J-S01043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                  Appellee              :
                                        :
            v.                          :
                                        :
KENNETH ANDREW KOVALESKI                :
                                        :
                  Appellant             :         No. 721 MDA 2017

               Appeal from the Order Entered March 23, 2017
            In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0002000-2012


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED APRIL 27, 2018

     Appellant, Kenneth Andrew Kovaleski, appeals from the order entered

in the Lackawanna County Court of Common Pleas, which granted in part

and denied in part his first petition brought pursuant to the Post-Conviction

Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. We affirm in part, quash

in part, and deny the Commonwealth’s motion to quash the appeal as

untimely.

     The relevant facts and procedural history of this case are as follows.

In June 2011, Appellant raped Victim, his adopted minor daughter.

Appellant continued to abuse Victim over the course of a year until she

reported the abuse to police in July 2012.    On February 26, 2014, a jury

convicted Appellant of rape by forcible compulsion, statutory sexual assault,

incest, involuntary deviate sexual intercourse (“IDSI”) with a person less
J-S01043-18


than sixteen (16) years of age, IDSI by forcible compulsion, unlawful contact

with a minor, aggravated indecent assault on a person less than sixteen (16)

years of age, endangering the welfare of children, corruption of minors, and

indecent assault.1      The court sentenced Appellant on July 2, 2014, to an

aggregate term of twenty-one (21) to forty-two (42) years’ imprisonment;

this sentence included mandatory minimums under 42 Pa.C.S.A. § 9718.

The court also adjudicated Appellant a Tier III offender and a sexually

violent predator (“SVP”) under the Sex Offender Registration and Notification

Act (“SORNA”) in effect at that time.2 On April 30, 2015, this Court affirmed

the judgment of sentence. Our Supreme Court denied Appellant’s petition

for an allowance of appeal on November 10, 2015.

       On October 13, 2016, Appellant timely filed a PCRA petition. Appellant

filed a motion for recusal of the trial judge from presiding over the PCRA

proceedings on October 18, 2016, because the judge and the prosecutor

were Facebook friends.         On November 16, 2016, the PCRA court held a

hearing on the recusal motion and denied relief. On February 13, 2017, the
____________________________________________


1 18 Pa.C.S.A. §§ 3121(a)(1), 3122.1(a)(1), 4302(a), 3123(a)(7),
3123(a)(1), 6318(a)(1), 3125(a)(8), 4304(a)(1), 6301(a)(1)(i), and
3126(a)(1), respectively.

2  SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on
December 20, 2012, after the commission of Appellant’s sex offenses, which
occurred from June 2011 to July 2012. SORNA replaced Megan’s Law as the
statute governing the registration and supervision of sex offenders. SORNA
was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 10 of 2018.



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PCRA court held an evidentiary hearing; the court initially denied PCRA relief

on March 8, 2017.        Appellant timely filed a motion for reconsideration on

March 20, 2017.        On March 23, 2017, the PCRA court expressly granted

relief in part, regarding the imposition of the mandatory minimum

sentences, and again denied PCRA relief in all other respects.

       On April 10, 2017, the court resentenced Appellant to an aggregate

term of twenty (20) to forty (40) years’ imprisonment, without the

mandatory minimum sentences.              After sentencing, Appellant objected to

both IDSI sentences on the record; and the court accepted the oral motion

for reconsideration in lieu of a written motion.        Appellant, however, also

timely filed a written post-sentence motion on April 18, 2017, which claimed

the court was vindictive when it resentenced Appellant and the entire

sentence was contrary to the fundamental norms of sentencing. The court

did not rule on Appellant’s post-sentence motion. Nevertheless, on Monday,

April 24, 2017, Appellant filed a notice of appeal. 3 The PCRA court did not

____________________________________________


3  The present appeal lies from the final order of March 23, 2017, which
denied PCRA relief, after expressly granting Appellant’s motion for
reconsideration of the original order denying PCRA relief within the time for
filing an appeal from the original order of March 8, 2017.                See
Commonwealth v. Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc)
(stating time to file appeal from denial of PCRA relief runs from date of that
PCRA order, rather than from date of new judgment of sentence). See also
Commonwealth v. Grove, 170 A.3d 1127 (Pa.Super. 2017) (stating PCRA
court’s grant of relief as to sentencing but denial of relief as to all other
PCRA claims is final, appealable order, even if resentencing has not yet
occurred).



