Com. v. Caldwell, L. ( 2018 )

J-S06012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMAR CALDWELL :
:
Appellant : No. 160 EDA 2017
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Bucks County Criminal Division at No(s):
CP-09-0006260-2015,
CP-09-0008162-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 1, 2018
Lamar Caldwell appeals from the judgment of sentence of an
aggregate term of twenty to forty years imprisonment following his
convictions of, inter alia, two counts of burglary at the respective docket
numbers indicated above. We affirm.
The trial court offered the following summary of the facts underlying
the two cases.
On August 10, 2015, at approximately 9:30 a.m.,
[Appellant] appeared at the Santos home on Cheltenham Drive
in Bensalem, Bucks County. [Appellant] rang the doorbell at the
front door. He waited a period of time and when there was no
response, he rang the doorbell a second time. Again he waited a
period of time. When there was no response, [Appellant]
pounded on the door. During this period of time, Mrs. Santos
looked out a second-floor window and saw [Appellant].
[Appellant] then walked to the side of the house. While there,
he was observed by Mrs. Santo’s [fifteen]-year-old daughter
(“S.T.”) from the window of her second-floor bedroom. Mrs.
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Santos then looked out windows at the back of her home and
saw [Appellant] behind the house. He was walking in the
direction of a parking lot located behind her property. As he was
walking away, [Appellant] looked back at the residence twice.
One week later, on August 17, 2015, at approximately
9:30 a.m., [Appellant] again approached the Santos residence.
On this occasion, Mrs. Santos was not home. Mr. Santos was
asleep in his second-floor bedroom. S.T. and her five-year-old
brother were on the second floor as well. [Appellant] rang the
front door bell. He waited a period of time and when no one
responded, he banged on the door. S.T. looked out the upstairs
windows to see if she could see who was at the door. When she
didn’t see anyone, she went down stairs, looked out the
“peephole” on the front door and again saw no one. She then
went to the side door where she saw the silhouette of a man
through the shade on the door. She also saw a gloved hand
holding a round glass-like object through the panel of windows
on the side of the door. She immediately looked to see if the
door was locked. When she saw that the deadbolt was not
engaged, she crouched down, went to the door, sat down and
pushed her weight against the door to prevent the man from
entering. She then felt the individual pushing against the door
and heard the handle move. When the pressure being exerted
against the door subsided, she engaged the deadbolt and went
upstairs to get her father.
Mr. Santos testified that he was asleep after just having
come home from work when he was awakened by S.T. who was
in tears. Before he could get downstairs to see what [was]
happening, he heard loud banging. Mr. Santos went to the front
door, looked out the peephole and saw [Appellant]. He did not
answer the door. He then saw [Appellant] walk to the neighbor’s
house next to his and then walk back across his property to the
neighbor’s residence on the other side. The next time Mr.
Santos saw him, [Appellant] was at the side door of his
residence looking through the side glass panel. Mr. Santos
watched as [Appellant] tried to force the door open with his
body. Mr. Santos then called 911.
Officer Scott Merchiore of the Bensalem Police Department
arrived on scene within two minutes and found [Appellant] at the
side entrance of the home. White knit gloves were found in his
pants pocket. [Appellant] told Officer Merchiore that he was
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looking for work. There was no work truck or vehicle on the
street. Detective Gregory Jackson and Detective Jack Gohl of
the Bensalem Police Department also responded to the scene
and canvassed the neighborhood. None of the neighbors
indicated they had spoken to [Appellant].
Detective Jackson and Detective Gohl later interviewed
[Appellant]. During that interview, [Appellant] gave a false
address. He also gave false information about why he was in
Bensalem and how he had arrived there. [Appellant] told the
detectives that he did not drive, did not have a car and did not
have a driver’s license. He stated that he took the bus to
Bensalem that morning from the Frankford terminal in
Philadelphia arriving at Byberry Road in Bensalem after 9:00
a.m. He stated that he then walked to Street Road to look for
work. When asked where he had inquired as to possible
employment, [Appellant] told the detectives he had only been to
one business because the rest of the businesses in the area were
closed. Detective Jackson testified that, contrary to [Appellant]’s
assertion, most businesses on Street Road and between Byberry
Road and Street Road are open before 9:00 a.m. Subsequent
investigation also revealed that [Appellant] did not travel by bus
to Bensalem but rather had driven his daughter’s car to Bucks
County and had left it parked in a parking lot located behind the
Santos property. [Appellant] also advised the detectives that he
had been to Bensalem only once or twice before and that on
both occasions it was to the Golden Corral restaurant. When
confronted, [Appellant] admitted that he had been at the Santos
residence the week before his arrest. [Appellant] further
claimed he was at the Santos’[s] residence because the property
appeared to need lawn care. Detective Jackson testified that the
grounds did not need lawn care and that [Appellant] admitted
that he did not have any lawn care equipment with him.
