J-A17002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KHALIL MASON :
:
Appellee : No. 3127 EDA 2016
Appeal from the Judgment of Sentence August 29, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000427-2015
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the
reinstated judgment of sentence entered in the Delaware County Court of
Common Pleas, following the denial of the Commonwealth’s post-sentence
motion for recusal. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellee and two accomplices forcibly entered a home occupied by several
college students and robbed them at gunpoint on October 9, 2014. Police
arrested Appellee a few hours later, in possession of several stolen items.
Appellee made a full confession to the police. As a result, the
Commonwealth charged Appellee with robbery, aggravated assault,
burglary, conspiracy, and related offenses. Subsequently, the
Commonwealth offered Appellee a plea deal of 48 to 120 months’
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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imprisonment, plus five years’ probation, which he rejected. Appellee
unsuccessfully litigated a motion to suppress on December 2, 2015, and the
Commonwealth withdrew its plea deal.
On March 23, 2016, Appellee decided against his scheduled bench trial
and entered an open guilty plea to two counts of robbery, one count each of
aggravated assault, burglary, and resisting arrest, and to three counts of
conspiracy. During his plea colloquy, Appellee confirmed that no one had
promised him anything in return for his plea and that he had made the
decision to plead guilty after he spoke with his grandmother and defense
counsel. The court accepted Appellee’s plea, denied the Commonwealth’s
request to proceed immediately to sentencing, and ordered a presentence
investigation (“PSI”) report, a psychiatric and psychological report, a drug
and alcohol evaluation, sentencing memorandums, and a transcript of victim
impact statements for sentencing purposes.
The court initially sentenced Appellee on May 17, 2016, to an
aggregate term of forty (40) to one hundred twenty (120) months’
imprisonment, followed by a consecutive term of ten (10) years’ probation.
After sentencing, the assigned ADA requested Appellee’s prison phone calls
and listened to a phone call between Appellee and his grandmother that
occurred on May 18, 2016. During this phone call, Appellee allegedly told
his grandmother that on the day of his scheduled bench trial, he spoke with
and negotiated a sentence with the court’s law clerk prior to Appellee’s plea.
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As a result, members of the Criminal Investigation Division (“CID”)
questioned defense counsel on May 26, 2016, about the law clerk’s possible
influence on Appellee’s decision to plead guilty. Defense counsel told CID
that on the morning of March 23, 2016, he informed the court and the ADA
that Appellee wanted to proceed with the scheduled bench trial against
counsel’s advice. The court offered to arrange for Appellee to meet with his
grandmother and defense counsel to discuss whether to enter a plea.
Defense counsel said he then met with Appellee and his grandmother in a
jury room later that morning, where defense counsel and Appellee’s
grandmother advised him to plead guilty. Defense counsel acknowledged
the law clerk was present during this meeting but emphasized that the law
clerk did not ever speak to Appellee or mention any type of sentence to
defense counsel and/or Appellee.
Defense counsel said he also visited Appellee in the courthouse
cellblock that same morning and again advised Appellee to plead guilty. The
law clerk appeared at the cellblock at some point after defense counsel had
arrived. Defense counsel said, “It was an insignificant…event that [the law
clerk] was there [because] he wasn’t participating in the plea negotiations,”
and explained that the law clerk merely asked defense counsel if Appellee
was going to enter a plea. (See Interview of Defense Counsel, 5/26/16, at
7). Further, defense counsel clarified that the law clerk could not have
negotiated a plea deal with Appellee in the cellblock without counsel’s
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knowledge because the law clerk arrived after defense counsel, and defense
counsel observed Appellee during the entire time the law clerk was present
in the cellblock.
CID interviewed the law clerk as well on May 26, 2016; he explained
that one of his duties as a law clerk is to move along the process in the
courtroom. The law clerk recalled going to the cellblock on March 23, 2016,
but he denied making any suggestions about a possible sentence to Appellee
if he pled guilty. The law clerk did not remember specifically what he said
that day, but he claimed that he would have directed all comments to
defense counsel. Next, CID interviewed the court on May 26, 2016; the
judge confirmed that he had instructed the law clerk to go to the cellblock
and learn from defense counsel if Appellee intended to plead guilty.
