J-S55019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN JAMES FOLEY,
Appellant No. 173 WDA 2015
Appeal from the PCRA Order Entered December 23, 2014
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001170-2007
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 14, 2015
Appellant, Kevin James Foley, appeals from the December 23, 2014
order denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises three claims of
ineffective assistance of counsel (IAC). After careful review, we affirm.
At the conclusion of an eight-day jury trial in March of 2009, Appellant
was convicted of the first-degree murder of Dr. John Yelenic, a dentist living
in Blairsville, Pennsylvania. At the time of the murder, Appellant was a
Pennsylvania State Trooper, and was involved in a romantic relationship with
Dr. Yelenic’s estranged wife.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S55019-15
On June 1, 2009, the trial court sentenced Appellant to life
imprisonment without the possibility of parole. Appellant timely appealed,
and after this Court affirmed his judgment of sentence in a published
opinion, our Supreme Court denied his subsequent petition for allowance of
appeal. See Commonwealth v. Foley, 38 A.3d 882 (Pa. Super. 2012),
appeal denied, 60 A.3d 535 (Pa. 2013).
On December 30, 2013, Appellant filed a timely, pro se PCRA petition.
Counsel was appointed and an amended petition was filed on Appellant’s
behalf raising several IAC claims regarding his trial counsel, Richard
Galloway, Esq. Appellant also filed a motion to recuse the Honorable William
J. Martin, President Judge of the Court of Common Pleas of Indiana County,
from presiding over the post-conviction proceedings.1 On October 29, 2014,
Judge Martin issued an order and opinion denying Appellant’s motion to
recuse. Appellant’s PCRA case proceeded to an evidentiary hearing on
December 2, 2014, at which Appellant and Attorney Galloway testified. On
December 22, 2014, Judge Martin issued an opinion and order denying
Appellant’s PCRA petition. That order was entered on the lower court’s
docket on December 23, 2014.
Appellant filed a timely notice of appeal, and also timely complied with
the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
____________________________________________
1
Judge Martin also presided over Appellant’s trial.
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errors complained of on appeal. Herein, Appellant raises the following three
IAC claims for our review:
I. Whether Judge William J. Martin erred in finding trial counsel
did not provide ineffective assistance of counsel when trial
counsel failed to develop the defense’s theory of the case that
another person was the murderer[?]
II. Whether Judge William J. Martin erred in finding trial counsel
did not provide ineffective assistance of counsel when trial
counsel failed to object to the Prosecution’s closing argument,
specifically when the prosecutor shifted the burden of proof to
[Appellant] despite knowing that such evidence existed and was
not admissible during trial[?]
III. Whether Judge William J. Martin erred in finding trial counsel
did not provide ineffective assistance of counsel when trial
counsel failed to motion for the recusal of Judge William Martin
despite knowing that reason existed to do so[?]
Appellant’s Brief at 2-3.2
We begin by noting that “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
____________________________________________
2
The Commonwealth has not filed a brief in this case, despite this Court’s
granting it two extensions of time within which to do so.
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which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.”
Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
relief, a petitioner must demonstrate that counsel’s performance
was deficient and that the deficiency prejudiced the petitioner. A
petitioner establishes prejudice when he demonstrates “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” … [A] properly pled claim of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
In his first issue, Appellant contends that Attorney Galloway acted
ineffectively by not sufficiently developing the defense that Dr. Yelenic’s
neighbor, Thomas Uss, murdered Dr. Yelenic because the doctor was
purportedly having an affair with Mr. Uss’ wife, Melissa. Appellant maintains
that counsel should have called Mr. Uss to the stand “to inquire into his
knowledge of the alleged affair between Dr. Yelenic and [Mr. Uss’] wife.”
Appellant’s Brief at 12. Appellant also avers that Attorney Galloway was
ineffective for not specifically asking Melissa Uss, on cross-examination,
whether she and Dr. Yelenic had an affair.
Appellant further claims that had Attorney Galloway elicited testimony
from Thomas and/or Melissa Uss to prove that Mr. Uss knew of the affair,
then other evidence of the affair would have become admissible, namely the
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testimony of Bette Morris, a third neighbor of Dr. Yelenic. 3 In ruling on
Appellant’s direct appeal, this Court explained the proposed testimony of Ms.