During this interview, Detective Jackson obtained a DNA
buccal swab from [Appellant] and sent the sample to a DNA
laboratory for analysis. [Appellant]’s DNA profile was developed
from this sample. That profile was later compared to a DNA
sample taken from a Coca Cola bottle found at the scene of the
Czach burglary several weeks before.
The Czach burglary occurred on July 29, 2015. At
approximately 3:20 p.m. that date, Gabriella Czach returned to
her home on Buttonwood Avenue in Bensalem, Bucks County
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and discovered that her home had been burglarized after she
and her husband had left the residence that morning. Damage
to the front door proved that an unsuccessful attempt had been
made to enter the residence through the front door. A garden
border stone taken from the back yard was then used to smash
the rear sliding glass door, allowing entry into the home. When
the [owners] entered the residence, they found that their home
had been ransacked; items had been removed from where they
had been stored and were strewn about. Various pieces of
electronic equipment and jewelry had been taken. The value of
the stolen items and the cost to repair the damage totaled
$13,660.23
An open bottle of Coca Cola was found on the floor of the
living room. Detective Leith of the Bensalem Township Police
Department swabbed the mouth of the bottle with a DNA swab.
This sample was later compared to [Appellant’s] DNA profile.
DNA analysis subsequently revealed that the DNA found on the
soda bottle matched [Appellant’s] DNA profile. . . .
Trial Court Opinion, 6/23/17, at 2-6 (footnotes omitted).
Appellant was arrested at the Santos home and charged with
attempted burglary and related charges on August 17, 2015, in case number
6260 of 2015. On December 9, 2015, Appellant was charged with a burglary
and related offenses as a result of the DNA match at case number 8162 of
2015. The cases were consolidated for a jury trial, after which Appellant was
convicted of, inter alia, burglary and attempted burglary. Following a
presentence investigation, Appellant was sentenced to consecutive terms of
ten to twenty years imprisonment. Appellant filed a timely notice of appeal
following the denial of his post-sentence motion, and both Appellant and the
trial court complied with Pa.R.A.P. 1925.
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Appellant presents the following questions to this Court for review,
which we have re-ordered for ease of disposition.
I. Whether the trial court erred by denying suppression
of the Appellant’s DNA evidence?
II. Whether the trial court erred by admitting the
Appellant’s DNA evidence during the Appellant’s trial, where the
DNA evidence was previously suppressed and/or suppression
was considered moot because the Commonwealth conceded that
they will not introduce DNA evidence?
III. Whether the Appellant’s warrantless DNA sample
was obtained in violation of [his] Pennsylvania constitutional
rights, and his United States 4th Amendment rights under
Birchfield v. North Dakota, as a significantly intrusive test
obtained without a warrant, and where his consent was unlawful,
coerced, involuntary, and unreasonable?
IV. Whether the trial court erred by presenting an
instruction to the jury concerning the Appellant’s absence from
the trial, where the instruction was prejudicial against the
Appellant, and commented on the Appellant’s character,
credibility, and truthfulness?
V. Whether the trial judge erred in failing to recuse
herself, where the trial judge was previously involved in the
prosecution of the Appellant when she was in the Bucks County
District Attorney’s Office in 1994-1995 (#5486-1994)?
VI. Whether the trial court abused its discretion in
sentencing the Appellant to a sentence which exceeded the
standard and aggravated guideline ranges for the burglary and
attempted burglary?
Appellant’s brief at 9 (unnecessary capitalization omitted).
We begin with Appellant’s claims regarding the suppression of
evidence, mindful of the following.
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
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whether the suppression court’s factual findings are supported
by the record and whether the legal conclusions drawn from
those facts are correct. Because the Commonwealth prevailed
before the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the suppression court’s factual
findings are supported by the record, the appellate court is
bound by those findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to
plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned
up).
The trial court offered the following summary of the procedural history
of Appellant’s suppression motions.