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order and Appellant did not file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).

       Appellant raises the following issues for our review:

          WAS THE APPEAL PROPERLY PERFECTED WHERE THE
          NOTICE OF APPEAL WAS TIMELY RECEIVED BY THE
          PROTHONOTARY BUT NOT DOCKETED UNTIL AFTER THE
          RELEVANT PERIOD HAD EXPIRED?

          WAS THE RE-IMPOSITION OF ESSENTIALLY THE SAME
          SENTENCE AT THE RE-SENTENCING HEARING IMPROPER?

          DID THE PCRA COURT ABUSE ITS DISCRETION BY
          REFUSING TO RECUSE ITSELF FOR THE PCRA HEARING?

          WAS TRIAL COUNSEL INEFFECTIVE FOR NOT SEEKING
          THE TRIAL COURT’S RECUSAL?

          WAS TRIAL COUNSEL INEFFECTIVE FOR NOT SEEKING A
          CHANGE IN VENUE?

          WAS TRIAL COUNSEL INEFFECTIVE WHEN HE DECLINED
          TO INTRODUCE AVAILABLE EVIDENCE THAT WOULD HAVE
          IMPEACHED THE ALLEGED VICTIM’S TESTIMONY?

(Appellant’s Brief at 7).4

____________________________________________


4  For purposes of disposition, we have reordered Appellant’s issues.
Regarding issue one, we reject the Commonwealth’s suggestion that
Appellant’s appeal was untimely filed. Here, the Lackawanna County Clerk
of Courts received the notice of appeal on Monday, April 24, 2017, but for
unknown reasons the clerk did not docket the appeal until Tuesday, April 25,
2017.    Appellant answered the Commonwealth’s motion to quash and
attached to his answer a Federal Express proof of receipt showing (by way of
time-stamp) that the Clerk of Courts had received the notice of appeal at
9:38 a.m. on April 24, 2017. Thus, the record makes clear Appellant’s
notice of appeal was timely filed, but for this breakdown in the operations of
the court. See Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super.
1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996) (stating
(Footnote Continued Next Page)


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      With respect to Appellant’s remaining claims, he argues the trial judge

should have recused herself from hearing the PCRA petition because an

outside observer could have reasonably questioned the integrity of the

process. Specifically, Appellant submits his former employment as a public

defender in the county while the judge was a prosecutor, Appellant’s

appearances in front of the judge in dependency matters, the judge’s

Facebook relationship with the prosecutor in Appellant’s case, and the

judge’s personal knowledge of facts in dispute all called into question the

judge’s partiality.    In this respect, Appellant also complains trial counsel

should have moved for the judge’s recusal at trial because the appearance of

impropriety gave trial counsel a sufficient basis to file a recusal motion.

      Next, Appellant contends trial counsel should have sought a change of

(Footnote Continued) _______________________

extraordinary circumstances, such as fraud or some breakdown in court’s
operation, will extend filing period).      Accordingly, we deny the
Commonwealth’s motion to quash the appeal on this ground.

Regarding issue two, to the extent Appellant challenges the discretionary
aspects of his new sentence, the record demonstrates there remains an
open, timely-filed post-sentence motion. Therefore, we quash the appeal as
it applies to this issue. See Commonwealth v. Borrero, 692 A.2d 158
(Pa.Super. 1997) (stating when appellant files notice of appeal before trial
court has ruled on timely post-sentence motion, proper remedy is to quash
appeal, relinquish jurisdiction, and remand for trial court to consider post-
sentence motion). Additionally, the court should be aware of new law
decided during the pendency of this appeal. See, e.g., Commonwealth v.
Muniz, ___ Pa. ___, 164 A.3d 1189 (2017) and Commonwealth v. Butler,
173 A.3d 1212 (Pa.Super. 2017). Likewise, the court must be cognizant of
which version of Megan’s Law applies to Appellant, based on the dates of his
offenses.



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trial venue because of the prejudicial pretrial publicity surrounding the case.

This publicity included hostile media coverage towards Appellant and

improper comments from the prosecutor.          Appellant asserts this level of

hostility in itself created prejudice and presumptively tainted the verdict.

