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[U] Commonwealth v. Jordan

Superior Court of Pennsylvania

February 14, 2014



Appeal from the Judgment of Sentence Entered March 23, 2011, In the Court of Common Pleas of Lancaster County, Criminal Division, at No. CP-36-CR-000261-2010.




Appellant, David Vasquez Jordan, appeals from the judgment of sentence entered on March 23, 2011. We affirm.

The trial court summarized the factual history of this case as follows:

The charges in this case arose from the stabbing death of Lamar Lewis on December 13, 2009. In December of 2009, Defendant stayed several nights a week at the apartment of Angelica Rivera . . . [in] Lancaster City, Pennsylvania.2 Also staying in the apartment was Ms. Rivera's ex-boyfriend, his son and daughter-in-law, and their kids. On December 9, 2009, an altercation broke out at the apartment between Defendant, Ms. Rivera's son Lionel James, and his friend L[a]mar Lewis. Ms. Rivera called the police. Defendant was the alleged victim, but the police were not able to take a statement from Defendant because he fled the scene. Sometime thereafter Defendant returned to [the apartment].
2 Defendant received mail at his mother's residence.
On December 13, 2009, Lionel James and L[a]mar Lewis were present at [the apartment] when Defendant arrived. Mr. Lewis met Defendant at the front door and they entered the vestibule of the apartment home. On the steps inside, Defendant stabbed Mr. Lewis multiple times in his back and once in his chest. Defendant fled the scene before police and medical personnel arrived. Mr. Lewis was transported to the hospital, but ultimately died from his wounds. Defendant voluntarily arrived at the Lancaster City Police Department (LCPD). In the lobby of LCPD, Officer Reppert was speaking with the desk sergeant when Defendant walked into the building. (N.T. Suppression Hr'g, 10/19/10, at 29.) Defendant asked to speak with a detective and made unsolicited statements related to the stabbing. (See id. at 29-30, 33; see also Suppression Op., 10/25/10, at 3.) Defendant stated that he was being extorted for pills and stabbed the victim in self-defense. (N.T. Suppression Hr'g at 29-30, 33.)
Sergeant Heim arrived and conducted a safety pat-down because Defendant indicated his involvement in the stabbing. Officer Reppert took Defendant to a room behind the desk sergeant in order to get his biographical information for a guest information sheet. (Id. at 35; see also Suppression Op. at 4.) A routine check revealed the existence of a bench warrant for Defendant's arrest. (N.T. Suppression Hr'g at 38; see also Suppression Op. at 4.) At that point, Defendant was placed under arrest and taken to the secure area of LCPD. (N.T. Suppression Op. at 72, 75-76.) Defendant complained about a head injury. (Id. at 82-83.) Sergeant Heim directed officers to take Defendant to the hospital for treatment. (Id. at 83.)
After Defendant was returned to LCPD from the hospital, detectives issued Miranda3 warnings. (N.T. Suppression Hr'g at 89; see also Suppression Op. at 5.) Defendant asked about Mr. Lewis's condition. (N.T. Suppression Hr'g at 107.) Despite knowing the victim had died, Detective Weiser told Defendant that Mr. Lewis was hurt badly. (N.T. Suppression Hr'g at 107.) During the question and answer sessions with detectives, Defendant gave two different statements about the night in question. (See N.T. Trial 253-58, 260-61, 274-81.) The session continued until Defendant stated: "You have asked millions of questions. We're done." (N.T. Suppression Hr'g at 117.) At this point, questioning ceased, but Defendant decided to review his typed statement and make changes. (Id. at 104.)
3 Miranda v. Arizona, 384, U.S. 436, 86 S.Ct. 1602 (1966).

Following the police investigation, Defendant was charged with criminal homicide.

4 418 P.S. § 2501(a).

Trial Court Opinion, 1/29/13, at 1–2.

