J-S58025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BRETT OWEN FEESE,

                         Appellant                   No. 246 MDA 2017


                Appeal from the PCRA Order January 9, 2017
             In the Court of Common Pleas of Dauphin County
 Criminal Division at No(s): CP-22-CR-0001927-2011, CP-22-CR-0002585-
                                   2010


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

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 13, 2017

      Brett Owen Feese (“Appellant”) appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. We affirm.

      A previous panel of this Court set forth the factual history of this case

as follows:

           Appellant’s case arises out of the scandal known as
      “Computergate,” a scheme in which taxpayer funds, employees,
      and other resources were misused for partisan campaign
      purposes by elected members of the Pennsylvania House of
      Representatives (“House”), and, in particular, by members of the
      House Republican Caucus (“HRC”), from 2001–2007.            The
      misused government resources were directed toward the
      purchase and implementation of technological services,
      equipment, and data that permitted the analysis of individual
      voter information for use in political campaigns.     Emerging
      mobile communication technologies designed for political
      campaign workers (“TelStar”) were integrated with massive
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     databases of voter data (“Blue Card”) to provide campaign
     operatives with extensive capabilities to identify and mobilize
     voters for partisan get-out-the-vote operations and to facilitate
     direct messaging of information of interest to individual voters or
     particular groups of voters.

            The facts adduced at trial demonstrated that the HRC used
     taxpayer funds to pay outside contractors to implement and
     provide ongoing support for these programs from 2001 until
     2006. Contractors GCR, Inc. (“GCR”) from New Orleans,
     Louisiana, and Aristotle International (“Aristotle”), from
     Washington, D.C., worked in tandem with taxpayer funded
     legislative employees from the Republican Information
     Technology Services (“RITS”) to develop, implement, maintain,
     and integrate TelStar and Blue Card. During this time, Appellant,
     an elected member of the House, held various leadership
     positions with the HRC, where he served both as Director of the
     House Republican Campaign Committee (HRCC) and Chief
     Counsel for the HRC. The crux of the instant case revolved
     around the extent to which Appellant knew of, directed, and/or
     approved of the illegal use of taxpayer funded resources to
     develop, implement, and maintain the campaign technologies, as
     well as his subsequent efforts to cover up his involvement and
     hinder the investigation of the Office of Attorney General
     (“OAG”).

           On July 9, 2010, the OAG filed a criminal information at
     CP–22–CR–0002585–2010 charging Appellant for crimes
     committed from 2001–2007. The charges included nine counts
     of conflict of interest, 65 Pa.C.S. § 1103(a); nine counts of theft
     by unlawful taking or disposition, 18 Pa.C.S. § 3921(a); nine
     counts of theft by deception, 18 Pa.C.S. § 3922(a)(1); nine
     counts of theft of services, 18 Pa.C.S. § 3926(a); nine counts of
     theft by failure to make required disposition of funds received,
     18 Pa.C.S. § 3927(a); one count of hindering apprehension or
     prosecution, 18 Pa.C.S. § 5105; one count of obstructing
     administration of law or other government function, 18 Pa.C.S.
     § 5101; and eleven counts of criminal conspiracy, 18 Pa.C.S.
     § 903. On May 11, 2011, the OAG filed an additional criminal
     information at CP–22–CR–0001927–2011 for crimes committed
     from 2007–2009, therein charging Appellant with an additional
     four counts: hindering apprehension or prosecution, obstructing
     administration of law or other government function, and two
     counts of criminal conspiracy.

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            Appellant and nine co-defendants were initially charged,
     however, only co-defendant Jill Seaman proceeded to trial with
     Appellant; the remaining eight co-defendants entered guilty
     pleas, some of whom ultimately testified against Appellant and
     Seaman at trial. Following a twenty-three day jury trial on forty
     charges, the jury convicted Appellant on all counts.          On
     February 10, 2012, the trial court sentenced Appellant to an
     aggregate term of 4–14 years’ incarceration, and ordered
     restitution in the amount of $1,000,000. Appellant was also
     required to pay $25,000 in fines.

Commonwealth v. Feese, 79 A.3d 1101, 1103–1104 (Pa. Super. 2013).

This Court affirmed the judgment of sentence, and the Supreme Court of

Pennsylvania denied allowance of appeal.     Id. at 1128, appeal denied, 94

A.3d 1007 (Pa. 2014).

