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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER THOMAS
Appellant No. 561 WDA 2016
Appeal from the PCRA Order March 24, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001010-2011
CP-02-CR-0009188-2011
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED MAY 1, 2017
Christopher Thomas appeals from the March 24, 2016 order of the
Allegheny County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. In our prior memorandum, we affirmed the PCRA court’s1 denial of
Thomas’s ineffective assistance of counsel claim with respect to trial
counsel’s closing argument2 and remanded this matter for a supplemental
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*
Former Justice specially assigned to the Superior Court.
1
Because the PCRA court also presided over Thomas’s trial, we use
the terms “PCRA court” and “trial judge” interchangeably in this
memorandum.
2
See Commonwealth v. Thomas, 561 WDA 2016, unpublished
memorandum at 5-7 (Pa.Super. filed Feb. 15, 2017).
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Pennsylvania Rule of Appellate Procedure 1925(a) opinion regarding
counsel’s alleged ineffectiveness in failing to request the trial judge’s recusal.
We now affirm the PCRA court’s denial of Thomas’s ineffectiveness claim
with respect to recusal.
In our prior memorandum, we set forth a detailed factual and
procedural history of this case, which we adopt herein. See
Commonwealth v. Thomas, 561 WDA 2016, unpublished mem. at 1-3
(Pa.Super. filed Feb. 15, 2017).
We asked the PCRA court on remand to address “the arguable merit
and prejudice prongs[3] of Thomas’s recusal ineffectiveness claim[,] . . .
[b]ecause the trial judge’s reasons as to why he would or would not have
granted a recusal motion had one been made are not of record.” Id. at 10-
11. The PCRA court filed its supplemental Rule 1925(a) opinion on March
21, 2017.
In our prior memorandum, we set forth Thomas’s argument on his
recusal ineffectiveness claim as follows:
. . . Thomas argues that he is entitled to relief or, at a
minimum, a hearing because his trial counsel was
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3
“To prevail on . . . [ineffective assistance of counsel] claims, [the
PCRA petitioner] must plead and prove, by a preponderance of the evidence,
three elements: (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3) [the PCRA
petitioner] suffered prejudice because of counsel's action or inaction.”
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).
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ineffective for failing to request that the trial judge recuse
himself from the non-jury trial because the trial judge
ruled on and granted a motion in limine to exclude prior
burglary convictions under Pennsylvania Rule of Evidence
609(b).[5] Thomas asserts that, once he chose a non-jury
trial, “counsel knew or should have known that the judge,
who was sitting as the factfinder in Mr. Thomas’ bench
trial, was aware of Mr. Thomas’ prior [b]urglary convictions
[and] a request that the court recuse itself would have
been meritorious.” According to Thomas, his claim has
arguable merit because the trial judge knew that Thomas
had two prior convictions and Thomas was asserting a
defense of innocence. Thomas argues that “[t]his
information was highly prejudicial since it could cause the
factfinder to presume [his] guilt – essentially shifting the
burden of proof.” Thomas also asserts that he need not
“demonstrate that the information actually influenced [the
trial judge’s] actions where ‘it is established that the
information received during the pretrial proceeding would
have been incompetent in the subsequent proceeding and
that it was of a sufficiently inflammatory nature to arouse
a prejudice against the defendant.’” In addition, Thomas
argues that trial counsel had no reasonable basis for failing
to request recusal because had trial counsel “done so, the
lower court properly would have and should have
transferred the case to a different judge.” Thomas also
argues that he was prejudiced by trial counsel’s failure,
because “[i]f another judge, who was not aware of Mr.
Thomas’ prior convictions, had presided over the
proceedings, that judge may have found [him] not guilty
of some or all of the charges.”
5
Rule 609(b) limits the ability to impeach witnesses
with prior convictions that involved “dishonesty or
false statement”:
(b) Limit on Using the Evidence After 10
Years. This subdivision (b) applies if more than 10
years have passed since the witness’s conviction or
release from confinement for it, whichever is later.
Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs
its prejudicial effect; and
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(2) the proponent gives an adverse party
reasonable written notice of the intent to use it
so that the party has a fair opportunity to
contest its use.
Pa.R.Evid. 609(b).
Thomas, unpublished mem. at 8-9 (internal citations omitted)
A recusal motion requires the judge to “make a conscientious
determination of his or her ability to assess the case in an impartial
manner,” and, if the judge believes he or she can be impartial, “whether his
or her continued involvement in the case creates an appearance of
impropriety and/or would tend to undermine public confidence in the
judiciary.” Arnold v. Arnold, 847 A.2d, 674, 680 (Pa.Super. 2004)
(quotation omitted). However, with respect to pre-trial proceedings, “[i]f it
is established that the information received during the pre-trial proceeding
would have been incompetent in the subsequent proceeding and . . . it was
of a sufficiently inflammatory nature to arouse a prejudice against the
defendant[,] he need not demonstrate that the information actually
influenced the court’s actions.” Commonwealth v. Simmons, 483 A.2d
953, 956-57 (Pa.Super. 1984) (quoting Commonwealth v. Goodman, 311
A.2d 652, 654 (Pa. 1973)).
In its supplemental 1925(a) opinion, the PCRA court concluded that
Thomas’s claim lacks merit and, even if it were meritorious, Thomas suffered
no prejudice. The PCRA court explained that it “granted Thomas’s motion to
exclude certain material from his trial” and, as a result, “any unfairness, bias
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or prejudice that Thomas feels was being harbored by this [c]ourt is non-
existent.” PCRA Ct. Op., 3/21/17, at 2. According to the PCRA court, this
case is a “perfect example of th[e] principle [that] . . . . [t]rial judges are
presumed to disregard material to which it has sustained an objection or
excluded from one side’s evidentiary material.” Id. With respect to
prejudice, the PCRA court concluded that Thomas suffered no prejudice
“because of the evidence produced at trial.” Id. The PCRA court asserts
that “had the same collection of evidence been put forth before a different
jurist, the verdict would have been the same.” Id. at 2-3.
We conclude that the PCRA court did not err in dismissing Thomas’s
recusal ineffectiveness claim. It is clear from the 1925(a) opinion that the
PCRA court, sitting at trial, would not have granted a recusal motion had one
been made, as the judge believed he did not harbor any “unfairness, bias, or
prejudice” towards Thomas. Further, the information received by the judge,
specifically two burglary convictions more than ten years before the instant
burglary charges, is not of such an inflammatory nature as to remove
Thomas’s burden of establishing bias, prejudice, or unfairness necessitating
recusal. Cf. Simmons, 483 A.2d at 956 (holding that trial judge should
have recused himself after hearing withdrawn guilty plea); Goodman, 311
A.2d at 654 n.4 (holding that trial judge should have recused himself after
Commonwealth elicited hearsay testimony at a suppression hearing that
defendants were trafficking narcotics in drug possession case). Under these
circumstances, the presumption holds that “the trial court, sitting as the trier
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of fact, . . . disregard[s] inadmissible evidence,” Commonwealth v.
Konias, 136 A.3d 1014, 1022 (Pa.Super.), app. denied, 145 A.3d 724 (Pa.
2016), and Thomas failed to rebut this presumption.
Because Thomas’s claim is meritless, trial counsel was not ineffective
for failing to raise it. Commonwealth v. Fears, 86 A.3d 795, 810 (Pa.
2014). Further, because an ineffectiveness claim may be dismissed where
“the petitioner’s evidence fails to meet any of these prongs,” we dispose of
Thomas’s claim on that basis alone. Commonwealth v. Williams, 980
A.2d 510, 520 (Pa. 2009).
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
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Com. v. Thomas, C.
Combined Opinion