Com. v. Casanova-Lanzo, M. ( 2022 )

J-S32045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIO CASANOVA-LANZO :
:
Appellant : No. 12 MDA 2022
Appeal from the PCRA Order Entered December 13, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001530-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2022
Mario Casanova-Lanzo appeals, pro se, from the order, entered in the
Court of Common Pleas of Lancaster County, denying his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Upon review, we affirm.
The trial court provided the following factual summary:
On the night of February 20, 2013, [Casanova-Lanzo] broke into
the residence of his estranged wife, Hollie Casanova, and shot and
killed Parrish Thaxton[, Ms. Casanova’s paramour]. [Casanova-
Lanzo] had not resided in the residence since October 2012[,]
when he and Ms. Casanova separated. Ms. Casanova resided
there with her six (6) children and [Thaxton]. [Casanova-Lanzo]
gained entrance to the locked residence by breaking a window in
the kitchen. [Casanova-Lanzo] then proceeded upstairs where his
and Ms. Casanova’s young son, M.S., witnessed [Casanova-
Lanzo] enter the bedroom of Ms. Casanova and [Thaxton]. Upon
entering, [Casanova-Lanzo] fatally shot [Thaxton], who was lying
in bed, once in the chest and once in the face with a sawed-off
shotgun while yelling at [Thaxton] to get out. [Casanova-Lanzo]
then left the residence.
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[Casanova-Lanzo] turned himself into the authorities the next
day. A mail intercept during [Casanova-Lanzo]’s incarceration
produced a letter [Casanova-Lanzo] wrote to his sister on or about
April 29, 2013. In the letter, [Casanova-Lanzo] admits that he
went to Ms. Casanova’s residence on that night with the intent to
murder [Thaxton].
Trial Court Opinion, 1/2/19, at 2-3.
On September 20, 2018, a jury convicted Casanova-Lanzo of first-
degree murder and burglary. Casanova-Lanzo was subsequently sentenced
to an aggregate term of life in prison without parole, plus 3½ to 10 years’
imprisonment. Casanova-Lanzo filed a timely notice of appeal and this Court
affirmed his judgment of sentence. See Commonwealth v. Casanova-
Lanzo, 217 A.3d 368 (Pa. Super. 2019) (Table). Casanova-Lanzo filed a
petition for allowance of appeal, which our Supreme Court denied on
September 4, 2019. See Commonwealth v. Casanova-Lanzo, 217 A.3d
800 (Pa. 2019) (Table).
On November 24, 2019, Casanova-Lanzo, acting pro se, filed the instant
PCRA petition. The PCRA court appointed counsel who, on January 30, 2020,
filed an application to withdraw based upon Casanova-Lanzo’s desire to
proceed pro se. The PCRA court conducted a Grazier1 hearing, after which it
granted counsel’s application to withdraw and permitted Casanova-Lanzo to
proceed pro se. On January 12, 2021, Casanova-Lanzo, pro se, filed an
amended PCRA petition. On July 22, 2021, the PCRA court conducted an
evidentiary hearing, after which it ordered additional briefing from the parties.
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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After the parties filed their respective briefs, the PCRA court denied Casanova-
Lanzo’s PCRA petition on December 13, 2021.
Casanova-Lanzo, pro se, filed a timely notice of appeal and a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.2 Casanova-
Lanzo now presents the following claim for our review: “The P[]C[]R[]A[]
[c]ourt was in error for its denial of [Casanova-Lanzo]’s P[]C[]R[]A[] due to
the multiple ineffective assistance of [c]ounsel[] claims raised and proven by
[Casanova-Lanzo].” Brief for Appellant, at 4.