     The PCRA court updated the procedural history as follows:

            [Appellant] timely filed a PCRA Petition on or about
     August 31, 2015. In his Petition, [Appellant] makes two claims:
     1. Witness statements and other exculpatory and/or
     impeachment material were improperly withheld from him due to
     the destruction of them by the Office of Attorney General
     (“OAG”) in contravention of his federal and state constitutional
     rights and the Pennsylvania Rules of Criminal Procedure and
     Professional Conduct; 2. [Appellant] was denied the
     constitutional right to a fair and impartial tribunal due to the fact
     that the trial court judge’s law clerk applied for and was offered
     employment by the OAG, a job which was eventually accepted.
     [Appellant] asserts that his claims for relief have not been
     previously litigated or waived. Further, [Appellant] argues that
     the ground upon which he bases his claims were previously
     unknown to him and could not have been ascertained by due
     diligence. Finally, [Appellant] asserts that the newly discovered
     evidence would have changed the outcome of the trial had it
     been available to him. The Commonwealth has filed an Answer
     to the instant Petition.

PCRA Court Opinion, 5/3/16, at 1–2. Additionally, Appellant filed a motion

for recusal on November 5, 2015.

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      Finding no genuine issues concerning any material fact, the PCRA court

entered an order denying Appellant’s request for a hearing and notifying

Appellant of its intent to dismiss his petition within twenty days pursuant to

Pa.R.Crim.P. 907.    In a separate order of the same date, the PCRA court

denied Appellant’s motion for recusal. Orders, 5/3/16. After Appellant filed

a timely response to the PCRA court’s notice, the PCRA court dismissed

Appellant’s petition. Order, 1/9/17. This appeal followed. Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our consideration:

      A.    Whether it was error for the PCRA court to deny
            [Appellant] collateral relief without a hearing under 42
            Pa.C.S.A. §9543(a)(3) because his claim that evidence to
            which he was entitled had been destroyed in bad faith by
            the prosecution was fully litigated on direct appeal?

      B.    Whether it was error for the PCRA court to deny
            [Appellant] collateral relief without a hearing under 42
            Pa.C.S.A. § 9544(b) because his claim that prosecutors
            engaged in a lengthy series of ex parte communications
            with the trial court’s judicial law clerk in the period leading
            up to and continuing throughout [Appellant’s] trial during
            which the prosecutors created a job opportunity for,
            offered employement [sic] to, and hired the court’s judicial
            law clerk could have been presented at trial or on direct
            appeal and, thus, was waived?

      C.    Whether it was an abuse of discretion for the PCRA court
            to deny [Appellant’s] request that it recuse itself from
            consideration of his request for collateral relief when one of
            the issues raised involved attempts by the prosecution to
            improperly influence the judicial process through a series
            of ex parte communications with the court’s law clerk?

Appellant’s Brief at 2–3 (full capitalization omitted).


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      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error.   Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.

Super. 2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009)).   We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).       Moreover, “[t]here is no absolute right to an

evidentiary hearing on a PCRA petition, and if the PCRA court can determine

from the record that no genuine issues of material fact exist, then a hearing

is not necessary.”    Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa.

Super. 2003)). “[S]uch a decision is within the discretion of the PCRA court

and will not be overturned absent an abuse of discretion.” Commonwealth

v. Mason, 130 A.3d 601, 617 (Pa. 2015).

      Appellant first challenges the PCRA court’s denial of collateral relief

without an evidentiary hearing where Appellant submitted after-discovered

evidence in the form of six witness “certifications” to support his claim that


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the prosecutor engaged in “the bad faith destruction of exculpatory and

impeachment material.”         Appellant’s Brief at 31.         According to Appellant,

each witness was interviewed by the Office of the Attorney General (“OAG”)

at least once; notes were taken during the interview(s); five of the

witnesses provided exculpatory and/or impeachment material; the OAG’s

Report of Investigation did not contain the five witnesses’ exculpatory or

impeachment       material;    the    OAG      did   not   elicit   the   exculpatory   or

impeachment material before the Grand Jury or at trial; and the OAG offered

one of the witnesses a sentencing inducement to testify against Appellant at

trial. PCRA Petition, 8/31/15, at Exhibits 24–29.1 Appellant asserts that his

claim is not frivolous and an evidentiary hearing is warranted “[g]iven the

probative value of the certifications in establishing; [sic] the existence -- at

least at one time -- of exculpatory and impeachment material.” Appellant’s

Brief at 32.

