J-S39030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELVIN JOHN LAMEY,
Appellant No. 924 MDA 2015
Appeal from the Judgment of Sentence April 14, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000035-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELVIN JOHN LAMEY,
Appellant No. 925 MDA 2015
Appeal from the Judgment of Sentence April 14, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001385-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELVIN JOHN LAMEY,
Appellant No. 926 MDA 2015
J-S39030-16
Appeal from the Judgment of Sentence April 14, 2015
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001480-2014
BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 06, 2016
Appellant, Elvin John Lamey, appeals from the judgment of sentence
imposed following his jury conviction of numerous sex offenses against three
children, at the above-referenced docket numbers.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant moved in with his sister, C.K., and her family in 2009. Between
January 2010 and June 2012, he repeatedly molested and raped his nephew,
J.K., and two nieces, H.K. and K.K (Children). Appellant was twenty-two
years old when he began to abuse the Children, and they were between the
ages of two and five. The Children disclosed the abuse to C.K. and she
reported it to the authorities in July of 2012. Police initially interviewed
Appellant on July 20, 2012, and he denied the allegations. During a second
interview on September 6, 2012, Appellant admitted to molesting J.K. and
H.K.
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*
Retired Senior Judge assigned to the Superior Court.
1
The cases were consolidated for trial.
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On August 5, 2013, Appellant entered a guilty plea to multiple charges
arising from the abuse. The trial court subsequently granted his motion to
withdraw his plea, and the case was listed for trial.
On October 24, 2014, Appellant filed a motion seeking recusal of the
trial court judge, the Honorable Bradley P. Lunsford. Appellant maintained
that Judge Lunsford’s recusal was necessary because of his public support
for and involvement in the Centre County Children’s Advocacy Center
(CCCAC), which “provide[s] a friendly, comforting setting for child crime
victims.” (N.T. Motion for Recusal, 10/24/14, at 3).2 The Children in the
instant case never visited the CCCAC, and Judge Lunsford resigned from the
CCCAC’s board when the center opened in February 2014. (See Trial Court
Opinion, 8/24/15, at 2; Appellant’s Brief, at 62). The court denied
Appellant’s motion following a hearing.
On November 19, 2014, the Commonwealth filed a motion in limine,
noting that Appellant’s counsel wished to provide an illustration of
reasonable doubt to the jury during closing summation, and requesting that
the court preclude this. (See Commonwealth’s Motion in Limine, 11/19/14,
at unnumbered page 4 ¶¶ 24-27). Counsel’s proposed illustration involved
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2
Appellant also sought recusal based on a comment the court made to
counsel in an unrelated case involving a different defendant who was
charged with sex-related offenses against a child; Judge Lunsford recused
himself from that case. (See N.T. Motion for Recusal, 10/24/14, at 6).
Appellant makes no attempt to resurrect this argument on appeal.
Therefore, we deem this argument abandoned.
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using one’s common sense and experience in deciding whether to ice skate
on a pond. (See id. at ¶ 24; Trial Ct. Op., 8/24/15, at 5). The court
granted the Commonwealth’s motion following argument.
On November 24, 2014, Appellant proceeded to trial, and the jury
found him guilty of: six counts of rape of a child; six counts of statutory
sexual assault; one count of involuntary deviate sexual intercourse with a
child (IDSI); six counts of incest of a minor; nine counts of indecent assault
of a person less than thirteen years of age; one count of indecent assault,
without complainant’s consent; and three counts of corruption of minors.3
The court deferred sentencing pending preparation of a pre-sentence
investigation (PSI) report. The case was reassigned to the Honorable
Jonathan D. Grine prior to sentencing.
On February 23, 2015, the Commonwealth filed notice of its intent to
seek mandatory sentences of not less than ten nor more than twenty years’
incarceration under 42 Pa.C.S.A. § 9718 for the rape and IDSI counts. On
April 14, 2015, the court held a sentencing hearing at which it designated
Appellant a sexually violent predator (SVP). It sentenced Appellant to an
aggregate term of not less than eighty-two nor more than 164 years’
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3
18 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3123(b), 4302(b)(1), 3126(a)(7),
3126(a)(1), and 6301(a)(1)(ii), respectively.
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incarceration. The court entered an order and opinion denying Appellant’s
timely post-sentence motion on May 22, 2015. This timely appeal followed.4
Appellant raises the following questions for our review:
A. Did the trial court abuse its discretion in denying [Appellant’s]
motion to recuse?
B. Did the trial court err in granting the Commonwealth’s motion
in limine with respect to preventing the defense from presenting
an illustration of reasonable doubt during closing summation?
C. Did the sentencing court impose illegal sentences pursuant to
42 Pa.C.S.A. §[]9718, a statute that has been found to be
unconstitutionally [sic] infirm in light of the United States
Supreme Court’s decision in Alleyne v. United States[,133
S.Ct. 2151 (2013),] and the Pennsylvania [Superior] Court’s
decision in [Commonwealth] v. Newman[,99 A.3d 86 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015)]?