We begin by noting that Casanova-Lanzo actually raises approximately
nine separate claims, some with several sub-issues, in the argument section
of his brief, which we address separately.3 Additionally, all of Casanova-
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2 During the pendency of this appeal, Casanova-Lanzo filed a Petition for
Discovery with this Court, in which he requested all transcripts for the instant
case from the Lancaster County Public Defender’s Office. See Petition for
Discovery, 1/13/22, at 1-2. On February 9, 2022, this Court remanded the
record to the trial court to determine which transcripts and documents are
necessary for Casanova-Lanzo’s appeal. See Order, 2/9/22, at 1. The trial
court has certified that all transcripts and relevant materials had previously
been provided to Casanova-Lanzo pursuant to the trial court’s November 18,
2020, order. See PCRA Court’s Response, 3/7/22, at 1-9 (detailing history of
PCRA discovery, as well as transcripts and exhibits received by Casanova-
Lanzo used in preparation of his PCRA petition and subsequent hearing).
3 We observe that Casanova-Lanzo’s brief is replete with violations of Pa.R.A.P.
2116(a). See Pa.R.A.P. 2116(a) (“The statement of questions involved must
state concisely the issues to be resolved . . . [and] will be deemed to include
every subsidiary question fairly comprised therein. No question will be
considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”) (emphasis added). Because Casanova-
Lanzo’s statement of questions involved raises a single issue, while his
argument section raises nine issues with multiple sub-issues, we could find all
(Footnote Continued Next Page)
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Lanzo’s claims raise challenges to his trial counsel’s effectiveness. We adhere
to the following standard of review:
We review an order [denying] a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Regarding claims of ineffective assistance of counsel, counsel is
presumed to be effective, and “the burden of demonstrating ineffectiveness
rests on [the] appellant.” Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[:] (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 [client’s] interests; and, (3) but for counsel’s ineffectiveness
there is a reasonable probability that the outcome of the
challenged proceeding would have been different. Failure to
satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.
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of Casanova-Lanzo’s claims waived on this basis. However, the PCRA court
has addressed at least some of these claims, and we endeavor to do the same.
Nevertheless, some of Casanova-Lanzo’s claims are waived on this and other
bases, as detailed infra.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
In his first claim, Casanova-Lanzo contends that his trial counsel
rendered ineffective assistance of counsel by failing to prepare and present a
defense of insanity at trial. Brief for Appellant, at 7-10. Casanova-Lanzo
asserts that he was incompetent for several years prior to trial, and his trial
counsel should have presented an insanity defense. Id.Casanova-Lanzo has failed to include this claim in his Rule 1925(b)
statement and, therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (issues
not included in Rule 1925(b) statement are waived on appeal). Additionally,
this claim is not fairly suggested by his statement of questions involved. See
Pa.R.A.P. 2116(a).
In his second claim, Casanova-Lanzo argues that the trial court erred
by not permitting him to proceed pro se at the time of trial. Brief for Appellant,
at 11. Casanova-Lanzo contends that the trial court forced him to accept
court-appointed counsel against his wishes. Id. Casanova-Lanzo further
asserts that the trial court erred in accepting expert testimony regarding his
competency, and that his trial counsel was incompetent in failing to challenge
the trial court’s ruling. Id. at 11-15. Casanova-Lanzo argues that he filed a
motion to proceed pro se in May of 2014. Id. at 13. Additionally, he asserts
that he filed various motions between May 2014 and May 2015 requesting,
inter alia, to proceed pro se. Id. at 14-15.
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Preliminarily, we observe that Casanova-Lanzo raises, for the first time
on appeal, his claim that the trial court erred in denying his requests to
proceed pro se at trial. See Pa.R.A.P. 302(a) (issues not raised before trial
court are waived on appeal). Based upon our review, this claim does not
appear in any of Casanova-Lanzo’s underlying PCRA petitions. Rather, this
claim appears for the first time in his Rule 1925(b) statement and again his in
his appellate brief. See Commonwealth v. Williams, 900 A.2d 906, 909
(Pa. Super. 2006) (“including an issue in a [Rule 1925(b) statement] does not
revive [it]”). Moreover, as noted supra, Casanova-Lanzo has failed to comply
with Rule 2116(a). See Pa.R.A.P. 2116(a). We conclude that this claim is
waived for our review.
Casanova-Lanzo next asserts that trial counsel was ineffective by failing
to object to the trial court’s ruling on his request to proceed pro se. Because
his underlying motion to proceed pro se was meritless, we conclude that trial
counsel cannot be deemed ineffective for failing to object to the court’s ruling.
