Com. v. Myrick, I.

J-S17008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ISMAEL MYRICK :

:

Appellant : No. 1724 EDA 2021

Appeal from the PCRA Order Entered August 12, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0001147-2014

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2022

Ismael Myrick appeals from the order that denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

The PCRA court summarized the underlying facts of the case as follows:

At approximately 9:10 a.m. on January 2, 2014,

Nelson Suah was walking past the corner of 66th and Allman

Streets in Southwest Philadelphia when he saw [Appellant], whom

he had known for approximately four years. [Appellant] waved

Mr. Suah over to a purple minivan. Suah joined him inside it,

getting into the front passenger seat. When [Appellant] asked

Suah to resume selling drugs for him, Suah demurred because he

had recently started a job. [Appellant] climbed into the back seat,

retrieved a silver revolver, and hit Suah in the face. The blow cut

Suah’s left cheek. They began to struggle over the gun, and Suah

managed to knock the barrel away. When Suah succeeded in

unlocking the door, both men fell out of the van and onto the

street. Suah pushed [Appellant] back and fled towards 65th

Street. He heard shots and looked back to see [Appellant]

pointing the gun in the air. [Suah] then heard bullets pass by his

head as he ran. Concerned for the children and parents

approaching the elementary school on the corner, Suah tried to

run in a different direction to draw the gunfire away from them.

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He saw a police car two blocks away and flagged it down, his face

bleeding.

Meanwhile, Michelle Johnson was in her [office] in the

Joseph W. Catherine Elementary School when she heard gunshots

and noticed a burning smell. She looked out her open window

facing 66th Street and saw the rest of the shooting and Mr. Suah’s

flight down the street. After directing her students to take cover,

she looked outside again and saw the shooter get into the purple

minivan, still holding the gun in his hand, and then drive to

Chester Avenue. She and the school’s cook recorded the van’s

license plate, which was later provided to the police.

Police officers were dispatched to the area based on a report

of [a] man with a gun. Frantic and bleeding, Mr. Suah flagged

them down. He reported that [Appellant] had hit him in the face

with a gun inside [Appellant]’s purple minivan and then shot at

him.

That same day, police went to [Appellant]’s home on South

66th Street. When he arrived soon afterward, officers brought Mr.

Suah to [Appellant]’s house. Suah identified [Appellant] as the

assailant.

Within an hour of the shooting, police found the purple van

parked on the 6700 block of Dicks Avenue with the same license

plate recorded by Ms. Johnson. Officers searched the van

pursuant to a warrant and found a black and blue hoodie

sweatshirt that later tested positive for gunshot residue and the

victim’s blood. Blood recovered from the passenger seat of the

van also belonged to the victim.

....

On November 5, 2015, at the conclusion of his jury trial,

[Appellant] was convicted of aggravated assault, possessing an

instrument of crime, reckless endangerment, carrying a firearm

without a license, and carrying a firearm on a public street. After

dismissing the jury and conducting a bifurcated trial, this court

further convicted [Appellant] of carrying a firearm as a prohibited

person. On January 7, 2016, after considering all mitigating

factors, [Appellant] was sentenced to an aggregate prison term of

seventeen to forty-three years.

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PCRA Court Opinion, 11/3/21, at 2-3, 1 (cleaned up).

On direct appeal, during which Appellant continued to be represented

by trial counsel, Appellant challenged the weight of the evidence and the

discretionary aspects of his sentence in addition to the following issue:

Whether the trial court abused its discretion in denying

[Appellant’s] motions for recusal and mistrial, where the trial court

demonstrated manifest bias by cross-examining witnesses in a

manner clearly intended to undermine testimony proffered by

those witnesses which was favorable for [Appellant] and thereby

bolster the Commonwealth’s case, and the trial court repeatedly

threatened, insulted and demeaned [Appellant’s] trial counsel?

Commonwealth v. Myrick, 188 A.3d 578 (Pa.Super. 2018) (unpublished

memorandum at 4-5.) As it is pertinent to the instant appeal, we reproduce

herein our analysis and discussion of that issue:

[Appellant] contends that the trial court abused its discretion by

denying [Appellant]’s motion for recusal and mistrial. [Appellant]

first asserts that the trial court exhibited bias when cross-

examining witnesses. [Appellant] claims that, when Suah initially

testified that he did not see a firearm in [Appellant]’s hand, the

trial court improperly

clarified for Suah with a leading question, by asking

Suah didn’t he mean that he didn’t see a firearm in

[[Appellant]’s] hand when shots were being fired, but

did see the .357 Magnum in [Appellant’s] hand when

[Appellant] pistol-whipped Suah inside the van, which

Suah responded in the affirmative.

