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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 FEBRUARY 15, 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.       We affirm that portion of the PCRA court’s order denying relief

without a hearing on Thomas’s ineffective assistance of counsel claim

regarding his trial counsel’s closing argument. However, because the PCRA

court did not address the merits of Thomas’s ineffective assistance of

counsel claim with respect to recusal, we remand this matter to the PCRA

court for the preparation of a supplemental opinion pursuant to Pennsylvania

Rule of Appellate Procedure 1925(a).
____________________________________________


        *
            Former Justice specially assigned to the Superior Court.
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     We previously set forth a procedural history of Thomas’s trial,

sentencing, and direct appeal:

              Following a non-jury trial, Thomas was convicted of
        eight counts of Burglary, 18 Pa.C.S.A. § 3502, on
        September 13, 2012. On the same day, the court imposed
        a one to two year jail sentence at each count to run
        consecutive to each other. In the aggregate, Thomas was
        sentenced to no less than eight years but no more than 16
        years’ incarceration followed by a 20-year term of
        probation. Thomas filed timely post-sentence motions,
        challenging the trial and sentencing proceedings. The
        court denied each of Thomas’s post-sentence challenges
        but for granting the motion as to a possible recidivism risk
        reduction incentive (“RRRI”) sentence pursuant to the
        RRRI statute[, 61 Pa.C.S. §§ 4501-4512,] to the extent
        that a new sentencing hearing was scheduled solely to
        determine if Thomas was RRRI eligible. On June 13, 2013,
        the court determined that Thomas was not RRRI eligible.
        Thomas filed [his direct] appeal on July 9, 2013.

Commonwealth       v.   Thomas,    No.   1238    WDA    2013,   unpublished

memorandum at *1-2 (Pa.Super. filed May 30, 2014) (“Mem.”). On May 30,

2014, this Court affirmed Thomas’s judgment of sentence.        On June 30,

2014, Thomas filed a petition for allowance of appeal with the Supreme

Court of Pennsylvania. The Supreme Court denied the petition on December

10, 2014.

     On July 9, 2014, Thomas filed a PCRA petition, claiming ineffective

assistance of counsel and challenging the sufficiency of the evidence.

Thomas also requested that he be appointed counsel for his PCRA claims.

On July 31, 2014, the PCRA court appointed counsel for Thomas.          On




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October 7, 2015,1 the PCRA court held a status conference and, on October

8, 2015, the PCRA court ordered Thomas’s counsel to file an amended PCRA

petition no later than December 1, 2015. On December 1, 2015, Thomas

filed an amended PCRA petition, asserting two claims.        Am. PCRA Pet.,

12/1/15, at 2, 6.        The Commonwealth filed an answer to the amended

petition on January 28, 2016. On February 16, 2016,2 the PCRA court issued

an order giving Thomas notice of its intent to dismiss the amended petition

without a hearing and gave Thomas 30 days to respond to the proposed

dismissal.3     On March 24, 2016, the PCRA court dismissed Thomas’s

amended petition, noting that Thomas did not respond to the court’s notice.

On April 20, 2016, Thomas filed his notice of appeal.

       Thomas raises two issues on appeal:

       1. DID THE LOWER COURT ABUSE ITS DISCRETION IN
          DISMISSING THE PCRA PETITION WITHOUT A HEARING
          WHERE THE PETITIONER ESTABLISHED THE MERITS OF
          THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR
          FAILING TO REQUEST THAT THE COURT RECUSE ITSELF
____________________________________________


       1
        In its opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a), the trial court noted that Thomas filed his PCRA petition before the
completion of his direct appeal and, as a result, it “waited before taking
action.” Opinion, 6/20/16, at 2 (“1925(a) Op.”).
       2
       This order has a typewritten date of February 16, 2015, but the Clerk
of Courts filing stamp shows that the order was filed on February 16, 2016.
       3
        In its order, the PCRA court stated that it was giving notice pursuant
to Pennsylvania Rule of Criminal Procedure 720(1). However, Pennsylvania
Rule of Criminal Procedure 907 governs dismissal of a PCRA petition without
hearing.