On May 27, 2016, the Commonwealth filed a post-sentence motion to
“Vacate Sentence and Plea,” and asked the court to vacate Appellee’s plea
and sentence, and to reassign the case to another judge. The
Commonwealth improperly filed the motion with the President Judge of the
Delaware County Court of Common Pleas. By order dated June 15, 2016,
the court denied the Commonwealth’s May 27th motion, without prejudice,
and vacated Appellee’s sentence to preserve the parties’ rights. Meanwhile,
defense counsel filed a petition to withdraw representation, which the court
granted on June 7, 2016, after a hearing. That same date, the court
appointed new counsel for Appellee.
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Based primarily upon the prison phone call, the Commonwealth filed a
motion for recusal with the court on June 23, 2016, alleging that, on the
morning of Appellee’s scheduled bench trial, the court’s law clerk spoke to
Appellee in the courthouse cellblock, asked Appellee if he thought he could
win at trial when the victims were college students, told Appellee he could
enter an open guilty plea, and told Appellee that the sentence would be
“about like three years.” (See Motion for Recusal, filed 6/23/16, at 2). In
its motion, the Commonwealth concluded the court’s impartiality in
resentencing Appellee:
might reasonably be questioned because: (a) the law clerk
communicated ex parte with Appellee before his plea; (b)
the law clerk told [Appellee] the approximate minimum
sentence [the court] would impose; (c) [the court]
imposed a minimum sentence just four months greater
than the law clerk’s approximation to [Appellee]; [and] (d)
neither [the court] nor the law clerk disclosed the
communications to the Commonwealth.
Id. at 3-4. The Commonwealth supplemented its motion with, inter alia, a
recording of a May 18, 2016 prison phone call between Appellee and his
grandmother, a transcript of their conversation, a transcript of defense
counsel’s May 26, 2016 interview with CID, and a summary of the court’s
and the law clerk’s statements to CID during those respective interviews.
Appellee filed an answer to the recusal motion on July 7, 2016.
The court held a hearing on the recusal motion on July 20, 2016. At
the hearing, defense counsel said that, on the morning of March 23, 2016,
he had a meeting in a jury room with Appellee and Appellee’s grandmother
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to discuss whether Appellee should plead guilty. Defense counsel believed
Appellee had decided to plead guilty after the meeting. Regarding the law
clerk’s role in the plea discussions that day, defense counsel explained how
the law clerk had helped to arrange the meeting in the jury room and his
presence during the meeting; but the law clerk did not ever speak to
Appellee and/or participate in any of the plea considerations. When asked
about the law clerk’s appearance at the cell block, defense counsel said he
recalled the law clerk came to the cell block merely to inform defense
counsel that the jury room was ready for the meeting. Significantly, defense
counsel emphasized he would not allow anyone to communicate with
Appellee, and the law clerk did not speak with Appellee at the cell block
and/or at any other point before Appellee entered his plea.
The assigned ADA testified at the hearing that he was upset with
Appellee’s sentence and wanted to do what he could as a prosecutor to get a
tougher sentence imposed. So, the assigned ADA requested Appellee’s
prison phone calls to see if Appellee “had lied to the Judge or was laughing
about the sentence in any way.” (N.T. Hearing, 7/20/16, at 45). The
assigned ADA said he listened to the phone calls and heard Appellee tell his
grandmother that Appellee had negotiated his sentence with the court’s law
clerk. Specifically, the relevant part of the transcript of the call provides:
[Appellee]: Yeah, but, ah, this it’s crazy grandma
I haven’t told you about the one guy that was…talking with
my lawyers the day of the trial. Like, I guess he work in
the courtroom; you ain’t never seen him on the side?
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[Grandmother]: No.
[Appellee]: Listen, that─that guy he exactly told
me what I’m gonna get, ‘cause he like the Judge assistant
or whatever. The day of trial.
[Grandmother]: Mm.
[Appellee]: Um, ah, like my lawyer feels all shaky
about it and he came down he was like, “Yeah, well the
Judge will be seeing you in a little bit.” And then, um, I
started talking to him he, like, “Yeah, well listen you think
you will still win I know you─you side this story is true but
you think you will win with college students and they side
the story and all that.”
[Grandmother]: Yeah.
[Appellee]: So, I asked him about an open plea.
He’s like, “Yeah you can still do it.” And which I said, “You
think they gonna give me, like, a two to four one and
two?” He like nah, …he said, “I say about like three years
and say you get your time credit.” And he─he was exactly
right. Like, when the, ah, DA.
[Grandmother]: Well.
