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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORNELL PRINCE
Appellant No. 2759 EDA 2014
Appeal from the PCRA Order September 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001174-2009,
CP-51-CR-0001183-2009
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2016
Cornell Prince appeals from the order of the Court of Common Pleas of
Philadelphia County that dismissed, without a hearing, his petition filed
pursuant to the Post Conviction Relief Act.1 After careful review, we affirm.
This Court previously set forth the factual and procedural history of
this case as follows:
At approximately 2:30 p.m. on October 15, 2008, Nora B. and
her two-year-old granddaughter were struck by stray gunfire
after shots were fired at a white Ford Victoria. Nora B. suffered
a gunshot wound to her ankle and her granddaughter was shot
in the thigh. Around 8:30 p.m., Detective Glen MacClain
received an anonymous telephone call reporting that [Prince]
and his stepbrother, Hakim S., were involved in the shooting and
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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that [Prince] was the shooter. Armed with only this information,
four plain-clothes police officers arrived at the suspect’s home at
approximately 2:00 a.m. The officers, who did not have an
arrest warrant, placed Hakim S. and [Prince] into two separate
police cruisers and transported them to the police station. Police
handcuffed [Prince] but not Hakim S.
Prior to the police interviewing [Prince], Hakim S. informed
police that [Prince] fired the shots that wounded the victims
herein. [Prince] remained in custody for approximately twelve
hours, at which point the police provided Miranda warnings and
[Prince] gave a written confession. Police also supplied Nora B.
with a photographic array, including a picture of [Prince], but
she was unable to identify [Prince]. At the time of the
preliminary hearing, upon seeing [Prince] enter the courtroom in
handcuffs, Nora B., who was unaware that [Prince] would be
present, exclaimed that [Prince] was the perpetrator.
[Prince] filed a motion to suppress, asserting that the police
obtained his statement unlawfully as the result of an illegal
arrest. The suppression court agreed that [Prince’s] arrest was
unlawful but declined to suppress his statement to police.
Although not specifically raised in the motion to suppress, the
parties litigated the pre-trial identification at the suppression
hearing.
Immediately thereafter, [Prince] proceeded to a non-jury trial
and the court found him guilty of [two counts of aggravated
assault, possession of an instrument of crime (PIC), simple
assault, recklessly endangering another person (REAP) and
various violations of the Uniform Firearms Act (VUFA).] The trial
court sentenced [Prince] to nine to eighteen years’ incarceration
on one count of aggravated assault and to consecutive sentences
of five to ten years and three and one-half to seven years for the
two VUFA violations. Additionally, the court sentenced [Prince]
to a consecutive term of imprisonment of one and one-half to
three years for his PIC conviction.
Commonwealth v. Prince, 585 & 586 EDA 2010, unpublished
memorandum at 2-3 (Pa. Super. filed May 16, 2011).
Prince filed a timely PCRA petition on August 15, 2012, in which newly
obtained counsel, Nino V. Tinari, Esquire, alleged trial counsel’s
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ineffectiveness for failing to seek the recusal of the trial judge after he
denied the motion to suppress. On July 25, 2014, the court sent Prince a
notice pursuant to Pa.R.Crim.P. 907, informing him of its intent to dismiss
the petition without a hearing. On September 10, 2014, the court dismissed
Prince’s PCRA petition.
Prince filed a counseled notice of appeal on September 11, 2014, and
shortly thereafter, the court ordered him to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). In an opinion filed
on December 19, 2014, the court stated that all issues on appeal were
waived because counsel did not file a Rule 1925(b) statement.
On May 18, 2015, this Court granted Attorney Tinari’s motion to
withdraw and directed the trial court to appoint new counsel if Prince met
the eligibility requirements. On August 13, 2015, the court appointed John
Cotter, Esquire, to represent Prince. By order dated September 22, 2015,
this Court vacated the existing briefing schedule and remanded the matter
for the filing of a Rule 1925(b) statement.
Prince filed a Rule 1925(b) statement on September 30, 2013 and on
October 13, 2015, the court filed its Rule 1925(a) opinion.
On appeal to this Court, Prince raises the following issues for our
review:
1. Did the trial court err in denying [Prince] an evidentiary
hearing because the defense asserted in its PCRA petition that
defense counsel was ineffective at trial for not requesting that
the trial court recuse itself after the court heard and denied
the motion to suppress both the defendant’s statement and
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an unduly suggestive police identification procedure of the
complainant?
2. Did the trial court err in not sending a notice of intent to
dismiss [Prince’s] PCRA petition on both cases on which
[Prince] had filed his PCRA petition?
Appellant’s Brief, at 2.
“Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(citations omitted).
To be eligible for relief under the PCRA, Prince must prove by a
preponderance of the evidence that his conviction resulted from “ineffective
assistance of counsel 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the
defendant must show that the underlying claim had arguable merit, counsel
had no reasonable basis for his or her action, and counsel’s action resulted
in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,
1089 (Pa. Super. 1998).
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Prince argues that the trial court erred by denying his request for an
evidentiary hearing to establish that counsel was ineffective for failing to
request that the trial judge recuse himself after he denied Prince’s motion to
suppress.2
However, as this Court has noted:
A party seeking recusal of the trial judge bears the burden of
establishing the grounds for the recusal. Commonwealth v.