Appellant, who was represented by the public defender's office, filed a motion to suppress on June 30, 2010, and a motion to recuse on September 16, 2010, which were addressed at a hearing on October 19, 2010. Appellant asserted the evidence should be suppressed because 1) he was under arrest after he arrived at LCPD, 2) he requested an attorney but questioning did not cease, and 3) his Fifth Amendment privilege was violated when detectives failed to inform him of the victim's death. The recusal request related to the trial judge's representation of Appellant, who was then a juvenile, at a certification hearing twelve years earlier. On October 25, 2010, the trial court denied Appellant's suppression motion and denied the motion to recuse.

A jury trial began on November 8, 2010, and culminated on November 16, 2010, when the jury found Appellant guilty of third-degree murder. On March 23, 2011, the trial court sentenced Appellant to a term of incarceration of twenty to forty years, consecutive to a mandatory life sentence imposed for second-degree murder in an unrelated case at Docket Number 1618-2010.

Appellant filed a post-sentence motion challenging the consecutive nature of the sentence, which was denied on April 19, 2011. Appellant filed a pro se notice of appeal, and the trial court appointed new counsel to represent Appellant on appeal. On June 19, 2011, counsel timely filed a court-ordered Pa.R.A.P. 1925(b) statement, and Appellant, pro se, filed a petition to amend the Rule 1925(b) statement on July 14, 2011. The trial court filed its Rule 1925 opinion on August 4, 2011. Appellant thereafter filed a pro se application for remand in this Court on August 22, 2011. Pursuant to that motion, we remanded the matter on October 4, 2011, for an on-the-record inquiry pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), and a determination of whether Appellant's waiver of counsel was knowing, intelligent, and voluntary.

Following the Grazier hearing on October 31, 2011, the trial court concluded that Appellant's waiver of counsel was knowing, intelligent, and voluntary. The trial court filed orders on November 1, 2011, and November 2, 2011, granting counsel leave to withdraw and permitting Appellant to proceed pro se and in forma pauperis. Appellant filed an Application for Exercise of King's Bench Power in the Supreme Court of Pennsylvania, which was denied on May 16, 2012.

Appellant sought leave to amend the previously filed, counseled Rule 1925(b) statement. In the aftermath of the Grazier hearing, this Court ordered on November 2, 2012, that Appellant, now pro se, was permitted to amend the Rule 1925(b) statement. We further ordered the trial court to file a new opinion, followed by the issuance of a new briefing schedule. Appellant filed an amended Pa.R.A.P. 1925(b) statement on December 3, 2012, the trial court filed its opinion on January 29, 2013, and the parties now have filed their briefs.

Appellant raises the following issues for our review:[1]

I. Did the trial court abuse its discretion in improper denial of Appellant's motion for recusal, therefore, was the trial court acting contrary to the judicial integrity and impartiality if:
a. The trial judge who previously represented a party involved during a prior defense, attorney role; and/or
b. The trial judge both presided over recusal hearing and made extensive comments regarding the recusal motion?
II. Did the lower court err in denying Appellant's motions' [sic] for new court-appointed counsel due to conflicting interest for representation for a Commonwealth witness?
III. Was the Sixth Amendment violated when trial counsel refused to withdrawl [sic] due to a conflict of interest in spite of negotiating a deal for a Commonwealth witness whose testimony was adverse to Appellant in another trial for homicide, therefore, did counsel's disloyalty and performance adversely affect the outcome of the instant case?
1. Was the Sixth Amendment right to effective assistance violated when trial counsel sabotaged defense for failure to follow Appellant's instruction to call forensic expert Timothy Gavel; and/or
2. Was the Sixth Amendment right to effective assistance violated when trial counsel displayed disloyalty and adverse [sic] for denying Jordan's request for assistance during a recess period; and/or
3. Was the Sixth Amendment violated when trial counsel was disloyal and adverse for failing to inform Appellant of important developements [sic] during the course of prosecution; and/or
4. Was the Sixth Amendment violated when trial counsel was disloyal and adverse for his reference to Appellant's prior incarceration for a previous crime; and/or
5. Was trial counsel disloyal when he failed to object, preserve and report trial court's impropriety at the recusal hearing?