[Appellee]: Said something.
[Grandmother]: Yeah─yeah.
[Appellee]: The DA said what you want me to do
he was like you didn’t see him in the corner, he’s like,
“Nah, you’re not gonna do that just be cool.” You would
have had to watch him.”
[Grandmother]: No, I didn’t, where was he─where was
he at?
[Appellee]: He was on the side, like, in a, sitting
on a chair.
[Grandmother]: Oh, you talking about, like, he was,
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like, in the jury chair?
[Appellee]: Like, over there─over there, yeah.
[Grandmother]: Yeah─yeah,─in the jury chair, like.
[Appellee]: Yeah─yeah. Sitting like over there.
[Grandmother]: Yeah, you know, where when they
have a jury where they sit at.
[Appellee]: Yeah, I know they (unintelligible).
[Grandmother]: Because he was in that, he was─he
was in that room when we was in that room that time.
[Appellee]: Yeah, him─him─him that guy.
[Grandmother]: Yeah, he seemed like a nice guy
there.
[Appellee]: Yeah, I guess he be controlling
everything.
(See Transcript of Appellee’s Jail Call, 5/18/16, at 5-6; R.R. at 107-108).
The parties stipulated to the authenticity and admissibility of the recording of
the May 18, 2016 jail call and its transcript, which the court allowed into
evidence. (See N.T. at 21; R.R. at 34).
The trial court stated at the hearing that the assigned ADA appeared
to be picking and choosing parts of this transcript to believe and not believe,
while ignoring that Appellee and his grandmother also said the court did not
quickly decide Appellee’s sentence. (See id. at 70-72; R.R. at 83-85).
Moreover, the trial court noted Appellee had made numerous inaccurate
statements to his grandmother during their phone call. The assigned ADA
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conceded Appellee had made several inaccurate comments and said, “it is
always hard to accept everything that a Defendant is saying. Now
[Appellee] already admitted in this phone call he lied to [the court] at
sentencing about his drug usage.” (See id. at 70; R.R. at 83). Further, the
assigned ADA acknowledged Appellee had also lied to his grandmother
during the phone call about striking one victim with a bottle. (See id. at 72;
R.R. at 85).
The trial court denied the Commonwealth’s recusal motion on August
29, 2016, and re-imposed the original judgment of sentence. The
Commonwealth timely filed a notice of appeal on September 27, 2016. On
October 4, 2016, the court ordered the Commonwealth to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the
Commonwealth timely complied on October 24, 2016.
The Commonwealth raises the following issue for our review:
ON THE DAY OF TRIAL, WITHOUT INFORMING THE
PROSECUTOR, THE TRIAL COURT’S LAW CLERK TOLD
[APPELLEE] THAT IF HE ENTERED AN OPEN GUILTY PLEA
THAT DAY THE COURT WOULD IMPOSE A SENTENCE OF
“ABOUT” THREE YEARS. [APPELLEE] ENTERED THE PLEA
AND THE COURT IMPOSED THAT SENTENCE. DID THIS
EVIDENCE DEMONSTRATE AN APPEARANCE OF
IMPROPRIETY THAT WARRANTED THE COURT’S RECUSAL?
(Commonwealth’s Brief at 3).
The Commonwealth argues Appellee’s recorded statements created the
appearance that the trial court had pre-decided Appellee’s sentence, the
judge’s law clerk encouraged a guilty plea to move the case along, and the
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law clerk and the court concealed their intentions and actions from the
Commonwealth. The Commonwealth asserts its evidence demonstrated that
the court instructed his law clerk to go to Appellee’s cell block, where the law
clerk suggested a possible sentence if Appellee would plead guilty. The
Commonwealth contends these events occurred without the
Commonwealth’s knowledge and fed this appearance of impropriety. The
Commonwealth also complains the court refused to confront the obvious
appearance of impropriety, which damages the public confidence in the
administration of justice. The Commonwealth claims the court instead
disregarded the recording of Appellee’s jail call, exonerated itself and the law
clerk, and disparaged the Commonwealth’s motives for challenging the
court’s impartiality. The Commonwealth further declares the law clerk’s
alleged statements to Appellee violated Rule 590 of the Pennsylvania Rules
of Criminal Procedure.1 For these reasons, the Commonwealth concludes
the trial court abused its discretion, when it declined to remove itself from
resentencing Appellee, and insists this Court should reverse the order
denying the Commonwealth’s motion for recusal, vacate the judgment of
sentence, and remand the case for resentencing. We disagree with the
____________________________________________
1 The Commonwealth waived its complaint on appeal that the law clerk’s
actions violated Rule 590, because the Commonwealth failed to raise it in its
court-ordered Rule 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (stating as general rule, issues not raised
in Rule 1925(b) statement will be deemed waived for appellate review).