[Appellant] also points to Johnson’s inconsistent testimony,

and asserts that the trial court “cross-examined her about her

answer to Officer Song regarding her job title, during which the

trial court asked her ‘why she was having trouble remembering

whether she told the truth.’” [Appellant] claims that the trial court

improperly threatened Johnson with perjury if she recanted her

post-incident statement to police.

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Next, [Appellant] contends that the trial court repeatedly

insulted and taunted defense counsel. According to [Appellant],

when defense counsel objected to the Commonwealth’s summary

of the facts from [Appellant]’s prior attempted rape case, the trial

judge exhibited bias when he asked counsel if he was contesting

the accuracy of the summary:

The court: This is really a simple question. If you

can’t answer it, I’ll ask someone in the audience to

answer it for me. I’m sure everybody here

understands this question. I hope you do too. Are

you contesting the accuracy of the summary?

Defense counsel: From the standpoint that we don’t

have the actual affidavit of probable cause, yes.

[Appellant] asserts that the trial judge also exhibited bias

when he did not permit defense counsel to summarize a mental

health report regarding [Appellant], despite having permitted the

Commonwealth to summarize the affidavit of probable cause.

[Appellant] claims that the trial court further exhibited bias when

defense counsel arrived late to the courtroom on the second day

of trial. According to [Appellant], the trial judge had instructed

counsel to keep their cell phones on, as they would receive a

phone call when the jury had been brought in. [Appellant] argues

that his defense counsel had not received a call from the court,

and the trial judge refused to let defense counsel show the judge

his phone to confirm that no call had been received. [Appellant]

further points to the trial judge’s comments to defense counsel

during a hearing on [Appellant]’s motion in limine to exclude

references to phone calls between [Appellant] and Suah, which

originated from the county prison where [Appellant] was

incarcerated,[1] and claims that the comments exhibit bias:

Defense counsel: But, Judge, the Commonwealth—

the Supreme Court made it clear that—

____________________________________________

1 As this Court explained: “While in custody and awaiting trial, [Appellant]

used another inmate’s phone account to call Suah eighty-five times.”

Commonwealth v. Myrick, 188 A.3d 578 (Pa.Super. 2018) (unpublished

memorandum at 3).

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The court: Excuse me. Excuse me. Usually when

lawyers start out by saying, the Supreme Court has

made it very clear, it indicates that they have

absolutely no case law to rely on. So, if you have a

case, hand it up to me.

According to [Appellant], the trial judge eventually permitted

defense counsel to read from the relevant case, but then indicated

that he was “not going to listen to a lot of irrelevant cases,” and

then ordered defense counsel to sit down.

Finally, [Appellant] claims that, at the outset of jury

selection, the trial judge instructed counsel to introduce

themselves and give a brief outline of the case; but when defense

counsel began, the trial court interrupted him and, subsequently,

threatened him in front of the jury. [See] N.T. (Trial), 11/3/15,

at 50 (wherein the trial court advised defense counsel “I told the

D.A. no speeches; I told you no speeches. You’re going to have to

pay attention to what I say, otherwise we’re going to have

problems; do you understand?”).

Based on these exchanges, [Appellant] argues that the trial

court erred by denying his motion for mistrial and recusal.

[Appellant] contends that the trial judge’s conduct toward defense

counsel “was manifestly unreasonable and demonstrated

egregious ill will, prejudice, partiality, bias, against [Appellant]

and his attorney, which is wholly indicative of [Appellant’s]

manifestly excessive sentence.” [Appellant] asserts that, based

on the trial judge’s conduct, he abused his discretion by denying

[Appellant]’s motion for mistrial and recusal.

In its opinion, the trial court addressed [Appellant]’s third

issue, and noted that [Appellant] had failed to identify in his

concise statement which witnesses the trial court had purportedly

cross-examined in a manner that demonstrated bias to

[Appellant]. Although the trial court reviewed the record in an

attempt to “guess” the witnesses to which [Appellant] referred,

the trial court was not required to do so. Notably, numerous

witnesses testified over the course of [Appellant]’s trial. As

[Appellant] failed to identify in his concise statement the

witnesses purportedly cross-examined by the trial court in a

manner that demonstrated bias, [Appellant] failed to preserve the

issue for our review.