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        ON THE GROUNDS THAT MR. THOMAS ELECTED TO
        PROCEED NONJURY, AND THE COURT HAD KNOWLEDGE
        OF HIS PRIOR CONVICTIONS, SUCH THAT THE COURT’S
        IMPARTIALITY COULD BE REASONABLY QUESTIONED?

     2. DID THE LOWER COURT ABUSE ITS DISCRETION IN
        DISMISSING THE PCRA PETITION WITHOUT A HEARING
        WHERE THE PETITIONER ESTABLISHED THE MERITS OF
        THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR
        SUGGESTING TO THE COURT THAT MR. THOMAS WAS
        INVOLVED IN A CONSPIRACY TO COMMIT THE
        BURGLARIES IN HER CLOSING ARGUMENT THEREBY
        DENYING MR. THOMAS A FAIR TRIAL?

Thomas’s Br. at 4.

     “Our standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

     Thomas alleges that the PCRA court inappropriately dismissed his two

ineffective assistance of counsel claims without a hearing. PCRA petitioners

are “not automatically entitled to an evidentiary hearing.” Commonwealth

v. Miller, 102 A.2d 988, 992 (Pa.Super. 2014). This Court has stated:

        [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



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            any possible evidence that may support some speculative
            claim of ineffectiveness.

Id. (internal quotations and citations omitted).             We review a PCRA court’s

dismissal of a petition without a hearing for an abuse of discretion.

Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013).

       We will first address Thomas’s second issue, in which he claims that

his trial counsel was ineffective for making inappropriate comments in her

closing statement. Thomas’s Br. at 17. “[T]o be entitled to relief on a claim

of ineffective assistance of counsel, the PCRA petitioner must plead and

prove by a preponderance of the evidence that (1) the underlying claim has

arguable merit; (2) counsel whose effectiveness is at issue did not have a

reasonable basis for his action or inaction; and (3) the PCRA petitioner

suffered     prejudice    as    a   result     of   counsel's   action     or   inaction.”

Commonwealth v. Steele,                961     A.2d   786,    796   (Pa.   2008).     “In

Pennsylvania, counsel is presumed effective, and a defendant bears the

burden of proving otherwise.” Id. “Where it is clear that a petitioner has

failed to meet any of the three, distinct prongs of the Pierce4 test, the claim

may be disposed of on that basis alone, without a determination of whether

the other two prongs have been met.” Id.

       In his brief, Thomas cites a portion of his trial counsel’s closing

statement:


____________________________________________


       4
           Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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        Ms. Weyandt: … In many of these cases there is [sic] no
        eyewitnesses, and nothing to disprove the theory that
        more than one person is possibly going out and
        committing these crimes, whether it be in concert or on an
        individualized basis. What we do know is the person
        actually running the store is never questioned, does not
        provide an alibi.

             What I would suggest is, when the defendant was
        caught with the merchandise, he protected the person who
        he knew actually committed the burglary.

        *             *          *         *          *         *

              It is December 21st. I’ll argue that the majority of us
        would have some sort of cold weather gear on us at any
        time in the month of December in Pittsburgh.              My
        argument with regard to that is, I would suggest, he
        obtained those items from the person who committed the
        burglary. And there is evidence to suggest that he may
        even know who that person is . . .

Thomas’s Br. at 16-17 (citing N.T., 9/10/12-9/13/12, at 201-02 (“N.T.

Trial”)). Based on these portions of the transcript, Thomas argues that his

trial counsel “essentially conceded that Mr. Thomas was complicit and/or

acted as an accomplice in the burglaries” and, as such, “the Commonwealth

was relieved of the burden of proving Mr. Thomas’ guilt beyond a reasonable

doubt, thereby denying Mr. Thomas a fair trial.” Id. at 17. Thomas asserts

that because “[c]ounsel could not have had a basis designed to effectuate

Mr. Thomas’ best interests in presenting an argument that the Court should

find Mr. Thomas culpable for his role in the burglaries[,] . . . [and] ‘it is

inconceivable to suggest that [his counsel’s] statement had no effect on the

[factfinder],’” his trial counsel was ineffective.   Id. at 17-18 (quoting

Commonwealth v. Cooper, 941 A.2d 655, 666 (Pa. 2007)). We disagree.