(Appellant’s Brief, at 33) (unnecessary capitalization omitted).5
In his first issue, Appellant argues the trial court abused its discretion
in denying his motion to recuse from the case. (See id. at 57). Appellant
points to Judge Lunsford’s extensive involvement in the CCCAC, and claims
that his support of the organization demonstrates his bias in favor of child
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4
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on June 11, 2015. Judge Grine
filed an opinion on June 15, 2015, in which he relied on the opinion and
order of May 22, 2015. On August 24, 2015, Judge Lunsford entered a
supplemental opinion. See Pa.R.A.P. 1925.
5
Appellant’s seventy-seven-page brief substantially exceeds the
presumptively compliant length of thirty pages, and he has failed to include
a certification that the brief complies with the word count limits. See
Pa.R.A.P. 2135(a)(1), (d).
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victims of sexual abuse. (See id. at 55, 61-62).6 This issue does not merit
relief.
Upon a recusal motion,
the judge makes an independent, self-analysis of the
ability to be impartial. 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. This assessment is a personal and unreviewable
decision that only the jurist can make. Once the decision is
made, it is final. . . .
This Court presumes judges of this Commonwealth are
honorable, fair and competent, and, when confronted with a
recusal demand, have the ability to determine whether they can
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6
We note Appellant discusses and appends to his brief two documents
relating to Judge Lunsford, but not to this specific case, that are not listed on
the docket or a part of the certified record. (See Appellant’s Brief, at 59,
Appendix D-E). Additionally, Appellant accuses Judge Lunsford of destroying
two exhibits attached to the motion for recusal and reproduces a purported
excerpt from one of these documents in his brief; he did not refile the
documents. (See id. at 57-58). “It is black letter law in this jurisdiction
that an appellate court cannot consider anything which is not a part of the
record in the case.” Commonwealth v. Boyd, 679 A.2d 1284, 1290 (Pa.
Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997) (citation omitted).
“[F]or purposes of appellate review, what is not of record does not exist . . .
[C]opying material and attaching it to a brief does not make it a part of the
certified record.” Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.
Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008) (citations and
internal quotation marks omitted). Further, “it is appellant’s responsibility to
supply this Court with a complete record for purposes of review. A failure by
appellant to insure that the original record certified for appeal contains
sufficient information to conduct a proper review constitutes waiver of the
issue sought to be examined.” Boyd, supra at 1290 (citations, emphasis,
and internal quotation marks omitted). Accordingly, we are precluded from
considering the non-record materials submitted by Appellant.
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rule impartially and without prejudice. The party who asserts a
trial judge must be disqualified bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating
recusal, and the decision by a judge against whom a plea of
prejudice is made will not be disturbed except for an abuse of
discretion.
Commonwealth v. Thomas, 44 A.3d 12, 24 (Pa. 2012) (citation and
quotation marks omitted).
“Our standard of review of a trial court’s determination not to recuse
from hearing a case is exceptionally deferential.” Commonwealth v.
Harris, 979 A.2d 387, 391 (Pa. Super. 2009) (citations omitted).
“[A]lthough we employ an abuse of discretion standard, we do so
recognizing that the judge himself is best qualified to gauge his ability to
preside impartially.” Id. at 392 (citations omitted).
Here, the trial court explained its rationale for denying the recusal
motion, in pertinent part, as follows:
The undersigned judge was one of the lead organizers of the
[CCCAC]; however, the undersigned judge was no longer
connected to the center [when Appellant filed the recusal
motion] as he resigned from the board after it opened in
February 2014 as indicated in the article [Appellant] cited. . . .
The purpose [of establishing the CCCAC] was to make the
process after averments of abuse are made more effective and
efficient which does reduce stress on the child by avoiding
multiple interviews with several people. . . .
* * *
This court denied the motion for recusal because the Code
of Judicial Conduct does not prevent a judge from participating
in activities that improve the law, the legal system, and the
administration of justice. Once the [CC]CAC opened, the
undersigned judge was no longer involved to avoid any conflict
of interest. It is illogical to believe that a judge’s impartiality
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may reasonably be questioned based on his assisting to establish
a [CC]CAC which benefits those involved in the justice system,
including alleged perpetrators of abuse who may be shielded
from false accusations when forensic interviewing techniques are
utilized. Forensic interviewing of the minor accuser can result in
charges not being filed.
(Trial Ct. Op., 8/24/15, at 2-4) (record citations and some capitalization
omitted).
After review of the record, and mindful of our “exceptionally
deferential” standard of review, we conclude that it does not reveal
impartiality or bias on the part of the trial court judge during the recusal
proceeding or Appellant’s jury trial. Harris, supra at 391. Appellant has
not met his burden of “establishing bias, prejudice or unfairness
necessitating recusal[.]” Thomas, supra at 24. Therefore, Appellant’s first
issue does not merit relief.7
Appellant next claims the trial court erred in granting the
Commonwealth’s motion in limine, thereby precluding defense counsel from
providing the jury with an illustration of reasonable doubt involving the
decision to ice skate on a pond. (See Appellant’s Brief, at 66-73). He
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7
We recognize that our case law has not always spoken with clarity
regarding the standard for recusal, and that the standard set forth by our
Supreme Court in Thomas contains a subtle difference from that it set forth
in Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989) (providing for
objective review of appearance of impropriety assessment). However, here,
where there is clearly no appearance of impropriety with respect to the trial
court judge, we conclude the facts of this case satisfy both standards. See
Lomas v. Kravitz, 130 A.3d 107, 122 (Pa. Super. 2015) (en banc); see
also id. at 137-38 (Stabile, J., concurring and dissenting).