       In response, the OAG argues that Appellant is not entitled to relief for

alternative reasons.        According to the OAG, Appellant’s allegation of

prosecutorial misconduct in the context of witness interview notes was

waived because Appellant did not include this issue in his Pa.R.A.P. 1925(b)

statement.      OAG’s Brief at 9.           Alternatively, the OAG contends that
____________________________________________


1 Of the six witnesses identified in the certifications, the following testified
before the Grand Jury: William Tomaselli, Lori Cherry McGill, Mary Beth
Morey, and John Hanley. Mr. Tomaselli and Mr. Hanley also testified at
Appellant’s trial. Appellant’s Brief at 29–30.



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Appellant’s prosecutorial misconduct claim was previously litigated.   Id. at

11. The OAG also asserts that, had the issue not been waived or previously

litigated, it is without merit. Id. at 15.

      The PCRA court determined that Appellant’s prosecutorial misconduct

claim was previously litigated:

      Presently, [Appellant] is attempting to argue that he has newly
      acquired evidence that bears upon the issue of the OAG proffer
      statements.     He contends that the evidence consists of
      statements made by William Tomaselli, John Hanley, John
      Perzel, Lori Cherry McGill, Mary Beth Morey, and Lori Lochetto
      who he believes provided exculpatory and impeachment material
      to the OAG, prior to trial, which was not disclosed in discovery.
      (PCRA Petition, ¶¶ 28–31, p.6).         In support of his claim,
      [Appellant] attaches certifications of the named witnesses which
      are unsworn but, satisfy Pa.R.Crim.P. 902(a)(15) which pertains
      to the statutory requirement if a petitioner is requesting an
      evidentiary hearing.

            The OAG responds to [Appellant’s] first claim by arguing
      that the issue has been fully and finally litigated and,
      accordingly, is not subject to relief under the PCRA. The OAG
      counters [Appellant’s] position by arguing that what has been
      presently provided by [Appellant] is not “new evidence”; rather,
      the certifications, which are unsworn and signed by counsel, only
      stand for the proposition that notes were taken during witness
      interviews and were destroyed. Accordingly, the OAG goes on at
      length to argue that the purported newly discovered evidence is
      not substantially different from the evidence underlying
      [Appellant’s] claim on direct appeal which was rejected by the
      Superior Court.

              Upon review of the Petition and the extensive support
      submitted by each party to advance their respective positions,
      this [c]ourt finds that [Appellant’s] first PCRA claim has been
      fully litigated and, therefore he is not entitled to relief.

                                      * * *




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      [Appellant’s] first issue on direct appeal was: Whether the
      massive, deliberate destruction by the OAG of witness interview
      notes and proffer statements violated the defendant’s rights
      under the United States Constitution, the Constitution of the
      Commonwealth of Pennsylvania, Pennsylvania Rule of Criminal
      Procedure 573, Pennsylvania Rule of Professional Conduct
      3.8(D), and deprived him of a fair trial. Commonwealth v.
      Feese, 79 A.3d 1101, 1105 (Pa. Super. 2013). The Superior
      Court analyzed the issue at length in its published opinion and
      rejected [Appellant’s] arguments. Feese, 79 A.3d 1105–1115.
      Upon careful review of the entire record, this [c]ourt does not
      see how the unsworn certifications addressing what the
      witnesses would testify to if a hearing was warranted are
      substantially different from what has been fully litigated on
      appeal. Accordingly, [Appellant’s] first claim does not entitle
      him to relief under the Act. 42 Pa.C.S. § 9543.

PCRA Court Memorandum Order, 5/3/16, at 3–5.

      Upon review, we reject the OAG’s waiver argument, finding Appellant’s

first issue sufficiently preserved in his Pa.R.A.P. 1925(b) statement.

Additionally, we affirm the trial court’s ruling, but on a different basis. See

Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (holding this

Court is not bound by rationale of trial court and may affirm trial court’s

order on any basis).