We review a trial court’s ruling on a defendant’s request to proceed pro
se for an abuse of discretion. See Commonwealth v. El, 977 A.2d 1158,
1167 (Pa. 2009) (“A request to take on one’s own legal representation after
meaningful proceedings have begun does not trigger the automatic
constitutional right to proceed pro se. The decision instead is left to the sound
discretion of the trial court.”). “The constitutional right to counsel may be
waived, but this waiver is valid only if made with knowledge and
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intelligence.” Commonwealth v. Phillips, 93 A.3d 847, 851 (Pa. Super.
2014) (emphasis added, citation omitted). “In order to make a knowing and
intelligent waiver, the individual must be aware of both the nature of the
right and the risks and consequences of forfeiting it.” Commonwealth v.
Payson, 723 A.2d 695, 700 (Pa. Super. 1999) (emphasis added, citation
omitted).
Instantly, as the PCRA court stated in its opinion, Casanova-Lanzo was
deemed to be incompetent between May 2014 and January 2018. See PCRA
Court Opinion, 12/13/21, at 22. Thus, during that time, Casanova-Lanzo
would not have been able to knowingly and intelligently waive his right to
counsel. See Phillips, supra; Payson, supra; see also Commonwealth
v. Blakeney, 108 A.3d 739, 759 (Pa. 2014) (where defendant is mentally
incompetent, trial court may deny request to waive counsel and proceed pro
se “on the ground that to do otherwise would compromise the defendant’s
right to a fair trial”). Moreover, Casanova-Lanzo did not make any requests
to proceed pro se after he was deemed competent to stand trial. Therefore,
there is no arguable merit to this claim, and Casanova-Lanzo is not entitled to
relief. See Holt, supra.
In his third claim, Casanova-Lanzo raises two sub-issues. First, he
contends that his Sixth, Eighth, and Fourteenth Amendment rights were
violated when his counsel did not raise his mental status at sentencing. Brief
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for Appellant, at 16. Second, he claims that the trial court erred by failing to
account for his mental status at sentencing. Id. at 16-17.
These claims, much like his first claim, do not appear anywhere in
Casanova-Lanzo’s Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4(vii).
Moreover, like the claims above, they are not fairly suggested by his statement
of questions involved. See Pa.R.A.P. 2116(a). Thus, these claims are waived.
In his fourth claim, Casanova-Lanzo claims that his trial counsel
rendered ineffective assistance by failing to file a Pa.R.Crim.P. 600 motion.
Brief for Appellant, at 26-27. He argues that the trial court and his trial
counsel worked together to find him incompetent in order to prevent him from
representing himself and, as a result, it took him over 2,000 days to proceed
to trial. Id. at 22-27. Casanova-Lanzo contends that this delay was in
violation of his constitutional right to a speedy trial and Rule 600. Id. at 22-
29.
Pennsylvania Rule of Criminal Procedure 600 provides, in relevant part,
as follows:
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days from
the date on which the complaint is filed.
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Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth
to bring a defendant . . . to trial within 365 days of the date the complaint
was filed.” Commonwealth v. Hunt, 858 A.2d 1234, 1240 (Pa. Super.
2004). To obtain relief, a defendant must have a valid Rule 600 claim at the
time he files his motion for relief. Id. at 1243.
“The mechanical run date is the date by which the trial must commence
under Rule 600.” Commonwealth v. McNear, 852 A.2d 401, 406 (Pa.
Super. 2004).
It is calculated by adding 365 days (the time for commencing trial
under Rule 600) to the date on which the criminal complaint is
filed. The mechanical run date can be modified or extended by
adding to the date any periods of time in which delay is caused by
the defendant. Once the mechanical run date is modified
accordingly, it then becomes an adjusted run date.
