Com. v. Tricome, D. ( 2016 )

J-S12019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOMENIC TRICOME,
Appellant No. 2131 EDA 2015
Appeal from the Judgment of Sentence of June 11, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002821-2013
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 08, 2016
Appellant, Domenic Tricome, appeals from the judgment of sentence
entered on June 11, 2015. We affirm.
The trial court ably explained the underlying facts of this case:
At the June 11, 2015 bench trial, Appellant stipulated to the
following facts as set forth in the affidavit of probable cause,
which were read into the record. On July 24, 2012,
Appellant was arrested for terroristic threats and[,] during
the course of that arrest, Appellant had contact with
Detective William Mitchell of the Montgomery County
Detective Bureau. On August 2, 2012, Magisterial Judge
Maruszczak ordered Appellant to undergo a psychiatric
evaluation by the Montgomery County Emergency Services
(“MCES”) and to follow their recommendations for
treatment as a requirement of bail. Appellant agreed to the
bail conditions. MCES staff contacted Appellant and visited
him to evaluate his mental status.
On August 16, 2012, Detective Mitchell received a letter via
fax to the Montgomery County Detective Bureau from
Appellant. Therein, Appellant claimed that he recorded the
*Retired Senior Judge assigned to the Superior Court.
J-S12019-16
telephone conversations he had with MCES staff because he
could not trust MCES or Detective Mitchell. He specifically
wrote, “I have the calls on tape.”
On August 17, 2012, Detective Mitchell received a
subsequent letter from Appellant via fax. In this letter,
Appellant [made] the same accusations against MCES. He
claim[ed] that he [could] prove [that lies] were told about
him [and that he could do so] with audiotapes of the
telephone conversations between MCES staff and himself.
Appellant also related that he did not trust the District
Attorney’s Office or MCES, so he made duplicates of his
tapes of the telephone conversations.
After receiving the second letter, Detective Mitchell
contacted MCES and spoke with Tyler Ludwig, the MCES
member who had telephone conversations with Appellant
pursuant to his bail conditions. Mr. Ludwig stated that he
had several telephone conversations with Appellant to
schedule a home visit as well as an evaluation for him with
one of the doctors at MCES.
During one of the conversations, Mr. Ludwig stated that
Appellant told him that he was recording their conversation.
This statement was in the middle of their conversation. Mr.
Ludwig did not consent to the recording of the conversation,
nor did Appellant provide the appropriate warnings at the
beginning of the conversation. Mr. Ludwig stated he never
gave Appellant consent to record any conversation.
On August 21, 2012, members of the Montgomery County
Detective Bureau and the Upper Marion Police Department
executed a search warrant at Appellant’s apartment. As a
result of the search, 120 audiotapes were seized, along with
computer hard drives and an audio recording device. A
review of the audiotapes reveal hundreds of illegal,
surreptitiously recorded conversations using Appellant’s
home telephone line.
Detective Mitchell reviewed tapes one through 28, which
date from January 2011 through August [] 2012. During
the months of January 2011 through March [] 2011, a total
of 153 calls were recorded. During the months of April
2011 through June 2011, a total of 38 calls were recorded.
-2-
J-S12019-16
During the months of July 2011 through September 2011, a
total of 37 calls were recorded. During the months of
October 2011 through December 2011, a total a total of 31
calls were recorded. During the months of January 2012
through March 2012, a total of 41 calls were recorded.
During the months of April 2012 through June 2012, a total
of 41 calls were recorded. During the months of July 2012
through the execution of the search warrant on August 21,
2012, a total of 38 calls were recorded. These recorded
calls were made to various people, including Appellant’s
friends, apartment complex employees, law offices, various
court personnel, pharmacy workers[,] and various other
individuals.
On August 24, 2012, a hearing was held in the Montgomery
County Court of Common Pleas at Appellant’s request.
During the hearing[,] Appellant made an unsolicited
statement that he “recorded all of his calls.” Appellant also
admitted in briefs to [the trial c]ourt that he records all of
his phone calls.
[On December 5, 2012, the Commonwealth charged
Appellant with violating the Wiretap Act at 18 Pa.C.S.A.
§ 5703(1). This section provides that “a person is guilty of
a felony of the third degree if he: (1) intentionally
intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept any wire,
electronic or oral communication.” 18 Pa.C.S.A. § 5703(1).]
...