The [trial court held a suppression hearing] in the Santos
attempted burglary case (Criminal Information 6260 of 2015) on
November 30, 2015. At the time of that hearing, [Appellant]
had not yet been charged with the burglary of the Czach
residence. At the outset of the hearing, counsel for [Appellant]
supplemented his motion to suppress [Appellant’s] statement to
police with an oral motion to suppress any DNA evidence
obtained by the Commonwealth as a result of receiving the DNA
sample from [Appellant]. In response to the defense counsel’s
oral motion, the Commonwealth advised the court that it would
not be seeking to introduce DNA evidence in the Santos case,
rendering any challenge to the admissibility of DNA evidence at
that stage moot.
Subsequently, [Appellant] was charged with the burglary
of the Czach residence when [Appellant’s] DNA, obtained from
the sample [he] gave following his arrest for the Santos
attempted burglary, was determined to match DNA found at the
Czach crime scene. (Criminal Information 8162 of 2015). On
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December 28, 2015, the Commonwealth moved to consolidate
the two cases. In light of the new evidence, the Commonwealth
sought to introduce the DNA evidence in the consolidated trial.
On January 15, 2016, a hearing was held to determine whether
[Appellant’s] consent to provide the DNA sample was voluntary.
By order dated January 29, 2016, [Appellant’s] motion to
suppress [his] DNA sample, the analysis performed on that
sample and the results of the comparison of [his] DNA to the
DNA found at the Czach crime scene was denied.
Trial Court Opinion, 6/23/17, at 8-9 (footnotes and unnecessary
capitalization omitted).
Appellant first contends that the DNA evidence should have been
suppressed because he had relied upon the trial court’s “final determination
on his motion to suppress his DNA evidence” made in the Santos case on
November 30, 2015, which was not appealed by the Commonwealth within
30 days as required by Pa.R.Crim.P. 1005(c). Appellant’s brief at 26-27.
Appellant’s argument is fatuous. The court made no decision as to
DNA evidence at the November 30, 2015 hearing. The court expressly
stated that there was no issue before it concerning DNA evidence, as the
Commonwealth’s indication that it was not introducing the evidence
rendered the issue moot. Trial Court Opinion, 6/23/17, at 9 (citing N.T.
Suppression (Santos case), 11/30/15, at 35). Hence, there was no trial
court decision to appeal under Rule 1005(c).
Moreover, the Commonwealth’s representation regarding the DNA
evidence was made in the Santos case, before Appellant had been identified
as the Czach burglar, let alone charged with any crimes related to the
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Czachs’ residence. Appellant offers no explanation why the Commonwealth’s
decision about foregoing DNA evidence made on November 30, 2015, in
relation to the Santos case (6260 of 2015), should have any effect on its
ability to pursue that evidence in the Czach case (8162 of 2015), which was
initiated by criminal complaint filed on December 8, 2015. This argument
merits no relief.
Appellant next asserts that the DNA evidence should have been
suppressed as involuntary because his consent “was given under the guise
that the police were excluding him from being a sexual predator.”
Appellant’s brief at 25. He maintains that the detective’s
“misrepresentation” about the reason for giving a sample “nullified” the
consent. Id. Appellant further insists that the detective’s indication that the
sample would be used for “investigative purposes” was insufficient for
obtaining valid consent. Id. at 26.
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unreasonable searches and seizures. A search
conducted without a warrant is deemed to be unreasonable and
therefore constitutionally impermissible, unless an established
exception applies. Exceptions to the warrant requirement
include the consent exception. . . .
Commonwealth v. Kurtz, 172 A.3d 1153, 1159 (Pa.Super. 2017) (internal
citations and quotation marks omitted).
In determining the validity of a given consent, the
Commonwealth bears the burden of establishing that a consent
is the product of an essentially free and unconstrained choice—
not the result of duress or coercion, express or implied, or a will
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overborne—under the totality of the circumstances. The
standard for measuring the scope of a person’s consent is based
on an objective evaluation of what a reasonable person would
have understood by the exchange between the officer and the
person who gave the consent. Such evaluation includes an
objective examination of the maturity, sophistication and mental
or emotional state of the defendant. Gauging the scope of a
defendant’s consent is an inherent and necessary part of the
process of determining, on the totality of the circumstances
presented, whether the consent is objectively valid, or instead
the product of coercion, deceit, or misrepresentation.
Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations
and quotation marks omitted).
The trial court addressed the voluntariness of Appellant’s consent as
follows.
The challenged DNA sample was obtained during
[Appellant’s] interview with Detective Jackson and Detective
Gohl on August 17, 2015. Prior to that interview, Detective
Jackson advised [Appellant] of his Miranda[ v. Arizona, 384
U.S. 436 (1966),] rights, reading verbatim from a pre-printed
Miranda warnings card. [Appellant] acknowledged, in writing,
that he understood each right and agreed in writing to speak to
the detectives without a lawyer being present. [Appellant]
signed the card at 11:30 a.m.