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The trial court further noted that, in his concise statement,

[Appellant] failed to identify any of the “insults and taunts of

defense counsel which arose to bias.” As [Appellant] failed to

identify in his concise statement the specific manner in which the

trial court insulted and taunted defense counsel, he failed to

preserve the issue for our review.

Finally, the trial court addressed [Appellant]’s issue that the

trial court threatened defense counsel in front of the jury, and

concluded that [Appellant]’s counsel failed to make a timely

objection to the trial court’s remarks. The trial court further

determined that its comments were appropriate in light of the

court’s prior instructions to counsel. Based on our careful review,

we agree with the reasoning of the trial court, and affirm on this

basis as to [Appellant]’s third issue.

Id. (unpublished memorandum at 11-15) (cleaned up). Appellant’s timely

petition for allowance of appeal from this Court’s affirmance was denied. See

Commonwealth v. Myrick, 193 A.3d 889 (Pa. 2018).

Appellant filed a timely pro se PCRA petition, and counsel was appointed

and filed an amended petition, raising claims that trial/direct appeal counsel

was ineffective. The PCRA court denied the petition without a hearing after

issuing notice of its intent to do so pursuant to Pa.R.Crim.P. 907. Appellant

filed a timely notice of appeal, and both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

Appellant presents this Court with the following issues:

I. Did the PCRA [court] err when it found that Appellant had

not been denied his rights under the Sixth and Fourteenth

Amendments of the U.S. Constitution and Article 1, sec. 9

of the Pennsylvania Constitution when defense counsel

ineffectively failed to timely object, seek the judge’s recusal,

request a mistrial and/or a curative instruction after the

court repeatedly exhibited extreme bias, animus and

hostility toward the defense?

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II. Did the PCRA court err when it found that Appellant was not

denied his rights under the Sixth and Fourteenth

Amendments of the U.S. Constitution and Article 1, sec. 9

of the Pennsylvania Constitution when trial counsel

ineffectively failed to object and request a mistrial and a

curative instruction when the trial judge inferred in front of

the jury that Michelle Johnson was lying and for threatening

her with perjury charges if she didn’t recall or testify

consistent to her statement to police?

III. Did the PCRA court err in finding that Appellant’s

constitutional rights to due process of law and a fair trial

were not violated by the cumulative impact of counsel[‘s]

ineffectiveness in violation of the Sixth and Fourteenth

Amendments?

IV. Did the PCRA court err and abuse its’ [sic] discretion in not

recusing itself from consideration of this PCRA petition after

a timely motion for recusal was filed by the Appellant?

Appellant’s brief at 3-4 (unnecessary capitalization omitted).

We begin with a review of the applicable legal tenets. “Our standard of

review of the denial of a PCRA petition is limited to examining whether the

evidence of record supports the court’s determination and whether its decision

is free of legal error.” Commonwealth v. Washington, 269 A.3d 1255,

1262 (Pa.Super. 2022) (cleaned up). “This Court grants great deference to

the factual findings of the PCRA court if the record contains any support for

those findings. We review the court’s legal conclusions de novo.” Id. (cleaned

up).

Appellant’s first three issues involve allegations of ineffective assistance

of counsel. As this Court has summarized:

[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

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ineffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken

place. The burden is on the defendant to prove all three of the

following prongs: (1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.

We have explained that a claim has arguable merit where the

factual averments, if accurate, could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable basis for

his action or inaction is whether no competent counsel would have

chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success.

Counsel’s decisions will be considered reasonable if they

effectuated his client’s interests. We do not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he

may have taken.

Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa.Super. 2019)

(cleaned up).

Appellant first contends that the PCRA court erred in denying his claim

that trial counsel was ineffective in failing to object, move for recusal, request

a curative instruction, or seek a mistrial based upon the trial court’s purported

hostility toward defense counsel, or failed to preserve the issues for appeal.

Specifically, Appellant claims that the trial court demonstrated bias against

the defense by: (1) denying him the right to make an opening statement and

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chastising counsel for attempting to do so, see Appellant’s brief at 12-16; (2)

holding counsel in contempt for failing to arrive on time for trial, id. at 16-17;

(3) interrupting and interfering with counsel’s cross-examination of witnesses

Suah and Johnson, id. at 21-27; (4) belittling and summarily dismissing

counsel’s arguments on motions in limine, id. at 17-18; and (5) insulting

defense counsel at the sentencing hearing. Id. at 32-33. Appellant asserts

that counsel had no reasonable tactical basis for failing to preserve the claims

of judicial bias, and that there is a reasonable probability that the result of the

proceeding would have been different but for counsel’s errors. Id. at 36-37.