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Commonwealth’s contentions.
“Where a jurist rules that he…can hear and dispose of a case fairly and
without prejudice, that decision will not be overturned on appeal but for an
abuse of discretion.” Commonwealth v. White, 557 Pa. 408, 426, 734
A.2d 374, 384 (1999).
In reviewing the denial of a recusal motion to determine
whether the judge abused his discretion, we recognize that
our judges are honorable, fair and competent. Based on
this premise, where a judge has refused to recuse himself,
on appeal, we place the burden on the party requesting
recusal to establish that the judge abused his discretion.
* * *
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused when the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. King, 576 Pa. 318, 322-23, 839 A.2d 237, 239-40
(2003) (internal citations and quotation marks omitted). Our Supreme
Court explained: “In general, a motion for recusal is properly directed to
and decided by the jurist whose participation the moving party is
challenging.” Id. at 322, 839 A.2d at 239 (internal citations and quotation
marks omitted). “It is the burden of the party requesting recusal to produce
evidence establishing bias, prejudice or unfairness, which raises a
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substantial doubt as to the jurist’s ability to preside impartially.” White,
supra at 426, 734 A.2d at 383-84 (1999).
The inquiry is not whether a judge was in fact biased
against the party moving for recusal, but whether, even if
actual bias or prejudice is lacking, the conduct or
statement of the court raises an appearance of
impropriety. The rule is simply that disqualification of a
judge is mandated whenever a significant minority of the
lay community could reasonably question the court’s
impartiality.
Commonwealth v. Druce, 796 A.2d 321, 327 (Pa.Super. 2002), affirmed,
577 Pa. 581, 848 A.2d 104 (2004).
Further, disqualification motions are not limited to judges
who preside over trials, but extend to other proceedings,
including sentencing. Our Supreme Court has explained:
[T]he largely unfettered sentencing discretion
afforded a judge is better exercised by one without
hint of animosity toward appellant…. [A] defendant
is entitled to sentencing by a judge whose
impartiality cannot reasonably be questioned.
Id.
The sentencing decision is of paramount importance in our
criminal justice system, and must be adjudicated by a fair
and unbiased judge. This means, a jurist who assess[es]
the case in an impartial manner, free of personal bias or
interest in the outcome. Because of the tremendous
discretion a judge has when sentencing, a defendant is
entitled to sentencing by a judge whose impartiality cannot
reasonably be questioned. A tribunal is either fair or
unfair. There is no need to find actual prejudice, but
rather, the appearance of prejudice is sufficient to warrant
the grant of new proceedings.
Commonwealth v. Rhodes, 990 A.2d 732, 748 (Pa.Super. 2009), appeal
denied, 609 Pa. 688, 14 A.3d 827 (2010) (quoting Druce, supra at 588,
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848 A.2d at 108). “In turn, once the judge decides whether to preside over
the case, that decision is final and the cause must proceed.” King, supra at
322, 839 A.2d at 239.
Instantly, the Commonwealth had the burden to show the trial court
abused its discretion when it denied the Commonwealth’s motion for recusal.
On October 3, 2016, the court issued findings of fact and conclusions of law
to support its decision. In general, the court rejected the Commonwealth’s
cause of action, finding the only credible evidence came from defense
counsel, “who plainly and unequivocally and without contradiction testified
there was not direct communication as alleged by the Commonwealth.”
(See Findings of Fact/Conclusions of Law, filed 10/3/16, at 9-10).
Specifically in response to the Commonwealth’s contentions, the trial
court stated:
* * *
I. Findings of Fact
4. The Commonwealth alleged the Trial Judge’s law
clerk when instructed on the morning of trial to obtain a
case status report (i.e. plea or trial) from the defendant’s
lawyer then in the prisoner lock-up area of the court house
where defense counsel, …, was meeting with his client,
instead negotiated a plea and sentence directly with the
inmate defendant, despite the immediate presence of
defense counsel, a 40 year practitioner and a former
prosecutor with an unblemished professional record, who
subsequently flatly, repeatedly and emphatically denied
any such occurrence whatsoever, including but not limited
to while so testifying under oath.