Appellant's Brief at unnumbered 3 (full capitalization omitted).

The trial court did not address any of the issues in question III, ruling that as they were all claims alleging the ineffectiveness of trial counsel, they should be deferred for collateral review. Trial Court Opinion, 1/29/13, at 3. Likewise, for the reasons that follow, we defer these claims to be raised in a subsequent petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541–9546.

In Commonwealth v. Holmes, __A.3d __, 2013 WL 5827027 (Pa 2013), our Supreme Court considered "the reviewability of claims of ineffective assistance ("IAC") of counsel on post-verdict motions and direct appeal." Id. at *1. Following a comprehensive review of the language codified in the PCRA and decisions from our courts, our Supreme Court revisited the Bomar[2] exception to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and held that absent either good cause or exceptional circumstances and a waiver of PCRA review, IAC claims must await collateral review. See also Commonwealth v. Barnett, 25 A.3d 371, 373 (Pa.Super. 2011) (en banc) ("[T]he Supreme Court has limited the applicability of Bomar" such that most assertions of ineffective assistance of counsel "are appropriately raised only on collateral review."); Commonwealth v. Britt, __A.3d __, 2013 PA.Super. 321, *6 (Pa.Super. 2013) ("[A]bsent either good cause or exceptional circumstances and a waiver of PCRA review, ineffective assistance of counsel claims must await collateral review.").

Herein, there is no indication in the record that good cause or extraordinary circumstances exist such that Appellant's IAC claims warrant review on direct appeal or that Appellant expressly waived his right to PCRA review. See also Barnett (holding that this Court cannot review IAC claims on direct appeal absent a defendant's waiver of PCRA review). Consequently, in light of Holmes, we dismiss Appellant's claims of ineffective assistance of counsel without prejudice to his ability to raise them in a subsequent PCRA petition, if he so chooses.

Accordingly, we address Appellant's first issue relating to the recusal of the trial judge, which was presented in his statement of questions involved in this appeal.[3] This issue is based upon Appellant's request during the suppression hearing[4] that the trial judge recuse himself due to an appearance of impropriety. It appears the basis for the motion to recuse was Appellant's assertion that the trial judge had represented Appellant twelve years earlier, and that fact would "sour [the court's] judgment during [Appellant's] court proceedings . . . ." N.T. (Suppression), 10/19/10, at 10. The trial court stated as follows:

THE COURT: With regard to the motion for recusal of myself from this matter, I have taken the opportunity to review my file from 1998, as well as the Court's file from 1998 and 1999.
Mr. Jordan at that time was 17 years of age, and as a juvenile was charged with possession with intent to deliver cocaine, criminal conspiracy and receiving stolen property, which was a handgun.
He was initially represented by Robert Trigg of the Public Defender's Office. He also at his first hearing before the Court, which turned out to be a continuance, was represented by a different Public Defender.
At the time of the hearing relative to the petition to certify the juvenile into adult court, Mr. Jordan, along with the parent present, conceded and permitted Judge Eckman to certify him as an adult relative to these charges. That specific hearing was before Judge Eckman on December 17th, 1998, at which time I would have made the only appearance of record for Mr. Jordan.
The certification order was entered, as well as a bail amount issued, which could have been posted at Barnes hall within 24 hours.
In fact, Mr. Jordan was bailed out by Sylvester Jones on February 16th of 1999. At which time he was no longer incarcerated in the Lancaster County Prison.
There is nothing of record showing that he petitioned to requalify for court-appointed counsel or for the Public Defender's Office as a result of his being bailed out.
Kathleen A. Grimes entered her appearance on February 9th, 1999, and appeared on Mr. Jordan's behalf on March 18th, 1999, as his counsel of record, at which time he entered a negotiated guilty plea to the charges as I indicated, Counts 1 and 2, and Count 3 was nol prossed.
I have no personal recollection of any of those matters, only what the files, both in the Clerk of Court's [sic] as well as my personal file at Goldberg, Knisely and Beyer reveals.
I have no animosity whatsoever towards Mr. Jordan. And in all sincerity, I don't remember Mr. Jordan. I had no idea what the charge was, nor do I believe that I was anything other than his counsel at the certification hearing where perhaps some kind of an offer was given and an offer at some point later accepted by him relative to his plea.
In light of that, I find no conflict of interest whatsoever in my sitting as the judge in this matter, totally unrelated and some 12 years after the fact of having represented Mr. Jordan at a certification hearing.

