


       3
        “To prevail on . . . [ineffective assistance of counsel] claims, [the
PCRA petitioner] must plead and prove, by a preponderance of the evidence,
three elements: (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3) [the PCRA
petitioner] suffered prejudice because of counsel's action or inaction.”
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).




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       ineffective for failing to request that the trial judge recuse
       himself from the non-jury trial because the trial judge
       ruled on and granted a motion in limine to exclude prior
       burglary convictions under Pennsylvania Rule of Evidence
       609(b).[5] Thomas asserts that, once he chose a non-jury
       trial, “counsel knew or should have known that the judge,
       who was sitting as the factfinder in Mr. Thomas’ bench
       trial, was aware of Mr. Thomas’ prior [b]urglary convictions
       [and] a request that the court recuse itself would have
       been meritorious.” According to Thomas, his claim has
       arguable merit because the trial judge knew that Thomas
       had two prior convictions and Thomas was asserting a
       defense of innocence.          Thomas argues that “[t]his
       information was highly prejudicial since it could cause the
       factfinder to presume [his] guilt – essentially shifting the
       burden of proof.” Thomas also asserts that he need not
       “demonstrate that the information actually influenced [the
       trial judge’s] actions where ‘it is established that the
       information received during the pretrial proceeding would
       have been incompetent in the subsequent proceeding and
       that it was of a sufficiently inflammatory nature to arouse
       a prejudice against the defendant.’” In addition, Thomas
       argues that trial counsel had no reasonable basis for failing
       to request recusal because had trial counsel “done so, the
       lower court properly would have and should have
       transferred the case to a different judge.” Thomas also
       argues that he was prejudiced by trial counsel’s failure,
       because “[i]f another judge, who was not aware of Mr.
       Thomas’ prior convictions, had presided over the
       proceedings, that judge may have found [him] not guilty
       of some or all of the charges.”
          5
              Rule 609(b) limits the ability to impeach witnesses
              with prior convictions that involved “dishonesty or
              false statement”:

              (b) Limit on Using the Evidence After 10
              Years. This subdivision (b) applies if more than 10
              years have passed since the witness’s conviction or
              release from confinement for it, whichever is later.
              Evidence of the conviction is admissible only if:

               (1) its probative value substantially outweighs
               its prejudicial effect; and

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               (2) the proponent gives an adverse party
               reasonable written notice of the intent to use it
               so that the party has a fair opportunity to
               contest its use.

              Pa.R.Evid. 609(b).

Thomas, unpublished mem. at 8-9 (internal citations omitted)

      A recusal motion requires the judge to “make a conscientious

determination of his or her ability to assess the case in an impartial

manner,” and, if the judge believes he or she can be impartial, “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.”   Arnold v. Arnold, 847 A.2d, 674, 680 (Pa.Super. 2004)

(quotation omitted). However, with respect to pre-trial proceedings, “[i]f it

is established that the information received during the pre-trial proceeding

would have been incompetent in the subsequent proceeding and . . . it was

of a sufficiently inflammatory nature to arouse a prejudice against the

defendant[,] he need not demonstrate that the information actually

influenced the court’s actions.”   Commonwealth v. Simmons, 483 A.2d

953, 956-57 (Pa.Super. 1984) (quoting Commonwealth v. Goodman, 311

A.2d 652, 654 (Pa. 1973)).

      In its supplemental 1925(a) opinion, the PCRA court concluded that

Thomas’s claim lacks merit and, even if it were meritorious, Thomas suffered

no prejudice. The PCRA court explained that it “granted Thomas’s motion to

exclude certain material from his trial” and, as a result, “any unfairness, bias


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or prejudice that Thomas feels was being harbored by this [c]ourt is non-

existent.” PCRA Ct. Op., 3/21/17, at 2. According to the PCRA court, this

case is a “perfect example of th[e] principle [that] . . . . [t]rial judges are

presumed to disregard material to which it has sustained an objection or

excluded from one side’s evidentiary material.”         Id.   With respect to

prejudice, the PCRA court concluded that Thomas suffered no prejudice

“because of the evidence produced at trial.”     Id.   The PCRA court asserts

that “had the same collection of evidence been put forth before a different

jurist, the verdict would have been the same.” Id. at 2-3.

      We conclude that the PCRA court did not err in dismissing Thomas’s

recusal ineffectiveness claim. It is clear from the 1925(a) opinion that the

PCRA court, sitting at trial, would not have granted a recusal motion had one

been made, as the judge believed he did not harbor any “unfairness, bias, or

prejudice” towards Thomas. Further, the information received by the judge,

specifically two burglary convictions more than ten years before the instant

burglary charges, is not of such an inflammatory nature as to remove

Thomas’s burden of establishing bias, prejudice, or unfairness necessitating

recusal.   Cf. Simmons, 483 A.2d at 956 (holding that trial judge should

have recused himself after hearing withdrawn guilty plea); Goodman, 311

A.2d at 654 n.4 (holding that trial judge should have recused himself after

Commonwealth elicited hearsay testimony at a suppression hearing that

defendants were trafficking narcotics in drug possession case). Under these

circumstances, the presumption holds that “the trial court, sitting as the trier

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of fact, . . . disregard[s] inadmissible evidence,” Commonwealth v.

Konias, 136 A.3d 1014, 1022 (Pa.Super.), app. denied, 145 A.3d 724 (Pa.

2016), and Thomas failed to rebut this presumption.

      Because Thomas’s claim is meritless, trial counsel was not ineffective

for failing to raise it.   Commonwealth v. Fears, 86 A.3d 795, 810 (Pa.

2014). Further, because an ineffectiveness claim may be dismissed where

“the petitioner’s evidence fails to meet any of these prongs,” we dispose of

Thomas’s claim on that basis alone.     Commonwealth v. Williams, 980

A.2d 510, 520 (Pa. 2009).

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2017




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