      In disposing of this issue, we assume the certifications attached to

Appellant’s PCRA petition are true and that they do, in fact, support his claim

of prosecutorial misconduct. Contrary to the OAG’s assertions that it fulfilled

its discovery obligations, the certifications indicate that witness interviews

were held, notes were taken, exculpatory and/or impeachment material was

provided,   the   notes   were   destroyed,   and   the   exculpatory   and/or

impeachment material was not elicited before the Grand Jury or provided to

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Appellant through discovery.       PCRA Petition, 8/31/15, at Attachments.

Nevertheless, we are persuaded by the OAG’s argument that Appellant has

not met the test “for establishing post-conviction relief based on after-

discovered evidence.” OAG’s Brief at 15 (citing Commonwealth v. Pagan,

950 A.2d 270 (Pa. 2008). In fact, Appellant does not address this test in his

appellate brief. Appellant’s Brief at 23–31.

      To be entitled to relief under the PCRA on the basis of exculpatory

after-discovered evidence, the petitioner must plead and prove by a

preponderance of the evidence “[t]he unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.

§ 9543(a)(2)(vi). We have explained further:

      To obtain relief based on after-discovered evidence, an appellant
      must demonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 536–537 (Pa. Super. 2012)

(quoting Pagan, 950 A.2d at 292 (citations omitted)).              “The test is

conjunctive; the appellant must show by a preponderance of the evidence

that each of these factors has been met in order for a new trial to be

warranted.”   Id. at 537 (quoting Commonwealth v. Padillas, 997 A.2d

356, 363 (Pa. Super. 2010) (citation omitted)).      “Further, when reviewing


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the decision to grant or deny a new trial on the basis of after-discovered

evidence, an appellate court is to determine whether the PCRA court

committed an abuse of discretion or error of law that controlled the outcome

of the case.” Id. (quoting Commonwealth v. Reese, 663 A.2d 206 (Pa.

Super. 1995)).

      Even assuming the certifications are not merely cumulative or

corroborative and would not be used solely to impeach the credibility of a

witness, Appellant would not be entitled to a new trial.     Appellant has not

proven that the certifications were unobtainable prior to the conclusion of

trial by the exercise of reasonable diligence.     Notably, Appellant does not

complain that he did not receive the Grand Jury transcripts, which included

the testimony of four of his witnesses; nor does Appellant dispute that the

OAG disclosed its list of eighty-five potential trial witnesses or that his six

witnesses were on that list. Thus, at the time of trial in September of 2011,

Appellant knew of the six witnesses he subsequently interviewed in July and

August of 2015 for purposes of obtaining the certifications attached to his

PCRA petition.       Before or during trial, Appellant could have investigated,

interviewed, called to testify, or cross-examined the six witnesses to obtain

the information he now submits as after-discovered evidence requiring

collateral relief.    Appellant waited until four years after his conviction to

obtain the certifications.     Appellant explains this delay as the result of

unsuccessful pretrial discovery motions. PCRA Petition, 8/31/15, at ¶¶ 36–


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37. Additionally, Appellant states that the evidence “only became available

to him after his release from incarceration on June 28, 2015 when [he] was

able to personally speak to these witnesses and implore them based on their

personal relationship with him to assist him in this effort by disclosing their

knowledge regarding the suppressed statements.”       Id. at 35. Contrary to

Appellant’s assertion, we do not equate his personal touch with reasonable

diligence. We reiterate our previous opinion:

      To the extent they could have provided exculpatory testimony,
      there is nothing of record to indicate why these witnesses could
      not have been called by the defense, particularly since the
      transcripts of the Grand Jury were clearly available to the
      defense before trial . . . and, thus, known to Appellant prior to
      his trial. Joint Motion to Dismiss, at ¶¶ 13–15. It is only the
      prior statements, and not the witnesses, that would have been
      rendered unavailable if the OAG destroyed interview notes
      related to those witnesses.

Feese, 79 A.3d at 1113 n.7.

      Furthermore, Appellant has failed to articulate, let alone establish, how

the after-discovered evidence would result in a different verdict. Although

Appellant repeatedly asserts that the certifications prove the OAG withheld

exculpatory material, he offers no substantive analysis as to why the jury’s

finding of guilt on all counts after twenty-three days of trial should be

disturbed. Appellant’s Brief at 23–31. Thus, because Appellant has failed to

show by a preponderance of the evidence that each of the factors for

obtaining relief based on after-discovered evidence has been met, he is not

entitled to relief.   Foreman, 55 A.3d at 537; Padillas, 997 A.2d at 363.


