J-S69006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SAMUEL REYES,

                         Appellant                   No. 323 MDA 2018


          Appeal from the PCRA Order Entered November 28, 2017
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003159-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 22, 2019

      Appellant, Samuel Reyes, appeals from the post-conviction court’s

November 28, 2017 order denying his timely petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.        Appellant solely

contends that the PCRA judge should have recused herself from presiding over

the evidentiary hearing held in this case. After careful review, we affirm.

      Briefly, Appellant was charged with possession of a firearm by a person

prohibited, 18 Pa.C.S. § 6105(a)(1). At his jury trial - during which Appellant

represented himself - the Commonwealth presented evidence that Appellant

fled from a uniformed police officer, who testified at trial that, during the

chase, he saw a black semiautomatic pistol in Appellant’s right hand. The

officer ultimately apprehended Appellant and recovered the firearm on the

ground within close proximity to Appellant. In Appellant’s defense, he called
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to the stand an expert witness, Francis Collini, M.D., who testified that he

conducted surgery on Appellant’s right hand two days before Appellant was

arrested, in order to repair a lacerated tendon in Appellant’s thumb. See N.T.

Trial, 8/4/14, at 266-67. Dr. Collini testified that in November of 2013, he

sent Appellant a letter stating that, in his opinion, the condition of Appellant’s

hand would have “prevent[ed] him from holding weight or grasping with his

right hand,” and that the doctor would be “willing to prepare a narrative report

explaining those findings.” Id. at 271. A report was subsequently drafted by

Dr. Collini stating that opinion. Then, in July of 2014, Dr. Collini submitted a

supplemental report, about which Appellant questioned the doctor at trial. Id.

at 273. In explaining what the supplemental report said, Dr. Collini testified:

      [Dr. Collini]: It says, I typically apply a large bulky short-arm
      splint after each hand injury that I repair, and I made no exception
      for this rule [in Appellant’s case]. This is a standard dressing that
      I’ve used [for] more than 20 years in my hand patients. I ask
      them to leave this in place for one week after it is applied. It’s
      kept dry and clean until the follow-up examination is performed.
      If this dressing were in place on [Appellant’s] dominant right hand
      and [he is] alleged to have held the gun in [that] hand, it is my
      opinion, based on a reasonable degree of medical certainty, that
      this would not have been possible or it would have been
      impossible. A gun would simply slip out of a hand that is wrapped
      in my standard bulky hand dressing.

Id.

      At the close of Appellant’s trial, the jury convicted him of the firearm

offense.   On October 14, 2014, he was sentenced to five to ten years’

incarceration. Appellant filed a timely direct appeal, and this Court affirmed




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his judgment of sentence on January 28, 2016. Commonwealth v. Reyes,

136 A.3d 1039 (Pa. Super. 2016) (unpublished memorandum).

       On October 3, 2016, Appellant filed a timely, pro se PCRA petition. The

court appointed counsel, who filed an amended petition on Appellant’s behalf.

In those filings, Appellant contended, inter alia, that the trial court had

improper, ex parte communications with Dr. Collini, which had led Dr. Collini

to draft the supplemental report. According to Appellant, the supplemental

report contradicted the doctor’s original report, to the detriment of Appellant’s

defense.1 Appellant argued that his appellate counsel was ineffective for not

challenging the court’s ex parte communications with the doctor on direct

appeal.

       A bifurcated PCRA hearing was conducted on June 8, 2017, and

September 28, 2017. At the outset of the June 8, 2017 hearing, Appellant

moved for the recusal of the PCRA court judge, who had also presided over

his trial.   As will be discussed infra, Appellant argued that the judge must

recuse because he intended to call her as a witness in support of his appellate-

counsel-ineffectiveness claim. The judge denied Appellant’s motion to recuse,



____________________________________________


1 Apparently, Appellant believed that the doctor’s opinion that the bandages
on Appellant’s hand made it impossible for him to grasp a gun was different
(and not as beneficial for Appellant’s defense) as the doctor’s original opinion
that Appellant’s actual hand injury precluded him from holding a gun. See
N.T. Trial at 274.




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and it subsequently also denied his petition in an order and opinion filed on

November 28, 2017.

       Appellant thereafter filed a timely, pro se notice of appeal.2 The court

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement. While his

counsel filed that statement, it appears it was untimely. Nevertheless, the

court’s opinion issued in conjunction with its order denying Appellant’s petition

is sufficient to address the claim raised by Appellant herein; thus, we need

not remand for the filing of a concise statement nunc pro tunc under Pa.R.A.P.

1925(c)(3). See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.

2009) (holding that, “if there has been an untimely filing, this Court may

decide the appeal on the merits if the trial court had adequate opportunity to

prepare an opinion addressing the issues being raised on appeal”).



____________________________________________


2 Appellant was still counseled when he filed his pro se notice of appeal,
although that attorney subsequently withdrew and his present counsel was
appointed. Upon appointment, present counsel file an amended notice of
appeal that was untimely. For some reason, this Court assigned the appeals
two different docket numbers, and eventually discontinued Appellant’s pro se
appeal altogether, leaving only the present appeal initiated by counsel’s
untimely-filed notice.     However, we will not deem the present appeal
untimely; instead, we will consider counsel’s notice of appeal as an
amendment of Appellant’s timely, pro se appeal. While generally, we will not
entertain pro se filings while an appellant is represented, pro se notices of
appeal have been treated as an exception to this rule. See Commonwealth
v. Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that Wilson “filed a pro
se notice of appeal; it is not clear why his court-appointed counsel did not file
the notice,” and proceeding to review the merits of Wilson’s case without
further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.
Super. 2009) (considering the appeal, despite that Robinson had filed a pro
se notice of appeal while still represented).

