J-S24011-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AARON EDWARDS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2496 EDA 2021

Appeal from the PCRA Order Entered November 5, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008635-2017

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 12, 2022

Aaron Edwards appeals from the order dismissing his timely first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 42 

Pa.C.S.A. 9541-9546. Upon careful review, we affirm

From 2016 to 2017, Edwards and Christopher Hines were both 

romantically involved with the same woman. In the early afternoon of July 19, 

2017, Hines was sitting in his vehicle, which was parked on the street outside 

of his home. Edwards approached the vehicle, and the two men had a verbal 

exchange. The men offered slightly differing accounts as to what transpired 

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* Retired Senior Judge assigned to the Superior Court.
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after the verbal exchange ended.1 However, there is no question that Edwards 

pulled a gun and fired a shot through the driver’s side door. The bullet hit 

Hines in the abdomen.2 When Hines reversed his vehicle, Edwards fired a 

second shot that hit the windshield. Edwards was arrested on July 21, 2017.

On October 13, 2017, the Commonwealth filed an information charging

Edwards with attempted murder, aggravated assault, possessing an 

instrument of crime (“PIC”), simple assault, and recklessly endangering 

another person (“REAP”). Edwards entered a guilty plea on October 7, 2019, 

and then filed a motion to withdraw. The trial court granted the motion to 

withdraw the guilty plea on October 30, 2019.

At the conclusion of a nonjury trial, Edwards was convicted of 

aggravated assault, simple assault, PIC and REAP. He was found not guilty of 

attempted murder. On July 28, 2020, the trial court sentenced Edwards to 

serve an aggregate term of incarceration of eleven and one-half to twentythree months, followed by four years of probation. Edwards did not file a direct 

appeal.

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1 Edwards contended that as he was walking away, he saw Hines pull a gun, 

and then decided to take out his firearm, and he “put a shot into the door.” 

N.T., 1/10/20, at 206.

2 The injury suffered by Hines required emergency surgery and a nearly onemonth hospital stay.
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On January 28, 2021, Edwards filed the instant, counseled PCRA 

petition. The PCRA court dismissed the petition on July 5, 2021. This timely 

appeal followed.

Our standard of review for an order denying PCRA relief is whether the 

record supports the PCRA court’s determination, and whether the PCRA court’s 

determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d 

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the certified record. See id.

In his first issue on appeal, Edwards claims his trial counsel was 

ineffective.

Concerning ineffective assistance of counsel arguments, we presume 

counsel is effective, and the appellant bears the burden to prove otherwise. 

See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The 

appellant must demonstrate: (1) his underlying claim is of arguable merit; (2) 

the particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but for counsel’s 

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

proceedings would have been different. See Commonwealth v. Solano, 129 

A.3d 1156, 1162-63 (Pa. 2015).

Pursuant to the first prong, we note that where an appellant is not 

entitled to relief on the underlying claim upon which his ineffectiveness claim 

is premised, he is not entitled to relief on his ineffectiveness claim. See 
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Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In short, 

counsel cannot be deemed ineffective for failing to pursue a meritless claim. 

See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en 

banc). Regarding the second prong, we have long reiterated that trial 

counsel’s approach must be “so unreasonable that no competent lawyer would 

have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. 

Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)). 

In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the 

proceeding would have been different. See Commonwealth v. Pierce, 786 

A.2d 203, 213 (Pa. 2001). “A failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Commonwealth v. 

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted). 

Edwards contends that the judge who accepted his guilty plea, which 

was later withdrawn, should not have presided over his nonjury trial. He 

asserts that the trial judge was tainted by the prior guilty plea. He therefore 

asserts that his trial counsel was ineffective when he failed to file a motion to 

recuse. See Appellant’s Brief at 9-19.