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There being no genuine issue of material fact regarding Appellant’s first

issue, we conclude the PCRA court did not commit an abuse of discretion or

error of law that controlled the outcome of the case in dismissing Appellant’s

petition without a hearing.      Foreman, 55 A.3d at 537; Reese, 663 A.2d

206.

         Next, Appellant complains that the PCRA court dismissed his petition

without a hearing where Appellant submitted after-discovered evidence of

“the improper relationship between the OAG and the trial court’s law clerk,”

Clarke H. Madden (“Mr. Madden”).         Appellant’s Brief at 18.   According to

Appellant, he obtained this evidence through a Right-to-Know Request

submitted on September 22, 2014, after recent “news articles placed the

public     on   notice   that   OAG   attorneys     had   engaged   in   improper

communications . . . with judges and other judicial branch employees.” Id.

Appellant contends that the lead prosecutor and Mr. Madden “engaged in a

series of ex parte email communications in the period leading up to and

continuing throughout [Appellant’s] trial.        These communications involved

the OAG’s creation of a job opening which they made available to

Mr. Madden, and which he accepted.”            Id. at 33.     Appellant argues,

“Regardless of motive . . . this conduct had the legal effect of so corrupting

[Appellant’s] prosecution as to invalidate his conviction and compel a new

trial.” Id.




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      In response, the OAG argues that Appellant is not entitled to relief,

again for alternative reasons. According to the OAG, Appellant’s allegation

of prosecutorial misconduct in the context of Mr. Madden’s employment

application was waived because Appellant did not include this issue in his

Pa.R.A.P. 1925(b) statement.     OAG’s Brief at 20.    Alternatively, the OAG

contends that Appellant’s prosecutorial misconduct claim lacks merit

“because he has failed entirely to establish any prejudice.” Id. at 21.

      The PCRA Court determined that Appellant’s second prosecutorial

misconduct claim was waived for lack of presentation on direct appeal:

             The essence of [Appellant’s] second claim is that his
      constitutional right to a fair trial was violated because the trial
      court judge’s law clerk, Mr. Clarke Madden, applied for and was
      offered employment with the OAG at the time [Appellant’s]
      prosecution was proceeding. [Appellant’s] second PCRA claim is
      presented in his Petition in a meandering manner but, is best be
      [sic] summarized in Petition ¶137:

            The OAG’s relationship with Mr. Madden and/or the
            ex parte communications between the OAG and
            Mr. Madden violated [Appellant’s] due process right
            to a fair and impartial tribunal under both the federal
            and state constitutions. (Citations omitted).

            [Appellant] goes on to recount a series of disjointed events
      beginning with the OAG position becoming available and
      continuing through Mr. Madden’s application process including
      communications made to correct any missing information and/or
      errors in the transmission of the job application. [Appellant]
      then explains how, after reading newspaper articles “the public
      was placed on notice” that personnel in the OAG had improperly
      communicated with employees of the Judicial Branch, he felt
      compelled to file Right-to-Know Requests searching for a
      connection between Mr. Madden and the OAG. (PCRA Petition,
      p. 26). Upon this foundation, [Appellant] makes a claim that he


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     is entitled to relief under the [PCRA] because he was deprived of
     a fair trial.

            The OAG responded to these allegations by arguing that
     [Appellant] has waived this issue because he failed to raise on
     appeal the only purported error that may have resulted from the
     alleged improper contact.       Further, the OAG contends that,
     assuming arguendo that the issue has not been waived,
     [Appellant] has failed to allege and prove what influence over his
     trial was a result of the alleged improper relationship.

