J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JHENEA PRATT

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1060 WDA 2022

Appeal from the PCRA Order Entered August 10, 2022

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

No(s): CP

- 02

- CR

- 0013630

- 2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. *

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 6, 2023

Appellant, Jhenea Pratt, appeals from the post

- conviction court’s August

10, 2022 order denying her timely

- filed petition under the Post Conviction

R elief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. After careful review, we affirm.

The facts of Appellant’s underlying convictions are not pertinent to her

instant appeal. We need only note that on June 4, 2019, a jury convicted

Appellant of involuntary mansla ughter, 18 Pa.C.S. § 2504, and endangering

the welfare of a child, 18 Pa.C.S. § 4304(a)(1) , based on evidence that her

infant daughter died of fentanyl poisoning while in Appellant’s care

. Former

Allegheny County Court of Common Pleas Judge Mar k Tranquilli presided over

Appellant’s jury trial. Tranquilli also presided over Appellant’s sentencing

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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hearing on September 25, 2019. There, Tranquilli imposed an aggravated

range sentence of 5 to 10 years’ incarceration.

Appellant filed a timely direct appeal, solely arguing that Tranquilli had

abused his discretion by imposing an aggravated

- range sentence despite the

substantial mitigating evidence Appellant had presented

. See

Commonwealth v. Pratt , No. 1769 WDA 2019, unpublished memorandum

at *4 (Pa. Super. filed Sept. 22, 2020). We disagreed, quoting Tranquilli’s

lengthy discussion of his reasons for Appellant’s sentence, id. at 11

- 16, and

concluding that Tranquilli had considered all the requisite , statutory factors

and “did not impose an unreasonab le sentence....” Id. at 16. Accordingly,

we affirmed Appellant’s judgment of sentence , and our Supreme Court denied

Appellant’s subsequent petition for allowance of appeal. See

Commonwealth v. Pratt

, 240 A.3d 952 (Pa. Super. 2020) (unpublished

memorandum), appeal denied

, 256 A.3d 420 (Pa. 2021)

.

On July 7, 2021, Appellant filed the pro se PCRA petition underlying h er

present appeal. The PCRA court appointed counsel, who filed an amended

petition on Appellant’s behalf. Therein, Appellant asserted that Tranquilli had

been racially biased in sentencing her. In support, she attached to her petition

a “[c]o mplaint filed by the Court of Judicial Discipline at 4 JD 2020, which cites

instances of prejudicial [ and/or] racial bias ” by Tranquilli. Amended PCRA

Petition, 11/29/21, at 6. Appellant also attached a “ Stipulation and Waiver

filed by

... Tranquilli, wherein he stipulated to the facts alleged in the

Complaint [,]” as well as a “ November 19, 2020, Order of the Court of JudicialJ

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-

Discipline which adopted the stipulations as findings of fact and imposed

sanctions. ” Id. Appellant alleged that these documents “[e]stablish that

[she] proceeded to sentencing before a Judge who, in all probability, is racially

biased. This racial bias prevented

... Tranquilli from presiding over

[Appellant’s] sentencing in an impartial manner.” Id. at 7. Accordingly,

Appellant insisted that her “sentence

... was the result of bias and must be

vacated.” Id. 1 Appellant also claimed that her trial counsel was ineffective

for failing to argue (and/or preserve in a post

- sentence motion) that she was

eligible for the Recidivism Risk Reduction Incentive Act (RRRI), and that her

appellate counsel was ineffective for failing to raise this issue on direct appeal.

Id. at 10

- 11.

On July 20, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant filed a

response, but on August 10, 2022, the court issued an order dismissing her

petition. She file d a timely notice of appeal, and she timely complied with the

PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The PCRA court subsequently issued a “Statement

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1 We note that Appellant stated her claim was cognizable under the PCRA

because her “sentence resulted from a constitutional due process violation

which so undermined the truth

- determining process that no reliable

adjudication of guilt or innocence could have taken place.” Amended PCRA

Petition at 5. She also maintained that she could not have assert ed Tranquilli’s

“judicial bias and inherent prejudice ... until after the Judicial Review Board

proceedings were concluded. Thus, [Appellant] could[ not] have raised the

claim involving Tranq uilli until this collateral attack.” Id.J

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in Lieu of Opinion” declaring that it was relying on the reasons set forth in its

Rule 907 notice for denying Appellant’s petition.

Herein, Appellant states two issues for our review:

I. The PCRA [c]ourt erred in denying relief because [Appellant]

was denied due process where the presiding trial judge at

[s]entencing was not impartial, and the unreasonable

sentence imposed was the result of judicial bias.