Id. In the context of Rule 600, “excludable time” is differentiated from
“excusable delay” as follows:
“Excludable time” is defined in Rule 600(C) as the period of time
between the filing of the written complaint and the defendant’s
arrest, provided that the defendant could not be apprehended
because his whereabouts were unknown and could not be
determined by due diligence; any period of time for which the
defendant expressly waives Rule 600; and/or such period of delay
at any stage of the proceedings as results from: (a) the
unavailability of the defendant or the defendant’s attorney; [or]
(b) any continuance granted at the request of the defendant or
the defendant’s attorney. “Excusable delay” is not expressly
defined in Rule 600, but the legal construct takes in[to] account
delays [that] occur as a result of circumstances beyond the
Commonwealth’s control and despite its due diligence.
Hunt, 858 A.2d at 1241 (internal citations and footnote omitted).
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In determining whether any time constitutes excludable delay under
Rule 600, a trial court must determine whether the time is a “delay in
proceedings,” and whether the delay should be excluded based on an analysis
of the Commonwealth’s due diligence. Commonwealth v. Mills, 162 A.3d
323, 325 (Pa. 2017). If time is a “delay,” it is excludable when it falls under
the “wide variety of circumstances [encompassed by Rule 600] under which a
period of delay was outside the control of the Commonwealth and not the
result of the Commonwealth’s lack of diligence.” Commonwealth v.
Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013) (citations and quotation
marks omitted). Time that is “necessary to ordinary trial preparation” or
“attributable to the normal progression of a case simply is not a ‘delay’ for the
purposes of Rule 600.” Id.“A Rule 600 motion requires a showing of due diligence by a
preponderance of the evidence for the Commonwealth to avail itself of an
exclusion.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)
(citation omitted). “Due diligence is fact-specific, to be determined case-by-
case; it does not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort.” Id.Reasonable effort includes such actions as the Commonwealth listing the case
for trial prior to the run date to ensure that the defendant was brought to trial
within the time prescribed by Rule 600. See Commonwealth v. Aaron, 804
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A.2d 39, 43-44 (Pa. Super. 2002); Commonwealth v. Hill, 736 A.2d 578,
592 (Pa. 1999).
Instantly, the PCRA court addressed this claim as follows:
In this case, the record indicates that nearly all delays of trial were
based upon the incompetence of [Casanova-Lanzo] to stand trial
and not because the Commonwealth failed to exercise due
diligence. The complaint was filed on February 21, 2013. On
August 23, 2013, this [c]ourt scheduled a trial date for May 2014
to provide all the attorneys adequate time to prepare for a death
penalty case[.]
At a suppression hearing on May 7, 2014[]—a week before the
scheduled trial—there were significant concerns about [Casanova-
Lanzo]’s competence to stand trial. Therefore,[ at defense
request,] the [c]ourt continued the trial until May 2015. This time
was [] attributable to the [d]efense. Rather than beginning a trial
in May 2015, a competency hearing was held that day. At the
hearing, defense psychiatrist expert, Dr. Gottlieb, testified that he
evaluated [Casanova-Lanzo] on February 10, 2014, May 1, 2014,
and April 8, 2015. At each meeting, Dr. Gottlieb found that
[Casanova-Lanzo] was incompetent to stand trial. The [c]ourt
accept[ed] the reports of [Dr. Gottlieb], and [Casanova-Lanzo]
was scheduled to be reevaluated by Dr. Gottlieb every 60 days
per the law. In September 2016, January 2017, January 2018,
Dr. Gottlieb still found [Casanova-Lanzo] incompetent to stand
trial. The two years of continuance[s,] from September 2016 to
January 2018, were[ also] attributable to the defense [due to
Casanova-Lanzo’s continued incompetence]. Finally, on
September 17, 2018, trial [] commence[d].
A review of the record [reveals that] between the filing of the
complaint [] and the commencement of trial, only six months
[were] attributable to the Commonwealth. Therefore, no Rule 600
violation occurred in this case and trial counsel did not have any
basis to present this issue to the [c]ourt, so he was not ineffective.
PCRA Court Opinion, 12/13/21, at 20-21.
