Commonwealth v. Tainan , 734 A.2d 886 ( 1999 )

STEVENS, J.:

¶ 1 Daniel Tainan appeals from the May 17,1994 judgment of sentence of the Court of Common Pleas of Philadelphia County. We affirm.

¶ 2 Tainan was arrested on charges that he repeatedly raped and molested the twelve-year-old niece of his girlfriend. On November 1, 1998, at a hearing before the Honorable Ricardo C. Jackson, Tainan entered a plea of nolo contendré to one count of rape pursuant to a plea agreement, which was not negotiated as to sentence. A pre-sentence report was prepared, which indicated that Tainan had two prior rape convictions. Despite his prior plea, when Tainan appeared for sentencing on March 14, 1994, he professed his innocence. N.T. 3/14/94 at 16-17. The following exchange then occurred:

THE COURT: If you deny raping her, I’ll permit you to withdraw your plea and I’ll give you a jury trial and let the jury decide.

THE DEFENDANT: Your Honor, I would have preferred to have it heard by a judge because of this reason: A jury would be sensitive. Part of the strong defense would show they had pri- or knowledge. She had prior knowledge—

THE COURT: I am not going to and I am unable to sit here and sentence a person who asserts his innocence. If that is what you are doing at this time I’ll give you a trial. I’ll permit you to withdraw your plea of no contest and I’ll give you any type of trial you choose. You could have a bench trial or jury trial.

THE DEFENDANT: You will sit and hear this case, Your Honor? I’ll accept it.

N.T. 3/14/94 at 17. Tainan was brought before the court for trial on May 10, 1994, but he initially refused to indicate whether he wanted a jury trial or a bench trial. N.T. 6/10/94 at 10. Tainan eventually chose a jury trial, but after the jury was seated, he changed his mind and requested a bench trial. N.T. 5/10/94 at 14, 17. At that point, Judge Jackson stated that “[tjhere has to be an extensive colloquy, because at the time he entered the nolo contendré plea I received a pre-sentence and psychiatric examination and I know his entire background. I want him collo-quied as to the fact that I have that knowledge.” N.T. 5/10/94 at 17-18. In response, Tainan’s counsel indicated to the court that he had cautioned Tainan in this regard, and, in spite of his awareness of the judge’s knowledge, Tainan informed counsel that he wanted to proceed with a bench trial. N.T. 5/10/94 at 18. Judge Jackson then instructed counsel for the Commonwealth to “[cjonduct a complete colloquy ... and be certain to examine defendant as to my knowledge of his entire background in this case in that at the time he entered a nolo contendré plea I ordered a pre-sentence investigation and mental health evaluation and I have read and understand the pre-sentence report and mental health evaluation.” N.T. 5/10/94 at 19-20. The colloquy was conducted, and Tainan indicated that his choice to have a bench trial before Judge Jackson was made of his own free will, and with the knowledge that Judge Jackson had thoroughly evaluated the pre-sentence report and mental health evaluation and was aware of his previous rape conviction. N.T. 5/10/94 at 20-25.

¶ S The bench trial was then conducted, and at the conclusion of the bench trial, Judge Jackson found Tainan guilty of four counts of rape, four counts of statutory rape, and one count each of involuntary deviate sexual intercourse, indecent assault, indecent exposure, unlawful restraint, false imprisonment, corrupting the morals of a minor, simple assault, recklessly endangering another person, and terror-istic threats. Tainan was sentenced on May 17, 1994. On May 26, 1994, he appealed his sentence to this Court, but on August 30, 1995, the appeal was dismissed, without prejudice to Tainan’s rights under the Post Conviction Relief Act (PCRA). On January 14, 1997, Tainan filed a PCRA petition, resulting in the nunc pro tunc reinstatement of his appellate rights on April 30, 1997. Tainan filed the appeal currently before us on May 22, 1997, alleging that (1) Judge Jackson should have recused himself because he was exposed to “highly prejudicial and inadmissible evidence;” and (2) Tainan’s trial counsel was ineffective for failing to request that Judge Jackson recuse himself. Appellant’s brief at 2.

¶ 4 Appellant’s first argument is waived, as Tainan himself admits no request for recusal was ever made. Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”); Reilly v. SEPTA, 507 Pa. 204, 222, 489 A.2d 1291, 1300 (1985) (“Once the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result.”). Apparently recognizing that this issue has been waived, Tainan also couches the allegation in terms of an ineffectiveness of counsel claim.

¶ 5 Tainan specifically asserts that his counsel was ineffective for failing to request that Judge Jackson recuse himself. Tainan claims that recusal was necessary because Judge Jackson was “consumed and tainted by [knowledge of] Appellant’s two prior convictions.” Appellant’s brief at 14. It was this very information, however, which Tainan acknowledged his awareness of when requesting a bench trial. N.T. 5/10/94 at 18, 24-25.