Morris, and the trial court’s ruling thereon, as follows:
During the criminal investigation of this case, Bette Morris said
to a law enforcement officer that on two occasions she had
observed Dr. Yelenic engaged in intimate acts with his next door
neighbor, Melissa Uss. According to [Appellant’s] counsel, if
placed on the stand, Bette Morris would deny that she had ever
made such observations, and then counsel would treat her as a
hostile witness and impeach her with the statement she gave
police. See N.T., March 17, 2009, at 135. When the
Commonwealth objected that this evidence was irrelevant,
[Appellant’s] counsel explained that it was intended to show that
Melissa Uss's husband had a motive to kill Dr. Yelenic: “[A] jury
could infer that somebody who was having a romantic affair with
Dr. Yelenic, the husband might be inclined to do something and
that is a fair inference from that.” Id., at 137. However, when
the trial court asked whether the defense had any evidence that
Melissa Uss's husband knew of the supposed intimate acts,
defense counsel conceded that he had no such evidence. See id.
According to the defense, Bette Morris's observations were made
when Mr. Uss was in the military and not at home. See id., at
135.
The trial court excluded the testimony of Bette Morris on the
grounds that it was “a mere suggestion of motive and therefore
irrelevant and inadmissible.” Opinion and Order of Court,
November 4, 2009, at 10.
Foley, 38 A.3d at 886.4
____________________________________________
3
While Appellant refers to this individual as “Betty Morris,” we will refer to
her as Bette Morris, which is consistent with the notes of testimony. See
N.T. Trial, 3/17/09, at 134, 141.
4
On direct appeal, this Court upheld the trial court’s exclusion of Ms. Morris’
testimony, reasoning that “[t]he trial court acted within its discretion in
rejecting the testimony as irrelevant because [Thomas Uss] had no
knowledge of the intimate contact.” Foley, 38 A.3d at 887.
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Appellant now asserts that he was prejudiced by Attorney Galloway’s
failure to elicit testimony from Thomas and/or Melissa Uss to prove that Mr.
Uss knew about the affair, which would have then made Ms. Morris’
testimony admissible. Because counsel did not follow this course, Appellant
maintains that “the jury was not presented [with] a full picture of the
defense’s theory of the case[, and,] without such a picture, [Appellant] was
convicted of first[-]degree murder.” Appellant’s Brief at 13.
After carefully reviewing the record, we conclude that Attorney
Galloway had a reasonable basis for not calling Mr. Uss to the stand, and for
not questioning Melissa Uss about the purported affair. At the PCRA hearing,
Attorney Galloway testified that Mr. Uss “was clearly [a] hostile” witness,
and counsel decided not to call him to the stand because “it was unlikely
that he would … say that he killed [Dr.] Yelenic.” N.T. PCRA Hearing,
12/2/14, at 40. Counsel continued, “We thought he would deny everything
that we wanted to prove.” Id. Counsel offered a similar rationale for not
questioning Melissa Uss about her alleged affair, stating that he was “sure
she would have said that she did not have an affair….” Id. at 39. Counsel
elaborated that he “did not want to ask a clearly hostile witness a question
which would give her an easy way to say that she wasn’t having an affair
even if she was.” Id.
Attorney Galloway also explained that, because the defense had no
admissible evidence that Melissa Uss was having an affair with Dr. Yelenic,
or that Thomas Uss knew about that infidelity, the defense’s strategy was to
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infer these facts to the jury, in the hope of raising a reasonable doubt about
Appellant’s guilt. See id. at 37-38. Counsel testified that he made “a
judgment call” at the time of trial that “raising [the] inference [of an affair]
was better than having Mr. Uss or Mrs. Uss get on the stand and deny it.”
Id. at 43.
In his brief to this Court, Appellant does not discuss Attorney
Galloway’s testimony at the PCRA hearing or challenge the reasonableness
of counsel’s strategy. Nevertheless, we conclude that it was sound.
Attorney Galloway rationally feared that Melissa Uss would explicitly deny
having an affair with Dr. Yelenic, and/or that Thomas Uss would deny
knowing about that alleged affair. Attorney Galloway reasonably concluded
that such explicit denials would hamper the defense’s attempt to infer that
Thomas Uss killed Dr. Yelenic after discovering his wife’s affair.
Consequently, Appellant has failed to convince us that Attorney Galloway
acted ineffectively in this regard.
