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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY RUSH :
:
Appellant : No. 2020 EDA 2017
Appeal from the PCRA Order May 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0611761-1987
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 27, 2018
Appellant, Larry Rush, appeals from the May 17, 2017 Order entered in
the Philadelphia County Court of Common Pleas dismissing his first Petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. After careful review, we affirm.
The relevant underlying facts and procedural history are, briefly, as
follows. At approximately 12:30 PM on May 4, 1987, Appellant entered
Fireside Book Store on Germantown Avenue in Philadelphia. Edna Nitterauer
was working that afternoon, and she offered to assist Appellant in locating a
book. Nitterauer located a book of interest to Appellant and handed it to him.
After he thumbed through it, he returned it to the shelf. Appellant then
inquired about another book. As he and Nitterauer walked through the store
to locate it, he suddenly pulled out a knife and began to stab Nitterauer.
Appellant stabbed Nitterauer eight times in her hand and on the upper part of
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both of her arms before slamming her onto the bathroom floor. Eventually,
Appellant left the store.
Shortly after the attack, Nitterauer provided Philadelphia Police
Detective John Bell with a physical description of Appellant. She also told
Detective Bell the name and location of the book Appellant had handled while
in Fireside Book Store. Detective Bell located the book, and Detective Martin
Oczki developed two latent fingerprint impressions, placed them onto a card,
and turned the card over to Detective Bell.1
Eight days after the attack, Nitterauer identified Appellant as her
attacker when she selected Appellant’s photograph from a photo array of eight
black males.
At the time of the stabbing, John Roman was working at a gas station
two doors away from Fireside Book Store. He was sitting in front of the service
bay area and saw a rescue vehicle pull up and block a driveway. Shortly
thereafter, he saw Appellant come out of the driveway and walk up the street,
right in front of him. Roman pointed out Appellant’s odd demeanor to his
coworkers. Roman reported what he saw to police who were at the scene,
provided a description of Appellant, and, later, identified Appellant in a photo
array.
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1 Joseph Brown, an F.B.I. Certified Fingerprint Specialist, examined the
fingerprint card. He determined that one of the latent fingerprint impressions
on the card from the book matched Appellant’s right ring finger. He identified
at least 25 matched points between the fingerprints lifted from the book and
Appellant’s fingerprint.
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On February 19, 1988, a jury convicted Appellant of Aggravated Assault
and PIC. On appeal, however, the Pennsylvania Supreme Court vacated
Appellant’s Judgment of Sentence and remanded for a new trial. See
Commonwealth v. Rush, 605 A.2d 792 (Pa. 1992).
On December 15, 1992, a jury again convicted Appellant of Aggravated
Assault and PIC. The trial court sentenced Appellant to an aggregate term of
12½ to 25 years’ incarceration. Appellant did not file a direct appeal from his
Judgment of Sentence.
On January 14, 1997, Appellant filed a pro se PCRA Petition.2
Inexplicably, the PCRA court took no action on Appellant’s petition and failed
to appoint Appellant counsel for over fifteen years. Finally, on April 4, 2012,
the PCRA court appointed counsel. Appellant filed a Motion to proceed without
counsel on June 11, 2012. On September 10, 2012, the PCRA court held a
Grazier3 hearing, after which it granted Appellant’s Motion.
On October 11, 2012, Appellant filed a Motion for discovery. On January
25, 2013, the Commonwealth provided Appellant with discovery including
documents generated by the police such as copies of the relevant 75-48
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2 Appellant’s pro se Petition was timely because he filed it within one year of
the effective date of the 1995 amendments to the PCRA. See
Commonwealth v. Tedford, 781 A.2d 1167, 1171 (Pa. 2001) (“[W]here an
appellant’s judgment [of sentence] became final on or before the effective
date of the amendments, January 16, 1996, the appellant shall be deemed to
have filed a timely petition if the appellant’s first petition is filed within one
year of that effective date, i.e., by January 16, 1997.”).
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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incident reports, the 75-49 investigation reports, search warrants, Appellant’s
arrest warrant and arrest report, as well as the criminal complaint, and the
notes of testimony.