Appellant further asserts that the existence of judicial bias is a structural error

requiring no showing of prejudice. Id. at 38-39

We begin our examination of Appellant’s first issue by clarifying the facts

surrounding his claims. First, the trial court did not prevent Appellant from

making an opening statement, but rather took issue with counsel’s attempt to

give one during the jury selection process rather than limiting himself to

introducing himself, his client, and his witnesses as the court had instructed.

See N.T. Motion, 11/2/15, at 18-19, 30-31. Hence, Appellant’s citation to

non-binding decisions from other jurisdictions concerning the proper scope of

opening statements is wholly inapposite. See Appellant’s brief at 15. Further,

counsel did ask for a mistrial and recusal the morning after the exchange, and

we agreed with the trial court on Appellant’s direct appeal that the trial court’s

“comments were appropriate in light of the court’s prior instructions to

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counsel.” Myrick, supra (unpublished memorandum at 15). Thus, it is the

law of the case that the court did not act improperly during jury selection.

See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009) (indicating

that alternate conclusion that claim was meritless even if not waived was a

valid holding that constituted the law of the case in a subsequent appeal).

Second, the trial court did not hold counsel in contempt. The certified

record reflects that the trial court, outside the presence of the jury,

contemplated imposing a fine for counsel’s failure to appear on time without

a valid excuse. See N.T. Trial, 11/3/15, at 5. However, as the PCRA court

explained: “Although [Appellant] mistakenly (or dishonestly) asserts now that

trial counsel was held in contempt, the record unmistakably reflects that there

was no such contempt ruling, much less any acrimony during the cited

exchange.” Trial Court Opinion, 11/3/21, at 9. The PCRA court’s finding is

supported by the record. See N.T. Trial, 11/3/15, at 5-8.

Third, counsel did indeed raise contemporaneous objections and move

for recusal and a mistrial concerning the trial court’s questioning of witness

Suah. See Appellant’s brief at 26-29. The reason this Court found the issues

concerning the trial court’s alleged interference with questioning were waived

pertained to counsel’s failure to identify the witnesses with sufficient specificity

in his Rule 1925(b) statement. See Myrick, supra (unpublished

memorandum at 14-15) (“As [Appellant] failed to identify in his Concise

Statement the witnesses purportedly cross-examined by the trial court in a

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manner that demonstrated bias, [Appellant] failed to preserve the issue for

our review.”).

Thus, while Appellant purports to challenge failures by counsel to timely

object, to seek the judge’s recusal, and to request a mistrial or a curative

instruction, the claims within Appellant’s first issue that are properly before us

are whether counsel was ineffective in: (1) failing to request a curative

instruction after his objections were overruled and his motions denied, and

(2) failing to preserve for appellate review his claims of error regarding the

denial of his motions for recusal and a mistrial. We find merit in neither.

Assuming for the sake of argument that Appellant could establish the

arguable merit of his claim that a curative instruction was warranted and that

counsel lacked a reasonable basis for failing to request one, Appellant has

failed to establish that he was prejudiced by counsel’s omission. As the PCRA

court aptly explained:

[T]his court’s instructions tempered the impact of any

exchanges between trial counsel and this court. At the start of

trial, this court charged the jury that the court’s own opinion must

be disregarded because the jurors were the sole arbiters of the

facts and Defendant’s guilt or innocence. This court explained to

the jury how,

the process begins with evidence presented mostly

from this witness stand. And you do have the best

seats in house. The witnesses will be up close to you,

you’ll be able to, not only hear them, but watch them

as they testify. I don’t have your seat, because I don’t

have your job. Your job is to evaluate these witnesses.

Their credibility. My job is concerned primarily with

legal issues and with manag[ing] this courtroom. I

cannot emphasize too much, it would be impossible to

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exaggerate how important it is for you to pay

attention to the witnesses when they testify.

In its closing instructions, this court further charged the jury that

any impression of any opinion the court might appear to hold

should be disregarded. More specifically, this court stated,

If at any time I do or say anything, either during the

trial or now, during these instructions, that, in any

way, implies my opinion with regard to the evidence,

the witnesses, what the verdict should be, I want to

tell you two things; number one, I have no opinion.