5. The Commonwealth’s call for the Trial Court’s recusal
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is premised only upon the assigned [ADA]’s subjective
interpretation of essentially three (3) lines (of six hundred
and thirty six (636) lines) in an eavesdropped jail call
between the 20-year-old defendant and his grandmother
who raised him, on the day AFTER the defendant was
sentenced to 40 months to 120 months incarceration with
an additional ten (10) consecutive years of post-
incarceration supervision for his role in a home invasion
burglary victimizing college students in Chester, Delaware
County, Pennsylvania.
6. The record reveals that the [ADA] on his coming to
the conclusory interpretation of the alleged impropriety did
not account for the proper context of the recorded
exchange between the grandmother and the son-like
grandchild while [the ADA] listened to the jailhouse
telephone call and was moreover extrapolating
unsupported inference(s) when driven by some vague and
personal dissatisfaction with the case’s outcome and
inexperience. [The ADA] assigned his own yet tortured
interpretation of what he overheard in the transcript which
this [c]ourt finds completely incredible in light of the
Commonwealth’s subsequent investigation and record.
7. The instant Motion for Recusal is what grew out of
that which the assigned [ADA] acknowledges is his
dissatisfaction with the sentence handed down by this
Judge.
8. The result of the exhaustive review of this record has
yielded the repeated consistent statement from the
defendant’s attorney, …, then present in lockup on the
morning of trial when the law clerk was dispatched by the
Trial Judge to ascertain plea/trial status and whether a
face to face conference room meeting between the
defendant and his grandmother arranged by the court
would be helpful to the defendant in finally deciding to
plead or proceed to trial, is that there were no such ex
parte communications between the law clerk and the
defendant of the kind, nature or substance as averred and
alleged by the Commonwealth. The court specifically
credits [defense counsel’s] testimony and accepts it as
grounded in firsthand knowledge of the truth and reality.
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9. Further, [defense counsel] relatedly testified he
would neither permit nor tolerate any such conversation
between a law clerk and his client. Again, this testimony is
specifically credited and consistent with the realities one
would expect from a respected, seasoned and experienced
member of the bar.
* * *
11. First, [the assigned ADA] testified in conclusory
fashion that he listened to a phone call between the
defendant and his grandmother wherein he characterized
the defendant as “indicating he negotiated his sentence
with the Judge’s law clerk.” No such statement, phrase
and/or conversation exists and such is [the assigned
ADA]’s interpretive conclusion and not the words of the
participants in the call and the substance of the actual call.
Further, the substance of the actual call is so equivocal as
to meaning and the persons referred to therein that this
court finds [the assigned ADA]’s extrapolated misshaped
interpretation to be overreaching, overly strained, too
tenuous and lacking any reasonable and/or sufficient
factual predicate foundation to make his interpretation
probable. Therefore, this [c]ourt expressly rejects his
testimony regarding the proper interpretation of the jail
call between the defendant and his grandmother.
12. On the day of sentencing all counsel met with the
presiding Judge in the robing room where a sentencing
conference was conducted and sentencing concerns were
reviewed prior to going on the record. At that conference,
the presentence investigation report, psychological,
psychiatric and drug & alcohol evaluations, memorandums,
guidelines and victim testimony were all discussed and
reviewed. The presiding Judge reiterated the general
ranges he was considering.
13. The record of the defendant’s sentencing
proceedings was opened by [the assigned ADA] who
commenced with a recitation of the charges to which the
defendant pled guilty to on March 23, 2016. The issue of
restitution was noted to be addressed in the
Commonwealth’s sentencing memorandum and the various
witnesses that would be called in furtherance of the
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presiding Judge’s pronouncement of sentence.
[Defendant’s grandmother] was called to testify on behalf
of the defendant. … She apologized to the victims. Next,
the [defendant’s mother] was called who explained that
financial hardship resulted in the defendant encountering
different types of pills and explaining that her son had
made poor choices on the night in question. Also,
[defendant’s stepmom] testified. She testified that the
defendant has a child who needs its father present.
[Defendant] then testified thanking his family for
supporting him and apologizing to his victims.
