J-S15040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEFFREY J. MARSALIS,

                            Appellant                  No. 512 EDA 2014


                  Appeal from the PCRA Order January 24, 2014
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0200221-2006
                            CP-51-CR-1301741-2006
                            CP-51-CR-1303796-2006


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED MARCH 07, 2016

        Appellant, Jeffrey J. Marsalis, appeals pro se from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The facts and protracted procedural history of this case are as follows:

              Appellant was charged under ten criminal informations,
        each with a different complainant, with rape, aggravated
        indecent assault, sexual assault, and related charges, for
        incidents occurring between January 2003 and October 2005.
        Appellant allegedly met almost [all] of these victims by
        contacting them on the dating website, Match.com, and in each
        of these cases, it was alleged that: Appellant had falsely and
        variously represented to his victims that he was a doctor,
        medical resident, CIA operative, White House staffer, NASA
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       surgeon, or astronaut; Appellant and his victims went to bars;
       upon returning from the restroom, the victims consumed
       alcoholic drinks that were already on the table; the victims had
       no memory of what occurred after consuming these drinks;
       some victims awoke momentarily in bed as Appellant was
       penetrating them with his penis, felt disorientated or sluggish
       and unable to fight off Appellant, and lost consciousness again;
       all the victims awoke in bed naked next to a naked Appellant
       with no memory of how they arrived there; all the victims felt
       sedated or groggy the following day.

             Upon a motion by the Commonwealth, the trial court
       consolidated the cases, and trial commenced in March 2007.
       The Commonwealth presented the testimony of seven victims as
       well as that of Appellant’s ex-fiancée. The jury found Appellant
       guilty of two counts of sexual assault, one at docket CP-51-CR-
       1303796-2006 and one at CP-51-CR-1301741-2006. The jury
       was hung as to unlawful restraint under docket CP-51-CR-
       0200221-2006, and found him not guilty of all remaining
       charges. Appellant subsequently pleaded no contest to the
       unlawful restraint charge.

              A hearing was held on October 12, 2007 to determine
       whether Appellant was a sexually violent predator. The court
       found that he was, and imposed an aggregate sentence of 10½
       to 21 years’ imprisonment, which consisted of two consecutive
       five to ten year terms for the sexual assault convictions, and a
       consecutive six to twelve month term for unlawful restraint.
       Appellant’s motion to reconsider was denied, and Appellant filed
       a timely notice of appeal.

(Commonwealth           v.   Marsalis,         No.   2920   EDA   2007,   unpublished

memorandum at *1-2 (Pa. Super. filed July 1, 2009)).1




____________________________________________


1
 Appellant’s direct appeal challenged his convictions at Docket Nos. CP-51-
CR-1303796-2006 and CP-51-CR-1301741-2006; his conviction at Docket
No. CP-51-CR-0200221-2006 was not a part of his direct appeal. (See
Marsalis, supra at *1; PCRA Court Opinion, 7/14/14, at 29).



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       On July 1, 2009, this Court affirmed Appellant’s judgment of sentence.

(See id. at *1). Appellant did not file a petition for allowance of appeal in

our Supreme Court.

       On July 27, 2010, Appellant filed a counseled PCRA petition alleging

ineffective assistance of counsel and a due process violation. 2         Appellant

retained new counsel, who filed an amended petition on June 25, 2012.

After the PCRA court issued notice of its intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907(1), Appellant,

acting pro se, simultaneously filed a response and a supplemental amended

PCRA petition on May 30, 2013.             Counsel for Appellant filed a motion to

withdraw on June 13, 2013, and the following day, Appellant, acting pro se,

filed an amended response to the Rule 907 Notice and a second

____________________________________________


2
   The PCRA petition pertains to Appellant’s convictions at all three docket
numbers. (See PCRA Petition, 7/27/10, at 1). His judgment of sentence
with respect to his convictions at Docket Nos. CP-51-CR-1303796-2006 and
CP-51-CR-1301741-2006 became final on July 31, 2009, when his time to
file a petition for allowance of appeal with the Pennsylvania Supreme Court
expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, his
PCRA petition, filed within one year from that date, was timely with respect
to these convictions. See 42 Pa.C.S.A. § 9545(b)(1).

