Com. v. Lugo, O.

J-S88030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OSCAR LUGO :
:
Appellant : No. 1247 EDA 2016

Appeal from the PCRA Order March 24, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002037-2004,
CP-15-CR-0003873-2004

BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 01, 2017

Oscar Lugo (“Appellant”) appeals from the order entered March 24,

2016, granting his petition in part pursuant to Commonwealth v. Ruiz,

131 A.3d 54 (Pa. Super. 2015), vacating his sentence, and denying his

request for a new trial pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

The relevant facts and procedural history are as follows. Following a

jury trial, Appellant was found guilty of criminal conspiracy, corrupt

organizations, and dealing in proceeds of unlawful activities, as well as thirty

counts of possession of a controlled substance with intent to deliver (PWID),

and sixty-three counts of delivery of a controlled substance.1 Appellant was
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1
Respectively, 18 Pa.C.S.A. §§ 903, 911, 5111, 35 P.S. § 780-113(a)(30).

* Retired Senior Judge assigned to the Superior Court.
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sentenced to one hundred fifty-two (152) to four hundred forty (440) years

of incarceration on August 30, 2007.

Appellant did not file post-sentence motions. Substitute appellate

counsel was appointed, and Appellant timely appealed. This Court affirmed

Appellant’s judgment of sentence on March 16, 2009. See Commonwealth

v. Lugo, 972 A.2d 556 (Pa. Super. 2009) (unpublished memorandum),

appeal denied, 986 A.2d 149 (Pa. 2009).

On March 16, 2011, Appellant timely filed a counseled PCRA petition,

seeking to reinstate his right to file a post-sentence motion nunc pro tunc.

Following an evidentiary hearing, the PCRA court granted relief. See PCRA

Ct. Order, 7/2/2012. Thereafter, Appellant filed a post-sentence motion,

arguing that the imposition of consecutive sentences for his convictions was

excessive. See Post-Sentence Motion Nunc Pro Tunc, 7/12/2012. The court

denied the motion. See Sentencing Ct. Order, 10/17/2012.

Appellant timely appealed. See Commonwealth v. Lugo, 83 A.3d

1062 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 83

A.3d 414 (Pa. 2014). This Court affirmed on August 9, 2013, “in light of the

ample amount of criminal conduct at issue.” Id. at **7-8 (noting that the

jury found Appellant guilty of ninety-six (96) separate criminal counts and

that the trial court did not impose consecutive sentences on every count).

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Appellant timely filed a petition for collateral relief on March 30, 2015,

PCRA Petition, 3/30/2015,2 asserting eligibility for relief based on after-

discovered evidence. See 42 Pa.C.S. § 9543(a)(2)(vi). In February 2015,

Appellant’s brother Luis Colon (“Mr. Colon”) signed an affidavit admitting to

perjuring his testimony at Appellant’s trial. See PCRA Petition, 3/30/2015,

Exhibit A, Notarized Affidavit of Luis Colon, 2/6/2015, at 2 (“Affidavit”).

Thus, Appellant alleges that his conviction was obtained through perjured

testimony of Mr. Colon, a major witness in Appellant’s prosecution.

The Commonwealth filed a detailed answer in response to Appellant’s

PCRA petition. See Commonwealth’s Answer to PCRA Petition, 4/27/2011.

Based on these submissions, Judge MacElree issued a Pa.R.Crim.P. 907

notice of intent to dismiss without holding an evidentiary hearing (“907

Notice”). PCRA Ct. Order, 12/11/2015. Appellant filed a response opposing

dismissal on December 30, 2015. Thereafter, Judge MacElree scheduled a

PCRA hearing. See Order, 1/21/2016; see also Revised Order, 1/26/2016.
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2
“This Court has explained that when a PCRA petitioner's direct appeal
rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition will be considered a first PCRA petition for timeliness
purposes.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super.
2014) (quoting Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super.
2013), appeal denied, 91 A.3d 162 (Pa. 2014) (citation omitted)). The one-
year filing deadline “does not begin to run until after the expiration of time
to seek further review.” Commonwealth v. Karanicolas, 836 A.2d 940,
945 (Pa. Super. 2003); 42 Pa.C.S. 9545(b); U.S.Sup.Ct.R. 13 (providing an
appellant with ninety days to seek review before the United States Supreme
Court). Appellant’s judgment of sentence became final on April 21, 2014.
Accordingly, Appellant had until April 21, 2015, to file a timely petition.

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Before the evidentiary hearing, Appellant moved for the PCRA court

judge’s recusal. Judge MacElree, who also presided over Appellant’s trial,

denied the motion for recusal. See Order, 3/17/2016.