Based upon our review, we agree with the sound reasoning of the PCRA
court. On August 23, 2013, in the order scheduling Casanova-Lanzo’s trial,
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the trial court specifically stated “[d]ue to the need for extended preparation
by the defense regarding the death penalty, all time up to and including May,
2014, shall be attributed to the defense regarding Rule 600.” See Order,
8/23/13, at 1 ¶ 4. Thus, the time attributable, at best, to the Commonwealth
was from February 23, 2013 to August 23, 2013, a total of 183 days.
Subsequently, from approximately May of 2014, until approximately January
of 2018, Dr. Gottlieb continued to find Casanova-Lanzo incompetent to stand
trial and the trial court accepted Dr. Gottlieb’s reports and deemed Casanova-
Lanzo incompetent to stand trial. See PCRA Court Opinion, 12/13/21, at 20-
21.4 Additionally, on January 22, 2018, the trial court issued another order,
in which it directed Casanova-Lanzo be committed to Norristown State
Hospital due to his incompetence to stand trial. See Order, 1/22/18, at 1. In
that same order, the trial court again accepts Dr. Gottlieb’s report finding that
Casanova-Lanzo is incompetent. Id. Importantly, Casanova-Lanzo remained
involuntarily committed due to his incompetence until August 16, 2018, when
the trial court issued an order directing that Casanova-Lanzo be transported
to the Lancaster County Prison for trial. See Order, 8/16/18, at 1.
Subsequently, trial commenced on September 17, 2018, or 32 days later.
Therefore, subtracting the significant amount of time that Casanova-Lanzo
was incompetent to stand trial, this Court is left with merely 215 days that
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4 We note there are several trial court orders reflecting these findings, but due
to the sheer numbers we do not cite to them in this memorandum.
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might be attributable to the Commonwealth for Rule 600 purposes. We need
not delve into each party’s share of responsibility for the 215 day delay,
because it falls far short of the 365 days allowed under Rule 600. See
Pa.R.Crim.P. 600(a)(2); Hunt, supra. Accordingly, we conclude that trial
counsel was not ineffective for failing to raise this claim, and Casanova-Lanzo
is entitled to no relief. See Holt, supra.
In his fifth claim, Casanova-Lanzo argues that his trial counsel rendered
ineffective assistance of counsel by failing to file a motion to exclude from trial
prison letters between Casanova-Lanzo and his family. Brief for Appellant, at
31-33. He also asserts that the Commonwealth violated Brady5 because the
Commonwealth never provided the letters to Casanova-Lanzo or his counsel.6
Id. He further contends that the Commonwealth acted inappropriately by
using the letters to coerce him into various guilty pleas. Id.
The PCRA court addressed these claims as follows:
In this case, [Casanova-Lanzo] wrote two letters during his
incarceration in Lancaster County Prison that detailed the facts of
[the] murder and the reasons for his actions. The letters were
signed by him and given to correctional officers to be sent to his
family. Since the letters were drafted in jail and sent to his
family[,] not his attorney, they were not privileged and
[Casanova-Lanzo] did not have a reasonable expectation of
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5 Brady v. Maryland, 373 U.S. 83 (1963).
6 We note that all of these claims could be considered waived due to Casanova-
Lanzo’s failure to comply with Pa.R.A.P. 2116(a). Indeed, his statement of
questions does not fairly suggest a Brady violation or prosecutorial
misconduct. Nevertheless, the PCRA court succinctly addressed all of these
claims, and we affirm on that basis, infra.
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privacy [in] them. Therefore, [Casanova-Lanzo’s] trial counsel
would not have been successful in suppressing them and he was
not ineffective. In fact, trial counsel instructed [Casanova-Lanzo]
[not] to [] discuss the case with anyone, but [Casanova-Lanzo]
did not follow his direction. [Casanova-Lanzo] was the source of
his own incriminating evidence, even after being arrested for the
murder.
The allegation that the Commonwealth violated [Pa.R.Crim.P.]