      However, Appellant’s judgment of sentence with respect to his plea of
no contest at Docket No. CP-51-CR-0200221-2006 became final on
November 12, 2007, when his time to file a timely direct appeal expired.
See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3); 1 Pa.C.S.A. § 1908.
Therefore, his PCRA petition, filed on July 27, 2010, more than two and a
half years after his judgment of sentence became final, is untimely with
respect to this case. See 42 Pa.C.S.A. § 9545(b)(1); (see also PCRA Ct.
Op., at 29).



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supplemental amended PCRA petition. On June 25, 2013, Appellant filed pro

se motions seeking recusal of the PCRA court judge and disqualification of

the Philadelphia County District Attorney’s office from the proceedings.

       On July 11, 2013, following a Grazier3 hearing, the PCRA court

permitted counsel to withdraw and Appellant to proceed pro se. The court

also denied, by oral bench order, Appellant’s motions for recusal and

disqualification.   The court granted Appellant’s request for leave to amend

the PCRA petition, and he filed an amended petition on November 22, 2013.4

The court issued another Rule 907 Notice on December 5, 2013. Appellant

filed a response on January 23, 2014, in which he requested that the court

again grant him leave to file another amended petition.           On January 24,

2014, the PCRA court entered its order dismissing Appellant’s PCRA petition.

This timely appeal followed.5

       Appellant raises the following questions for our review:


____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
4
  Appellant’s amended PCRA petition includes a plethora of claims alleging
ineffective assistance of trial, direct appeal, and PCRA counsel. (See PCRA
Petition, 11/22/13, at 5-7, 12-14). It also includes a request for leave to
engage in discovery to obtain the medical records of victims A.A. and A.R.
(See id. at 19 ¶ 47); see also Pa.R.Crim.P. 902(E)(1).
5
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. It filed an opinion on July 14, 2014, in which it
comprehensively discussed fourteen issues. See Pa.R.A.P. 1925; (see also
PCRA Ct. Op., at 5-32).



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     I. Whether the PCRA court erred as a matter of law and/or
     abused its discretion in denying and/or otherwise dismissing
     Appellant’s PCRA without a hearing, where Appellant’s claims, if
     proven, would entitle him to relief?

     II. Whether the PCRA court erred as a matter of law and/or
     abused its discretion in denying and/or otherwise dismissing
     Appellant’s PCRA without taking dispositive action on Appellant’s
     request for leave to amend his claims relating to Docket No.: CP-
     51-CR-02002211-2006, (as submitted for filing on or about
     January 19, 2014), to include a previously unknown claim of
     obstruction/denial of Appellant’s right to appeal, and also, to
     expressly invoke the exception provisions of 42 Pa.C.S. §
     9545(b)(1)(i) and (b)(1)(ii)?

     III. Whether the PCRA court erred as a matter of law and/or
     abused its discretion in denying and/or otherwise dismissing
     Appellant’s PCRA without granting Appellant leave to engage in
     limited discovery to obtain medical records of complainants A.A.
     and A.R. for the period of 1 year before the incidents giving rise
     to their respective allegations against Appellant and 6 months
     thereafter where said discovery was necessary in order to
     provide Appellant with a fair and meaningful opportunity to
     substantiate his claims that, had trial counsel conducted a
     reasonably thorough investigation, it would have been
     determined that:

           (A) Complainant A.A., was afflicted with a medical
           condition that would have explained why she could
           not drink alcohol without experiencing symptoms
           similar to those she described in her trial testimony
           and which the Commonwealth theorized was the
           result of A.A. having been drugged by Appellant; and

           (B) Complainant A.R., was afflicted with a medical
           condition for which she was taking Vicodin, which is
           a mixture of acetaminophen and hydrocodone, and
           when mixed with alcohol, is known to cause
           symptoms consistent with those described by A.R.
           during her trial testimony and which the
           Commonwealth theorized was the result of A.R.
           having been drugged by Appellant[?]




