J-S57018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAURICE LOGAN
Appellant No. 3088 EDA 2013
Appeal from the Judgment of Sentence August 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002345-2013
BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 26, 2014
Appellant, Maurice Logan, appeals from the August 8, 2013 judgment
he was found guilty of three counts of copying recording devices, and two
counts of trademark counterfeiting.1 After careful review, we affirm the
judgment of sentence.
The trial court summarized the relevant facts of this case as follows.
On August 18, 2012 at around 11:00 [p.m.],
Philadelphia Police Sergeant Kevin Bernard was on
patrol in the area of 2400 N. Cedar St. At that
location he observed [] Appellant with a large
backpack on his back engaging in what appeared to
be a transaction with an unknown person. As he
drove past, he noticed that the transaction involved
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1
18 Pa.C.S.A. §§ 4116(b)(1), (d), (e), and 4119(a)(3), respectively.
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either DVDs or CDs. Sergeant Bernard then heard a
investigating recent robberies and Appellant fit the
description of the suspect of those previous
robberies, he stopped his vehicle and approached
Appellant. Sgt. Bernard ordered [] Appellant to drop
his bag, which was unzipped. Sgt. Bernard could
easily see the bag contained numerous DVDs and
CDs that based on his training he could tell were
counterfe
which at the time of the arrest was still being shown
in movie theaters. Both Commonwealth experts
testified that the items recovered from Appellant
were counterfeit and contained counterfeit
trademarks. In total, 104 DVDs and CDs were
recovered.
Trial Court Opinion, 1/16/14, at 2-3 (citations to notes of testimony
omitted).
Appellant was subsequently arrested and charged with multiple counts
of copying recording devices and trademark counterfeiting, which were
graded as felonies of the third degree. On April 12, 2013, Appellant filed an
omnibus pre-trial motion to suppress the physical evidence obtained from a
search incident to his arrest. On August 8, 2013, Appellant waived his right
to a jury and proceeded to a bench trial before the Honorable Carolyn H.
Nichols (Judge Nichols). Prior to the commencement of the bench trial, the
conclusion of which, it denied said motion. See N.T., 8/8/13, at 56-60.
Thereafter, Appellant requested that Judge Nichols recuse herself on the
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basis she made a credibility determination adverse to Appellant. Id. at 60-
Id.
The suppression hearing testimony of Sergeant Bernard was then
incorporated
Commonwealth also presented the expert testimony of Knox Owsley of the
Recording Industry Association of America, and the expert testimony of
William Mock of the Motion Picture Association of America. Id. at 9-33, 72-
93. Additionally, the Commonwealth entered into evidence a property
receipt of the recovered contraband, and a photograph. Id. at 66-67.
Appellant also testified on his own behalf. Id. at 36-45.
As mentioned, following the bench trial, Appellant was found guilty of
the aforementioned charges and was sentenced on August 8, 2013, to an
See Trial
Court Order, 8/8/13. On August 19, 2013, Appellant filed a timely post-
sentence motion for reconsideration, and a hearing was scheduled for
October 3, 2013.2
post-sentence motion in part and denied it in part, reducing the grading of
one of the copying recording devices charges to a first-degree misdemeanor.
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2
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sentence motion was timely filed, as weekends are excluded from the
computation of time. See 1 Pa.C.S.A. § 1908 (providing that when the last
day of a calculated period of time falls on a Saturday or Sunday, as is the
case herein, such day shall be omitted from the computation).
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See N.T., 10/3/13, at 8-10, 23. All other aspects of the sentencing order
remained the same. This timely appeal followed on October 16, 2013.3
On appeal, Appellant raises the following issue for our review.
[1.] Was not [A]ppellant denied his right to a fair
failure to recuse itself after the trial court
motion an
subsequently incorporated into the trial record?
In reviewing the denial of a motion to recuse, our standard of review is
for an abuse of discretion. Commonwealth v. Hutchinson, 25 A.3d 277,
319 (Pa. 2011), cert. denied, Hutchinson v. Pennsylvania, 132 S. Ct.
2711 (2012).
Rather, it involves bias, ill will, manifest unreasonableness, misapplication of
Commonwealth v. King, 990 A.2d 1172,
1180 (Pa. Super. 2010) (citations omitted), appeal denied, 53 A.3d 50 (Pa.
honorable, fair and competent, and, when confronted with a recusal
demand, have the ability to determine whether they can rule impartially and
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa.
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3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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burden of the party requesting recusal to produce evidence establishing bias,
Commonwealth v. Flor, 998 A.2d 606,
641 (Pa. 2010) (citation omitted), cert. denied, Flor v. Pennsylvania, 131
S. Ct. 2102 (2011).
Upon careful review, we discern no abuse of discretion on the part of
n the part of Judge Nichols that would warrant her recusal in
this matter. Id. The evidence introduced at the August 8, 2013 suppression
hearing was not inadmissible or unfairly prejudicial, and Appellant has failed
to articulate any substantive reason t
the suppression hearing,4 apparent
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4
Specifically, Judge Nichols stated the following at the conclusion of the
testified to was so out of bounds and so incredible
Accordingly, I will conclude that the sergeant
acted lawfully and had sufficient cause to stop,
detain, arrest and subsequently search [Appellant]
after the arrest and the bag was inventoried, that
(Footnote Continued Next Page)
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ability to wipe the credibility slate clean [during the subsequent bench trial]
-13. We disagree.
In situations where a trial court judge has presided over an earlier
stage of the proceedings, as is the case here, the determination of whether a
trial court judge should recuse herself is dependent, in part, on her ability to
preside impartially. See Kearney, supra ]trial judge
should recuse himself whenever he has any doubt as to his ability to preside
impartially in a criminal case or whenever he believes his impartiality can be
prejudicial information was considered by the trial court, a judge, as
factfinder, is presumed to disregard inadmissible evidence and consider only
Commonwealth v. Fears, 836 A.2d 52, 71 n.19
(Pa. 2003) (citation omitted), cert. denied, Fears v. Pennsylvania, 545
U.S. 1141 (2005).
Instantly, the trial court concluded that recusal was unwarranted in
sion,
_______________________
(Footnote Continued)
the contraband CDs were in plain view. There was
sufficient cause, the Commonwealth has met its
burden and the motion to suppress is accordingly
denied.
N.T, 8/8/13, at 59-60.
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provided at the [August 8, 2013] hearing, not merely on the credibility of
[Appellant or Sergeant B Id. The trial court further noted that
Id. at 5-6.
udge himself [or herself] is best qualified to
Commonwealth v.
Bonds, 890 A.2d 414, 418 (Pa. Super. 2005) (citation and internal
quotation marks omitted), appeal denied, 906 A.2d 537 (Pa. 2006). As
evidenced by her comments in her Rule 1925(a) opinion, this is exactly what
Judge Nichols did in this case. Furthermore, the mere fact that Judge
question her ability to remain impartial
an earlier stage of the proceeding neither suggests the existence of actual
impropriety nor provides a basis for a finding of the appearance of
Commonwealth v. Reyes, 870 A.2d 888, 898 (Pa. 2005)
(citation omitted); see also Kearney, supra at 61-62. Similar to the
instant matter, Reyes involved a scenario where an appellant called into
question the impartiality of a trial court judge who presided over both the
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suppression motion hearing and his bench trial. See Reyes, supra at 897-
898.
Accordingly, we discern no abuse of discretion on the part of the trial
court in See Hutchinson, supra.
Therefore, we affirm the August 8, 2013 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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Com. v. Logan, M.
Combined Opinion