573 [] in presenting the letters is patently false. [Casanova-
Lanzo] claims that the letters were not provided to him or his
counsel before trial, but that statement directly contradicts [his]
other PCRA claims. He alleges that his [c]ounsel [and the
Commonwealth] inappropriately used the letters to get him to
plead guilty before trial. [However, i]t is clear that the
Commonwealth provided trial counsel with the letters if
[Casanova-Lanzo] remembers them and claims they were
improperly used against him [by his own attorney].
PCRA Court Opinion, 12/13/21, at 10-12.
We affirm on the basis of the PCRA court opinion with respect to these
claims. See id.; see also Holt, supra. Therefore, Casanova-Lanzo is not
entitled to relief.
In his sixth claim, Casanova-Lanzo argues that his trial counsel rendered
ineffective assistance of counsel by failing to cross-examine the
Commonwealth’s expert DNA witness. Brief for Appellant, at 34-39. In
particular, Casanova-Lanzo contends that his trial counsel should not have
stipulated to the expert testimony regarding Thaxton’s blood on Casanova-
Lanzo’s pants. Id. Rather, he asserts, that trial counsel should have
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challenged how the blood got there,7 and challenged whether the expert
reports were accurate. Id.
This claim, like Casanova-Lanzo’s first and third claims, does not appear
in his Rule 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(vii).
Moreover, like the claims above, it is not fairly suggested by his statement of
questions involved. See Pa.R.A.P. 2116(a). Thus, it is waived.8
In his seventh claim, Casanova-Lanzo raises two sub-issues. In his first
sub-issue, Casanova-Lanzo claims that both his rights, and the rights of his
son, M.S., a minor child who testified, were violated by the trial court when
the trial court allowed M.S. to testify outside of the court room. Brief for
Appellant, at 40. In particular, Casanova-Lanzo contends that a family
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7 Casanova-Lanzo now asserts that Thaxton’s blood was on his jeans from a
prior fight in December 2012. He contends that trial counsel knew of the fight,
and that Casanova-Lanzo did not wash those pants because he did not know
the blood was there. Id.
8 Even if Casanova-Lanzo had not waived this claim, we would afford him no
relief. The PCRA court, in its opinion, aptly summarized trial counsel’s
testimony at the PCRA hearing and concluded he had a reasonable basis for
stipulating to the expert reports. See PCRA Court Opinion, 12/13/21, at 12-
13 (PCRA court summarizing trial counsel testimony challenging expert
testimony regarding bloody jeans was inconsistent with heat of passion theory
of defense, because it strayed away from heat of passion and instead towards
innocence defense, which Casanova-Lanzo did not wish to pursue).
Accordingly, it is clear that trial counsel had a reasonable basis for stipulating
to the expert reports. See Holt, supra. Moreover, the PCRA court, in its
opinion, addressed additional bases for denying this claim, which that include
the impropriety of Casanova-Lanzo’s desired line of questioning as to how the
blood got onto his pants. PCRA Court Opinion, 12/13/21, at 12-13. Thus,
Casanova-Lanzo would not be entitled to relief on this claim.
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member should have been present with M.S. during his video testimony. Id.
at 40-41. In his second sub-issue, Casanova-Lanzo asserts that trial counsel
was ineffective by failing to raise these claims. Id.
Based upon our review, neither of these claims appear in Casanova-
Lanzo’s Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii). Rather,
Casanova-Lanzo’s Rule 1925(b) statement merely states that the minor’s
testimony was illegal and inflammatory. See Rule 1925(b) Statement,
1/12/22, at 2. Additionally, these claims, like Casanova-Lanzo’s first, third,
and sixth claims, are not fairly suggested by his statement of questions
involved. See Pa.R.A.P. 2116(a). Moreover, we observe that Casanova-
Lanzo’s brief and underlying PCRA petitions are completely devoid of any
citation to case or statutory authority that would support his proposition that
a family member must be present when a minor child gives testimony. See
Pa.R.A.P. 2119(a) (requiring “discussion and citation of authorities as are
deemed pertinent”). Therefore, these claims are waived.9
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9 Even if Casanova-Lanzo had not waived these claims, we would afford him
no relief. We observe that the PCRA court adeptly explained its rationale for
denying Casanova-Lanzo’s claim, and concluded that trial counsel could not
be ineffective by failing to raise a claim that lacked arguable merit. See PCRA
Court Opinion, 12/13/21, at 16-19 (trial court’s reasons for conducting Tender
Years Hearing, conclusions and determinations regarding M.S.’s ability to
testify, and procedure it followed); see also Holt, supra. Thus, even if
Casanova-Lanzo had not waived this claim, we would conclude that the PCRA
court did not abuse its discretion in denying relief.