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       IV. Whether the PCRA court erred as a matter of law and/or
       abused its discretion in denying Appellant’s June 25, 2013
       motion for disqualification of the district attorney’s office, where
       said disqualification was necessitated by an obvious “personal
       interest” conflict wherein, both prior to and during her testimony
       during Appellant’s trial, one of the complaining witnesses against
       Appellant, [M.S.], was employed as a assistance [sic] district
       attorney with the Philadelphia County District Attorney’s Office?

       V. Whether the PCRA court erred as a matter of law and/or
       abused its discretion in denying Appellant’s June 25, 2013
       motion for recusal of trial judge, where during the course of trial
       and sentencing proceedings, said trial judge, Steven R. Geroff,
       J., evidenced an overall bias against Appellant so as to call his
       objectivity into question, thereby creating an appearance of
       impropriety?

(Appellant’s Brief, at 4-5) (most capitalization omitted).6

             We begin by noting our well-settled standard of review. In
       reviewing the denial of PCRA relief, we examine whether the
       PCRA court’s determination is supported by the record and free
       of legal error. The scope of review is limited to the findings of
       the PCRA court and the evidence of record, viewed in the light
       most favorable to the prevailing party at the trial level. It is
       well-settled that a PCRA court’s credibility determinations are
       binding upon an appellate court so long as they are supported by
       the record. However, this Court reviews the PCRA court’s legal
       conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).



____________________________________________


6
   We note that we have received and considered Appellant’s pro se reply
brief, for which we previously granted an extension of time for filing. The
outstanding motions Appellant filed related to the brief’s timeliness and
length are hereby dismissed as moot. (See Motion for Acceptance of Reply
Brief as Timely Filed, dated 2/10/16, filed 2/19/16; Motion for Permission to
File Reply Brief Exceeding Word Limit, dated 2/10/16, filed 2/19/16).



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          In his first issue, Appellant contends that the PCRA court erred in

summarily dismissing his petition without an evidentiary hearing where his

claims are meritorious and a hearing would allow him to develop further

their factual bases.     (See Appellant’s Brief, at 18-28).   In support of this

issue, he cites various “example[s]” of his myriad claims of ineffective

assistance of counsel, arguing that trial counsel was ineffective in: failing to

conduct a thorough pretrial investigation of the medical backgrounds of the

alleged victims; failing to seek disqualification of the Philadelphia County

District Attorney’s Office because of a conflict of interest; and improperly

advising him to enter a plea of no contest to the charge of unlawful restraint.

(Id. at 19; see id. at 19-20, 22). This issue is waived and would not merit

relief.

          First, Appellant’s varied arguments regarding ineffective assistance of

trial counsel are waived, because they are not contained in, or fairly

suggested by, his explicit statement of questions for review. See Pa.R.A.P.

2116(a); see also Commonwealth v. McCullough, 86 A.3d 901, 904 n.4

(Pa. Super. 2014), appeal denied, 94 A.3d 1008 (Pa. 2014); (Appellant’s

Brief, at 4). Furthermore, Appellant’s arguments consist of a rambling set of

“examples” of his numerous ineffectiveness claims, and are not developed as

distinct issues supported by cogent legal argument and pertinent authority.

His arguments are waived for this reason as well. See Pa.R.A.P. 2119(a)-

(b); see also Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super.

2003), appeal denied, 879 A.2d 782 (Pa. 2005) (although Court willing to

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J-S15040-16



construe pro se materials liberally, pro se litigants must comply with

procedural rules).

      Moreover, it is well-settled that a PCRA petitioner is not automatically

entitled to an evidentiary hearing. See Miller, supra at 992. We review a

PCRA court’s decision to dismiss a petition without a hearing for an abuse of

discretion. See id.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

             [A]n evidentiary hearing is not meant to function as a
      fishing expedition for any possible evidence that may support
      some speculative claim of ineffectiveness.