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asserts it was reversible error to bar the illustration, stating “[the Superior]
Court has approved of the practice of the trial court giving the jury a
practical illustration of reasonable doubt.” (Id. at 69; see id. at 70, 73)
(emphasis added; unnecessary capitalization omitted). We disagree.
Preliminarily, we note that “[w]e review a trial court’s [ruling on] a
motion in limine for an abuse of discretion.” Commonwealth v. Widmer,
120 A.3d 1023, 1025 (Pa. Super. 2015) (citation omitted). Further, as
Appellant implicitly recognizes, it is the duty of the trial court, not counsel,
to frame legal issues for the jury and instruct it on the applicable law. See
Commonwealth v. Hallman, 67 A.3d 1256, 1262 (Pa. Super. 2013),
appeal denied, 84 A.3d 1062 (Pa. 2014).
Here, the trial court rejected defense counsel’s proposed ice-skating
illustration based on its finding that it was not useful in understanding the
concept of reasonable doubt, that it had a tendency to confuse the jury, and
involved an experience that can be un-relatable and frightening. (See Trial
Ct. Op., 8/24/15, at 5). The court did not bar counsel from proposing a
different, more appropriate illustration. (See id.). The court indicated its
comfort with the standard jury instructions on reasonable doubt, and a
review of the trial transcript reflects that the court and defense counsel
thoroughly explained the concept to the jury. (See N.T. Motion in limine,
11/21/14, at 10; N.T. Trial, 11/24/14, at 43, 293-94, 334). After review, we
discern no abuse of discretion in the trial court’s ruling on this issue. See
Widmer, supra at 1025. Appellant’s second claim does not merit relief.
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In Appellant’s final issue, he maintains that his sentence is illegal
because the court imposed mandatory minimum terms of ten years’
incarceration pursuant to 42 Pa.C.S.A. § 9718 to the rape and IDSI counts.
(See Appellant’s Brief, at 74-76). He argues that this Court must remand
for resentencing because section 9718 has been found to be constitutionally
infirm in light of Alleyne, supra.8 (See id.). This issue does not merit
relief.
“Issues relating to the legality of a sentence are questions of law[.] . .
. Our standard of review over such questions is de novo and our scope of
review is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.
Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015) (citation omitted).
Preliminarily, we note our agreement with Appellant that “Section
9718 is [] facially unconstitutional.” Commonwealth v. Wolfe, 106 A.3d
800, 805 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).
However, our review of the record indicates that the trial court did not apply
this void provision.
Specifically, at the sentencing hearing, the Commonwealth sought
imposition of the mandatory minimums relative to the rape and IDSI counts.
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8
Appellant first raised this issue in his Rule 1925(b) statement, albeit in
vague manner without reference to Alleyne. (See Rule 1925(b) Statement,
6/11/15, at 3 ¶ I). However, a waiver analysis is of no moment because his
claim implicating the legality of his sentence cannot be waived on appeal.
See Newman, supra at 90.
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(See N.T. Sentencing, 4/14/15, at 35). However, the Commonwealth
maintained that, even if the court declined to apply section 9718, it could
achieve the same sentencing structure by imposing standard-range
sentences pursuant to the Sentencing Guidelines. (See id. at 35, 37-38,
40). Immediately before imposing sentence, the court took a recess to
review the sentencing guidelines. (See id. at 41). When it returned, it
explained the basis for its sentence as follows:
The [c]ourt was assigned this case for sentencing
purposes. The [c]ourt has been through the entire file. Has also
been through the transcripts that were prepared for all the
hearings, including the trial.
The [c]ourt has reviewed the PSI and incorporates it
into the record as reasons for the sentencing. The [c]ourt
has also reviewed both the sentence memorandums from the
defense and the Commonwealth. Has heard from defense
counsel as well as the Commonwealth.
And we’ll give the following sentence, and it will be
imposed based on the minimum amount of confinement
consistent with the protection of the public, the gravity of
the offense, and the rehabilitative needs of [Appellant].
The [c]ourt has already set forth what it has relied upon.
The [c]ourt has also considered the circumstances of the
offense, [Appellant’s] character and education, and has
looked to the guidelines of the Sentencing Code[.]
(Id. at 42) (emphases added).
Thus, the record shows that the court imposed an individualized
sentence taking into consideration all relevant sentencing factors, including
the PSI and the sentencing guidelines; it does not reflect that the court
applied the mandatory minimums under section 9718. Therefore,
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Appellant’s final issue does not merit relief. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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Com. v. Lamey, E.
Combined Opinion