¶ 6 “Counsel is presumed to be effective, and it is the defendant’s burden to prove otherwise.” Commonwealth v. Cox, 556 Pa. 366,-, 728 A.2d 923, 929-930 (1999) (citation omitted). In order to defeat the presumption and prove his counsel was ineffective, Tainan must show that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for the action or omission in question; and (3) but for counsel’s ineffectiveness, the outcome of the trial would have been different. Commonwealth v. Dennis, 552 Pa. 331, 339, 715 A.2d 404, 408 (1998) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)).

¶ 7 We initially conclude that there would have been no merit to a request for recusal. Trial counsel specifically indicated that he had discussed with Tainan Judge Jackson’s knowledge of Tainan’s prior convictions as the result of the judge’s review of the pre-sentence report. N.T. 5/10/94 at 18. Thereafter, in Tainan’s presence, Judge Jackson requested a complete colloquy, and instructed that it “examine defendant as to my knowledge of his entire background in this case.” N.T. 5/10/94 at 19. Additionally, during the colloquy, Tainan acknowledged that he was waiving a jury trial of his own free will, with the knowledge that Judge Jackson had reviewed his pre-sentence report and mental health examination. N.T. 5/10/94 at 24-25. Finally, Judge Jackson himself questioned Tainan at the end of the colloquy, and Tainan again confirmed that he knew that Judge Jackson was aware of his previous rape convictions. N.T. 5/10/94 at 25.

¶ 8 “[T]he decision of whether to waive the right to a jury trial is that of the defendant and not his attorney.” Commonwealth v. Lott, 398 Pa.Super. 573, 582-584, 581 A.2d 612, 617-618 (1990) (citation omitted). Here, Tainan waived his right to a jury after a proper colloquy was conducted, and at no point does he challenge that colloquy. Under these circumstances, there would have been no merit to Tainan’s counsel requesting that Judge Jackson recuse himself. In addition, the circumstances clearly show that counsel had a reasonable basis for not requesting recusal: his client had repeatedly indicated his desire to go forward with the bench trial, with full knowledge that Judge Jackson was aware of his prior convictions.

¶ 9 Lastly, Tainan has failed to show that but for his counsel’s failure to request recusal, he would not have been convicted. “Recusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially.” Commonwealth v. Fisher, 545 Pa. 233, 244, 681 A.2d 130, 135 (1996) (citations omitted). We are guided by Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993), in which the appellant, convicted after a non-jury trial, asserted that the trial judge should have recused himself, sua sponte. The Pennsylvania Supreme Court found, inter alia, that recusal was not required, although the judge was the district attorney when the offenses were committed, took a statement from the Commonwealth’s primary witness, and had previously prosecuted the defendant on an unrelated charge. Edmiston, 535 Pa. at 230, 634 A.2d at 1088. Despite these circumstances, the Court concluded that a review of the record showed that the judge harbored no bias or prejudice. Edmiston, 535 Pa. at 231, 634 A.2d at 1088. Similarly, in Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992), recusal of a PCRA judge was found unnecessary, even though that judge had presided over the PCRA petitioner’s underlying trial.

¶ 10 To find that Tainan was prejudiced by Judge Jackson’s presiding over the trial would be to conclude that Judge Jackson was biased by the information contained in Tainan’s pre-sentence report and that the resulting trial was therefore poisoned. We will not make such a conclusion. To do so would require us to abandon all faith in the integrity and decorum of the trial judges of this Commonwealth. On the contrary, we presume that Judge Jackson acted properly, bound by the oaths of his office and faithful to the requirements of and unprejudiced, unbiased judiciary. Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330, 333 (1987) (“[Wjhere a criminal case is tried before a judge sitting without a jury, there is a presumption that his knowledge, experience and training will enable him to disregard inadmissible evidence.”). Further, at the conclusion of Tainan’s trial, Judge Jackson specifically assured Tainan that in reaching a verdict the judge had not considered the prior convictions, or any other information that was contained in the pre-sentence reports. N.T. 5/17/94 at 114. As such, we conclude that Tainan has failed to show that Judge Jackson was “consumed and tainted by appellant’s two prior convictions,” or that Judge Jackson deviated in any way from that which was required of him: to provide a fair trial. As such, Tainan has failed to show prejudice.

¶ 11 Because Tainan’s underlying claim has been waived, and his ineffectiveness allegation is unproven, we affirm the judgment of sentence.

¶ 12 Affirmed.

¶ 13 BROSKY, J., files a Dissenting Opinion.