Id. (citations omitted).

      Here, it is apparent from the record that, although the PCRA court did

not hold an evidentiary hearing, it carefully and thoroughly examined

Appellant’s plethora of issues and concluded that they lacked merit. (See

Rule 907 Notice, 12/05/13; PCRA Ct. Op., at 5-32).        After reviewing the

issues raised in the PCRA petition and the amendments thereto in light of

the certified record, we discern no abuse of discretion in the PCRA court’s




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decision to decline to hold a hearing. See Miller, supra at 992. Appellant’s

first issue is waived and would not merit relief.

      In his second issue, Appellant argues that the PCRA court abused its

discretion in dismissing his PCRA petition on January 24, 2014, without first

ruling on his January 23, 2014 request for leave to amend his petition as it

relates to Docket No. CP-51-CR-0200221-2006, to invoke timeliness

exceptions to the PCRA’s time-bar.      (See Appellant’s Brief, at 29-32; n.2,

supra). He asserts that, because the court entered its order dismissing his

PCRA petition just one day after he filed his request for leave to amend, it is

clear that the court failed to “even read” or consider his request.

(Appellant’s Brief, at 31). This issue lacks merit.

      Pursuant to Pennsylvania Rule of Criminal Procedure 905, a PCRA court

may grant leave to amend a PCRA petition. See Pa.R.Crim.P. 905(A). The

Rule further directs courts to permit liberally requests for leave to amend “to

achieve substantial justice.”    Id.    However, the Rule does not permit

unlimited amendments, and PCRA courts have discretion to allow the

amendment of a pending PCRA petition.        See Commonwealth v. Roney,

79 A.3d 595, 615 (Pa. 2013), cert. denied, 135 S. Ct. 56 (2014).

      Here, the record reflects that Appellant originally filed a counseled

PCRA petition on July 27, 2010. New counsel filed an amended petition on

June 25, 2012.     Following the Grazier hearing, the PCRA court granted

Appellant leave to file another amended petition, and he did so pro se on

November 22, 2013.      Thus, the record reflects that the PCRA court gave

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Appellant ample opportunities to plead and re-plead his claims, and that he

took advantage of these opportunities.         Given this record, we cannot

conclude that the PCRA court abused its discretion in not permitting yet

another amendment in this protracted case.        See Roney, supra at 615.

Appellant’s second issue does not merit relief.

      In his third issue, Appellant contends that the PCRA court abused its

discretion in denying his request to engage in discovery to obtain the

medical records of A.A. and A.R.          (See Appellant’s Brief, at 32-34).

Appellant argues that the victims’ records “may” contain information

regarding their medical conditions that could explain the symptoms they

described to the jury that the Commonwealth attributed to his drugging of

them. (Id. at 33; see id. at 4). Appellant posits that any such information

would support his ineffective assistance of counsel claims relating to failure

to present evidence of the victims’ medical histories.    (See id. at 33-34).

This issue does not merit relief.

      Pennsylvania Rule of Criminal Procedure 902 states in relevant part:

“Except [in a death penalty case], no discovery shall be permitted at any

stage of the proceedings, except upon leave of court after a showing of

exceptional circumstances.”         Pa.R.Crim.P. 902(E)(1) (emphasis added).

“The PCRA and the criminal rules do not define the term ‘exceptional

circumstances.’”   Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super.

2012), appeal denied, 65 A.3d 413 (Pa. 2013).       “Rather, it is for the trial

court, in its discretion, to determine whether a case is exceptional and

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discovery is therefore warranted.” Id. (citation omitted). An appellant has

the duty to convince this Court that an abuse of discretion occurred. See id.

Mere speculation that exculpatory materials may exist does not constitute a

showing of exceptional circumstances. See Commonwealth v. Dickerson,

900 A.2d 407, 412 (Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa.

2006).

