Com. v. Rush, L.

• Court: Superior Court of Pennsylvania
• Decided: November 27, 2018
• Docket: 2020 EDA 2017
• Status: Unpublished

Opinion

J-S51013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 J-S51013-18

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

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 ____________________________________________

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). ____________________________________________

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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