The party requesting recusal must “produce evidence establishing bias, 

prejudice or unfairness [that] raises a substantial doubt as to the jurist’s 

ability to preside impartially.” Commonwealth v. Tedford, 960 A.2d 1, 55–

56 (Pa. 2008) (citation omitted). See also Commonwealth v. Postie, 110 
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A.3d 1034, 1038 (Pa. Super. 2015) (citation omitted) (holding the trial court 

did not abuse its discretion in denying recusal motion where the court had sat 

as suppression court because the defendant made no argument that his 

admissions at the suppression hearing were inadmissible or that trial 

proceedings were flawed and, it observed that a trial judge is capable of 

disregarding prejudicial evidence).

Our Supreme Court has long clarified that the rule regarding the same 

judge hearing pretrial proceedings and presiding over the subsequent trial is 

that “a judge should honor a request for recusation where prejudicial 

information is received in a pre-trial proceeding that would be otherwise 

inadmissible during the trial of the cause.” Commonwealth v. Goodman, 

311 A.2d 652, 654 (Pa. 1973). “Whether a trial judge should recuse himself 

thus depends upon the type of evidence that the judge hears; if the evidence 

is inadmissible and is of a highly prejudicial nature, the judge should recuse 

himself or declare a mistrial if it is too late for recusal.” Commonwealth v. 

Lewis, 460 A.2d 1149, 1151 (Pa. Super. 1983) (citation omitted).

The following language from our decision in Commonwealth v. Postie, 

110 A.3d 1034 (Pa. Super. 2015), is instructive:

[T]he mere participation by the trial judge in an earlier stage of 

the proceedings does not provide a per se basis for requiring 

recusal of the trial judge.

The determination of whether a trial judge should 

recuse himself depends upon the following: the type 

of evidence that the judge hears; if the evidence is 

inadmissible and is of a highly prejudicial 
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nature, the judge should recuse himself or declare a 

mistrial if it is too late for recusal. The judge should 

also recuse himself whenever there is substantial 

doubt as to his ability to preside impartially. The 

burden to show prejudice, however, is on the party 

seeking recusal. If the evidence is admissible, or 

not of a highly prejudicial nature, recusal is not 

required, and while it may be the better practice 

to have a different judge preside over trial than 

preside over pre-trial proceedings, such a 

practice is not constitutionally required and has 

not been made the basis for setting aside a verdict 

reached in an otherwise proper trial. This principle 

appears to be based on the prevailing view that 

judicial fact-finders are capable of disregarding 

prejudicial evidence.

Postie, 110 A.3d at 1038 (quoting Commonwealth v. Lott, 581 A.2d 612, 

615 (Pa. Super. 1990)) (emphases added).

The PCRA court addressed Edwards’s claim of ineffective assistance and 

determined he failed to satisfy any prong of the ineffectiveness test, which 

includes a failure to establish merit to the underlying issue. See PCRA Court 

Opinion, 1/24/22, at 4-7. As the court noted, the “issue [at trial] was not 

whether [Edwards] actually shot at the complaining witness, but whether the 

shooting was done in self-defense.” Id. at 5. Further, the court observed that 

at his nonjury trial “[Edwards] acknowledged that he shot the complaining 

witness but claimed it was in self-defense.” Id. at 6 (citing N.T., 1/10/20, at 

236). The PCRA court opined that “[n]othing about the guilty plea or any other 

pretrial proceedings would have left the trial court incapable of rendering an 

impartial verdict on this simple issue.” Id. Moreover, the PCRA court 
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recognized that “[n]o inadmissible evidence was heard by the trial court.” Id. 

We agree with the PCRA court’s conclusions.

Our review of the record reflects that the trial court, after conducting an 

extensive colloquy, accepted Edwards’s guilty plea. See N.T., 10/7/19, at 4-

18, 19. Prior to accepting the plea, the Commonwealth set forth the following 

facts that it would have introduced at trial:

[O]n July 19, 2017, in the 500 block of Widener Street, ..., 

the complainant, Christopher Hines, ..., was on the phone in his 

vehicle with his girlfriend, ....

At that time, [Edwards] approached Mr. Hines’ vehicle, and 

with his gun, shot into the vehicle on the driver’s side door, 

striking the complainant, Mr. Hines, in his left side of the 

abdomen. The victim then reversed his vehicle, and [Edwards] 

shot one more bullet into the car, which struck the windshield of 

the car.