In Appellant’s next IAC claim, he contends that Attorney Galloway was
ineffective for not objecting to the following portion of the Commonwealth’s
closing argument:
[The defense] suggested that because Melissa Uss and John
Yelenic were neighbors and sometimes talked, appeared to be
friendly and occasionally talked on the porch together that that
must have meant something. It must have been more than just
that. Where is the evidence of that? I mean, let’s be fair here.
It is their accusation. They had Melissa Uss on the stand and
they never asked her that. How fair is that? How decent is
that? That didn’t stop them from suggesting it to you. Why at
least not ask her that[,] but on the basis of some conversation
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on a porch they are going to suggest to you that it made Thomas
Uss commit a crime and there is no evidence of that to you
whatsoever[.”]
PCRA Court Opinion and Order (PCOO), 12/23/14, at 5 (quoting N.T. Trial,
3/18/09, at 194-195).
Appellant contends that Attorney Galloway should have objected to
this portion of the Commonwealth’s closing argument for two reasons. First,
Appellant asserts that the Commonwealth’s closing remarks “suggest[ed] to
the jury that [Appellant] should have put forth additional evidence,” thereby
improperly shifting the burden of proof to Appellant. Appellant’s Brief at 15.
Second, Appellant avers that the Commonwealth’s statements
“impermissibly suggested to the jury that there was no other evidence of the
affair[,]” despite that the Commonwealth knew about the inadmissible
testimony of Bette Morris. Id. at 14. For these reasons, Appellant
maintains that the Commonwealth’s comments constituted “reversible error”
and, as such, he was prejudiced by counsel’s failure to object.
We disagree, as we conclude that Appellant has failed to prove the
prejudice prong of the IAC test.
To demonstrate prejudice, the petitioner must show that “there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.”
Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 613
(2012) (quotation, quotation marks, and citation omitted). “‘[A]
reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.’”
Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014). The Spotz Court
also emphasized that “[a] defendant [raising a claim of ineffective assistance
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of counsel] is required to show actual prejudice; that is, that counsel's
ineffectiveness was of such magnitude that it ‘could have reasonably had an
adverse effect on the outcome of the proceedings.’” Id. at 315 (quoting
Commonwealth v. Pierce, 527 A.2d 973, 977 (Pa. 1987)) (emphasis
added).
Here, in regard to the prejudice prong of the IAC test, Appellant simply
stated that because the Commonwealth’s closing amounts to “reversible
error, [Appellant] was prejudiced.” Appellant’s Brief at 15. Appellant offers
no discussion of how the Commonwealth’s closing remarks could have
reasonably impacted the jury’s verdict, or why the results of the trial would
have been different but for those statements. Consequently, Appellant has
failed to prove that he suffered actual prejudice, especially in light of the
strength of the Commonwealth’s evidence supporting the jury’s finding of
guilt. This Court summarized that evidence in our opinion on direct appeal,
as follows:
At the time of the murder, [Appellant] was living with Dr.
Yelenic's estranged wife. [Appellant] had expressed his hatred of
Dr. Yelenic to numerous individuals—[Appellant] had said that he
wished Dr. Yelenic would die, and on one occasion [Appellant]
asked a fellow police officer to help him kill Dr. Yelenic. On three
occasions, [Appellant] attempted to have Dr. Yelenic
investigated and arrested for child abuse, and [Appellant] was
frustrated by his lack of success.
[Appellant] had an opportunity to commit the crime. At the
approximate time of the murder, he was driving from a hockey
game in Delmont to his home in Indiana, which took him past
Blairsville, where Dr. Yelenic resided.
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[Appellant’s] DNA profile was consistent with DNA found
under Dr. Yelenic's fingernail, and the most conservative
estimate of the likelihood that someone else would possess a
consistent profile was one in 13,000. On the night before the
murder, [Appellant] had no abrasion on his forehead, but on the
morning following the murder he had an injury on his forehead
described by three eyewitnesses as “a fingernail scratch” and by
others as a cut that appeared to be “fresh.”
***
Dr. Yelenic was slashed by a sharp instrument, and [Appellant]
was known by his colleague to be a “knife guy” who habitually
flicked open and shut a knife that he carried with him. In fact,
[Appellant] once accidentally sliced open a supervisor's pair of
pants in the groin area when he was walking past him. When
informed of Dr. Yelenic's death shortly after the discovery of the
murder, [Appellant] was unemotional, expressed no curiosity
about the nature or cause of death, and only asked which law
enforcement agency was in charge of the investigation. After the
murder, [Appellant] stopped playing with his knife….