II. The PCRA [c]ourt erred in denying relief where sentencing

counsel was ineffective for failing to argue that [Appellant]

was RRRI eligible, and for failing to raise this issue in post

sentence motions or on direct appeal.

Appellant’s Brief at 5.

Initially, we note that:

“In reviewing the propriety of an order granting or denying PCRA

relief

, an appellate court is limited to ascertaining whether the

record supports the determination of the PCRA court and whether

the ruling is free of legal error.” Commonwealth v. Johnson

, ... 966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the

findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id.

Commonwealth v. Matias

, 63 A.3d 807, 810 (Pa. Super. 2013).

Appellant first contends that the PCRA court erred in dismissing her

petition because “she was sentenced in a courtroom where judicial bias was

established after her direct appeal was concluded.” Appellant’s Brief at 11.

In support, she points to the documents attached to her PCRA petition, which

she claims demonstrate that Tranquilli “harbored a fixed bias regarding illegal

drugs and people of color that h e assumes deal in drugs....” Id. at 16.

Because she is a woman of color and her case involved illegal narcotics,

Appellant insists that “[t]here is no doubt ... [she] proceeded to sentencingJ

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before a [j]udge who, in all probability, was racially biased” and impartial. Id.

at 14.

As evidence of Tranquilli’s alleged bias, Appellant points to his statement

at sentencing that if she were “granted probation, there would be an undue

risk during that period of probation that [she] would commit another crime.”

Id

. at 15

- 16 (citing N.T. Sentencing, 9/25/19, at 12). Given the fact that

Appellant had a zero prior record score and had never served or violated a

term of probation, she insists that “[t]he conclusion that [she] was a person

to be considered unduly risky to commit another crime while on probation was

based upon the sentencing judge’s biased mindset toward a person of color”

and/or the fact that her crimes involved narcotics. Id. at 16.

Ap pellant also minimizes the fact that this Court reviewed her sentence

on direct appeal . She stresses that on direct appeal, she argued that “the

sentence imposed was an abuse of discretion in light of substantial mitigating

evidence[,]” and “[t]he prior S uperior Court panel was not asked to consider

whether ... [Tranquilli] was biased, nor whether the sentence imposed was

impacted by [his] bias.” Id. at 16

- 17. In sum, Appellant maintains that

“Tranquilli’s actions while on the bench were so extreme that he failed to

promote public confidence in the judiciary, and failed to avoid impropriety.”

Id. at 17. Thus, she concludes that her “aggravated range sentence must be

vacated because it was imposed under circumstances that shakes one’s

confidence in the int egrity of the proceedings.” Id. at 18.J

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In assessing Appellant’s arguments, we have reviewed the

Commonwealth’s responsive brief, the certified record, and the applicable law.

We have also considered the well

- reasoned discussion set forth by the

Honorable Bruce R. Beemer of the Court of Common Pleas of Allegheny County

in his Rule 907 notice. See Pa.R.Crim.P. 907 Notice, 7/20/21, at 2

- 6. For the

reasons set forth by Judge Beemer, we agree that Appellant’s first issue is

meritless. 2 Additionally, we adopt Judge Beemer’s sound rationale for

dismissing Appellant’s second issue, in which she claims that her trial and

appellate attorneys were ineffective for not arguing that she is eligible for the

RRRI program. See id. at 6

- 9. Therefore, we affirm the PCRA court’s order

denying her petition.

_________________ __________ ______ ____ _______

2 W e note, however, that we agree that Appellant would be entitled to a new

sentencing hearing if the underlying due process claim were established

. S ee

generally Commonwealth v. Koehler

, 229 A.3d 915, 929

- 932 (Pa. 2020)

. However, the core flaw in her position is that Tranquilli’s bias in an unrelated

case does not establish bias in this case. For example, in 1997 the

Philadelphia District Attorney’s office released a videotape of a training given

by one of it s assistant district attorneys, “which instructed prosecutors to

manipulate the jury selection process in order to minimize the seating of

African

– American jurors[.]” Commonwealth v. Rollins , 738 A.2d 435, 443

n.10 (Pa. 1999). However, “the existence of the tape does not demonstrate

that there was discrimination in his case.” Id. ( italicized emphasis in original ;

bolded emphasis added ). Similarly, the fact that Tranquilli exhibited bias

against another defendant does not establish bias in this case. Th e fact that

a panel of our Co urt discerned no abuse of discretion in imposing the

aggravated range sentence does not, of course, foreclose the existence of bias

on Tranquilli’s part. But the independent review and identification of an

adequate basis to su pport the sentence undermines Appellant’s implicit

assertion that the only possible explanation for the aggravated

- range

sentence is racial bias.J

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2023Circulated 05/11/2023 04:01 PM