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     As the Commonwealth notes, Thomas’s citations to the record take his

trial counsel’s comments out of context.   Cmwlth.’s Br. at 25-30 (quoting

N.T. Trial at 193-202).    Upon careful review of trial counsel’s closing

arguments, it is clear that, as the Commonwealth suggests, trial counsel

attempted to distance Thomas from the burglaries by raising doubts in the

Commonwealth’s case.      Indeed, the comments quoted above came only

after the trial court denied counsel’s motion for judgment of acquittal and

made clear it believed the Commonwealth had presented sufficient evidence

to convict Thomas of the crimes in question.   See Mem. at *15-18. As a

result, trial counsel made an effort to distance Thomas from the burglaries

by suggesting alternate inferences from the evidence presented, including an

argument that another individual, the owner of the store in which Thomas

worked, could have committed these crimes. N.T. Trial at 200-02. Not only

does his claim lack merit, but Thomas also fails to show “that, absent

counsel’s conduct, there is a reasonable probability that the result would

have been different,” Commonwealth v. Miner, 44 A.3d 684, 687

(Pa.Super. 2012), as the trial court “based its guilt determination on the

evidence presented [and] . . . . was not influenced by counsel’s argument.”

1925(a) Op. at 2. Because there are no genuine issues of material fact, the

trial court did not abuse its discretion by dismissing this claim without a

hearing.

     In his other issue, Thomas argues that he is entitled to relief or, at a

minimum, a hearing because his trial counsel was ineffective for failing to

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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                  Id. at

13-14. 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.”

Id. at 14. 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.”             Id. at 12.   Thomas also

asserts that he need not “demonstrate that the information actually
____________________________________________


       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

           (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).



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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.”             Id.

(quoting Commonwealth v. Goodman, 311 A.2d 652, 654 (Pa. 1973)). 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.”    Id. at 14.     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.” Id.

       In both its order giving notice of intent to dismiss and its Rule 1925(a)

opinion, the PCRA court did not address the merits of this claim. Rather, it

found that Thomas had previously litigated this claim because on direct

appeal, this Court found a recusal claim waived, and, in the alternate, found

that it lacked merit.6 See Order, 2/16/16, at 1; 1925(a) Op. at 2. On direct
____________________________________________


       6
         Under the PCRA, a petitioner is not entitled to relief under a specific
allegation of error if “[t]hat . . . allegation of error has . . . been previously
litigated.” 42 Pa.C.S. § 9543(a)(3). “[A]n issue has been previously
litigated if . . . the highest appellate court in which the petitioner could have
had review as a matter of right has ruled on the merits of the issue.” 42
Pa.C.S. § 9544(a)(2). The term “issue,” as used in the PCRA, “refers to the
discrete     legal    ground    raised    and    decided   on     direct  review.”
Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005). In Collins, our
(Footnote Continued Next Page)


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appeal, this Court did not address whether the trial judge should have

recused himself based on the motion in limine. Rather, Thomas’s claim on

direct appeal was that the trial judge should have recused himself based on

comments the trial judge made during sentencing.      See Mem. at *12-14.

Accordingly, we have neither a direct appeal opinion addressing the

underlying claim nor a 1925(a) opinion addressing the ineffective assistance

of counsel claim for failure to file a recusal motion based on the motion in

limine ruling. 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.” See Arnold v. Arnold, 847 A.2d, 674, 680 (Pa.Super. 2004)

(quotation omitted). Because 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, we remand this matter and direct the PCRA court to file a Rule

1925(a) opinion containing a discussion of the arguable merit and prejudice




                       _______________________
(Footnote Continued)

Supreme Court held that claims of ineffectiveness whose underlying merits
were decided on direct appeal are not “previously litigated” for the purposes
of the PCRA and should be reviewed on their merits. Id. at 573. Therefore,
the PCRA court erred in finding that Thomas had previously litigated his
ineffective assistance of counsel claim regarding the recusal. See id.



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prongs of Thomas’s recusal ineffectiveness claim no later than thirty days

from the date of this Memorandum.

     Order affirmed as to Thomas’s ineffectiveness claim regarding trial

counsel’s closing arguments.          Case remanded with instructions as to

Thomas’s    ineffectiveness   claim    regarding   recusal.   Panel   jurisdiction

retained.




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