Following the hearing, the PCRA court granted Appellant relief in part

as to his sentencing claim. See Order, 3/24/2016, at n.1. The court

vacated Appellant’s sentence and his resentencing hearing was continued

pending the outcome of this appeal.3 See Order, 4/28/2016. With regard to

Appellant’s after-discovered evidence claim, the PCRA court found the

recantation testimony of Mr. Colon not credible and denied relief. See

Order, 3/24/2016, at n.1.

Appellant timely appealed and filed a court-ordered 1925(b)

statement. Specifically, Appellant raises the following three issues.

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3
The PCRA court’s decision to resentence Appellant pending the outcome of
this Appeal was proper pursuant to Alleyne v. United States, ___ U.S.
___, 133 S.Ct. 2151, 2158 (2013) (noting that “[f]acts that increase the
mandatory minimum sentence … must be submitted to the jury and found
beyond a reasonable doubt”) and Apprendi v. New Jersey, 530 U.S. 466,
491-492 (2000) (holding the judicial practice of utilizing statutory
enhancement factors to impose a punishment for a crime more severe than
that which was submitted to the jury unconstitutional). In Commonwealth
v. Ruiz, 131 A.3d 54, 58-59 (Pa. Super. 2015), this court held that Alleyne
may be applied retroactively to a timely PCRA petition in cases that were
pending on direct appeal as of June 17, 2013.
Here, Appellant qualifies for the narrow grounds for resentencing
because his appeal challenging discretionary aspects of his sentence was
decided in August 2013 after Alleyne. See also Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (noting that even where
challenge to sentence was based on a different theory, appellant may still be
entitled to the retroactive application of Alleyne).

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I. Whether the PCRA [c]ourt abused its discretion when it
declined to grant the motion for recusal given that a
reasonable person faced with the facts would conclude that
the[re] was at least the appearance of bias on the part of the
judge?

II. Whether the PCRA [c]ourt abused its discretion when it
decided not to grant a new trial after the primary prosecution
witness testified that he committed perjury at the trial and
that the perjury was motivated by threats from the police?

III. Whether the PCRA [c]ourt erred when he failed to find
ineffective assistance of counsel (“IAC”) for failing to file a bill
of particulars demanding that the prosecution identify the
dates and locations of each cocaine delivery in order to
ensure the [Appellant] was not sentenced more than once for
the same crime [hereinafter called ‘multiplicity’].

Appellant’s Br. at 2.

First, Appellant contends that the PCRA court abused its discretion in

denying his motion for recusal. See Appellant's Br. at 15-18. According to

Appellant, the court’s 907 Notice expressed a “fixed opinion” regarding

Colon’s credibility. Id. at 18. Appellant maintains that “a reasonable person

faced with the facts would conclude that the judge had prejudged matters of

credibility and that recusal was required.” Id. at 17. Appellant alleges that

Judge MacElree’s subsequent decision to ignore Colon’s “uncontradicted

testimony” confirmed the bias suggested by the 907 Notice. Id. at 18.

Our standard of review is as follows:

This Court presumes judges of this Commonwealth are
honorable, fair and competent, and, when confronted with a
recusal demand, have the ability to determine whether they can
rule impartially and without prejudice. Commonwealth v.
White, 734 A.2d 374, 384 (Pa. 1999). The party who asserts a
trial judge must be disqualified bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating

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recusal, and the decision by a judge against whom a plea of
prejudice is made will not be disturbed except for an abuse of
discretion.

Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006) (citation

omitted). “The mere fact that the trial judge participated in earlier pretrial

stages in the proceedings is not alone sufficient grounds for recusal.”

Commonwealth v. Miller, 664 A.2d 1310, 1321 (Pa. 1995). To the

contrary, “in general, it is preferable for the judge who presided at trial to

preside over any post-conviction proceedings because his or her familiarity

with the case will likely assist the proper administration of justice.”

Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011);

Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998); see also

Pa.R.Crim.P. 903(A), (C). In support of a motion for recusal, the moving

party must produce evidence that raises a “substantial doubt as to the

jurist's ability to preside impartially.” Abu-Jamal, 720 A.2d at 89.

Here, Appellant contends that the PCRA court’s 907 Notice indicated

the PCRA judge’s bias. However, recantation evidence “‘is notoriously

unreliable.’” Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004)

(quoting Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa. 1998);

accord Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995)

(citation omitted)). For this reason, Pennsylvania courts “do not preclude

the possibility that a credibility-based dismissal of a petitioner's claims

involving recantation might be appropriate under some set of circumstances

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without the necessity of an evidentiary hearing.” Commonwealth v.

Williams, 732 A.2d 1167, 1181 (Pa. 1999).