And, second, if I had an opinion, it would be the least

well-informed opinion in this courtroom. The only

opinion that matters in this case with regard to the

evidence, the witnesses, and, ultimately, the verdict,

is your opinion. Because you are the jury and you’re

the ones who decide those matters.

In this manner, this court’s instructions directed jurors not to

ascribe to the court any opinion about the case and to disregard

any opinion that they believed this court to hold. These

instructions, together with the evidence presented at trial of

Defendant’s guilt, precluded the prejudice that is a prerequisite to

the granting of a new trial.

PCRA Court Opinion, 11/3/21, at 12-13 (cleaned up).

The jury is presumed to have followed the trial court’s instructions. See,

e.g., Commonwealth v. Purnell, 259 A.3d 974, 986 (Pa. 2021) (“[T]he law

presumes that the jury will follow the instructions of the court.”) (cleaned

up)). Appellant argues that counsel’s requesting a curative instruction “could

not have made matters worse.” Appellant’s brief at 37. This falls short of

convincing us that the PCRA court erred in concluding that an additional

curative instruction is not likely to have changed the result of the proceeding.

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Hence, no relief is due in connection with the lack of a request for a separate

curative instruction.

The following legal principles apply to our review of the arguable merit

of Appellant’s claim that the trial court exhibited such animosity toward trial

counsel that recusal and a mistrial were warranted:

Opinions formed by the judge on the basis of facts introduced or

events occurring in the course of the current proceedings, or of

prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible. Thus,

judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their

cases, ordinarily do not support a bias or partiality challenge.

They may do so if they reveal an opinion that derives from an

extrajudicial source; and they will do so if they reveal such a high

degree of favoritism or antagonism as to make fair judgment

impossible. Not establishing bias or partiality, however, are

expressions of impatience, dissatisfaction, annoyance, and even

anger, that are within the bounds of what imperfect men and

women, even after having been confirmed as judges, sometimes

display. A judge’s ordinary efforts at courtroom administration—

even a stern and short-tempered judge’s ordinary efforts at

courtroom administration—remain immune.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa.Super. 2014) (quoting

Liteky v. U.S., 510 U.S. 540, 555-56 (1994)) (cleaned up).

The certified record unquestionably reveals “a stern and short-tempered

judge” administering his courtroom. Id. Indeed, the court’s imperious

conduct approaches a breach of a jurist’s obligation to "be patient, dignified,

and courteous” to lawyers and witnesses. Pa.C.J.C. Rule 2.8(B). Nonetheless,

we discern no evidence of favoritism, partiality, or bias in the court’s

tetchiness, which it expressed more often than not outside of the jury’s

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presence. For example, as the Commonwealth notes, although the court

initially was dismissive of counsel’s in limine arguments for excluding

Appellant’s jail phone calls to the victim, it ultimately ruled in Appellant’s favor

and did not permit the Commonwealth to introduce conversations that

referenced Appellant’s criminal record. See Commonwealth’s brief at 14-15

(citing N.T. Trial, 11/3/15, at 40-50).

Overall, while Appellant has highlighted unbecoming judicial conduct, he

has not demonstrated that the trial court was biased against him or his

attorney such that it was incapable of making fair judgments on the issues

before it. Consequently, Appellant has failed to persuade us that the PCRA

court abused its discretion in denying his first claim of ineffective assistance

of counsel. Accord Commonwealth v. Rayner, 153 A.3d 1049, 1060

(Pa.Super. 2016) (rejecting similar claims that “the trial court’s interference,

commenting on evidence, improper criticism and interruption of defense

counsel’s closing speeches, denied Appellant his right to due process and a

fair trial and impacted [his] Sixth Amendment right to effective counsel”

(cleaned up)). Therefore, no relief is due.

Appellant’s second issue reasserts that counsel was ineffective in failing

“to object and request a mistrial and a curative instruction” in relation to the

trial court’s questioning of witness Johnson. Appellant’s brief at 40. This time,

Appellant contends that such actions were required not based upon trial court

bias, but because “the [t]rial [j]udge inferred in front of the jury that Michelle

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Johnson was lying and for threatening her with perjury charges if she did not

recall or testify consistent [with] her statement to police.” Id. Appellant

argues that the court’s questioning of the witness in front of the jury

suggested that Johnson “was either stupid or actively lying,” and that its

questioning of her outside the presence of the jury “made it clear to [her] that

if she did not tell the jury that she remembered making all the inculpatory

statements attributed to her in the statement, she was going to jail – whether

it be for contempt or perjury.” Id. at 42, 44. Appellant asserts that this

presented the manifest necessity for a mistrial, and counsel rendered

ineffective assistance in failing to move for a new trial on this basis, or at least

to request a curative instruction.