Mr. Hines then drove himself to Albert Einstein Hospital, 

where he underwent surgery and was in the hospital, 

approximately, for a month.

N.T., 10/7/19, at 17-18. 

The record further establishes that the court held a hearing on Edwards’s 

motion to withdraw his guilty plea. At the hearing, defense counsel stated, 

“[A]t this time, the defense would motion the [c]ourt to allow [Edwards] to 

withdraw his guilty plea upon the basis that he maintains his innocence, and 

has a self-defense claim that he wishes to put before this [c]ourt.” N.T., 

10/30/19, at 7. The court immediately granted the request to withdraw and 

set a trial date. See id. 
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Thereafter, the following transpired between the trial court and defense 

counsel:

THE COURT: ... I heard the guilty plea in this matter. 

Certainly, your client has the right to ask me to recuse myself 

since I did hear the guilty plea in this matter.

Have you had a chance to speak to your client about 

whether he wants a recusal?

[DEFENSE COUNSEL]: Yes, I have, Your Honor. He does not 

wish to have a recusal. He does realize that he had put certain 

facts before this [c]ourt. He does not dispute that he fired the gun. 

He does not dispute that when he fired the gun, he hit the 

complaining witness in this case. So under those facts, he’s 

perfectly fine.

THE COURT: It’s just a matter of whether there’s an 

affirmative defense or not.

[DEFENSE COUNSE]: Exactly.

N.T., 10/30/19, at 8.

At his subsequent nonjury trial, Edwards testified on his own behalf. See

N.T., 1/10/20, at 175-225. On direct examination, Edwards admitted to the 

fact that he fired a shot into the car door and then fired a second shot as the 

victim was driving the car. See id. at 206-207. On cross-examination, 

Edwards admitted to firing the first shot into the driver’s side door and that 

the shot hit the victim’s stomach. See id. at 220. Edwards further 

acknowledged that the second shot he fired hit the windshield. See id. at 220-

221. 

It cannot be disputed that the facts presented by the Commonwealth at 

the guilty plea hearing were the exact facts subsequently offered by Edwards 
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at his trial. We reiterate that recusal is not warranted if the pretrial evidence 

is admissible at trial. Postie, 110 A.3d at 1038. Moreover, as set forth above, 

this Court has expressly stated that having a different judge try a case than 

the one who heard pretrial proceedings “is not constitutionally required.” Id. 

Accordingly, we discern no error on the part of counsel for advising Edwards 

to proceed to a nonjury trial before the same judge who accepted his later 

withdrawn guilty plea. Hence, the record supports the PCRA court’s finding 

that Edwards failed to prove that trial counsel should have sought recusal of 

the trial judge. Edwards’s claim of ineffective assistance fails.

In his second issue, Edwards presents a challenge to the legality of his 

sentence. See Appellant’s Brief at 19-22. Specifically, he argues that his 

sentence is illegal because he did not receive credit for the time he served 

prior to his sentencing.3 Edwards asserts that the trial court lacked authority 

to refuse awarding credit for his time spent in pretrial custody. See id. at 21. 

This Court has explained that “[a] challenge to the trial court’s failure to 

award credit for time spent in custody prior to sentencing involves the legality 

of sentence and is cognizable under the PCRA.” Commonwealth v. Fowler, 

930 A.2d 586, 595 (Pa. Super. 2007) (citation omitted). Moreover, “[a] claim 

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3 As noted by the Commonwealth, Edwards conflates the challenge to the 

legality of his sentence with an issue challenging the effective assistance of 

trial counsel for failing to object to the trial court failing to grant credit for time 

served. See Commonwealth’s Brief at 10 n.3. Because claims challenging the 

legality of sentence are cognizable under the PCRA, we need not address any 

allegation of ineffective assistance of trial counsel.
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challenging the legality of a sentence is appealable as of right.” 