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In his eighth claim, Casanova-Lanzo claims that the trial court was
biased and prejudiced against him during the suppression hearing. Brief for
Appellant, at 42-43. Casanova-Lanzo argues that the trial court threatened
him during the suppression hearing and demonstrated partiality throughout
the entirety of the case. Id.
A claim of judicial bias falls under a violation of due process.
Commonwealth v. McLaughlin, 240 A.3d 980, 983 (Pa. Super. 2020). An
allegation challenging the impartiality of a judge, “is an attack upon the truth-
determining process, a process that logically includes collateral attacks on the
judgment of sentence.” Commonwealth v. Koehler, 229 A.3d 915, 931 (Pa.
2020) (citing Commonwealth v. Burkett, 5 A.3d 1260, 1275 (Pa. Super.
2010) (“The PCRA process, although not directly related to an adjudication of
guilt, is part of the truth-determining process.”)). Generally, a party alleging
judicial bias bears the burden of producing evidence to establish bias,
prejudice, or unfairness, “which raises a substantial doubt as to the jurist’s
ability to preside impartially.” Commonwealth v. Watkins, 108 A.3d 692,
734 (Pa. 2014).
“[S]imply because a judge rules against a defendant does not establish
any bias on the part of the judge against that defendant.” Commonwealth
v. Travaglia, 661 A.2d 352, 367 (Pa. 1995). “Along those same lines, a
judge’s remark made during a hearing in exasperation at a party may be
characterized as intemperate, but that remark alone does not establish bias
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or partiality.” Commonwealth v. McCauley, 199 A.3d 947, 951 (Pa. Super.
2018) (citation omitted). “In contrast, it is appropriate for a judge to recuse[,
for example,] when the judge has publicly on numerous occasions expressed
views about sentencing a class of defendants, [thus] ignoring the trial court’s
obligation to impose individual sentences on defendants.” Id. (citation
omitted). “Similarly, we may consider the cumulative effect of a judge’s
remarks and conduct in multiple cases, even if no single act creates an
appearance of bias or impropriety.” Commonwealth v. Rhodes, 990 A.2d
732, 748-49 (Pa. Super. 2009) (citation omitted).
The PCRA court addressed this claim as follows:
Here, [Casanova-Lanzo] has failed to prove that the [court] could
not preside over the case impartially. Prior to the date of the
alleged threats by the [c]ourt, the [c]ourt granted [Casanova-
Lanzo]’s motion to suppress incriminating statements. The
[c]ourt also accepted [Casanova-Lanzo]’s expert’s findings that
[he] was incompetent to stand trial. These holdings were to the
benefit of [Casanova-Lanzo] and show the [c]ourt was acting
impartially [during the proceedings and] throughout the trial.
Finally, the [“]threats[”] made at the [s]uppression [h]earing
were based upon [Casanova-Lanzo’s] inappropriate behavior[.]
The hearing had been designated for review [of] all the evidentiary
issues that would be relevant for trial and to determine the
admissibility of said evidence. During this hearing, [Casanova-
Lanzo] continued to pursue his Rule 600 claims that had been
deemed meritless by the [c]ourt[.] Despite admonishing
[Casanova-Lanzo] that the Rule 600 issue was not a part of the
hearing’s purpose, [Casanova-Lanzo] ignored the [c]ourt and
persisted in his arguments. Due to [Casanova-Lanzo’s]
misbehavior, the [c]ourt threatened to have him removed from
the hearing so it could continue. No part of this hearing or the
[c]ourt’s reaction showed bias against [Casanova-Lanzo]. At
[worst], it showed that the [c]ourt was fed up with [Casanova-
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Lanzo’s] inability to follow [c]ourt instruction[, w]hich would
continue throughout trial and on direct appeal.
