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

v.

AARON EDWARDS

Appellant : : : : : : : : : 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. Up on 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 park ed on the street outside of his hom e. Edwards approached the vehicle, and the two men had a verbal exchange. The men offered slightly differing accounts as to what transpired

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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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 tr ial 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 twenty

three months, followed by four years of probation. Edwards did not file a direct appeal.

_________________ __________ ______ ____ _______ 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 one

month hospital stay.J

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On January 28, 2021, Edwards filed the instant , counsel ed 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 deter mination 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 proceedin gs 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, h e is not entitled to relief on his ineffectiveness claim. SeeJ

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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). S ee also Commonwealth v. Postie , 110J

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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 tha t his admissions at the suppression hearing were inadmissible or that trial proceedings were flawed and, i t 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 t he 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 sho uld 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 up on the following: the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicialJ

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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 wh enever 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 tr ial. This principle appears to be based on the prevailing view that judicial fact

- finders are capable of disregarding prejudicial evidence. Postie , 1 10 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
im partial verdict on this simple issue.” Id . Moreover, the PCRA courtJ

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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 con ducting 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 Widen er 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 h is 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 th is 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 immediatel y 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 cert ain 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 ther e’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 s hot 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 EdwardsJ

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at his trial. We reiterate that recusal is not warranted if the pretrial evidence is admissible at trial. Postie , 1 10 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 coun sel 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 recei ve 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. Sup er. 2007) (citation omitted). Moreover, “[a] claim

_________________ __________ ______ ____ _______ 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. Becau se claims challenging the legality of sentence are cognizable under the PCRA, we need not address any allegation of ineffective assistance of trial counsel.J

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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 r eviewed 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, pend ing 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.”J

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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, volun tary and intelligent. See Byrne , 833 A.2d at 736. In addition, w e 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 gr anted 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 sente nce 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. W e 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 Edwar ds had a prior record score of zero. Accordingly, the Sentencing Guidelines set forth a standard range minimum sentence of 36J

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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 w eapon 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 us ed 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 1 44 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 requi re Edwards to serve his sentence in state prison. Further, both defense counsel and Edwards reiterated th at 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 l east a year, they give him anger management programs. Mr. Edwards would not be released for at least one to two yearsJ

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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
in carceration 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 addi tional 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 alter native, 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,J

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which essentially has him spending four years in custody. He’s then goin g 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 o f 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 q uestions. Therefore, we conclude that Edwards appropriatelyJ

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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

_________________ __________ ______ ____ _______ 4 We note that the PCRA court aptly stated, “[Edwards] clearly understood his sentence and benefitt ed 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 res entencing 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).