On April 30, 2014, Appellant filed a pro se motion [for the
trial court judge to] recuse. Therein, Appellant alleged that
[the trial court judge could not] be impartial due to
[Appellant’s] filing of a pro se motion in a separate matter
in which Appellant was a defendant. . . . On July 9, 2014,
[the trial court judge] issued an order denying Appellant’s
motion to recuse. . . .
...
On June 9, 2015, [Appellant] filed [two pre-trial motions: a
“Motion to Dismiss as De Minimis Pursuant to 18 Pa.C.S.A.
§ 312(a)” and a “Motion to Dismiss for Vindictive
-3-
J-S12019-16
Prosecution.” Within Appellant’s “Motion to Dismiss as De
Minimis Pursuant to 18 Pa.C.S.A. § 312(a),” Appellant
claimed] that the charges filed against him should be
dismissed because there [was] no evidence to suggest that
[he] disclosed the contents of any of the recorded telephone
conversations or that he threatened or intended to disclose
the contents of the telephone conversations. Finally,
[Appellant claimed] that the recorded phone conversations
relate[d] only to trivial and clerical matters and [did] not
involve any personal details about the other party to the
conversation. . . .
[Within Appellant’s “Motion to Dismiss for Vindictive
Prosecution,” Appellant noted that, despite the fact that]
the search warrant of Appellant’s residence was executed on
August 21, 2012[, the Commonwealth did not file charges
against Appellant until December 5, 2012. Appellant also
noted that,] on August 29, 2012, [he] filed a civil action in
[the] Montgomery County Court of Common Pleas against
several employees of the Montgomery County District
Attorney’s Office and other defendants relating to this
matter. [Appellant claimed] that it was not until December
5, 2012, the day after counsel entered his appearance for
the employees of the [District Attorney’s] Office named as
defendants in the civil action, that the Commonwealth filed
the present charges against Appellant. Moreover,
[Appellant claimed] that the Commonwealth’s decision to
file criminal charges against Appellant on December 5, 2012
was more likely than not motivated by vindictiveness in
retaliation for his initiation of a civil action against
employees of the [District Attorney’s] Office.
[A hearing on] Appellant’s motion to dismiss for vindictive
prosecution was [held] prior to the start of the stipulated
bench trial. . . . [During the hearing, the] Commonwealth
presented the credible testimony of Detective Mitchell, the
affiant in this case. Detective Mitchell testified that he first
got involved in this case in August 2012 when he received
several faxes in his office, addressed to him. The detective
[testified] that in those faxes[,] Appellant made several
complaints about issues with another case, and [Appellant]
stated that he records his phone calls, has the phone calls
on tape[,] and made duplicates of those phone recordings.
Detective Mitchell explained that based upon this
-4-
J-S12019-16
information he next applied for a search warrant for
[Appellant’s] residence to recover recordings of illegally
recorded phone conversations. . . .
The search warrant was executed on [August 21, 2012.
Detective Mitchell testified] that the search uncovered
several boxes of 120 cassette tapes that contained
hundreds and hundreds of illegally recorded phone calls, as
well as a phone recording [device] that was plugged into
[Appellant’s] phone line with a tape ready to record.
Detective Mitchell explained that while the search warrant
was executed in August [] 2012, an arrest warrant was not
issued and a complaint was not filed for a period of three
months thereafter because he had to examine the evidence.
This entailed hours and hours of listening to the audiotapes,
and determining who were on the audiotapes. Detective
Mitchell also executed two other search warrants in that
three month period for phone records for [Appellant’s]
residence for Comcast and Verizon. . . .
The detective also testified that at the time he filed the
affidavit and obtained an arrest warrant [against Appellant,]
he had no knowledge that he had been sued in civil court by
Appellant. He had not received any notice in the mail about
being sued by him. Also, no one else [that was] a member
of either the Montgomery County Detective Bureau or the
[District Attorney’s] Office informed or indicated to him that
he had been sued. Detective Mitchell unequivocally stated
to [the trial c]ourt that he did not file the criminal complaint
in this case against Appellant because he had been sued in
civil court by [Appellant], nor did he file the complaint at
anyone else’s direction.
[The trial court denied both of Appellant’s pre-trial motions
to dismiss. Trial Court Order, 6/11/15, at 1.]
...