PCRA Court Opinion, 12/13/21, at 23-24.
Our review of the record confirms the PCRA court’s determinations.
Indeed, the record is replete with moments of Casanova-Lanzo disrupting
court proceedings and refusing to abide by the trial court’s warnings, thus,
the trial court’s responses are more akin to “intemperate” remarks regarding
Casanova-Lanzo’s behavior. See McCauley, supra. Therefore, this claim
lacks merit and we conclude that the trial court was not acting with bias.
In his ninth claim, Casanova-Lanzo argues that his trial counsel
rendered ineffective assistance by failing to do any investigation, failing to
obtain expert witnesses, failing to have a trial strategy, and failing to present
any defense at all. Brief for Appellant, at 44-48.
Preliminarily, we observe that Casanova-Lanzo has waived this claim.
See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). Indeed, other than broad
averments of trial counsel’s ineffectiveness, Casanova-Lanzo has failed to
preserve this in his Rule 1925(b) statement, his Rule 2116(a) statement of
questions involved, and in his underlying PCRA petitions. See Pa.R.A.P.
2116(a).
Nevertheless, the PCRA court addressed this issue in its opinion as
follows:
[Casanova-Lanzo] claims his counsel was ineffective for failing to
create a trial strategy. . . . [Casanova-Lanzo] claims that [trial
counsel] should not have argued that [Casanova-Lanzo] was
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“innocent of first-degree murder,” rather, he should have argued
that [Casanova-Lanzo] was only guilty of third-degree murder.
The record clearly shows that [Casanova-Lanzo] is incorrect, his
counsel did argue exactly that. During opening[,] [trial counsel]
told the jury to keep an open mind while hearing the
Commonwealth’s evidence because they would not hear enough
evidence to show premeditation. During closing, [trial counsel]
argued that [Casanova-Lanzo] should not be found guilty of first-
degree murder because it was a heat of passion killing.
[Casanova-Lanzo] believed that [Thaxton] was abusing
[Casanova-Lanzo’s] children and admitted to that anger in his
prison letters. He also argued that [Casanova-Lanzo]’s intent did
not rise to the level of first-degree murder because he believed he
would be getting back together with . . . his estranged wife.
Therefore, it [i]s clear [that] trial counsel did attempt to establish
the third-degree murder claim[,] so he cannot be ineffective for
failing to argue it.
[Casanova-Lanzo] also claims that his trial counsel was ineffective
because he spent more time trying to persuade him to plead guilty
than work on a trial approach. [Trial counsel] testified at the PCRA
hearing that it was impossible to work with [Casanova-Lanzo] on
any trial strategy. This testimony is credible to the [c]ourt.
According to [trial counsel], [Casanova-Lanzo] refused to admit
any culpability even though there was a mountain of evidence
against him. [Trial counsel also stated] that [Casanova-Lanzo]
refused to discuss the case at all for several years while he was
deemed to be incompetent. It was impossible to create a trial
strategy when [Casanova-Lanzo] refused to communicate with his
attorney or talk about the circumstances of the case. [Casanova-
Lanzo] only wanted to pursue the third-degree [murder] trial
strategy once trial was imminent. This provided [trial counsel]
with very little time to create a plan that would rebut the mountain
of evidence the Commonwealth had of the premeditated
culpability of [Casanova-Lanzo]. It was even more difficult to
support that strategy when [Casanova-Lanzo] would not testify at
trial. . . . [Because Casanova-Lanzo] was completely averse to
assisting in his [own] case, he cannot now say that his [trial]
counsel had a poor trial strategy.
PCRA Court Opinion, 12/13/21, at 14-16.
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Based upon our review, we agree with the sound reasoning of the PCRA
court and affirm on this basis with respect to this claim. See id.; See Holt,
supra. Therefore, Casanova-Lanzo is not entitled to relief.
Based upon the foregoing, we affirm the PCRA court’s order denying
Casanova-Lanzo’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
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