So the motion for recusal of myself is hereby denied.

N.T. (Suppression), 10/19/10, at 11–12.

In denying the motion to recuse, the trial court stated:

At the hearing, I disclosed that I had no personal recollection of having represented Defendant some 12 years ago. Thus, in preparation for the hearing, I reviewed my personal file as well as the Clerk of Court's file pertaining to the certification matter. I noted that I was court appointed defense counsel, wherein my only role was to represent him at his Juvenile Certification Hearing. Additionally, the record indicated that both he and his parent stipulated and agreed that he be certified as an adult before the Honorable D. Richard Eckman. My review of the files of the matter revealed that Defendant was bailed out of jail in 1999. The record contained no indication that Defendant reapplied as required to keep court-appointed counsel after posting bail. Defendant's testimony at the hearing showed no grounds for the requested recusal. As I have neither a recollection of the matter twelve years ago nor any animosity towards Defendant and my review of the record revealed no conflict of interest, I denied Defendant's motion for my recusal.

Trial Court Opinion (Suppression), 10/25/10, at 1–2.

Appellant maintains that recusal was required because the trial judge had personal knowledge of disputed evidentiary facts, he served as a lawyer in the matter in controversy, and the trial judge was a material witness in the proceeding. Appellant's Brief at unnumbered 15. Appellant goes on to assert that these actions made the trial judge "absolutely incompetent to preside over the instant case." Id. at unnumbered 17. Our review of the record discloses absolutely no support for Appellant's claims.

In Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008), our Supreme Court discussed the standards governing recusal:

"A trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned." Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652, 654 (1973). It is presumed that the judge has the ability to determine whether he will be able to rule impartially and without prejudice, and his assessment is personal, unreviewable, and final. Commonwealth v. Druce, 577 Pa. 581, 848 A.2d 104, 108 (2004). "Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of discretion." Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998).
Commonwealth v. Blakeney, 946 A.2d 645, 662 (Pa. 2008) (alteration in original). Additionally, "it is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." Commonwealth v. White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998)).

Id. at 55–56. Clearly, our standard of review of a trial court's determination not to recuse is "exceptionally deferential, " as we recognize that our trial judges are "honorable, fair and competent." Commonwealth v. Harris, 979 A.2d 387, 391 (Pa.Super. 2009) (quoting Commonwealth v. Bonds, 890 A.2d 414, 418 (Pa.Super. 2005)). Thus, "although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially." Harris, 979 A.2d at 392 .

Appellant has not met the burden for demonstrating partiality, bias, or an abuse of discretion. That this trial judge represented Appellant twelve years earlier at a certification hearing is insufficient reason to require recusal. The trial judge stated that he had no prior knowledge or subsequent contact with Appellant's case, indeed, that he had no recollection of Appellant at all, and he determined that he could preside impartially. Our review reveals nothing untoward; Appellant's contention regarding recusal fails to demonstrate that his trial was unfair or impartial. In light of our deferential standard of review, we are satisfied that the trial court did not abuse its discretion in denying Appellant's motion to recuse.