At the [] bench trial [on June 11, 2015,] Appellant testified
on his own behalf. He admitted on direct examination that
he did record his telephone conversations. However, he
stated that he never disclosed the contents of any of these
conversations to anyone and that he never threatened
anyone or blackmailed anyone to disclose the contents of
-5-
J-S12019-16
the conversations. Further, upon questioning by his counsel
as to why he recorded his conversations, Appellant
[testified] as follows:
I had an oral agreement, an employment contract after I
sold the company in 2008, and the oral agreement was
between somebody in the supplement industry that was
president of the company, and I was president of the
company. We were well known in the industry and I
was told I could trust the man, and it made sense that
we didn’t have an employment agreement. I should
have had an employment agreement, because he
reneged on it and I lost about a quarter of a million
dollars.
From that and other things I contacted the [District
Attorney’s] Office for help. Actually, I think 129
contacts to everybody that matters, from the President
of the United States to the local police force, a 1004
pages, and nobody replied. The District Attorney’s
Office, six times I asked them. And these are
documents that would catch anybody’s attention, and
they didn’t even reply.
So I felt that I was on an island, so I had to keep my
phone recorded. And it helped, it helped.
...
That was the only way I could protect myself. I went as
far as threatening the [District Attorney’s] Office to sue
them if they don’t help me, and they didn’t reply to
anything. It was beyond ludicrous. I contacted them on
one matter six times, but in general about 200 times.
[N.T. Trial, 6/11/15, at 30-32.]
At the conclusion of the [June 11, 2015] trial, [the trial
c]ourt found Appellant guilty [of violating the Wiretap Act at
18 Pa.C.S.A. § 5703(1). That same day, the trial court
sentenced Appellant to serve] a one-year term of probation.
Trial Court Opinion, 8/14/15, at 1-5 (internal citations omitted).
-6-
J-S12019-16
Appellant filed a timely notice of appeal. Appellant raises three claims
to this Court:
[1.] Whether the trial court erred in denying Appellant’s
motion to dismiss for vindictive prosecution?
[2.] Whether the trial court abused its discretion in denying
Appellant’s motion to dismiss as de minimis [Appellant’s]
violation of the Wiretap Act?
[3.] Whether the trial court abused its discretion in denying
Appellant’s motion for recusal without a hearing and without
sufficient consideration and response to Appellant’s
allegations of bias?
Appellant’s Brief at 4 (some internal capitalization omitted).
We have reviewed the briefs of the parties, the relevant law, the
certified record, the notes of testimony, and the opinion of the able trial
court judge, the Honorable William R. Carpenter. We conclude that there
has been no error in this case and that Judge Carpenter’s opinion, entered
on August 14, 2015, meticulously and accurately disposes of Appellant’s
issues on appeal. Therefore, we affirm on the basis of Judge Carpenter’s
opinion and adopt it as our own. In any future filings with this or any other
court addressing this ruling, the filing party shall attach a copy of the trial
court’s opinion.
Judgment of sentence affirmed.
-7-
J-S12019-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2016
-8-
Circulated 01/20/2016 03:23 PM
IN THE COURT OF COMMONPLEAS OF MONTGOMERYCOUNTY
PENNSYLVANJA
CRIMINALDIVISION
COMMONWEALTHOF PENNSYLVANIA CP-46-CR-0002821-2013
t- )
,--
v.
DOMENICTRICOME 2131 EDA 2015
1)11
OPINION c__.
CARPENTER J. AUGUST 13, 2015
FACTUALAND PROCEDURALHISTORY
Appellant, Domenic Tricome, appeals from the judgment of
sentence imposed on June 11, 2015, after he was convicted of violating the
Wiretap Act at 18 Pa.CS.A. §5703(1), the intentional interception, disclosure or
use of wire, electronic or oral communications, at a stipulated bench trial.
At the June 11, 2015 bench trial, Appellant stipulated to the
following facts as set forth in the affidavit of probable cause, which were read
into the record. On July 24, 2012, Appellant was arrested for terroristic threats
and during the course of that arrest, Appellant had contact with Detective
William Mitchell of the Montgomery County Detective Bureau. (Stipulated Bench
Trial 6/11/15 pp. 23 - 24). On August 2, 2012, Magisterial Judge Maruszczak
ordered Appellant to undergo a psychiatric evaluation by the Montgomery
County Emergency Services (uMCES") and to follow their recommendations for
treatment as a requirement of bail. Id. at 24. Appellant agreed to the bail
conditions. Id. MCES staff contacted Appellant and visited him to evaluate his
mental status. Id. at 25.