Foley, 38 A.3d at 891-92 (2012) (footnote omitted).
We also discussed shoeprint evidence that was introduced by the
Commonwealth at Appellant’s trial, stating:
At trial, the Commonwealth introduced expert testimony
from an FBI forensic examiner that the shoeprints at the crime
scene apparently were left by an Asics brand running shoe with
the model name “Gel Creed” or “Gel Creed Plus.” The FBI
forensic examiner noted that he could not state his opinion with
one hundred percent certainty because the FBI database does
not contain reference information for every shoe manufactured
in the world.
The Commonwealth also introduced testimony from Terry
Schalow, a product manager for Asics America Corporation. He
testified that the shoeprint was left by an Asics Gel Creed, Gel
Creed Plus, or a knockoff of this type of shoe. The size was
between ten and twelve and a half. Only about 25,000 Gel
Creed shoes were sold in the United States. Importantly,
[Appellant] ordered a size ten Gel Creed from Asics in August
2003.
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Id. at 890 (citations to the record omitted). This Court also noted in Foley
that after the murder, Appellant “said that he did not remember what
happened to the size 10 pair of Gel Creed shoes he ordered in 2003[,]” id.
at 892, and he “started wearing Nike brand shoes instead of Asics.” Id. at
892.
Considering the totality of this evidence, and Appellant’s failure to
present any argument regarding how the at-issue remarks by the
Commonwealth impacted the jury’s verdict, we conclude that Appellant has
not demonstrated that he suffered ‘actual prejudice’ due to Attorney
Galloway’s failure to object to the Commonwealth’s closing argument.
Accordingly, the PCRA court did not err in denying his second assertion of
counsel’s ineffectiveness.
In his third and final IAC claim, Appellant contends that Attorney
Galloway acted ineffectively by not filing a motion seeking the recusal of
Judge Martin from presiding over Appellant’s trial. We begin our assessment
of this claim by noting the standard for recusal, set forth by our Supreme
Court as follows:
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.... 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
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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 overturned on
appeal but for an abuse of discretion.
Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (quoting
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations
omitted)).
Here, Appellant claims that trial counsel should have moved for the
recusal of Judge Martin because the judge had an “appearance of bias”
based on the following facts:
[Appellant] was employed as a Pennsylvania State Trooper
stationed out of the Indiana [County] Barracks prior to and
during his trial. Prior to his prosecution and trial, [Appellant]
had testified in the Judge’s courtroom and had attended several
of the same social functions as Judge Martin. In addition, during
the discovery phase of his defense, a notation was discovered in
[Appellant’s] personnel file that indicated a disagreement over
the handling of some of [Appellant’s] cases which were in front
of Judge Martin.
Appellant’s Brief at 15.
Appellant also avers that Attorney Galloway erred by not moving for
Judge Martin’s recusal where counsel was aware of an incident in which
Appellant left Judge Martin’s courtroom before being dismissed, which
allegedly angered Judge Martin. At the PCRA hearing, Appellant testified
that after this incident, he was “reprimanded by his supervisor[,]” who told
Appellant that Judge Martin was unhappy with him “and [the judge] wanted
to issue a bench warrant for [Appellant’s] arrest and see what happened.”
Appellant’s Brief at 17 (quoting N.T. PCRA Hearing at 10). Appellant also
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points out that Attorney Galloway testified at the PCRA hearing that he
heard from other attorneys in Indiana County “that Judge Martin didn’t like
[Appellant] or that [Appellant] had really ticked him off….” N.T. PCRA
Hearing at 43. Based on these facts, Appellant claims that Judge Martin had
an appearance of bias against Appellant and, therefore, Attorney Galloway
should have moved for the judge’s recusal.