Commonwealth v. Little, 612 A.2d 1053, 1053 n.1 (Pa. Super. 1992)

(citation omitted). Issues relating to the legality of a sentence are reviewed 

de novo, and our scope of review is plenary. See Commonwealth v. 

Infante, 63 A.3d 358, 363 (Pa. Super. 2013).

Regarding the awarding of credit for time served, the Sentencing Code 

provides, in relevant part, as follows:

§ 9760. Credit for time served

After reviewing the information submitted under section 

9737 (relating to report of outstanding charges and sentences) 

the court shall give credit as follows:

(1) Credit against the maximum term and any 

minimum term shall be given to the defendant for all 

time spent in custody as a result of the criminal charge 

for which a prison sentence is imposed or as a result 

of the conduct on which such a charge is based. Credit 

shall include credit for time spent in custody prior to 

trial, during trial, pending sentence, and pending the 

resolution of an appeal.

42 Pa.C.S.A. § 9760(1).

“Section 9760(1) contains two general elements: (1) the time must be 

‘spent in custody’ and (2) the time must be ‘as a result of the criminal charge 

for which a prison sentence is imposed or as a result of the conduct on which 

such a charge is based.’” Commonwealth v. Nobles, 198 A.3d 1101, 1106 

(Pa. Super. 2018) (citing 42 Pa.C.S.A. § 9760(1)). “If both conditions are met, 

then the defendant is entitled to credit as of right.” Id. (citation omitted). 

However, “a defendant may waive his statutory right to sentencing credit.” 
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Id. at 1105 (citing Commonwealth v. Byrne, 833 A.2d 729, 734 (Pa. Super. 

2003)). Such a waiver of statutory rights requires that the waiver be knowing, 

voluntary and intelligent. See Byrne, 833 A.2d at 736.

In addition, we are mindful 42 Pa.C.S.A. § 9762(b)(1-3) directs that, 

depending on the maximum length of the sentence, a defendant “shall” be

confined to state prison or county jail. Relevant to this matter, a maximum 

term of incarceration of less than two years is to be served in county jail. See

42 Pa.C.S.A. § 9762(b)(3). Moreover, if the sentence is served in county jail, 

the trial court has the authority to determine if, and when, the defendant may 

be granted parole. See 42 Pa.C.S.A. § 9775.

The PCRA court offered the following concerning the waiver of credit for 

time served:

[Edwards’s] waiver of his statutory right to credit for time served 

was knowingly entered into and voluntary. Structuring his 

sentence without credit for the three years he already served 

accommodated [Edwards’s] concerns about being transferred out 

of Philadelphia County and enabled his release at the minimum 

possible time based on the sentencing guidelines. At no point did 

[Edwards] indicate that he did not understand the structure of his 

sentence or object in any manner.

PCRA Court Opinion, 1/24/22, at 9. We agree.

Our review of the record indicates the parties and the trial court agreed 

at the sentencing hearing that, for the conviction of aggravated assault under 

18 Pa.C.S.A. § 2702(a), the Sentencing Guidelines set out an offense gravity 

score of eleven, and Edwards had a prior record score of zero. Accordingly, 

the Sentencing Guidelines set forth a standard range minimum sentence of 36 
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to 54 months, plus or minus 12 months for the mitigated and aggravated 

ranges. See N.T., 7/28/20, at 6. In addition, the “deadly weapon used” 

enhancement calls for a minimum sentence of 54 to 72 months, plus or minus 

12 months. See id.

At the sentencing hearing, defense counsel requested that the court 

impose a sentence of 42 to 84 months, which is a fully mitigated deadly 

weapon used enhancement sentence. See id. at 15-16. Defense counsel made 

the identical request in the sentencing memorandum presented to the court. 

See Defendant’s Sentencing Memorandum, 4/21/20, at 6. In response, the 

Commonwealth recommended a sentence of 72 to 144 months. See N.T., 

7/28/20, at 29. Therefore, both suggested sentences would necessitate a 

maximum sentence of more than two years, which would require Edwards to 

serve his sentence in state prison. Further, both defense counsel and Edwards 

reiterated that currently Edwards had been incarcerated for the incident for 

more than three years. See id. at 17, 33.