On August 16, 2012, Detective Mitchell received a letter via fax to
the Montgomery County Detective Bureau from Appellant. Id. Therein,
Appellant claimed that he recorded the telephone conversations he had with
MCES staff because he could not trust MCES or Detective Mitchell. Id. He
specifically wrote, "I have the calls on tape". Id.
On August 17, 2012, Detective Mitchell received a subsequent letter
from Appellant via fax. In this letter, Appellant makes the same accusations
against MCES. Id. He claims that he can prove lies that were told about him with
audiotapes of the telephone conversations between MCES staff and himself. Id.
Appellant also related that he did not trust the District Attorney's Office or
MCES, so he made duplicates of his tapes of the telephone conversations. Id. at
25 - 26.
After receiving the second letter, Detective Mitchell contacted MCES
and spoke with Tyler Ludwig, the :MCES member who had telephone
conversations with Appellant pursuant to his bail conditions. Mr. Ludwig stated
that he had several telephone conversations with Appellant to schedule a home
visit as well as an evaluation for him with one of the doctors at MCES. Id. at 26.
During one of the conversations, Mr. Ludwig stated that Appellant
told him that he was recording their conversation. Id. at 26. This statement was
in the middle of their conversation. Mr. Ludwig did not consent to the recording
of the conversation, nor did Appellant provide the appropriate warnings at the
2
beginning of the conversation. Id. Mr. Ludwig stated he never gave Appellant
consent to record any conversation. Id.
On August 21, 2012, members of the Montgomery County
.(:,,
Detective Bureau and the Upper Merion Police Department executed a search
''\.
t',,11 warrant at Appellant's apartment. Id. As a result of the search. 120 audiotapes
were seized, along with computer hard drives and an audio recording device. A
review of the audiotapes reveal hundreds of illegal, surreptitiously recorded
conversations using Appellant's home telephone line. Id. at 26 - 27.
Detective Mitchell reviewed tapes one through 28, which date from
January 2011 through August of 2012. During the months of January 2011
through March of 2011, a total of 153 calls were recorded. During the months
of April 2011 through June 2011, a total of 38 calls were recorded. During the
months of July 2011 through September 2011, a total of 37 calls were recorded.
During the months of October 2011 through December 2011, a total of 31 calls
were recorded. During the months of January 2012 through March 2012, a total
of 41 calls were recorded. During the months of April 2012 through June 2012,
a total of 41 calls were recorded. During the months of July 2012 through the
execution of the search warrant on August 21, 2012 a total of 38 calls were
1
recorded. Id. at 27 - 28. These recorded calls were made to various people,
including Appellant's friends, apartment complex employees, law offices,
various court personnel, pharmacy workers and various other individuals. Id. at
28.
3
On August 24, 2012, a hearing was held in the Montgomery County
Court of Common Pleas at Appellant's request. During the hearing Appellant
made an unsolicited statement that he "records all of his calls." Id. Appellant
also admitted in briefs to the Court that he records all of his phone calls. Id.
At the stipulated bench trial, Appellant testified on his own behalf.
(111
He admitted on direct examination that he did record his telephone
conversations. Id. at 30. However, he stated that he never disclosed the
contents of any of these conversations to anyone and that he never threatened
anyone or blackmailed anyone to disclose the contents of the conversations. Id.
Further, upon questioning by his counsel as to why he recorded his
conversations, Appellant stated as follows:
I had an oral agreement, an employment contract after
I sold the company in 2008, and the oral agreement
was between somebody in the supplement industry
that was president of the company, and I was
president of the company. We were well known in the
industry and I was told I could trust the man, and it
made sense that we didn't have an employment
agreement. I should have had an employment
agreement, because he reneged on it and I lost about a
quarter of a million dollars.
From that and other things I contacted the DA's Office
for help. Actually, I think 12 9 contacts to everybody
that matters, from the President of the United States to
the local police force, a 1004 pages, and nobody
replied. The District Attorney's Office, six times I asked
them. And these are documents that would catch
anyone's attention, and they didn't even reply.
So I felt I was on an island, so I had to keep my phone
recorded. And it helped, it helped.
4
That was the only way I could protect myself. I went as
far as threatening the DA's Office to sue them if they
()(I; don't help me, and they didn't reply to anything. It was
beyond ludicrous. I contacted them on one matter six
times, but in general about 200 times.
Id. at 30 - 32.