On January 27, 2014, Appellant filed a pro se Amended PCRA Petition,
in which he alleged that his trial counsel was ineffective for failing to personally
interview Appellant before trial, for failing to interview any witnesses, and for
failing to hire an investigator or to personally conduct any investigation into
his case. Amended PCRA Petition, 1/27/14, at 27-28. He also claimed that
his conviction was the result of police and prosecutorial misconduct, which
included the falsification of evidence and police investigation reports, as well
as the alleged suppression of Nitterauer’s original statement to police. Id. at
43-59.
On March 3, 2014, Appellant filed motions seeking funds to hire an
investigator, an “identification” expert, and fingerprint expert.
On January 5, 2015, the Commonwealth filed a Motion to Dismiss
Appellant’s Amended Petition. Appellant filed a response on February 27,
2015.
On August 12, 2015, Appellant filed a Motion for Recusal. Appellant
alleged in his Motion that the PCRA court’s failure to compel the
Commonwealth to produce the “statements of Edna Nitterauer, John Roman
and Frank Schatz, as well as the Report of Martin Oczki, concerning latent
fingerprints” was the result of the court’s “mind-set of impartiality, prejudice,
bias, or ill will” towards Appellant. Motion, 8/12/15, at 10. Appellant accused
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the court of “sanction[ing] the suppression of exculpatory evidence.” Id. at
11.
On May 24, 2016, the PCRA court issued a Notice of Intent to Dismiss
Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant did not file a response to the court’s Rule 907 Notice. On May 17,
2017, the PCRA court dismissed Appellant’s Petition.4
Appellant filed a timely pro se appeal. Appellant complied with Pa.R.A.P.
1925. In his Rule 1925(b) Statement, Appellant challenged the PCRA court’s
denial of Appellant’s request for funds to hire an investigator, an identification
expert, and a fingerprint expert; the PCRA court’s refusal to recuse itself; and
its failure to hold a hearing on the issues Appellant raised in his Amended
PCRA Petition. Rule 1925(b) Statement, 7/24/17, at 1-2.5 Notably, Appellant
did not challenge the court’s conclusion that his ineffective assistance of
counsel claim lacked substantive merit.
Appellant raises the following issues in his pro se Brief, which we have
reordered for ease of disposition:
1. Whether the PCRA court erred in denying Appellant funds to
hire an investigator, an identification expert, and a fingerprint
expert; thereby depriving Appellant of the opportunity to locate
and present a critical government witness [who] would have
help[ed] Appellant establish an alibi during the time of the
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4 Although not clear from the lower court docket, it is undisputed that the
PCRA court denied all of Appellant’s outstanding motions when it dismissed
his PCRA Petition.
5 The PCRA court filed a Rule 1925(a) Opinion on 11/27/17.
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crime; depriving Appellant of the opportunity to present expert
testimony concerning the impropriety surrounding the facts
and circumstances of Appellant’s case as it relates to the
identification of Appellant as the perpetrator of the crime, and
deprived Appellant of the opportunity to present expert
testimony concerning the impropriety surrounding the facts
and circumstances of Appellant’s case as it relates to the
planting of Appellant’s fingerprint on a medical book: all of
which denied Appellant due process and equal protection of the
law as guaranteed by the United States and Pennsylvania
Constitution[s?]
2. Whether the PCRA court erred in refusing to recuse itself in
light of Appellant’s August 12, 2015 recusal motion, wherein
Appellant delineated the PCRA court’s partiality, prejudice, and
bias, and in failing to do so, it deprived Appellant of a full, fair,
and adequate collateral review; in violation of Appellant’s rights
under the Due Process Clause[?]
3. Whether the PCRA court erred in summarily dismissing
Appellant’s PCRA Petition, wherein the Petition presented
genuine issues of material fact, without an evidentiary hearing;
thereby depriving Appellant of the opportunity to substantiate
his substantial claims[?]
Appellant’s Brief at 6-7.
Standard/Scope of Review
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
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To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a
constitutional violation; ineffective assistance of counsel; an unlawfully
induced plea; improper obstruction by governmental officials; where
exculpatory evidence has been discovered; an illegal sentence has been
imposed; or the tribunal conducting the proceeding lacked jurisdiction. See
42 Pa.C.S. § 9543(a)(2)(i)-(viii). Appellant must also establish that the issues
raised in the PCRA petition have not been previously litigated or waived. 42
Pa.C.S. § 9543(a)(3).