In this instance, the PCRA court found Appellant’s response to the 907

Notice persuasive, and granted him an evidentiary hearing. The court’s

subsequent, adverse ruling alone does not establish the requisite bias

warranting recusal, especially where that ruling was legally proper. Abu-

Jamal, 720 A.2d at 90. For these reasons, Appellant has failed to raise

substantial doubt concerning Judge McElree’s ability to rule impartially.4

Accordingly, we do not discern an abuse of Judge McElree’s discretion in

denying recusal. See Whitmore, 912 A.2d at 834.

In his second issue, Appellant avers that the PCRA court erred in

denying him a new trial based on after-discovered evidence. See

Appellant’s Br. at 19-22; 42 Pa.C.S. § 9543(a)(2)(vi). We review an order

denying a petition under the PCRA to determine “whether the PCRA court’s

findings are supported by the record and without legal error.”

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation

omitted). “The scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the

prevailing party at the PCRA court level.” Commonwealth v. Koehler, 36

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4
We are also assured by the PCRA court that it conducted the “mandatory
independent self-analysis” in determining that it could hear this matter
“fairly and impartially.” PCRA Ct. Op., 7/5/2015, at 5.

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A.3d 121, 131 (Pa. 2012). This Court is also bound by the PCRA court’s

credibility determinations where supported by the record. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations omitted).

Notwithstanding, we review the PCRA court’s legal conclusions de novo. See

Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014), appeal

granted, 105 A.3d 658 (Pa. 2014), appeal dismissed as improvidently

granted, 140 A.3d 675 (Pa. 2016).

Our Supreme Court has explained a petitioner’s burden to receive a

new trial based on after-discovered evidence as follows.

[The PCRA petitioner must show that the evidence] (1) could not
have been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.

Medina, 92 A.3d at 1218 (quoting Commonwealth v. Pagan, 950 A.2d

270, 292 (Pa. 2008), cert. denied, Pagan v. Pennsylvania, 555 U.S. 1198

(2009)). The test for after-discovered evidence is conjunctive, and this

Court may affirm the PCRA Court if Appellant fails any one of the four

prongs. See Pagan, 950 A.2d at 292.

However, “[o]ur consideration of the after-discovered evidence offered

by Appellant is tempered by the fact that recantation is one of the least

reliable forms of proof, particularly when it constitutes an admission of

perjury.” McCracken, 659 A.2d at 545 (citation omitted). “‘[A]n appellate

court may not interfere with the denial or granting of a new trial where the

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sole ground is the alleged recantation of state witnesses unless there has

been a clear abuse of discretion.’” Id. (quoting Commonwealth v.

Coleman, 264 A.2d 649, 651 (Pa. 1970)) (citations omitted). According to

our Supreme Court:

[T]he PCRA court, as fact-finder, ‘is in a superior position to
make the initial assessment of the importance of [the
recantation] testimony to the outcome of the case," and directed
the PCRA court to ‘render its own, independent findings of fact
and conclusions of law concerning [the recanting person's]
credibility and the impact, if any, upon the truth-determining
process which can be discerned from such testimony.’
[Williams, 732 A.2d] at 1181. Thus, the after-discovered
evidence cases tie the court's credibility determination to the
governing prejudice standard.

Johnson, 966 A.2d at 542. Thus, the PCRA court must assess the

credibility of recantation testimony before determining whether the

recantation would likely compel a different verdict under the after-

discovered evidence test. Id. at 541 (citing D’Amato, 856 A.2d at 825;

Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa. 1998); Williams, 732

A.2d at 1180-81) (internal citations and quotation marks omitted).

In this case, Appellant contends that a new trial is required because

new evidence indicates that a prosecution witness testified falsely against

him. Appellant’s Br. at 20. Appellant’s PCRA petition argued that it would

be “unreasonable to conclude that [he] could control if … and when Mr.

Colon would come forward and tell the truth.” PCRA Petition at 17. Mr.

Colon visited Appellant, his brother, in prison in February 2015 and revealed

for the first time that police officers and the Assistant District Attorney

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threatened to prosecute Mr. Colon as the ringleader in the conspiracy unless