Importantly, defense counsel conveyed to the court issues regarding 

Edwards’s health and desire to receive a lenient sentence. Defense counsel 

noted the ramification of Edwards receiving a sentence that would require him 

to serve his term of incarceration in state prison: “[I]f the Court were to give 

Mr. Edwards a three and a half to seven year sentence of incarceration, he 

would go upstate, serve at least a year, they give him anger management 

programs. Mr. Edwards would not be released for at least one to two years 
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from the date of sentencing, although he’s six months away from his 

minimum.” N.T., 7/28/20, at 16. Essentially, counsel explained that 

incarceration in state prison would adversely delay Edwards’s release.

Counsel then made the following request for a tailored sentence:

[I]f we go above the year he’s going upstate regardless of 

what we do.

I did have the opportunity to speak to Mr. Edwards. He will 

request of this Court, as I'm going to just now, that if we can work 

out, again, knowing that Mr. Edwards has served three years and 

a few days in custody, if the Court were to sentence him to a 

sentence that would allow Mr. Edwards to serve additional 

incarceration on house arrest for a period of at least one to two 

years on house arrest, 23 months flat perhaps, I believe that that 

would -- which, again, Judge, it’s a sentence of house arrest.

Id. at 17 (emphasis added). Defense counsel again noted “Mr. Edwards has 

served very much [of] the minimum sentence if the Court were to mitigate to 

that degree.” Id. at 18.

Thereafter, the trial court made the following sentencing proposal:

Or in the alternative, if your concern was that he was going to be 

sent upstate and not released at his minimum, he could also get 

a County sentence with no credit for time served, and be paroled 

at a date certain.

Id. at 19 (emphasis added). Defense counsel immediately indicated to the 

court that its recommendation was a “great suggestion.” See id.

Ultimately, the trial court imposed the following sentence of 

incarceration on the conviction of aggravated assault:

[T]he sentence is going to be 11 1⁄2 to 23 months, no credit 

for time served, which means that he’s going to be starting from 

today. But I will parole him at the minimum at 11 1⁄2 months, 
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which essentially has him spending four years in custody. He’s 

then going to be on his parole.

The first six months of his parole he will be on house arrest 

and then he will serve the rest of his parole in the community 

without house arrest.

Id. at 44.

The trial court then offered extensive instructions to Edwards regarding

the requirement that he make no contact with Hines. Id. at 45. The court 

explained that a violation of the order would lead to a hearing and a return to 

custody, which could result in a period of state custody. See id. Edwards 

stated to the court that he understood the directive. See id. The trial judge 

also offered a detailed explanation of house arrest and conditions of probation 

and parole, and Edwards repeatedly acknowledged his understanding of the 

matters. See id. at 45-47. 

Accordingly, our review confirms that Edwards knowingly, voluntarily,

and intelligently waived his statutory right to credit for time served, which 

permitted the trial court to impose a sentence that allowed him to remain in 

custody in the county facility with a guaranteed date of parole. The sentence 

accommodated Edwards’s request, as presented by defense counsel, and 

provided a mitigated length and satisfactory place of confinement. Moreover, 

Edwards expressed his understanding of the sentence without offering any 

objection or questions. Therefore, we conclude that Edwards appropriately 
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waived his statutory right to credit for time served, and his challenge to the 

legality of his sentence lacks merit.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2022

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4 We note that the PCRA court aptly stated, “[Edwards] clearly understood his 

sentence and benefitted from the structure of the sentence.” PCRA Court 

Opinion, 1/24/22, at 10. As the Commonwealth observed, “[T]he relief 

[Edwards] requests – i.e., vacating his sentence – would disrupt the overall 

sentencing scheme, would therefore require a remand for resentencing to a 

state prison, and would negate the benefit from his bargained-for sentence.” 

Commonwealth’s Brief at 12 (quotation marks, brackets and citation omitted).