Issues on Appeal
In his first issue, Appellant claims the PCRA court erred in denying him
funds to hire various investigators and expert witnesses. Appellant’s Brief at
6. Appellant has not, however, set forth any argument in support of this claim.
It is, thus, waived. See Pa.R.A.P. 2119 (regarding required content of
developed argument); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa.
2002) (“[I]t is a well settled principle of appellate jurisprudence that
undeveloped claims are waived and unreviewable on appeal.”).
Appellant’s status as a pro se litigant does not relieve him “of his duty
to properly raise and develop his appealable claims.” First Union Mortg.
Corp. v. Frempong, 744 A.2d 327, 337 (Pa. Super. 1999). “Although this
Court is willing to liberally construe materials filed by a pro se litigant, pro se
status confers no special benefit upon the appellant.” Wilkins v. Marsico,
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903 A.2d 1281, 1284–85 (Pa. Super. 2006). “This Court will not act as counsel
and will not develop arguments on behalf of an appellant.” Coulter v.
Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014); accord Commonwealth
v. Blakeney, 108 A.3d 739, 767 (Pa. 2014). Because Appellant has failed to
support this issue with any argument or citation to legal authority, we find this
claim to be waived.6
In his second issue, Appellant claims that the PCRA court erred in
denying his Motion for Recusal. Appellant’s Brief at 27. He avers that the
court was biased against him when it sanctioned the Commonwealth’s
“suppression of helpful documental [sic] evidence” and “refused to hold an ex
parte hearing with Appellant ONLY” on Appellant’s “Ex Parte Motion for
Expenses.” Id. at 29-30 (emphasis in original). He further asserts that the
court was required to recuse because it “created at least the appearance that
[it] had prejudged the merits of Appellant’s claims” when it “[took] the
Commonwealth’s deposition at the July 16, 2015 status hearing for funds,
especially in light of the fact that the Commonwealth was not even supposed
to be at such hearing[.]” Id. at 32.
We review the denial of a motion for recusal for an abuse of discretion.
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004).
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6 To the extent that Appellant argues the merits of the ineffectiveness of
counsel claims he raised in his Amended PCRA Petition, we find that Appellant
has failed to preserve them for appeal because he did not raise them in his
Rule 1925(b) Statement. See Commonwealth v. Castillo, 888 A.2d 775,
780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P. 1925(b) [S]tatement,
will be deemed waived.”) (citation omitted).
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We presume “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. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014) (quoting
Druce, 848 A.2d at 108). “A motion for recusal is initially directed to and
decided by the jurist whose impartiality is being challenged.” Id. (quoting
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)).
A party seeking a trial judge’s recusal “bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating recusal.” Id.
(quoting Druce, 848 A.2d at 108).
Appellant has not presented any evidence to support his bald,
unsubstantiated claim that the PCRA court was in any way impartial. This
Court’s review of the record indicates that it is devoid of any such evidence.
We, therefore, conclude that the PCRA court did not abuse its discretion in
denying Appellant’s Motion for Recusal.
Last, Appellant claims that the PCRA court erred when it denied his
Amended Petition without a hearing.
A PCRA petitioner is not automatically entitled to an evidentiary hearing.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[I]f the
PCRA court can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Id. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of discretion.
Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).
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Here, the PCRA court explained that it did not hold a hearing on
Appellant’s Amended Petition because Appellant had not raised any issues of
arguable merit. PCRA Ct. Op., 11/27/17, at 11. In particular, it opined that
Appellant failed to plead in his Petition the facts of record that supported his
allegations of counsel ineffectiveness and misconduct, and failed to append
supporting documentation where those facts were not of record. Id. at 14-
15. The PCRA court concluded that, because Appellant did not provide facts
to support his allegations, he was not entitled to an evidentiary hearing.
Our review of the record confirms the PCRA court’s conclusions.
Because Appellant failed to support the claims set forth in his Amended
Petition, the trial court did not abuse its discretion in denying his Amended
Petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/18
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