Commonwealth v. Maze

• Docket Number: 557 WDA 2023,558 WDA 2023,559 WDA 2023,J-S34007-23
• Decision Date: 27 October 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant COMMONWEALTH OF PENNSYLVANIA v. LARRY MAZE Appellant

Nos. 557 WDA 2023, 558 WDA 2023, 559 WDA 2023

No. J-S34007-23

Superior Court of Pennsylvania

October 27, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered April 19, 2023 In the Court of Common Pleas of Jefferson County Criminal Division at No(s) CP-33-CR-0000599-2014, CP-33-CR-0000600-2014 CP-33-CR-0000266-2014

Benjamin D. Kohler, Esq.

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

MEMORANDUM

LAZARUS, J.

Larry Maze appeals from the order,^[1] entered in the Court of Common Pleas of Jefferson County, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm.

On June 16, 2015, a jury convicted Maze of numerous sex crimes committed against three girls who were 12-13 years old at the time of the offenses. On May 3, 2016, the trial court found Maze to be a sexually violent predator and sentenced him to an aggregate term of 86 to 270 years' incarceration. Maze's post-sentence motion was denied. He appealed to this Court, which found both of his claims waived. However, we sua sponte vacated Maze's SVP designation pursuant to the then-existing precedent established by Commonwealth v. Butler, 1225 WDA 2016 (Pa. Super. filed Oct. 31, 2017) ("Butler I") (holding then-effective SVP statute unconstitutional). See Commonwealth v. Maze, 893 WDA 2016 (Pa. Super. filed Nov. 20, 2017) (unpublished memorandum decision).

Maze filed a timely PCRA petition, claiming that appellate counsel was ineffective for failing to properly preserve Maze's challenge to the discretionary aspects of his sentence. On August 19, 2019, the PCRA court reinstated Maze's post-sentence and direct appeal rights, nunc pro tunc. Maze filed a post-sentence motion to reconsider his sentence, nunc pro tunc, which the trial court granted. The court vacated Maze's original sentence and scheduled a resentencing hearing, at which the court resentenced Maze to an aggregate term of 72½ to 208 years in prison.

Following resentencing, Maze filed a timely post-sentence motion in which he alleged that his sentence was the product of bias, prejudice, partiality, and ill-will on the part of the trial court. The court denied the motion, and this Court affirmed Maze's judgment of sentence on appeal. See id., 241 A.3d 435 (Pa. Super. 2020) (Table).

On December 2, 2021, Maze filed the instant PCRA petition. The PCRA court appointed counsel, who filed an amended petition alleging, inter alia, the ineffectiveness of trial counsel for failing to file a motion for recusal of the trial court judge, and the ineffectiveness of prior PCRA counsel for failing to raise the issue of trial counsel's ineffectiveness. The PCRA court held a hearing on December 9, 2022, at which time trial counsel and prior PCRA counsel testified. On April 19, 2023, the PCRA court denied relief. Maze filed timely notices of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He raises the following issues for our review:

1. Whether the [PCRA c]ourt erred by failing to find Scott White, Esquire[,] as trial counsel and first appeal attorney, ineffective for failing to object and move for recusal of [the] trial judge when appropriate during trial proceedings and/or post[-]sentence review[.]

2. Whether the [PCRA c]ourt erred by failing to find George N. Daghir, Esquire[,] as [resentencing, appellate, and first PCRA] attorney[,] ineffective for failing to raise[,] in [Maze's] first PCRA, the issue of Attorney White's ineffectiveness for failing to object and move for recusal of [the] trial judge when appropriate during trial proceedings and/or post[-]sentence review[.]

Brief of Appellant, at 4.

In reviewing an order denying relief under the PCRA, this Court's standard of review is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Hipps, 274 A.3d 1263, 1266 (Pa. Super. 2022).

Here, Maze's claims are grounded in allegations of ineffectiveness on the part of trial and first PCRA counsel. A PCRA petitioner will be granted relief on such a claim only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective 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." 42 Pa.C.S. § 9543(a)(2)(ii). Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). To obtain relief, a petitioner must demonstrate that counsel's performance was deficient, and that the deficiency prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner establishes prejudice when he demonstrates "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Under the Strickland test, a petitioner is required to prove: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or omission. Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa. 2008), citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (adopting U.S. Supreme Court's holding in Strickland). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted).

Maze asserts that trial counsel was ineffective for failing to seek the recusal of the trial judge, the Honorable John H. Foradora. Regarding Maze's underlying claim, "a party to an action has the right to request the recusal of a jurist where that party has a reason to question the impartiality of the jurist in the cause before the court." Goodheart v. Casey, 565 A.2d 757, 762 (Pa. 1989). "A motion for disqualification or recusal is properly directed to and decided by the jurist whose participation is challenged." Commonwealth v. Travaglia, 661 A.2d 352, 370 (Pa. 1995), citing Goodhart, supra. In disposing of a recusal request, a jurist must first make a conscientious determination of his or her ability to assess the case before the court in an impartial manner, free of personal bias or interest in the outcome. Goodhart, 565 A.2d at 764. "This is a personal and unreviewable decision that only the jurist can make." Id. "If content with that inner examination, the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary." Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004). An appellate court presumes judges are fair and competent, and reviews the denial of a recusal motion for an abuse of discretion. In re Lokuta, 11 A.3d 427, 435 (Pa. 2011).

Here, Maze argues that, prior to and during trial, Judge Foradora was aware of prior uncharged accusations against Maze of a sexual nature. Maze alleges that, over the course of trial, Judge Foradora made certain statements that revealed to the jury his resulting bias against Maze, caused the jury to question Judge Foradora's impartiality, and raised the appearance of impropriety.

The first instance in which Maze asserts Judge Foradora allegedly exhibited bias occurred on day one of Maze's trial, at which time Judge Foradora instructed the jury "to be alert for anything in a witness['] testimony to assist in judging the truthfulness, accuracy[,] and weight of the testimony." Brief of Appellant, at 13. Maze asserts that this "fully proper" instruction nonetheless "laid the groundwork for the jury to consider everything that occurred before them." Id. This claim is patently meritless. The instruction cited by Maze was taken by Judge Foradora, verbatim, from Pennsylvania Suggested Standard Criminal Jury Instruction 2.03 (Credibility and Weight of Evidence). To the extent that the jury did, in fact, "consider everything that occurred before them," they acted properly and in compliance with the court's entirely appropriate instruction.

The next instance of alleged bias occurred when one of the victims was testifying as to what Maze had done to her. The victim indicated that Maze had touched her breast, and the District Attorney Jeffrey D. Burkett, Esquire, asked her whether it took "a long time, or did it happen quickly?" N.T. Trial, 6/15/15, at 51. She responded that it "happened quickly," and, when further asked to "show us, approximately, how long we're talking about," she "[i]ndicat[ed]." Id. The following exchange then transpired:

[DISTRICT ATTORNEY]: Let the record reflect it was a fairly brief touching there and then-

[DEFENSE COUNSEL]: Not even half a second.

THE COURT: I didn't have a stopwatch. I'd say less than two [seconds].

Id. Maze argues that Judge Foradora, "[i]n offering this statement[,] . . . took away from the jury their interpretation of the testimony and instead substituted his own, increasing both counsels' estimations to the detriment of [Maze]." Brief of Appellant, at 13. This claim is meritless.

During his introductory statement to the jury, Judge Foradora instructed the panel as follows:

I am not, however, the judge of the facts. It is not for me to decide what are the true facts about the charge against

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