At the conclusion of the trial, this Court found Appellant guilty,
and sentenced him the same day to a one-year term of probation. Id. at 44.
ISSUES
I. Whether this Court properly denied Appellanf s motion to dismiss for
vindictive prosecution.
II. Whether this Court properly denied Appellant's motion to dismiss as de
minim is.
III. Whether this Court properly denied Appellant motion for recusal without
a hearing.
DISCUSSION
I. This Court properly denied Appellant's motion to dismiss for vindictive
prosecution,
First on appeal, Appellant argues that this Court erred in denying
his motion to dismiss for vindictive prosecution.
On June 9, 2015, defense counsel filed the motion to dismiss for
vindictive prosecution. Therein, it was alleged that despite that the search
warrant of Appellant's residence was executed on August 21, 2012, no charges
were filed in August, September, October or November of 2012. See, Motion for
Vindictive Prosecution 6/9/15 ,i~ 1, 3. It was also alleged that on August 29,
2012, Appellant filed a civil action in Montgomery County Court of Common
Pleas against several employees of the Montgomery County District Attorney's
5
Office and other defendants relating this this matter. Id. at ~4. It is further
(i(11 alleged that it was not until December 5, 2012, the day after counsel entered his
appearance for the employees of the D.A's Office named as defendants in the
civil action, that the Commonwealth filed the present charges against
h'li Appellant. Id. at ~,i 5 -8. Moreover, it is alleged that the Commonwealth's
(111
decision to file criminal charges against Appellant on December 5, 2012 was
more likely than not motivated by vindictiveness in retaliation for his initiation
of a civil action against employees of the D.A.'s Office. Id. at~ 12.
Appellant's motion to dismiss for vindictive prosecution was heard
prior to the start of the stipulated bench trial. This Court heard testimony on
the matter.
The Commonwealth presented the credible testimonv of Detective
Mitchell, the affiant in this case. Detective Mitchell testified that he first got
involved in this case in August 2012 when he received several faxes in his
office, addressed to him. (Stipulated Bench Trial 6/11/15 p. 8). The detective
stated that in those faxes Appellant made several complaints about issues with
another case, and he stated that he records his phone calls, has the phone calls
on tape and made duplicates of those phone recordings. Id. Detective Mitchell
explained that based upon this information he next applied for a search
warrant for his residence to recover recordings of illegally recorded phone
conversations. Id. at 9. The search warrant was executed on August 2!51• Id. The
detective testified that the search uncovered several boxes of 120 cassette
tapes that contained hundreds and hundreds of illegally recorded phone calls,
6
as well as a phone recording devise that was plugged into his phone line with a
tape ready to record. Id. Detective Mitchell explained that while the search
warrant was executed in August of 2012, an arrest warrant was not issued and
a complaint was not filed for a period of three months thereafter because he
~,.:11 had to examine the evidence. Id. This entailed hours and hours of listening to
(Ill
the audiotapes, and determining who were on the audiotapes. Id. Detective
Mitchell also executed two other search warrants in that three month period for
phone records for his residence for Comcast and Verizon. Id. at 9 - 10. The
detective also testified that at the time he filed the affidavit and obtained an
arrest warrant he had no knowledge that he had been sued in civil court by
Appellant. Id. at 10. He had not received any notice in the mail about being
sued by him. Id. Also, no one else that's a member of either the Montgomery
County Detective Bureau or the D.A.'s Office informed or indicated to him that
he had been sued. Id. Detective Mitchell unequivocally stated to this Court that
he did not file the criminal complaint in this case against Appellant because he
had been sued in civil court by him, nor did he file the complaint at anyone
else's direction Id. at 10 - 11.
After the detectives testimony, this Court heard argument from
both defense counsel and the Commonwealth. Id. at 15. At the conclusion of
this Court denied the motion.
There are two distinct situations in which the appearance of
vindictiveness may require inquiry and judicial intervention. The first is where
a prosecutive decision is based on discriminatory grounds of race, religion,
7
national origin or other impermissible classification. The other situation is
where the accused is treated more harshly because he has successfully
exercised a lawful right. Commonwealth v. Rocco, 544 A.2d 496, 498 (Pa.Super.
1988).
Presumption of prosecutorial vindictiveness arises, which
Commonwealth must rebut with evidence of legitimate explanation for
challenged conduct, if defendant establishes facts which demonstrate
probability that adverse action by prosecution or court has been motivated by
vindictiveness in retaliation for successful exercise of defendant's legal rights
rather than forsome other legitimate cause; key to whether presumption arises
in given case would be factual circumstances in which challenged action
occurred. Id.