Gibson, 567 A.2d 724, 727 (Pa. Super. 1989). “Even the fact
that the trial judge may have been made aware of improper
evidence does not require recusal; . . . a trial judge is presumed
to be capable of disregarding improper evidence. . . .” Id. . . .
Recusal is required only when the evidence brought to the
attention of the trial court is both inadmissible and highly
prejudicial.
Commonwealth v. Lott, 581 A.2d 612, 616 (Pa. Super. 1990) (emphasis
in original).
With respect to a claim similar to the one Prince raises in his PCRA
petition, this Court has stated:
[W]hile it may be the better practice to have a different judge
preside over trial than presided over pre-trial proceedings, such
a practice is not constitutionally required and has not been made
the basis for setting aside a verdict reached in an otherwise
proper trial. Commonwealth v. Baxter, 422 A.2d 1388 (Pa.
1980). Commonwealth v. Williams, 410 A.2d 835 (Pa. Super.
1979). This principle appears to be based on “the prevailing
view that judicial fact-finders are capable of disregarding most
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2
Pa.R.Crim.P. 907(1) provides, in relevant part, that after reviewing a PCRA
petition, the Commonwealth’s answer and any other matters of record, a
court may dismiss the petition without further proceedings if it determines
such proceedings would serve no purpose.
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prejudicial evidence.” Commonwealth v. Council, 421 A.2d.
623[,] 625 [(Pa. 1980)].”
Commonwealth v. Lewis, 460 A.2d 1149, 1152 (Pa. Super. 1983).
Lewis held that absent a showing of prejudice, counsel was not
ineffective for failing to seek recusal of the judge who presided over the
suppression hearing. “To demonstrate prejudice, the petitioner 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
of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)
(quotations and citations omitted).
Prince’s petition and letter brief in support thereof do not discuss how
the results of the proceeding would have been different but for counsel’s
decision not to seek recusal.
With respect to the facts of the instant matter, the trial court noted:
Here, [Prince] signed a “Waiver of Jury Trial” form and was
colloquied by the trial court, electing to be tried before Judge
O’Grady. He was aware that counsel was going to argue
motions to suppress before trial, the motions to suppress were
denied, and [Prince’s] statement and the in-court identification
by the victim were ruled admissible at trial. Because there was
no suppression, there was no evidence admitted before Judge
O’Grady during the motion that would not have been admitted
before another judge hearing the case in the event of recusal.
Based on all of the facts set out above, it is clear that [Prince]
did not wish that Judge O’Grady be recused, and [Prince] cannot
prove that he was prejudiced by trial counsel’s decision to
proceed to a waiver trial rather than request recusal.
Trial Court Supplemental Opinion, 10/13/15, at 6.
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Because the evidence was admissible, recusal was not required. Lott,
supra.
As to whether Prince was prejudiced, his petition neither pleads nor
offers to prove that counsel lacked a reasonable basis for not seeking
recusal. He simply asserts that “the failure to litigate issues . . . could not
have been the result of any rational, strategic or tactical decision by
counsel.” PCRA Petition, at 2. This statement does not meet the strict
requirements of the PCRA as developed through case law. “Boilerplate
allegations and bald assertions of no reasonable basis and/or ensuing
prejudice cannot satisfy a petitioner’s burden.” Commonwealth v. Paddy,
15 A.3d 431, 433 (Pa. 2011). Furthermore, Prince failed to attach to his
petition an affidavit from trial counsel addressing the matter at issue. Our
Supreme Court has declined to find ineffectiveness where a petitioner failed
to include an affidavit from prior counsel or explain why he did not provide
one. Commonwealth v. Marshall, 812 A.2d 539, 548 (Pa. 2002),
overruled on other grounds, Commonwealth v. Tharp, 101 A.3d 736 (Pa.
2014).
Accordingly, the PCRA court did not err by dismissing the petition
without a hearing.
With respect to Prince’s next claim, Pa.R.Crim.P. 907(1) provides, in
relevant part, that if a judge intends to dismiss a PCRA petition without a
hearing, “the judge shall give notice to the parties . . . and shall state in the
notice the reasons for the dismissal.” The instant matter bore two docket
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numbers in the trial court: CP-51-0001174-2009 and CP-51-0001183-2009.
However, when the trial court sent its Rule 907 notice to Prince, it did so
only for CP-51-0001183-2009. Because a Rule 907 notice is mandatory,
Prince seeks a remand to allow the court to comply with Rule 907 with
respect to CP-51-0001174-2009. He has not established his entitlement to
relief.
“The purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and correct any
material defects, the ultimate goal being to permit merits review by the
PCRA court of potentially arguable claims.” Commonwealth v. Rykard, 55
A.3d 1177, 1189 (Pa. Super. 2011) (citation omitted). Here, Prince filed one
PCRA petition raising one claim of trial counsel ineffectiveness that applied to
the two shootings that were the subject of the individual docket numbers.
The Rule 907 notice informed Prince that the court intended to dismiss the
sole petition before it and afforded him the opportunity to respond. Because
the purpose behind Rule 907 was met, we decline to remand the case for
entry of a separate Rule 907 notice.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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