The PCRA court opined that the issue lacks merit. Specifically, the court

indicated that a new trial was not warranted because Johnson did not alter

her testimony in response to the court’s intervention. See PCRA Court

Opinion, 11/3/21, at 14-15. We agree.

The Commonwealth’s questioning of Johnson began as follows:

Q. Ma’am, did you witness a shooting on January 2, 2014?

A. Well, there was something that did happen outside my

window. It’s been a year and 11 months, I will do the best that I

can. I don’t know what time I was in my office with about three

or five students. My window was cracked and I heard pow, pow,

pow, pow, pow. I turned around and I looked out of my window,

and I saw someone running up the street, with, either, a red or a

orange hood.

At that time, there were students in my room. The office

had became upset, so I was telling them to get down on the floor.

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We were trying to get to the door to exit into the hallway. I

managed to crawl to the window and shut my window, because I

didn’t want anything to come through.

Q. Ma’am, did you recognize what those -- the pow sounds

were?

A. Well, at first I thought it was firecrackers, and then one of

the kids said, Oh, those are gunshots. So I do remember that.

Q. Do you remember seeing someone firing that gun?

A. No, I didn’t see anyone firing.

N.T. Trial, 11/3/15, at 73-74. After indicating that, while she had no concerns

about testifying, she would rather be at work, Johnson confirmed that she had

given a statement to police on January 2, 2014 about the incident. Upon

reviewing the written, signed statement, Johnson indicated that she did not

remember providing information contained therein, such as her address, place

of employment, and job title, and the following exchange ensured:

Q. Ma’am, do you remember being asked: “Q Where do you

work and what is your title?”

A. Well, I guess that would be something that he would have

asked me.

THE COURT: No, that’s not the question. You’re

looking at a document, do you see that document?

THE WITNESS: Yes, I understand the document.

THE COURT: Okay. Did you give a statement to the

detective?

THE WITNESS: Yes, I did.

THE COURT: When you spoke to the detective, did you

tell him the truth?

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THE WITNESS: Yes, I did.

THE COURT: Okay. Is there any question in your mind

that, when this statement says, where do you work and

what is your title, that the detective asked you that

question?

THE WITNESS: Well, based -- like I said, based on the fact

that it was a year-and-a-half ago, I really don’t know what

he asked. The fact that --

THE COURT: At the bottom of the page there’s a

signature --

THE WITNESS: Yes, I did sign that. I’m aware of that.

THE COURT: Okay. So when you signed this, you could

read what was on the page when you signed it; right?

THE WITNESS: Yes.

THE COURT: If he had not asked you that question, if

that was not an accurate statement, if there was anything

untrue about that, you would have told him that at the time;

right?

THE WITNESS: Yes, I would have.

THE COURT: Okay. So why are you having trouble

today --

THE WITNESS: No, I’m not --

THE COURT: -- trying to remember whether you told

him the truth and what you talked to him about?

THE WITNESS: The question was asked of me,

specifically, did I identify my title. I don’t remember if I did

or not, that’s all I’m saying.

THE COURT: We’ll have the jury leave the room. Just

follow the court officer’s direction.

THE COURT OFFICER: May I, Judge?

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All remain seated as the jury leaves the courtroom.

---

(Jury leaves the courtroom at 2:36 p.m.)

---

THE COURT: Now, you appear to be an educated

woman.

THE WITNESS: Yes, I am an educated woman. Yes.

THE COURT: How far did you go in school?

THE WITNESS: I have a master’s degree.

THE COURT: Have you ever heard of perjury? Have

you ever heard of perjury?

THE WITNESS: Yes.

THE COURT: Okay. You know that that’s a crime in

Pennsylvania just --

THE WITNESS: Yes.

THE COURT: It’s okay to say I don’t remember if you

don’t remember. But if you say I don’t remember to avoid

answering a question, there are two possibilities: one,

you’re in contempt of court and you can be jailed for that.

Two, you’re committing perjury and you can be prosecuted

for that.

Do you understand?