      Finally, Appellant claims trial counsel failed to present evidence that

would have directly contradicted Victim’s testimony, when counsel agreed to

limit Dr. Seasock’s testimony to a stipulation. Appellant avers Dr. Seasock

conducted both family and private therapy with Victim, and the private

therapy setting would have given Victim the opportunity to report allegations

of sexual abuse in confidence, which she did not report.             Appellant also

contends Dr. Seasock would have testified that he would not report an

allegation of abuse from a minor in family therapy to family members.

Appellant submits Dr. Seasock’s testimony could have undermined Victim’s

credibility because Victim testified that she believed Dr. Seasock would

disclose any allegation of abuse to her adoptive mother.         Based on these

allegations of ineffective assistance of trial counsel, Appellant concludes this

Court should grant him relief, vacate his judgment of sentence, and remand

the matter for a new trial. We disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence     of   record   supports     the     court’s

determination    and   whether    its    decision   is   free   of    legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal


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denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).            We give no such

deference, however, to the court’s legal conclusions.    Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA

court’s credibility determination, it is binding on the appellate court.

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

      When examining a challenge to the PCRA court’s denial of a motion for

recusal, the relevant standard and scope of review are as follows:

         In reviewing the denial of a recusal motion to determine
         whether the judge abused [her] discretion, we recognize
         that our judges are honorable, fair and competent. Based
         on this premise, where a judge has refused to recuse
         [herself], on appeal, we place the burden on the party
         requesting recusal to establish that the judge abused [her]
         discretion.

Commonwealth v. King, 576 Pa. 318, 322, 839 A.2d 237, 239 (2003).

         [A] trial judge should recuse [herself] whenever [she] has
         any doubt as to [her] ability to preside impartially in a
         criminal case or whenever [she] believes [her] impartiality
         can be reasonably questioned. It is presumed that the
         judge has the ability to determine whether [she] will be
         able to rule impartially and without prejudice, and [her]
         assessment is personal, unreviewable, and final. Where a
         jurist rules that [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.

Commonwealth v. Blakeney, 596 Pa. 510, 538, 946 A.2d 645, 662

(2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1317, 173 L.Ed.2d 596 (2009)

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(internal citations omitted).          “Pennsylvania law makes clear that it is

generally preferable for the same judge who presided at trial to preside over

the post-conviction proceedings. [F]amiliarity with the case will likely assist

the proper administration of justice.                   Only where it is        adequately

demonstrated that the interests of justice warrant recusal, should a matter

be assigned to a different judge.” Commonwealth v. Lambert, 765 A.2d

306, 362 (Pa.Super. 2000).

      The        law   presumes      counsel    has    rendered    effective    assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                           Under

the traditional analysis, to prevail on a claim of ineffective assistance of

counsel,     a    petitioner   bears    the    burden    to   prove    his   claims   by   a

preponderance of the evidence.              Commonwealth v. Turetsky, 925 A.2d

876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

The petitioner must demonstrate: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for the asserted action

or inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.   Id.       See also Commonwealth v. Kimball, 555 Pa. 299, 724

A.2d 326 (1999). “A reasonable probability is a probability that is sufficient

to   undermine          confidence     in     the     outcome     of   the     proceeding.”

Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014)

(quoting Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291


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(2010)). “Where it is clear that a petitioner has failed to meet any of the

three, distinct prongs of the…test, the claim may be disposed of on that

basis alone, without a determination of whether the other two prongs have

been met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786,

797 (2008).

     “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

        Once this threshold is met we apply the “reasonable basis”
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [an appellant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The [appellant]
        must show that there is a reasonable probability that, but
        for counsel’s unprofessional errors, the result of the
        proceeding would have been different.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a criminal [appellant] alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

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(2002) (internal citations and quotation marks omitted).

      “A party seeking recusal of the trial judge bears the burden of

establishing the grounds for recusal.”   Commonwealth v. Lott, 581 A.2d

612, 616 (Pa.Super. 1990), appeal denied, 527 Pa. 663, 593 A.2d 839

(1991). “A trial judge is deemed the foremost arbiter of [her] own personal

bias or prejudice and hence [her] competence to preside over a matter.”

Commonwealth v. Mercado, 649 A.2d 946, 960 (Pa.Super. 1994). “[T]he

party seeking the disqualification of a trial judge has the burden of producing

evidence tending to show bias, prejudice or unfairness by the judge.”