            Upon careful consideration of the Petition and response,
     this [c]ourt finds that pursuant to 42 Pa.C.S. §9544(b),
     [Appellant] has waived the issue presented as his second claim
     for PCRA relief. An issue is waived if “the petitioner could have
     raised it but failed to do so before trial, during unitary review, on
     appeal or in a state post-conviction proceeding.” [Appellant’s]
     allegations in connection with his second claim consist of a
     chronology of pre-trial proceedings, a recitation to the job duties
     of a judicial law clerk in Dauphin County, and the steps taken by
     Mr. Madden and the OAG that culminated in Mr. Madden
     obtaining employment with the OAG. [Appellant] also goes to
     great lengths to point out errors on the part of Mr. Madden in
     the completion and transmission of his job application which he
     tries to characterize as some sort of preferential treatment since
     he was ultimately hired. However, as aptly pointed out by the
     OAG, the essential missing element of [Appellant’s] claim is any
     form of error which impacted his trial to such an extent that he
     was unfairly prejudiced. The only claim that could conceivable
     be considered as an allegation of error is found in ¶121:

           On October 25, 2011, [Appellant] submitted
           proposed jury instructions.     Pursuant to Dauphin
           County’s Job description, it was Mr. Madden’s duty to
           review and prepare jury instructions. At least one of
           [Appellant’s] critical jury instructions was denied.
           (PCRA Petition, p. 24).

            If the denial of that particular jury instruction was so
     critical to his case and he believed that it was erroneously
     omitted, [Appellant] had every opportunity to raise the issue on
     direct appeal and did not. The remainder of the allegations in
     ¶121 are pure speculation. The connection he attempts to make
     between a generic job description duty and a critical jury

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      instruction, which he interestingly does not specify the nature of,
      in the context of an improper relationship between officers of the
      court and a judge’s employee is extremely tenuous at best.
      Even if one assumed it correct for the sake of argument, the
      paper-thin allegation of a possible prejudicial trial error was true,
      was not raised on appeal and therefore, has been waived.
      Accordingly, the only conclusion the [c]ourt may come to is that
      [Appellant’s] second claim for PCRA relief is also without merit.

PCRA Court Opinion, 5/3/16, at 5–7 (emphasis in original).

      Upon review of Appellant’s second issue, we reject the OAG’s waiver

argument, finding the issue sufficiently preserved in his Pa.R.A.P. 1925(b)

statement. Additionally, we affirm the trial court’s ruling, but on a different

basis. Doty, 48 A.3d at 456.

      We discern no abuse of the PCRA court’s discretion or error of law in

its conclusions that Appellant’s PCRA petition lacked merit and a hearing was

not warranted. In reaching this conclusion, we agree with Appellant that he

could not have discovered the ex parte communications before the

conclusion of trial given the private nature of emails.           Moreover, we

acknowledge that the evidence of Mr. Madden and the OAG communicating

is neither cumulative nor corroborative of other evidence presented at trial.

Furthermore,   although    evidence    of   such   communications    may      have

undermined the credibility of the prosecutor, it would not be used to

impeach the credibility of a witness.       Arguably, therefore, Appellant has

satisfied the first three factors for obtaining relief on the basis of after-

discovered evidence.




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      However, Appellant has failed to establish how the after-discovered

evidence of Mr. Madden’s email communications with the OAG would likely

result in a different verdict if a new trial were granted. In other words, the

proffered evidence is not exculpatory in that it does not point to Appellant’s

innocence. 42 Pa.C.S. § 9543(a)(2)(vi). Thus, because Appellant has failed

to show by a preponderance of the evidence that each of the factors for

obtaining relief based on after-discovered evidence has been met, he is not

entitled to relief.   Foreman, 55 A.3d at 537; Padillas, 997 A.2d at 363.

There being no genuine issue of material fact regarding Appellant’s second

issue, we conclude the PCRA court did not commit an abuse of discretion or

error of law that controlled the outcome of the case in denying Appellant

collateral relief without a hearing. Foreman, 55 A.3d at 537; Reese, 663

A.2d 206.

      Lastly, Appellant asserts that the PCRA court erred in denying his

recusal request. The basis for Appellant’s request was the series of ex parte

communications between Mr. Madden and the OAG prosecutor during

Appellant’s trial over which the PCRA presided. Appellant’s Brief at 18, 37.

According to Appellant, “[t]he fundamental issue . . . was not bias, but,

rather, the continued participation     by the PCRA court judge under

circumstances which created an appearance of impropriety that would tend

to undermine public confidence in the judiciary.” Id. at 38.

      In response, the OAG asserts:


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      [Appellant] has failed to allege that any pre-trial, trial or
      sentencing error occurred or was influenced by an apparently
      incomplete online job application pending . . . during the
      pendency of [Appellant’s] case. . . . Further, [Appellant] has
      alleged no personal bias or prejudice towards [Appellant] and/or
      in favor of the Commonwealth by the PCRA court, nor has
      [Appellant] alleged any impartiality by the court. Absent any
      such specific claims, [Appellant] has failed to even adequately
      state a basis for recusal.