Appellant's second issue asserts that the trial court erred in refusing to grant Appellant's July 22, 2010 motion for new trial counsel.[5] The basis for this contention is rather convoluted. Appellant asserts that his trial counsel, assistant public defender James Gratton, had a conflict because he had once represented a woman named Penny Dotson at her preliminary hearing for insurance fraud in an unrelated matter, and Penny Dotson was a witness in a wholly unrelated case to the present one.[6] Specifically, at the time of trial in the instant matter, Appellant was a defendant in another pending homicide trial in which Ms. Dotson was a Commonwealth witness. Lancaster County Court of Common Pleas Docket No. 1618 of 2010. The only common denominator was Attorney Gratton, who represented Appellant in both cases: at No. 1618 of 2010, which was presided over by Judge Madenspacher, and in the instant case at Lancaster County Court of Common Pleas Docket No. 261 of 2010, which was presided over by Judge Knisely. Appellant raised the issue of Mr. Gratton's alleged conflict of interest with Judge Madenspacher in the other case.

In Docket No. 1618 of 2010, Judge Madenspacher held a conflict hearing on October 12, 2010, [7] which was prior to the start of trial in the instant matter.[8] Review of testimony at that hearing aids in the understanding of Appellant's issue herein; its relevancy, however, ends there. Mr. Gratton testified that he began his representation of Appellant in the instant case in December 2009, followed by his assignment to the case before Judge Madenspacher in February 2010. N.T. (Conflict Hearing), 10/12/10, at 3. In April 2010, Attorney Gratton "handled a preliminary hearing of Penny Dotson before Judge Ballentine for a Misdemeanor 1 insurance fraud case." Id. Assistant public defender Gratton stated:

My recollection from speaking, as best I can recall from the preliminary hearing and the negotiations that day is that [the assistant district attorney] and I did not have any discussions about Mrs. Dotson being a witness in any murder case of any sort. And I first learned that she had some connection to Mr. Jordan's case—in fact, I first learned that she was a significant witness, as far as I can tell, after I received discovery in the homicide case before Your Honor.

Id. at 4.

Attorney Gratton testified before Judge Madenspacher that Penny Dotson allegedly overheard a plot to rob Heather Nunn, the victim in that case, who ultimately was shot to death. N.T. (Conflict Hearing), 10/12/10, at 2. Mr. Gratton stated that he "didn't remember a whole lot" about his representation of Ms. Dotson "until I pulled the file to see what I had done for her and what it was." Id. at 4.

In discussion with Appellant about the Heather Nunn murder, Mr. Gratton stated that he told Appellant that he (Gratton) knew the character of some of the Commonwealth's witnesses, specifically Penny Dotson, due to Mr. Gratton's prior representation of her. N.T. (Conflict Hearing), 10/12/10, at 5. Mr. Gratton allegedly told Appellant that he (Attorney Gratton) would challenge Ms. Dotson's credibility by asking her about the crimen falsi conviction, within the confines of their attorney-client privilege. Id. at 5–6.

The assistant district attorney also testified at the October 12, 2010 hearing. He stated:

I actually don't have any specific recollection of this case. I handle hundreds of preliminary hearings a year. I don't remember the case. I did take a look at the criminal complaint to see if it could refresh my recollection. It didn't. I can tell the Court that this—I didn't know she was a cooperating witness, because had I known that, it would have definitely stuck out in my memory and I would not have pled her to a crimen falsi offense if I had known she was an important Commonwealth witness.

N.T. (Conflict Hearing), 10/12/10, at 6.

Judge Madenspacher concluded that Mr. Gratton had no conflict in representing Appellant. N.T. (Conflict Hearing), 10/12/10, at 7. Judge Madenspacher opined that the situation presented more of a concern for the Commonwealth, which "could file a petition for you requesting you to withdraw from the case since you had actually represented a prior Commonwealth witness and therefore, in theory, know things about that witness that, to be quite frank, could help you in this particular case." Id. at 7–8.

At the suppression hearing in the instant case, Appellant attempted to resurrect this argument even though Ms. Dotson was in no way related to, or had any involvement in the present case. At the suppression hearing, Mr. Gratton presented the same facts to Judge Knisely as he did in the conflict hearing before Judge Madenspacher. N.T. (Suppression), 10/19/10 at 6–10. Judge Knisely determined that any potential conflict had been addressed by Judge Madenspacher, and further, while relevant in the other case, the issue was not even viable herein. Id. at 15.