14. The Commonwealth’s position in this matter is
untenable where it asks this court to engage in the parsing
and self-serving cherry picking of statements contained in
the purported jail call transcript (which remains unsigned
unverified and uncertified) and would literally have this
court in certain other salient respects engage in flip-
flopping and summarily discredit this jail call evidence and
concomitantly at the same time credit certain portions only
to the extent such purportedly supports [the
Commonwealth’s] recusal application while just ignoring
the uncontradicted and credible testimony of [defense
counsel] to the contrary. Stated another way, the
Commonwealth came to court essentially waving an
unsigned and unverified jail call transcript and said, Your
Honor believe what we say this transcript says because WE
say it, BUT don’t believe the rest of the transcript, as it is a
lie because WE say so. This court points out that such an
analytical method or mechanism of analysis for truth is
neither reasoned nor well grounded. This method is
plainly too subjective, pushes logic and is a patently
uncertain methodology for fair truth determination beyond
reason and assessing veracity. This Jurist flatly rejects
and discredits the Commonwealth on this basis.
15. The Commonwealth cannot meet its burden of
producing sufficient, credible evidence for this Jurist’s
recusal by printing a jail call transcript and inventing a
meaning, and confusingly compound the matter by further
stating in that in the very same transcript there are
material portions [the Commonwealth contends] are
untrue. The record of how the Commonwealth argues to
substantiate its claim underscores the remoteness of the
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basis of their claim and the palpable lack of substance and
tenuousness and meritless nature of its proposition.
16. Specifically, the Commonwealth without reasoned
explanation contends the defendant is lying and not being
truthful and honest in the jail call with his grandmother
with respect to taking drugs and striking the victim with a
bottle, but then does a reversal and yet argues the
defendant is actually not being dishonest and untruthful in
some parsed statement [the Commonwealth contorts] to
mean the Judge should recuse himself because his law
clerk allegedly negotiated the defendant’s plea and
sentence and/or engaged in some impermissible ex parte
communication. Mindful of the fact that none of these
words or phrases utilized by the Commonwealth are
actually uttered by the defendant in the jail house call or
even anything closely resembling the same, but are
instead the contrivances of [the assigned ADA]…. …
17. This court cannot credit all these inconsistencies in
the Commonwealth’s case. [The assigned ADA]’s
testimony flatly contradicts itself and this Jurist shall not
assign it any weight or credibility. If the proper
interpretation of his “explanation” for his “upsetness” and
dissatisfaction with the defendant’s sentence was his
desire to vindicate the victims in some way as is the best
interpretation of his rambling incohesive explanation, if
any, such directly contradicts his testimony he knew the
very day of sentencing where he stood silent and said
nothing about any “upsetness” or dissatisfaction on
multiple occasions where he had a clear opportunity to
place it on the record.
18. There is, of course, yet another explanation for the
Commonwealth’s dissatisfaction and [the assigned ADA]’s
“upsetness” with this Jurist’s sentence contained in the
record which this [c]ourt finds persuasive. Reference is
made to the line (N.T. 07/20/16, 37, 14-23) of testimony
elicited at the July 20, 2016 hearing wherein the
Commonwealth advocates a “practice” of sorts or
“expectation” that a defendant should expect to receive a
harsher (“longer”) sentence upon conviction if the
defendant rejects the Commonwealth's pre-trial negotiated
guilty plea offer and/or proceeds to file and go forward
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with litigating pre-trial issues. Essentially, the
Commonwealth acknowledged that it has an expectation
that if a defendant doesn’t accept and rejects [the
Commonwealth’s] guilty plea offer, [the defendant] will
face a more severe sentence from the Judge simply for
exercising constitutional rights and actively engaging in a
defense strategy such as filing a pre-trial suppression
motion as was done in the instant case. This documented
exchange clearly betrays the reasons for the
Commonwealth’s dissatisfaction and “upsetness” in this
matter.
19. The only credible evidence provided at the recusal
hearing was from the Commonwealth’s first witness,
defense counsel, …, who plainly and unequivocally and
without contradiction testified there was no direct
communication as alleged by the Commonwealth.
II. Conclusions of Law
* * *
5. Against the foregoing facts and precedent, this Jurist
believes unequivocally no reasonable observer would
question his impartiality in re-sentencing the defendant in
this matter. It is noted at the outset that in the immediate
aftermath of the original sentencing in conference with the
victims who expressed appreciation and satisfaction with
sentence imposed. The assistant district attorney who was
also present and involved in the discussion expressed no
dissatisfaction with the sentence imposed, as he so
testified in the instant hearing.