Commonwealth v. McQuaid, 417 A.2d 1210, 1215 (Pa.Super. 1980). “[A]

trial judge should avoid not only impropriety but also the appearance of

impropriety.” Commonwealth v. Perry, 468 Pa. 515, 524, 364 A.2d 312,

317 (1976). A trial judge, however, is not required to recuse herself when

an acquaintance is a party or has an interest in the case. Id. “[W]hen a

defendant is tried by a jury, which exercised sole responsibility for

evaluating the testimony and arriving at a verdict, the integrity of the fact-

finding process is insulated from any predispositions held by the trial judge.”

Mercado, supra at 960.

      Regarding a change of venue claim, “the trial court is in the best

position to address the atmosphere of the community and to judge the

necessity of any requested change.”      Commonwealth v. Briggs, 608 Pa.

430, 466, 12 A.3d 291, 313 (2011).           “A change of venue is compelled


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whenever a trial court concludes a fair and impartial jury cannot be selected

from the residents of the county where the crime occurred.” Id. at 466, 12

A.3d at 313.   “[T]he pivotal question in determining whether an impartial

jury may be selected is not whether prospective jurors have knowledge of

the crime being tried, or have even formed an initial opinion based on the

news coverage they have been exposed to, but, rather, whether it is

possible for those jurors to set aside their impressions or preliminary

opinions and render a verdict solely based on the evidence presented to

them at trial.” Id. at 467, 12 A.3d at 314.

     “The   mere   existence   of   pretrial   publicity   does   not   warrant   a

presumption of prejudice.”     Commonwealth v. Birdsong, 611 Pa. 203,

___, 24 A.3d 319, 331 (2011).       In determining whether pretrial publicity

was inherently prejudicial, an appellate court must focus upon:

        [W]hether any juror formed a fixed opinion of the
        defendant’s guilt or innocence as a result of the [pretrial]
        publicity. [Pretrial] publicity will be deemed inherently
        prejudicial   where     the    publicity  is    sensational,
        inflammatory, slanted towards conviction rather than
        factual and objective; revealed that the accused had a
        criminal record; referred to confessions, admissions or
        reenactments of the crime by the accused; or derived from
        reports from the police and prosecuting officers.

        If any of these factors exists, the publicity is deemed to be
        inherently prejudicial, and we must inquire whether the
        publicity has been so extensive, so sustained, and so
        pervasive that the community must be deemed to have
        been saturated with it. Finally, even if there has been
        inherently prejudicial publicity which has saturated the
        community, no change of venue is warranted if the
        passage of time has sufficiently dissipated the prejudicial

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        effects of the publicity.

Id. at ___, 24 A.3d at 331-32.

     A court will consider the direct effects of publicity to determine the

efficacy of the passage of time. Briggs, supra. “Although it is conceivable

that pretrial publicity could be so extremely damaging that a court might

order a change of venue no matter what the prospective jurors said about

their ability to hear the case fairly and without bias, that would be a most

unusual case.” Id. at 468-69, 12 A.3d at 314.

     To establish counsel’s ineffectiveness for failure to call a witness, a

petitioner must demonstrate:

        (1) the witness existed; (2) the witness was available; (3)
        counsel was informed of the existence of the witness or
        counsel should otherwise have known of him; (4) the
        witness was prepared to cooperate and testify for
        Appellant at trial; and (5) the absence of the testimony
        prejudiced Appellant so as to deny him a fair trial. A
        defendant must establish prejudice by demonstrating that
        he was denied a fair trial because of the absence of the
        testimony of the proposed witness.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 580 Pa. 696, 860 A.2d 123 (2004) (quoting Commonwealth v.

Khalil, 806 A.2d 415, 422 (Pa.Super. 2002), appeal denied, 572 Pa. 754,

818 A.2d 503 (2003)) (internal citations omitted).

     Instantly, a jury convicted Appellant on February 26, 2014, of multiple

sex offenses he had committed from June 2011 until July 2012. On July 2,

2014, the court sentenced Appellant to an aggregate term of imprisonment,


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which included mandatory minimum sentences. This Court affirmed and our

Supreme Court denied Appellant’s petition for an allowance of appeal.