The interview lasted approximately one hour, maybe less.
At no time during the interview did [Appellant] indicate that he
wanted to speak to a lawyer or that he no longer wished to
speak to the detectives. The detectives were dressed in plain
clothes and were not carrying their service weapons. [Appellant]
was not threatened, coerced or promised anything in order to
induce him to make a statement against his will.
During the course of the interview, Detective Jackson
asked [Appellant] if he would voluntarily consent to provide a
DNA sample using a buccal swab. Detective Jackson explained
to [Appellant] that the swab would be used to obtain [his] DNA
profile and that his DNA profile could be used for investigation
purposes. Detective Jackson told [Appellant] that he did not
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have to consent. Prior to submitting his DNA, [Appellant] read,
signed and dated the following consent provision:
I, [Appellant], freely and voluntarily consent to
provide a DNA swab sample to only be used for the
purpose of criminal investigation. I have been
advised that I have a right to refuse permission to
obtain samples at any time. If I do refuse, I know
the Officer may apply for a search warrant or court
order prior to obtaining the samples. I know that
any evidence seized may be used against me in a
criminal prosecution.
After [Appellant] gave his consent, he was handed two
buccal swabs. He removed the swabs from their packaging and
swabbed his own mouth.
....
There was no evidence that [Appellant] was in any way
coerced or improperly induced to provide a DNA sample.
[Appellant] was told that the DNA sample would be used for
purpose of criminal investigation and that the sample could be
used against him in a criminal prosecution. He was told that he
had a right to refuse to provide a sample. Considered the
totality of the circumstances, th[e trial c]ourt found that
[Appellant’s] consent was the product of an essentially free and
unconstrained choice-not the result of duress or coercion,
express or implied, or a will overborne and was therefore
voluntary.
The fact that the evidence ultimately incriminated
[Appellant] in another criminal offense does not alter the
conclusion that his consent was voluntary. Detective Jackson
was not involved in the investigation into the Czach burglary and
is there is no evidence that [Appellant] was deceived as to the
potential use of the DNA sample.
Trial Court Opinion, 6/23/17, at 10-11.
The trial court’s factual findings are supported by the record, and we
discern no error of law. Thus, we have no reason to disturb the trial court’s
determination that Appellant’s consent was validly obtained. See, e.g.,
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Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (holding trial court
properly denied suppression motion because defendant’s consent was
voluntary, although officer did not advise the defendant of the full criminal
ramifications of the blood draw following car accident, where the defendant
was informed of his right to refuse and a reasonable person in the
defendant’s position “would have contemplated the potentiality of the results
being used for criminal, investigative, or prosecutorial purposes”).
In his last suppression argument, Appellant suggests that the United
States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct.
2160 (2016), supports his claim that the consent was invalid. Appellant’s
brief at 27-28. The Birchfield Court held that “motorists cannot be deemed
to have consented to submit to a blood test on pain of committing a criminal
offense.” Birchfield, supra at 2186. The Birchfield decision has no
application to the instant case, for, as the trial court aptly noted,
“Appellant’s consent to the DNA swab was not obtained as a result of a
threat that refusal would lead to criminal penalties.” Trial Court Opinion,
6/23/17, at 13. Appellant’s suppression motion was properly denied on the
basis of his voluntary consent.
We next consider Appellant’s claim that the trial court erred in giving a
curative instruction to the jury that amounted to a prejudicial commentary
on “Appellant’s character, credibility, and truthfulness.” Appellant’s brief at
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28. The record supports the following explanation given by the trial court of
the incident giving rise to this issue.
On the second day of trial, while Detective Jackson was
testifying and in the presence of the jury, [Appellant] interrupted
the proceedings stating, “They’re framing me. That’s not my
DNA.” [Appellant] told the jury, “They suppressed my DNA.”
The outburst continued after the jury was removed from the
courtroom. Following a recess to allow [Appellant] to regain his
composure, the court engaged in an extensive colloquy with
[Appellant] advising him of his obligation to refrain from such
outbursts, his right to be present during trial and his right to
remain in the courtroom or return to the courtroom at any time
upon his representation to the court that he would refrain from
any further outbursts. [Appellant] advised th[e trial] court that
he could not refrain from further outbursts and requested to be
removed from the courtroom.