Here, Appellant alleged in his motion that a criminal complaint was
filed in this case in retaliation of his filing of a civil action against certain
employees of the D.A.'s Office. This allegation falls into the category that
Appellant, as the accused, was treated more harshly because he has
successfully exercised a lawful right. Based upon this allegation, this Court
conducted a hearing in which the Commonwealth presented the testimony of
Detective Mitchell, who this Court deemed to be credible. Based upon the facts
adduced at this hearing and the credibility determination, this Court properly
concluded that the criminal charges that were filed were not related in any way
to the civil action and that Appellant was not treated more harshly because of
the civil action. The criminal charges flowed from Appellant's own spontaneous
8
admissions, a valid search warrant and the recovered tapes and recording
device found pursuant to the search. Additionally, the facts established that the
detective was unaware of the civil action at the time the criminal complaint was
filed, and the issue of the civil action was never raised in the discussions about
the criminal charges that occurred prior to the filing of the criminal complaint.
(Stipulated Bench Trial 6/11/15 p. 14 - 15). Therefore, despite the timing of the
filing of the criminal complaint, the two were unrelated.
II. This Court properly denied Appellant's motion to dismiss as de minimis.
Next, Appellant contends that this Court abused its discretion in
. denying his motion to dismiss as de minimis the violation of 18 Pa.CS.A.
§5 703(1), relating to interception of wire communications.
On June 9, 2015, defense counsel filed a motion to dismiss as de
minimis pursuant to 18 Pa.CS. §312(a), alleging therein that the charges filed
against him should be dismissed because there is no evidence to suggest that
Appellant disclosed the contents of any of the recorded telephone
conversations or that he threatened or intended to disclose the contents of any
of the telephone conversations. See, Motion to Dismiss as De Minimis 6/9/14
~~5, 6. Finally, it is alleged that the recorded phone conversations relate only to
trivial and clerical matters and do not involve any personal details about the
other party to the conversation. Id. at ~7.
While a trial court may, in the exercise of its discretion, dismiss
petty or de minimus infractions of criminal law, dismissal of .charges as petty is
limited to situations where no harm was done to a victim or society, and "it is
9
incumbent upon the trial court not to dismiss criminal conduct that is injurious
(i(I, to the victim or to society." Commonwealth v. Beck, 810 A2d 736, 746
(Pa.Super. 2002). Section 312 of the Crimes Code provides in relevant part the
following:
§ 312. De minimis infractions
(a) General rule.--The court shall dismiss a prosecution
if, having regard to the nature of the conduct charged
to constitute an offense and the nature of the
attendant circumstances, it finds that the conduct of
the defendant:
(1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was
infringed nor inconsistent with the purpose of the law
defining the offense;
(2) did not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense
or did so only to an extent too trivial to warrant the
condemnation of conviction; or
(3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the General
Assembly or other authority in forbidding the offense.
18 Pa.CS.A. § 312(a).
This Court determined based upon Appellant's own testimony that
he was taping all of his telephone conversations to protect himself in some
way, his intention was to use the recordings in some manner at some place or
time. The Wiretap Act is meant to protect privacy, the very thing Appellant
violated by surreptitiously recording his conversation with Mr. Ludwig. This
crime is not de minimis.
10
III. This Court properly denied Appellant motion for recusal without a
hearing.
Third on appeal, Appellant asserts that this Court abused its
' ,,
f1····
discretion in denying his motion for recusal without a hearing and without
r·.,,:11 sufficient consideration and response to his allegations of bias.
OnApril 30, 2014 Appellant filed a prose motion to recuse.
1
Therein, Appellant alleged that the undersigned cannot be impartial due to his
filing of a prose motion in a separate matter in which Appellant was a
defendant at docket CP-46-CR-0005855-20121, entitled "Motion for Judgment of
Acquittal, Which Also Represents A Motion for Referral from Criminal
Investigation of Presiding Judge William Carpenter, District Attorney's Office,
Ethan Barlieb, Douglas Rosenblum and Public Defender's Office", attached to
For the purpose of clarity and understanding, the factual and procedural background of
Common Pleas docket 5855-2012, as set forth by the Pennsylvania Superior Court memorandum
decision dated January 12, 2015, 1581 EDA 2014, is as follow:
On July 21, 2012, Tricome sent Ethan Barlieb, Esq., a threatening
voicemail message. At that time, Barlieb was an attorney who
represented an opposing party in a civil lawsuit between Tricome
and his former business partner. Tricome's July 21, 2012
voicemail provided as follows: "Hey you fucking coward. I sued ya.