THE WITNESS: Yes, I do.

THE COURT: All right. We can bring the jury back in.

Id. at 82-85.

Thereafter, Johnson did not, as Appellant suggests, testify that she

remembered making all the inculpatory statements against Appellant included

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in her written statement. On the contrary, the certified record reflects that

Johnson considered each question and answered it to the best of her ability,

sometimes indicating that she remembered providing the information

recorded in the statement, sometimes indicating that she did not recall giving

the recorded response, and sometimes contradicting the statement, such as

by informing the jury that she did not actually see a gun. Id. at 91-92. On

cross-examination by Appellant’s counsel, Johnson again confirmed that she

saw no shooting, did not recall giving the description of the shooter recorded

in the statement, and did not recognize Appellant as the shooter. Id. at 101-

02.

Hence, the record does not support Appellant’s claim that Johnson was

“whipped into shape” by the trial court and coerced to offer testimony

favorable to the Commonwealth. Cf. Commonwealth v. Laws, 378 A.2d

812, 815 (Pa. 1977) (holding new trial was warranted where the trial court

excused the jury and repeatedly had witness’s preliminary hearing testimony

reread to him, repeatedly asked him if he was telling the truth, and repeatedly

warned him of the consequences of perjury, and the witness then recanted

his trial testimony and identified the defendant as the perpetrator).

Further, for the same reasons discussed in reviewing Appellant’s first

issue, we are unpersuaded that a curative instruction was necessary. Even if

Appellant’s speculation that the jury concluded that the trial court believed

Johnson to be lying had any support in the certified record, no specific

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cautionary instruction was needed. The trial court instructed the jury in the

opening and closing charges that any opinion that the trial court may have

appeared to have had was to be disregarded as irrelevant and uninformed.

See PCRA Court Opinion, 11/3/21, at 12-13 (quoting the opening and closing

jury charges). Consequently, Appellant’s second issue fails for lack of merit.

In his third allegation of ineffective assistance of counsel, Appellant

argues that the PCRA court erred in not concluding that the combined impact

of counsel’s ineffectiveness violated his right to a new trial. See Appellant’s

brief at 52. Our Supreme Court summarized the law applicable to this claim

as follows:

We have often held that no number of failed claims may

collectively warrant relief if they fail to do so individually.

However, we have clarified that this principle applies to claims that

fail because of lack of merit or arguable merit. When the failure

of individual claims is grounded in lack of prejudice, then the

cumulative prejudice from those individual claims may properly be

assessed.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (cleaned up).

As detailed above, Appellant failed to establish a single constitutionally-

deficient act or omission of counsel. Moreover, we have found a lack of merit,

rather than an absence of prejudice, as the basis for affirming the denial of

PCRA relief as to most of the claims. Discerning no cumulative prejudice, we

conclude that the PCRA court did not err or abuse its discretion in rejecting

Appellant’s third issue. Accord Spotz, supra at 321 (“We have denied most

of Appellant’s claims based on lack of merit, and there is no basis for a claim

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of cumulative error with regard to these claims. With regard to the few claims

that we have denied based on lack of prejudice, . . . we are satisfied that there

is no cumulative prejudice warranting relief.”).

In his last issue, Appellant contends that the PCRA court committed

reversible error in refusing to grant Appellant’s motion to recuse itself from

consideration of the instant PCRA petition. In so doing, Appellant reasserts

his arguments that the trial court exhibited “pervasive animosity and/or [the]

appearance of animosity toward the defense.” Appellant’s brief at 55. Since

his PCRA claims “directly implicated a judicial determination of the judge’s

own objectivity,” Appellant maintains that recusal was necessary. Id. at 56

(cleaned up).

We are unpersuaded. First, the fact that the PCRA court was required

to rule upon his own objectivity is of no moment, as “recusal motions are

routinely addressed in the first instance by the judge whose recusal is sought.”

Commonwealth v. Dip, 221 A.3d 201, 208 (Pa.Super. 2019). Furthermore,

we have already held that the certified record evinces no actual or apparent

bias or partiality against Appellant or the merits of his legal arguments, but

rather a lack of tolerance for trial counsel’s failure to follow the court’s

instructions. Accordingly, we cannot conclude that the PCRA court erred or

abused its discretion in failing to recuse itself.

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For the reasons stated above, Appellant has failed to establish that the

PCRA court erred and that relief is due. We therefore affirm the order that

denied his PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2022

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