Moreover, the trial court reiterated that Mr. Gratton had advised Appellant that he had the option to hire private counsel or could choose to represent himself. N.T. (Suppression), 10/19/10 at 24. Appellant acknowledged that he and counsel had discussed Appellant's options; he chose to proceed with the suppression hearing. Id. at 24–25.

As noted previously, our review of Appellant's brief reveals that he is arguing that Mr. Gratton was ineffective for failing to withdraw his representation of Appellant in the instant case in light of Mr. Gratton's prior representation of Penny Dotson, a witness in a wholly unrelated case. We have deferred that issue to collateral review. Regarding the trial court's refusal to appoint new counsel to replace Attorney Gratton herein, Appellant makes no substantive argument related to the trial court other than a bald assertion that the court erred in denying his request to assign him new counsel. See Appellant's Brief at unnumbered 23. "Appellant's failure to . . . support his bald assertions with sufficient citation to legal authority impedes meaningful judicial review of his claims." Commonwealth v. Rompilla, 983 A.2d 1207, 1210 (Pa. 2009). The only cases cited by Appellant[9] relating to the trial court's actions herein are unrelated to the issue. Thus, we could deem the issue as it relates to trial court error waived. Commonwealth v. Price, 876 A.2d 988 (Pa.Super. 2005) (instructing that issue identified on appeal but not properly developed in appellate brief is waived).

We choose to address the claim, however, and conclude that the trial court did not err in refusing to appoint new counsel. On February 4, 2010, Appellant had filed a motion for new counsel, alleging "an irreconcilable personality conflict, [and] difference of opinion on the manner in which this case should be litigated." Motion for Change of Appointed Counsel, 2/4/10, at ¶ 4. The trial court denied that motion on February 9, 2010. Appellant filed another motion to obtain new counsel on July 22, 2010, reiterating his earlier allegations of a personality conflict with Mr. Gratton. He also alluded, in vague terms, to Mr. Gratton's representation of Penny Dotson by referring to Appellant's pursuit of new counsel in the case before Judge Madenspacher and suggesting that Attorney Gratton "is in ca-hoots with the opposing side." Motion for Change of Appointed Counsel, 7/22/10, at ¶ 11. Following Judge Madenspacher's denial of new counsel in Docket No. 1618 of 2010, Judge Knisely addressed Appellant's July 22, 2010 motion at the suppression hearing in the instant case, ruling that the basis for Appellant's request for new counsel "has no relationship to this case whatsoever." N.T. (Suppression), 10/19/10 at 15. Having no specific, relevant argument from Appellant regarding alleged trial court error and no citation to relevant case law in support, we agree with the trial court's assessment of irrelevancy to the instant case. Further, to the extent Appellant's claim relates in any way to the trial court's appointment of appellate counsel, we note our agreement with the trial court's explanation, as follows:

Defendant alleges the Court abused its discretion in appointing appellate counsel in light of his motions seeking to proceed pro se filed on January 25, 2011 and February 28, 2011. Defendant's pro se motions sought to preclude representation by the public defender's office. The Court granted Defendant's request and relieved Attorney James Gratton from his representation of Defendant. (See Trial Ct. Order, 4/25/11.) Also, as Defendant's motions expressed possible claims of ineffectiveness of trial counsel, the Court appointed Attorney Vincent Quinn, independent, conflict counsel, to perfect Defendant's appellate rights. (See id.) Thereafter, Defendant filed a pro se application for remand seeking to waive counsel. The matter was remanded and a Grazier hearing was held. Ultimately, Defendant was permitted to proceed pro se and his direct appeal rights were preserved. As such, to the extent the Court's appointment of Attorney Quinn was error, the error has been remedied and no further relief is warranted.

Trial Court Opinion, 1/29/13, at 4.

Discerning no merit to any issue properly before us in this appeal, and for the foregoing reasons, we conclude that the judgment of sentence must be affirmed.

Judgment of sentence affirmed.

Judgment Entered.

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