You're lucky I didn't put a bullet in your head. You fucking piece
of shit, pussy. You're dead. You're fucking dead. You better hope
that you go to jail, pussy." Trial Court Opinion ("T.C.O."),
7 /2/2014, at 2. On July 23, 2012, Barlleb contacted Detective Dirk
Boughter of the Montgomery County Detective Bureau (the
investigative branch of the Montgomery County Dlstrict
Attorney's Office), who identified Tricome as the source of the
threatening message.
On July 24, 2012, Tricome was arrested and charged with
terroristic threats and harassmenr.l On January 8, 2014, a jury
found Tricome guilty of those offenses. At his sentencing hearing
on April 9, 2014, Tricome informed the court that he wanted to
represent himself both at sentencing and on appeal, and signed a
written waiver-of-counsel colloquy. The trial court then sentenced
Tricome to a two-year term of probation.
11
the motion to recuse as Exhibit "A. In Exhibit "A", Appellant asserts numerous
11
allegations against many people and in part against the undersigned that
occurred in that separate matter for which Appellant was eventually convicted
r·.·•·
.f,,. of harassment. On June 4, 2014, Appellant filed an Addendum to Motion to
1',,:11 Recuse, alleging bias against him stating, " ... presiding Judge William Carpenter
is bias against defendant() (sic), and possibly, presiding Judge WUliam
Carpenter is trying to get the Defendant convicted to protect lawyers, who the
Defendant sued, and who perjured in Docket No. CP-46-CR-0005855-2012
(Commonwealth v. Tricome) ... " See, Addendum to Motion to Recuse 6/4/14 p.
On July 9, 2014, this Court issued an order denying Appellant's
Motion to Recuse. In addition, on November 13, 2014, this Court issued an
order setting forth reasons why the Motion to Recuse was denied on July 9,
2014 as follows:
1. There is no doubt that the Defendant will be given a
fair trial by an impartial judge.
2. Defendant's Motion was filed in bad faith as an
attempt to avoid going to trial (he succeeded in
getting the previously assigned judge to recuse.)
3. The facts and circumstances here could not
engender on reasonable minds the belief that
recusal should be required.
4. Neither could a significant minority of the
community reasonably question the court's
impartiality.
5. There is no substantial question in reasonable
minds that recusal should be required.
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Our Superior Court has set forth the standard to apply when
addressing a recusal motion as follows:
If a party questions the impartiality of a judge, the
proper recourse is a motion for recusal, requesting
that the judge make an independent, self-analysis of
the ability to be impartial. If content with that inner
examination, the judge must then decide whether his
(ill 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 ....
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 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. Druce, 848 A.2d 104, 108 (2004) (quotations, quotation
marks, citations omitted).
In this case, my independent, self-analysis absolutely and without a
doubt determined that I have the ability to be impartial regardless of
Appellant's filings in Common Pleas docket, 5855-2012. Appellant has filed
many filings against a variety of actors from the Montgomery County D.A.'s
Office, the undersigned, the Montgomery County Public Defender's Office, the
victim at Common Pleas docket, 5855-2012, Ethan Barlieb, among others,
alleging conspiracies and unequal treatment and even perjury. Regardless of
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this, Appellant has not been treated any differently than any other defendant
that appears before me. In addition, my continued involvement in this case
does not create an appearance of impropriety as there is nothing different in
how I have handled this case compared to any other I have adjudicated. Based
upon the reasons set forth in the order dated November 13, 2014 and for those
just expressed, the motion to recuse was properly denied. In addition, there
was no need for a hearing in order to conduct my independent analysis, or to
hear evidence on Appellant's subjective allegations of a conspiracy.
CONCLUSION
Based on the forgoing analysis, the judgment of sentence imposed
on June 11 2015, should be affirmed.
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BY THE COURT:
WILLIAM R. CARPENTER J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
3grn JUDICIAL DISTRICT
Copies sent on August 13, 2015
By Interoffice Mail to:
Court Administration
By First Class Mail to:
Brooks T. Thompson, Esquire
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