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      Appellant presents the following question for our review:

      1. Whether the PCRA [c]ourt erred in denying Appellant’s PCRA
         [petition] because the presiding [j]udge should have recused
         herself, as she is a material witness on the underlying PCRA
         claim, in which Appellant claims that the [j]udge improperly
         contacted then pro-se Appellant’s expert witness in trial. The
         presiding [j]udge should have recused herself as she is the only
         person with knowledge of how this report appeared and the
         context of her interactions[] with Dr. Collini, the pro-se
         Appellant’s expert witness, regarding his expert opinion.

Appellant’s Brief at 6.

       Appellant solely challenges the PCRA judge’s denial of his request for

her to recuse.

            The standards for recusal are well established. It is the
      burden of the party requesting recusal to produce evidence
      establishing bias, prejudice or unfairness which raises a
      substantial doubt as to the jurist’s ability to preside impartially.
      As a general rule, a motion for recusal is initially directed to and
      decided by the jurist whose impartiality is being challenged. In
      considering a recusal request, the jurist must first make a
      conscientious determination of his or her ability to assess the case
      in an impartial manner, free of personal bias or interest in the
      outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence in
      the judiciary. This is a personal and unreviewable decision that
      only the jurist can make. Where a jurist rules that he or she can
      hear and dispose of a case fairly and without prejudice, that
      decision will not be overruled on appeal but for an abuse of
      discretion. In reviewing a denial of a disqualification motion, we
      recognize that our judges are honorable, fair and competent.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (internal

citations omitted).

      Here, Appellant requested, at the PCRA hearing, that the judge recuse

herself because he intended to call her as a witness to question her about ex

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parte communications that Appellant believed the judge had with his expert

witness, Dr. Collini. See N.T. Hearing, 6/8/17, at 4. By way of background,

after Dr. Collini issued his original report opining that Appellant’s hand injury

precluded him from holding a gun in his right hand, Appellant began

representing himself; thus, the trial court (with the agreement of the parties)

“indicated that it would have chambers contact Dr. Collini’s office regarding

potential trial dates and to determine his availability.” PCRA Court Opinion

(PCO), 11/28/17, at 7. Thereafter, Dr. Collini issued the supplemental report,

in which he opined that the post-surgery dressing he applied to Appellant’s

right hand would have made it impossible for Appellant to hold a gun. As

stated supra, Appellant believes that the supplemental report differed from

the doctor’s original report, to the detriment of Appellant’s defense.

        In Appellant’s PCRA petition, he acknowledged that he did not object to

the court’s contacting Dr. Collini for scheduling purposes; however, he claimed

that during that communication, the court must have requested the doctor

issue    the   supplemental   report,   thus   constituting   improper   ex   parte

communications and/or demonstrating a bias on the part of the judge.

Appellant argued that his appellate counsel had acted ineffectively by not

raising this claim on direct appeal, and he insisted that it was necessary for

him to call the judge to the stand at the PCRA hearing in order to prove the

arguable merit of this ineffectiveness claim. As such, Appellant moved for the

judge to recuse from presiding over the PCRA hearing.




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      In response, the Commonwealth stressed that, at trial, Appellant had

not objected to the court’s communicating with Dr. Collini or alleged any bias

or impropriety on the part of the court.     He also had not objected to the

supplemental report; in fact, Appellant himself had called the doctor to the

stand and elicited his testimony about that report. See N.T. Trial at 272-73.

Thus, it was the Commonwealth’s position that Appellant had waived the

issue(s) that he was alleging appellate counsel was ineffective for failing to

raise on direct appeal, thereby defeating his ineffectiveness claim on its face.

See N.T. Hearing at 7-8.     The PCRA court agreed, and denied Appellant’s

recusal request.

      We discern no error in the court’s decision. The only basis on which

Appellant moved for the court’s recusal was that the judge was a necessary

witness for his ineffectiveness claim. He reiterates that argument on appeal.

However, Appellant’s ineffectiveness claim fails outright for the reasons

argued by the Commonwealth. Specifically, Appellant does not point to where

in the record of trial he lodged an objection to the court’s communicating with

Dr. Collini. Moreover, he chose to call the doctor to the stand and question

him about the purportedly damaging supplemental report. Thus, Appellant

waived any challenge to the court’s allegedly improper communication with

Dr. Collini on direct appeal. Because Appellant represented himself at trial,

he cannot claim his own ineffectiveness for this error, and his appellate

counsel cannot be deemed ineffective for not raising a waived issue.       See

Commonwealth v. Fletcher, 986 A.2d 759, 774 (Pa. 2009) (explaining that

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a pro se defendant cannot assert his own ineffectiveness or that of standby

counsel as a basis for relief); Commonwealth v. Spotz, 896 A.2d 1191, 1210

(Pa. 2006) (“Counsel will not be deemed ineffective for failing to raise a

meritless claim.”) (citation omitted).     Because Appellant’s claim that his

appellate counsel acted ineffectively for not presenting this claim on appeal

fails on this basis alone, it was not necessary for the PCRA judge to recuse

herself so that she could testify about the specifics of her communications

with Dr. Collini. Accordingly, the court’s refusal to recuse from presiding over

Appellant’s PCRA hearing was not an abuse of discretion.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/22/2019




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