      Appellant timely filed a PCRA petition on October 13, 2016.          On

October 18, 2016, Appellant filed a motion for recusal of the trial judge from

presiding over the PCRA proceedings, because the judge and the prosecutor

were Facebook friends.     The PCRA court held a hearing on the recusal

motion and denied it.     The PCRA court held an evidentiary hearing on

February 13, 2017, and initially denied PCRA relief on March 8, 2017.

Appellant timely filed a motion for reconsideration, which the PCRA court

expressly granted in part on March 23, 2017, regarding the imposition of the

mandatory minimum sentences, and again denied PCRA relief in all other

respects.

      The court resentenced Appellant on April 10, 2017, to an aggregate

term of twenty (20) to forty (40) years’ imprisonment, without the

mandatory minimum sentences.        After sentencing, Appellant objected to

both IDSI sentences on the record, and the court accepted the oral motion

for reconsideration in lieu of a written motion. Appellant also timely filed a

written post-sentence motion, which claimed the court was vindictive when it

resentenced Appellant and the entire sentence was contrary to the

fundamental norms of sentencing.      The court has not ruled on the post-

sentence motion. Nevertheless, Appellant filed a notice of appeal.

      Regarding Appellant’s challenge to the PCRA court’s denial of his


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recusal motion, the PCRA court held a hearing on the matter and properly

denied relief. During the hearing, the judge stated her personal knowledge

of Appellant’s public defender position and his appearances before the judge

in a dependency matter did not affect the PCRA judge’s impartiality.     See

Blakeney, supra.     Additionally, the court’s Facebook connection with the

prosecutor, absent more, did not warrant recusal. See id. Upon review, we

conclude the PCRA court properly denied Appellant’s recusal motion and this

argument merits no relief. See King, supra.

      With respect to Appellant’s claim that trial counsel’s failure to file a

motion for recusal constituted ineffective assistance, the PCRA court

analyzed this issue as follows:

         In the instant case, there is an absence of the type of
         interest which would give rise to an appearance of
         impropriety much less to actual impropriety. First, the
         relationship involved here, that of an acquaintance, [did]
         not generate bias or prejudice against [Appellant].
         [Appellant] was a public defender in Lackawanna County
         during the same period of time in which [the judge] was a
         deputy district attorney. During this entire period of time,
         [Appellant] can only point to one (1) case which was
         handled by both parties─a criminal matter which resulted
         in a guilty plea. This is hardly enough to warrant a
         personal relationship, which [Appellant] claims to have had
         with [the judge].

                                  *     *      *

         In his testimony at the PCRA hearing, [trial counsel] stated
         the following on why he chose not to file a motion for
         recusal after hearing all of the evidence offered by
         [Appellant]:

            [PCRA counsel]: And       did   you    have   a   strategy

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            involved in any of this, in any of the reason[s] to not
            ask for a recusal, either in full bench or individual
            judge?

            [Trial counsel]: I─the strategy was I didn’t think
            that there was any evidence to show that [Appellant]
            wouldn’t be able to get a fair trial with this bench,
            either this specific judge or the bench here in
            Lackawanna County.

                                  *     *      *

         Therefore, since the relationships alleged by [Appellant]
         did not warrant recusal by [the PCRA court], we must look
         beyond these allegations to determine if any prejudice
         actually occurred. After a close review of all trial records,
         it is clear that…the judge presided fairly and well and the
         existence of any relationship between the judge and
         [Appellant] and/or trial prosecutor had no effect on the
         performance of the [judge during trial].

(Denial of PCRA Petition Memorandum, filed June 28, 2017, at 9-10)

(internal citations and quotation marks omitted).       We accept the PCRA

court’s analysis and see no reason to disturb it.        See Perry, supra.

Appellant failed to establish any evidence of bias, prejudice, or unfairness by

the judge, and therefore this claim lacks arguable merit.      See Mercado,

supra; Poplawski, supra; Pierce, supra.

      With respect to Appellant’s claim of ineffective assistance for trial

counsel’s failure to seek a change of venue, he PCRA court said:

         [Appellant’s] entire argument rests solely on the
         publication of four news articles. The first appeared on
         WNEP, a local news station, on July 18, 2012. The second
         article appeared in the Scranton Times Tribune on July 19,
         2012. The third article appeared in the Scranton Times
         Tribune on March 17, 2013. And the final article appeared
         [on February 18, 2014,] in an online website called

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         "Addicting Info."    In addition to the above articles,
         [Appellant] has submitted a number of comments which
         are contained in the news articles.