The PCRA court, i.e. Judge Martin, concluded that this claim lacked
arguable merit. We agree. As noted supra, prior to Judge Martin’s presiding
over the PCRA hearing, Appellant’s PCRA counsel filed a motion to recuse,
asserting the same grounds for Judge Martin’s recusal as Appellant claims
Attorney Galloway should have raised prior to trial. Judge Martin denied that
motion and, in an accompanying opinion (hereinafter referred to as “recusal
opinion”), Judge Martin set forth the following reasons for doing so:
The [c]ourt finds no merit to [Appellant’s] claim that simply
because [Appellant] had appeared in front of the [c]ourt as a
witness, or that [Appellant] and the [c]ourt were present at the
same social functions, that recusal as to the Motion for Post-
Conviction Collateral Relief is required.
***
A judge is not disqualified from hearing cases merely because he
presided over prior cases involving a defendant.
Commonwealth v. Bryant, … 476 A.2d 422 ([Pa. Super.]
1984). The [c]ourt finds that this holding is equally applicable to
a witness who has previously appeared before the [c]ourt. The
[c]ourt therefore finds that the Motion for Recusal for this reason
is denied.
As to [Appellant’s] claim that the [c]ourt should recuse because
the [c]ourt and [Appellant] were present in the same place at
the same time outside the [c]ourthouse setting is totally without
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merit. To so hold would require judges to refrain from attending
any function or interacting with society because a potential
defendant may be present. The [c]ourt will not recuse based
upon this claim.
[Appellant’s] final claim is that because of the notation
[regarding Appellant’s leaving the judge’s courtroom without
permission] in [Appellant’s] personnel file, the [c]ourt should
recuse.
***
While the [c]ourt was unhappy that [Appellant] left in violation
of his subpoena before his case was heard, … [a] court[’s]
expression of impatience, dissatisfaction, annoyance or even
anger are not sufficient grounds for recusal if the [c]ourt feels
that it can continue and be impartial, fair and unbiased.
[Liteky] v. U.S., 510 U.S. 540, [555-556] … (1994);
Commonwealth v. Kearney, [92 A.3d 51, 61 (Pa. Super.
2014)]. The [c]ourt can continue in this matter in an impartial,
fair and unbiased manner.
Recusal Opinion, 10/29/14, at 2-4 (one citation omitted).
Judge Martin’s discussion in the recusal opinion convinces us that
Appellant’s underlying claim that the judge’s recusal was warranted lacks
arguable merit. The cases cited by Judge Martin support the legal
conclusions he reaches. Appellant does not present any legal authority to
support his contrary arguments.
Additionally, the record also demonstrates that Attorney Galloway had
a reasonable basis for not filing a motion to recuse. In regard to this prong
of the IAC test, Appellant states only that, “[g]iven the above [legal]
standard [for recusal], and the severity of the matter at hand, trial counsel
should have asked for the recusal of Judge Martin and lacked any reasonable
basis for not bringing the matter to the Court’s attention.” Appellant’s Brief
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at 17. However, at the PCRA hearing, Attorney Galloway testified that the
rumors about Judge Martin’s not liking Appellant were “always vague.” N.T.
PCRA Hearing at 43. Counsel elaborated:
It was never Judge Martin said to me I don’t like, it was never a
lawyer came up to me and said Mr. Galloway, Judge Martin said
to me I don’t like [Appellant] or I want to do anything and et
cetera. It was always they had heard or statements like
everybody knows that Judge Martin doesn’t like [Appellant].
Well, that is all short of useable evidence.
Id. Attorney Galloway did indicate that, in support of a motion to recuse, he
could have presented Appellant’s testimony regarding the incident where
Appellant left Judge Martin’s courtroom without permission, which allegedly
angered the judge. Id. at 44. However, counsel testified that he “didn’t
think that was by itself grounds for a recusal motion.” Id.
Attorney Galloway’s testimony demonstrates that he had a reasonable
basis for not filing a recusal motion. Counsel testified that the only
admissible evidence in support of such a motion would have been Appellant’s
testimony about the courtroom incident that purportedly angered Judge
Martin. Appellant does not offer any discussion of other evidence that could
have been admitted, or why Attorney Galloway was incorrect that
Appellant’s testimony, alone, would have been enough to warrant Judge
Martin’s granting a recusal motion. Thus, Appellant has failed to prove that
Attorney Galloway’s reason for not filing a recusal motion was unreasonable.
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Because each of Appellant’s three IAC claims fails, we conclude that
the PCRA court did not err in denying Appellant’s petition for post-conviction
relief.
Order affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Strassburger files a concurring memorandum in which President
Judge Emeritus Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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Com. v. Foley, K.
Combined Opinion