Th[e trial] court requested proposed curative instructions
from the defense and the Commonwealth. Defense counsel
requested that the jury be instructed that [Appellant] chose to
absent himself as a less prejudicial alternative to the possible
negative inferences that the jury could draw from his absence.
Pursuant to this request, the jury was instructed as
follows:
You may notice that the defendant is not in court
since the last we heard from Detective Jackson. He
has made a decision to not be present during the
course of the remainder of these proceedings. He
can change his mind at any time and return to the
courtroom, but he has chosen not to be in the
courtroom and so he is not here.
I want to make perfectly clear the fact that he is not
present is not any evidence against him and you
may not consider this as any - - you may not infer
anything from his decision to not be present in the
courtroom. It has nothing, absolutely nothing to do
with your determination about whether or not the
evidence that is presented by the Commonwealth is
sufficient to convict him beyond a reasonable doubt
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or is not sufficient to convict him beyond a
reasonable doubt. I just want to explain because it’s
been obvious to you that he is not here, but you may
not in any fashion hold it against him that he is not
here in the courtroom. Your decision and your
determination is the same as I told you at the outset
of these proceedings.
Following this instruction, defense counsel advised th[e
trial] court that he was not requesting any further instructions.
The Commonwealth then renewed its request that [Appellant’s]
misstatement that DNA had been suppressed be corrected and
further requested that the jury be instructed that [Appellant’s]
statements in open court are not testimony. Pursuant to these
requests, the jury was instructed as follows:
As you know, the defendant made various
statements during the course of the trial immediately
before leaving the courtroom. You may have heard
him make various statements. I am instructing you
now, and you must follow all of my legal instructions,
that you are to disregard everything that he said.
What he said in this courtroom is not testimony and
may not be considered by you as testimony.
There was a reference that this court suppressed the
DNA evidence in this case. That is not accurate.
The DNA evidence is admissible evidence and may
be considered by you in determining whether or not
the Commonwealth has met its burden of proof on
one or both of these burglary cases, one attempted
burglary and one burglary. At the same time the
mere fact that the defendant made that statement,
again, you cannot hold that against him. And I know
comments about the DNA evidence is not evidence in
this case, so you cannot - - the evidence is relevant
and admissible, but the fact the defendant said
something contrary to that is not evidence against
him and you may not consider that statement as - -
in any fashion in determining whether or not the
defendant is guilty or innocent of the crimes
charged.
Trial Court Opinion, 6/26/17, at 13-15 (footnotes omitted).
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The record reflects that the trial court sought input from both parties
on how to instruct the jury regarding Appellant’s outburst and subsequent
absence, and spent substantial time contemplating the issue. N.T. Trial,
3/15/16, at 17, 24, 33-34. The first instruction was given at the request of
Appellant’s counsel, and no objection was made to the second instruction
that was requested by the Commonwealth. Accordingly, because the trial
court was denied the opportunity to consider the objections Appellant now
raises concerning the instructions, the issues are waived on appeal.1 See
Commonwealth v. Rosser, 135 A.3d 1077, 1086 (Pa.Super. 2016) (en
banc) (“Trial judges must be given an opportunity to correct errors at the
time they are made.”) (internal quotation marks omitted); Commonwealth
v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super. 2017) (“It is axiomatic that
issues not raised in the lower court are waived and cannot be raised for the
first time on appeal. The absence of a contemporaneous objection below
constitutes a waiver of the claim on appeal.”) (internal quotation marks and
citations omitted).
____________________________________________
1 To the extent that Appellant argues that his trial counsel improperly
requested that the trial court inform the jury that Appellant chose to remove
himself from the courtroom, see Appellant’s brief at 29, we note that claims
of ineffective assistance of counsel may be raised in a petition filed pursuant
to the Post Conviction Relief Act, not on direct appeal. Commonwealth v.
Woeber, 174 A.3d 1096, 1109 n.16 (Pa.Super. 2017) (citing
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)).
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Appellant’s remaining issues concern his sentence. First, he argues
that the trial judge should have recused herself, and that he is entitled to a
new sentencing hearing with a different judge. Appellant’s brief at 22. The
following principles guide our review.
[Our Supreme] 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.
As a general rule, a motion for recusal is initially directed to and
decided by the jurist whose impartiality is being challenged. In
considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the
case in an impartial manner, free of personal bias or interest in
the outcome. . . . This is a personal and unreviewable decision
that only the jurist can make.
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa.Super. 2014) (internal
citations and quotation marks omitted).