Mr. Colon testified against Appellant. On February 6, 2015, Mr. Colon signed

an affidavit admitting to “testifying falsely” due to the influence of ADA

Pavloff, Officer Kelly Cruz and Trooper Alan S. Lohman. See, Affidavit,

supra. Mr. Colon averred that the officials met with him, gave him food,

and coached him to give false testimony in exchange for a more lenient

sentence. See id. at 1. Thus, Appellant maintains that Mr. Colon “had a

very powerful interest in currying favor with the prosecution” by perjuring

his testimony at Appellant’s trial. See Appellant's Br. at 21.5

Appellant’s arguments are not persuasive. To accept Mr. Colon’s

current version of the facts would require the PCRA court to accept that he

lied several times under oath before.6 See PCRA Ct. Op., 7/21/2016, at 5-9.
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5
Mr. Colon pleaded guilty to conspiring with other members of the “340
gang” to various crimes, including committing, attempting, or planning to
deliver of cocaine and received a sentence of eleven and a half to twenty-
three months with credit for 700 days, which resulted in immediate parole.
See Appendix D, Guilty Plea Colloquy of Luis Colon, Commonwealth’s
Response to March 30, 2015 PCRA Petition, 5/27/2015. “A special condition
of his probation and parole was Mr. Colon’s continued cooperation, including
truthful testimony, in Appellant’s case.” PCRA Ct. Op., 5/18/2016, at 8; see
Commonwealth v. Colon, CP-15-CR-0002627-2004, CP-15-CR-0004043-
2004, N.T., 8/27/07, at 6-8.
6
Colon testified at Appellant’s trial on August 1, 2007. See N.T., 8/1/2007,
78-174. Appellant’s trial counsel cross-examined Colon regarding his
interactions with Trooper Kelly Cruz and Trooper Alan Lohman. See id. at
143-148. Moreover, Colon’s testimony did not suggest that the officers
improperly influenced his testimony; to the contrary, Colon said “I am telling
the truth.” See id. at 150-52. The Commonwealth provided various forms
of Mr. Colon’s past statements that were consistent with his trial testimony.
(Footnote Continued Next Page)

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However, Appellant offers no independent evidence to support Mr. Colon’s

current, contradictory and inconsistent version of the facts. See PCRA Ct.

Op. at 8 (observing that Mr. Colon’s affidavit conceded his involvement in

drug activity but expressly denied any involvement at the PCRA hearing).

Finally, as noted by the Commonwealth, “[t]here is no objective factor

that would support giving any weight to [sic] Luis Colon’s current

recantation.” Commonwealth’s Br. at 39. Mr. Colon did not come forward

until after the statute of limitations to prosecute him for perjury had tolled

and his promise to testify truthfully provided in his probation agreement had

expired. See id. at 40-41 (citing in support 18 Pa.C.S. § 4902).

For these reasons, we conclude that the PCRA court’s credibility

determination on the recantation testimony has ample support in the record,

and we discern no abuse of the PCRA court’s discretion. See Loner, 836

_______________________
(Footnote Continued)

See Exhibits C, D, and E, to the Commonwealth’s Response to Appellant’s
March 30, 2015 PCRA Petition, 5/27/2015. Colon testified similarly at his
own guilty plea on December 19, 2005. Commonwealth v. Colon, CP-15-
0002628-2004, CP-15-0004043-2004, N.T. 12/19/2005, at 3-6. Colon
signed a guilty plea indicating that his plea was voluntary, free from any
threats or promises inducing him to so plead. Guilty Plea Colloquy of Luis
Colon, at 6, ¶¶ 17-18. Defense counsel for Appellant cross-examined Colon
and questioned him about his interactions with Trooper Kelly Cruz and
Trooper Alan Lohman. See N.T., 8/1/2007, 143-148. Colon resisted cross-
examination designed to suggest an ulterior motive for his testimony and
insistent that he was “telling the truth.” See id. at 150-52. At Mr. Colon’s
sentencing, the court noted expressly that his testimony had been “quite
credible.” PCRA Ct. Op. at 8 (quoting Notes of Testimony, Sentencing of
Luis Colon, 8/27/07, at 3).

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A.2d at 135; McCracken, 659 A.2d at 545. Accordingly, Appellant is not

entitled to a new trial.

Third, Appellant claims that he had ineffective assistance of trial

counsel. See Appellant’s Br. at 22-25. On appeal, he argues that “trial

counsel’s performance was deficient for failing to file a motion to quash the

indictment or a motion for bill of particulars insisting that the prosecution

identify the date, drug quantity and drug identity of each count set forth in

the information involving PWID or distribution.” Id. at 24. According to

Appellant, the lack of specificity in dates and locations for the charges

against him yielded multiple sentences for the same crime in violation of the

Double Jeopardy Clause. See id. at 25.

This claim is waived, as Appellant failed to raise it before the PCRA

court. See Pa.R.A.P. 302. In his petition, Appellant claimed ineffective

assistance of counsel on a different ground, suggesting that counsel’s failure

resulted in an illegal sentence as recognized in Alleyne v. United States,

133 S.CT. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466

(2000). See PCRA Petition at 8-12. Notably, upon review, the PCRA court

granted Appellant relief on this claim, vacating his judgment of sentence and

scheduling a new sentencing hearing. See PCRA Ct. Op., 7/21/2016. No

further relief is due.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/1/2017

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