6. Further, this is not a situation where the allegation of
bias or prejudice or partiality against the presiding Judge is
premised upon a relationship with the defendant or the
other parties in the case. … The bias, prejudice or
partiality that is alleged is not of fixed mind to impose a
maximum sentence. …
7. Also, the events immediately after the law clerk went
to lock up as instructed also demonstrate no appearance of
impropriety, that is, arrangements were immediately
undertaken to have the defendant’s grandmother meet
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with him in a conference room, to which the [assigned]
ADA admits he was aware.
8. The Commonwealth grossly misconstrues, misshapes
and skews any impact and import and significance of any
holding cell statements by a law clerk in the obvious
calculus of this defendant’s decision to enter an open guilty
plea where the record is clear the defendant labored for
over a year through three attorneys and numerous listings
struggling to decide whether to plead or proceed with trial.
This [c]ourt, experienced practitioners and attorneys who
have applied any material professional time within our
criminal justice system and certainly any practitioner who
has applied their professional time representing criminal
defendants in these situations knows or has the experience
to know such fanciful dramatic plot twists, such as an 11th
hour passing comment by a law clerk in the aisle of the
holding cell on the morning of trial that supposedly
completely sways and precipitates the instantaneous
negotiation of a plea and sentence and total reversal of a
defendant such as this who resisted pleading for over a
year as his case languished in the system is nonsensical,
unrealistic and flatly not grounded in any reality.
9. Even if one focuses on the assertion that there was
some reference to the minimum portion of the defendant’s
sentence in any even adds no additional merit, legal
substance or utility whatsoever to the Commonwealth’s
position in light of the fact that even [the assigned ADA]
testified that he believed the defendant shall likely serve at
least seven (7) years in prison in light of the actual
sentence imposed, of course, with an additional ten (10)
years of state supervision.
10. Under all of these circumstances of this case, it is
clear that the trial court’s impartiality cannot reasonably be
questioned in re-sentencing and reinstating the original
sentence of the defendant.
11. This Jurist has thoroughly, rigorously and
exhaustively examined the entire record of this case with
respect to his own impartiality, bias and/or prejudice. The
self-assessment has ranged from reviewing this case from
its inception through the entry and withdrawal of counsel
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for both the Commonwealth and the defendant to pre-trial
litigation, trial, the open plea and sentencing as well as the
post-sentence activities in this case. This Jurist’s conduct
and the conduct of his staff and those for whom he is
responsible has adhered to strict rules of professionalism
and has been squarely consistent with this Jurist's conduct
in presiding over hundreds of cases. The [c]ourt
consistently exhibited restraint, patience and collegial
accommodation of both the Commonwealth and the
defendant throughout numerous listings and re-listings and
conferences designed to frame the pertinent case issues
for the efficient, fair and just disposition of the case under
consideration of all the material circumstances.
12. Also, this Jurist concludes under the circumstances of
this case that there is also no reasonable concern that his
continued involvement in this case created an appearance
of impropriety and/or would tend to undermine public
confidence in the judiciary. In fact, the opposite is true.
Under this record, which is plainly driven by the
disappointment of the [assigned ADA], who believed the
defendant should have received a harsher sentence
because he litigated a suppression motion, then
subjectively embellished a tortured interpretation of a jail
call as a means to remove this Jurist from the case for the
chance at the desired sentence through another Judge.
Necessary public confidence in the judiciary demands that
courts do not succumb to efforts to supplant their inherent
decision making authority, whether such influences are
exerted by the Defense or Commonwealth. This Judge
believes unequivocally that public confidence in the
Judiciary is best served by a Judge who will not cede his
sentencing authority to an ingrained or unspoken
systematic policy where defendants are ipso facto
expected to receive a harsher sentence merely because
they exercise their constitutional rights or do so on threat
of a more severe sentence.
13. In this case, the Commonwealth failed to meet their
burden of producing evidence to corroborate their
allegation that an appearance of impropriety or partiality
or prejudice occurred in this matter as the record is clear.
(Id. at 1-14) (internal footnotes, citations to record, and testimony chart
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omitted). We agree. The record contains no evidence to support the
Commonwealth’s allegations of an appearance of impropriety or establish
that the court erred in refusing to recuse itself at Appellee’s re-sentencing.
See King, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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