If the judge concludes that he or she can be impartial, “[t]he jurist
must then consider 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.” Commonwealth v. Abu-Jamal, 720 A.2d 79,
89 (Pa. 1998). “Where a jurist rules that he or she can hear and dispose of
a case fairly and without prejudice, that decision will not be overruled on
appeal but for an abuse of discretion.” Kearney, supra at 60.
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Here the trial judge made the unreviewable determination that she
could be impartial. Appellant, however, maintains that the present case
contains an appearance of impropriety because he “is entitled to sentencing
by a judge whose impartiality cannot be reasonably questioned.” Appellant’s
brief at 22. Appellant argues as follows.
In the case sub[ ]judice, the trial court was previously
involved as a district attorney in some aspect of the prosecution
of the Appellant in an unrelated matter. She requested that a
bench warrant remain outstanding at the Appellant’s prior
arraignment. She argued on behalf of the Commonwealth
directly against the rights of the Appellant. She was an active
participant in that prior proceeding. In addition to a showing of
actual bias, the concern is a situation where impartiality might
be reasonably questioned regardless of the record.
Id.Our Supreme Court has held that there is no “per se rule that a judge
who had participated in the prosecution of a defendant may never preside as
judge in future unrelated cases involving that defendant.” Commonwealth
v. Darush, 459 A.2d 727, 731 (Pa. 1983). “Absent some showing of
prejudgment or bias we will not assume a trial court would not be able to
provide a defendant a fair trial based solely on prior prosecutorial
participation.” Id. Rather, the question is whether the judge “earlier had
significant, personal involvement as a prosecutor in a critical decision
regarding the defendant’s case.” Williams v. Pennsylvania, 136 S. Ct.
1899, 1905 (2016).
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The trial court offered the following discussion of her involvement in
Appellant’s prior case.
The undersigned was a prosecutor in Bucks County at the
time [Appellant] was prosecuted for burglary in case number
5486-1994. The docket in that matter reflects that [Appellant]
entered a guilty plea to burglary and related charges on June 19,
1995. The docket further reflects that the only involvement the
undersigned had with that matter was an appearance on
February 13, 1995 as representative of the Bucks County District
Attorney’s Office before the Honorable Isaac S. Garb, then
Administrative Judge of the Criminal Division, requesting that
the bench warrant previously issued at arraignment remain
outstanding due to [Appellant’s] failure to appear for trial. The
undersigned was not the assigned trial attorney. The
undersigned has no recollection of having any prior contact with
[Appellant]. There is, therefore, no basis to conclude that the
undersigned would have been unable to preside over [Appellant]
jury trial fairly and impartially. The fact that the undersigned
was employed by the District Attorney’s Office when [Appellant]
was prosecuted does not warrant recusal.
Trial Court Opinion, 6/23/17, at 7 (citation omitted).
Appellant points to no evidence to suggest that the trial judge ever
interacted with, met, or even saw him while she was a prosecutor. Nor does
he cite authority to support the contention that the trial court’s single
instance of pinch-hitting for the prosecutor assigned to Appellant’s case on a
routine motion was indicative of bias or an appearance of impropriety that
would cause the public to lose confidence in the judiciary. Accordingly,
Appellant has not met his burden of showing that recusal was warranted,
and the trial court did not abuse its discretion in denying the recusal motion.
Compare Commonwealth v. Jones, 663 A.2d 142, 144 (Pa. 1995)
(denying motion for Justice’s recusal because his name had appeared on
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brief seeking affirmance of the petitioner’s death sentence filed five years
earlier, when the Justice was District Attorney of Philadelphia, where the
justice had no personal involvement in the case, there was no indication of
prejudgment or bias, and the case law did not suggest that recusal was
warranted by any appearance of impropriety), with Williams, supra at
1907 (holding Justice’s decision when district attorney to authorize seeking
the death penalty against the defendant was significant personal
involvement requiring recusal).
Finally, Appellant seeks our review of the discretionary aspects of his
sentence.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(some citations omitted).
While Appellant filed a timely notice of appeal and sought modification
of his sentence in his post-sentence motion, he failed to include a statement
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of reasons for allowance of appeal in his brief as required by Pa.R.A.P.
2119(f). The Commonwealth has objected to its absence. Commonwealth’s
brief at 34. “Because the Appellant failed to comply with Pa.R.A.P. 2119(f)
and the Commonwealth objected to the omission, this Court may not review
the merits of the claim, and we deny allowance of appeal.”
Commonwwalth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/18
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