(Denial of PCRA Petition Memorandum, supra at 7).

      Appellant’s trial commenced on February 24, 2014.       Appellant’s brief

focuses entirely on four articles, three of which were published at least

eleven months before trial, and a quote from the prosecutor contained in

two of the articles.   This level of publicity does not constitute inherent

prejudice.   See Birdsong, supra.      The period between the publishing of

three of the articles and the start of Appellant’s trial was sufficient to

dissipate any prejudicial effects.   See Briggs, supra.      The final article,

published on a website called “Addicting Info,” does not warrant a

presumption of prejudice simply because of its proximity to the start of

Appellant’s trial. See Birdsong, supra. Additionally, trial counsel testified

at the PCRA hearing that in his extensive experience as a criminal defense

attorney, he did not think the pretrial publicity was extraordinary, for a

sexual assault case.   Further, Appellant elected to have a jury trial, which

insulated the fact-finding process from any predispositions held by the

judge.   See Mercado, supra.          Therefore, Appellant’s argument lacks

arguable merit and merits no relief on the venue claim. See Pierce, supra.

      Regarding Appellant’s final claim of ineffective assistance of counsel,

the PCRA court analyzed that issue as follows:

         [Appellant] alleges trial counsel was ineffective for failing
         to call Dr. John [Seasock] as a witness for the purposes of

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       impeaching the credibility of [Victim]. At trial, [Victim]
       testified that she attended family therapy at Dr.
       [Seasock]’s office. [Victim] said in her mind everything
       she said in his office was reported back to Jo Anna (her
       adoptive mother and [Appellant’s] wife). Finally, [Victim]
       said she did not believe it was private, even though she
       saw him “privately maybe twice."

       Further, [Victim] testified that she did not disclose the
       sexual assaults to Dr. [Seasock] “because everything I
       said inside of that room was reported right back to
       [Appellant and Appellant’s wife]. It was family therapy.
       That was not a personal therapist.”

       At trial, [Appellant] sought to call Dr. [Seasock] to testify
       as a defense witness. [Appellant] was prepared to ask Dr.
       [Seasock] a series of questions relating to his treatment of
       [Victim]. These questions included: (1) Are you a medical
       doctor[;] (2) Are you a mandated reporter for sexual
       abuse[; and] (3) Is it your practice to give your patients a
       physical and a sexual abuse assessment?                  The
       Commonwealth objected to the third proposed question on
       the grounds of relevance and argued the question would
       have been misleading to the jury. After [trial counsel] and
       [counsel] for the Commonwealth engaged in a lengthy
       argument, [the court] sustained the Commonwealth’s
       objection. [The court] held that [Appellant] could call Dr.
       [Seasock] as a witness but could not ask him the third
       proposed question.       Therefore, based on [the court’s]
       ruling, both parties stipulated to Dr. [Seasock’s]
       testimony.       Specifically, that he is a healthcare
       professional, that he is required to report suspected child
       abuse, that he did not make a report of suspected child
       abuse regarding the victim, and his failure to do so was
       not a violation of his duties as a mandated reporter.

                               *     *      *

       [Victim] testified she did not report the abuse to Dr.
       [Seasock] because she believed he would disclose it to
       [Appellant’s wife]. Whether [Dr. Seasock] would have or
       could have disclosed a report of sexual abuse from
       [Victim] to [Appellant’s wife] is beside the point and would
       not have impeached [Victim’s] testimony. Clearly, the

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         strategy employed by [trial counsel] was effective and in
         no way prejudiced [Appellant].

(Denial of PCRA Petition Memorandum, supra, at 11-13) (internal citations

and some quotations marks omitted). We accept the PCRA court’s analysis

and see no reason to disturb it.         See O’Bidos, supra; Pierce, supra.

Accordingly, we deny the Commonwealth’s motion to quash the appeal as

untimely and affirm the order denying Appellant PCRA relief on the grounds

asserted. Moreover, we quash the appeal regarding Appellant’s challenge to

the discretionary aspects of sentencing, due to the outstanding post-

sentence motion, and remand for the court to consider and rule on the

motion, as set forth in footnote four.

      Order affirmed; appeal quashed in part; case remanded for further

proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/27/18




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