      Here, the PCRA court determined Appellant failed to demonstrate

exceptional circumstances warranting discovery of the victims’ medical

records, and pointed out that the jury acquitted Appellant of the charges

specifically related to drugging the victims.     (See PCRA Ct. Op., at 8;

Criminal Docket, at 6). After review of the record, we discern no abuse of

discretion in the PCRA court’s disposition of this issue, where Appellant’s

request was speculative and not directly relevant to his convictions.      See

Frey, supra at 611. Therefore, Appellant’s third issue merits no relief.

      In his fourth issue, Appellant claims that the PCRA court erred in

denying his June 25, 2013 motion to disqualify the Philadelphia County

District Attorney’s Office from participating in the PCRA proceedings. (See

Appellant’s Brief, at 34-36).   He asserts that, because one of his alleged

victims, M.S., was employed by the district attorney’s office, disqualification

of the entire office was warranted. (See id. at 34-35). Although Appellant

acknowledges that the jury acquitted him of the charges relating to M.S., he

nevertheless maintains that the district attorney’s office has a personal bias

against him in these PCRA proceedings. (See id.). This issue is waived.

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       Specifically, this issue is waived for Appellant’s failure to cite to or

discuss any pertinent legal authority to support it. See Pa.R.A.P. 2119(a)-

(b), 2101. His reliance on Commonwealth v. Eskridge, 604 A.2d 700 (Pa.

1992), is misplaced. The Eskridge Court held, in a case on direct appeal,

“that a prosecution is barred when an actual conflict of interest affecting

the prosecutor exists in the case[.]”           Id. at 702 (emphasis added).        This

holding is not applicable here in the post-conviction context, which does not

involve a prosecution against Appellant.               Appellant initiated these post-

conviction proceedings and the district attorney’s office is a necessary

party.7 Therefore, Appellant’s fourth issue fails.

       In his fifth and final issue, Appellant argues the PCRA court judge

abused his discretion in failing to recuse himself.          (See Appellant’s Brief, at

36-39).     Appellant supports this argument with citation to the judge’s

allegedly inappropriate comments at sentencing, and asserts that the

aggravated-range sentence demonstrates the judge’s bias given his lack of a

prior criminal record and the spurious evidence against him. (See id. at 37-

38). He also points to various “visible manifestations of [the judge’s] bias,”

at the Grazier hearing, which he concedes are not reflected in the record,

including    alleged    “condescending         voice   inflections,”   disgusted   facial
____________________________________________


7
  Moreover, we note that “individual [disqualification] rather than vicarious
disqualification [of the entire district attorney’s office] is the general rule.”
Commonwealth v. Ford, 122 A.3d 414, 418 (Pa. Super. 2015) (citation
omitted).



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expressions, and scornful glances. (Id. at 39). This issue does not merit

relief.

          Upon a recusal motion,

                 the judge makes an independent, self-analysis of the
          ability to be impartial. If content with that inner examination,
          the judge must then decide 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 assessment is a personal and unreviewable
          decision that only the jurist can make. Once the decision is
          made, it is final. . . .

                 This Court presumes judges of this Commonwealth are
          honorable, fair and competent, and, when confronted with a
          recusal demand, have the ability to determine whether they can
          rule impartially and without prejudice. The party who asserts a
          trial judge must be disqualified bears the burden of producing
          evidence establishing bias, prejudice, or unfairness necessitating
          recusal, and the decision by a judge against whom a plea of
          prejudice is made will not be disturbed except for an abuse of
          discretion.

Commonwealth v. Thomas, 44 A.3d 12, 24 (Pa. 2012) (citation and

quotation marks omitted).

          After review of the record, we conclude that it does not reveal

impartiality on the part of the PCRA court judge, and that Appellant has not

met his burden of “establishing bias, prejudice or unfairness necessitating

recusal[.]” Id. In fact, a review of the Grazier hearing transcript indicates

that the judge went out of his way to help Appellant with shipping costs for

legal materials, stating “I will do the best I can for you.”       (N.T. Hearing,

7/11/13, at 11).       Therefore, Appellant’s final issue on appeal lacks merit.

Accordingly, we affirm the order of the PCRA court.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




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