OAG’s Brief at 23–24. We agree.

      Our Supreme Court has discussed the standards governing recusal, as

follows:

             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
      questioned. 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. 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.
      Additionally, 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. Tedford, 960 A.2d 1, 55–56 (Pa. 2008) (internal

quotation marks, citations, and formatting omitted).

      Our standard of review of a trial court’s determination not to recuse is

exceptionally deferential because we recognize that our trial judges are

“honorable, fair and competent.”      Commonwealth v. Harris, 979 A.2d

387, 391 (Pa. Super. 2009); Commonwealth v. Postie, 110 A.3d 1034,

1037 (Pa. Super. 2015). Thus, “although we employ an abuse of discretion


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standard, we do so recognizing that the judge himself is best qualified to

gauge his ability to preside impartially.” Harris, 979 A.2d at 392; Postie,

110 A.3d at 1037.     Moreover, “[t]he party who asserts that a trial judge

should recuse bears the burden of setting forth specific evidence of bias,

prejudice, or unfairness. Furthermore, a decision by the trial court against

whom the plea of prejudice is made will not be disturbed absent an abuse of

discretion.”   Postie, 110 A.3d at 1037 (quoting Harris, 979 A.2d at 392)

(internal quotation marks omitted).

      In response to Appellant’s recusal request, the PCRA court stated the

following:

             Upon review of the pleadings, [Appellant] has failed to
      show this [c]ourt how he feels he will suffer bias, prejudice or
      unfairness in the consideration of his PCRA Petition by this
      [c]ourt. [Appellant] asserts that he is seeking a ruling on his
      PCRA petition that is “completely objective and uninfluenced by
      any considerations related to the job opportunity extended by
      the Commonwealth to the [c]ourt’s former law clerk . . .” without
      specifically pointing to the reasons why this [c]ourt would be
      biased. Additionally, although the PCRA Petition goes on at
      length about how [Appellant] feels that this [c]ourt’s former law
      clerk was involved in potentially improper deeds which impacted
      his right to a constitutionally sound criminal trial, which are very
      serious allegations, he was not immediately concerned about any
      potential bias as the instant recusal motion was not filed for
      months after the assignment of the PCRA Petition to this [c]ourt.

            Upon review of the Motion and the Commonwealth’s
      response, this [c]ourt fails to grasp what specific factors
      [Appellant] believes impair this [c]ourt’s ability to be impartial
      other than the mere claim that a former claw clerk applied for
      and was offered a job with the Office of Attorney General.
      Further, [Appellant] has not pointed to a single act or occurrence
      whereby the application process involving a former law clerk and
      any allegations he is making in connection thereto, without

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      more, amounts to such discernible bias that recusal is necessary.
      As such, we conclude that [Appellant] has not satisfied his
      burden of showing bias, prejudice or unfairness that rise to such
      a significant level to warrant recusal to sustain his motion.

PCRA Court Memorandum Opinion, 5/3/16, at unnumbered 2–3.

      Upon review of the record, we discern no basis for disturbing the PCRA

court’s ruling. Appellant acknowledged that the fundamental issue “was not

bias” and that “the PCRA court focused solely on the absence of evidence of

bias or prejudice, but nothing of the sort was alleged.” Appellant’s Brief at

38.   Appellant’s bald claim that the PCRA court’s continued participation

created an appearance of impropriety “does not satisfy the burden of setting

forth specific evidence of bias, prejudice, or unfairness.” Harris, 979 A.2d

at 392; Postie, 110 A.3d at 1037.           Furthermore, as the PCRA court

observed, Appellant’s “request is made in the context of mere possibilities—

that discovery [involving Mr. Madden] will be granted and an evidentiary

hearing is warranted.”     PCRA Court Memorandum Opinion, 5/3/16, at

unnumbered 2. Indeed, Appellant speculates that the PCRA court refused to

recuse itself “from presiding over litigation which could involve, and

potentially cause harm to his former clerk.”         Appellant’s Brief at 38

(emphases supplied). Accordingly, we conclude that the PCRA court did not

abuse its discretion or commit an error of law in denying Appellant’s motion

for recusal.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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