In Interest of Z.P., minor, Appeal of: L. and J.P. ( 2017 )

J-A07015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.P., A : IN THE SUPERIOR COURT OF
MINOR, : PENNSYLVANIA
:
APPEAL OF: L.P. and J.P. :
:
:
:
:
: No. 1520 WDA 2016
Appeal from the Order Entered September 8, 2016
In the Court of Common Pleas of Cambria County
Civil Division at No(s): CP-11-DP-004-2016/FID; 11-FN-008-2016
BEFORE: OLSON, STABILE, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 21, 2017
L.P., (“Mother”) and J.P. (“Father”) (collectively, “Parents”) appeal
from the order dated September 7, 2016, and entered on September 8,
2016, denying their motion for the recusal of the trial court judge presiding
over the juvenile proceedings involving their dependent child, Z.P. (“Child”)
(born in September 2015). We affirm.
In its opinion dated November 3, 2016, and entered on November 4,
2016, the trial court ably set forth the factual background and procedural
history of this appeal, which we incorporate herein. Trial Court Opinion,
11/4/16, at 1-5. Importantly, this Court previously addressed Parents’
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A07015-17
appeal from the trial court’s order entered on March 8, 2016. The order
adjudicated Child dependent under 42 Pa.C.S.A. § 6302, as a victim of
physical abuse under the Child Protective Services Law, 23 Pa.C.S.A.
§ 6303(b.1)(8)(iii) (regarding forcefully shaking a child under one year of
age), with Father identified as the perpetrator under 23 Pa.C.S.A. § 6303,
and set forth the court’s disposition. In the Interest of: Z.P., a Minor,
Appeal of: L.P. and J.P., Natural Parents, ___ A.3d ___ (Pa. Super.
2016) (unpublished memorandum) at 1-10.
On September 22, 2016, we affirmed the adjudication and
dispositional order of the trial court. Id. at 10. The fourth issue in this prior
appeal was, “Whether the trial judge, Judge Tamara R. Bernstein, should
have recused, and whether [Parents’] counsel was ineffective for failing to
file a motion for recusal.” Id. at 8. The panel found the recusal issue, as
part of an ineffectiveness claim, was meritless. The panel stated: “We agree
with the court’s analysis in its opinion that Parents’ contention that Judge
Bernstein was [not] impartial because she had, in her former position as a
prosecutor, prosecuted a shaken-baby case is indeed the ‘start of a quick
slide down a very slippery slope[.]’” Id. at 10 (citing Trial Court Opinion,
5/6/16, at 15).1 On October 14, 2016, this Court denied
____________________________________________
1
The trial court noted that no motion for recusal had been filed on behalf of
Parents. Trial Court Opinion, 5/6/16, at 14-15.
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reargument/reconsideration of our order, and, on December 30, 2016, our
Supreme Court denied allowance of appeal.
In the meantime, on August 15, 2016, Parents filed a motion to recuse
with respect to Judge Bernstein captioned “Motion of [Parents] to Disqualify
the Honorable Judge Tamara Bernstein from Presiding Over this Matter Due
to Judge Bernstein’s Service as Chairwoman of Cambria County’s Children
and Youth Services[’] Near Death Review Team, as a Member of the Cambria
County Coroner’s Office Death Review Team.” On September 7, 2016, the
trial court heard argument on the motion to recuse prior to the permanency
review hearing held on that date.2 Subsequently, on September 8, 2016,
the trial court entered the order, dated September 7, 2016, denying the
motion for recusal. On October 6, 2016, Parents timely filed a notice of
appeal, along with a concise statement pursuant to Pa.R.A.P. 1925(a)(2)(i)
and (b).3
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2
The scheduling order provided separate times for the two hearings to allow
for the recusal of Judge Bernstein, if appropriate.
3
On September 14, 2016, the trial court entered the permanency review
order, which, inter alia, scheduled a further review hearing to occur on
November 23, 2016. The trial court’s docket does not reflect a separate
order scheduling the next permanency review hearing to occur on November
23, 2016, however. Parents do not challenge the September 14, 2016
permanency review order in this appeal, nor does the trial court docket or
this Court’s docket reflect that they challenged the permanency review order
in a separate appeal. As the permanency review order was dated and
entered subsequent to the order on appeal, it is not part of the certified
record for the present appeal. See Commonwealth v. Preston, 904 A.2d
1, 6 (Pa. Super. 2016) (en banc) (stating that matters which are not of
(Footnote Continued Next Page)
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On appeal, Parents raise one issue:
Whether the Honorable Trial Court erred and abused its
discretion in failing to recuse herself from this matter, thereby
denying Appellants the right to due process, where the
cumulative effect of the Trial Court’s recent campaign
representations, and conduct and conclusions at the dependency
and abuse hearing in this matter showed her bias and also
revealed an appearance of partiality in actions involving alleged
child abuse[?]
Parents’ Brief at 2.4
In their brief, Parents argue as follows:
The importance for Appellants to have a fair trial cannot be
understated. The Trial Judge’s decision finding abuse and
dependency of their infant son will follow them throughout their
son’s childhood, necessitating, among other things, a “founded”
report of child abuse, which is placed on the Commonwealth’s
Childline & Abuse Registry. Due to their names appearing on the
registry, Appellants will forever be barred from volunteering for
their son’s school or organization activities.
However, the evidence shows that, less than a year before these
hearings, the Trial Judge campaigned for the bench by
highlighting her experience and pride in prosecuting alleged child
_______________________
(Footnote Continued)
record cannot be considered on appeal). We note, for purposes of reviewing
the denial of the recusal motion, that the trial court scheduled further
proceedings in the dependency matter via that permanency review order,
such that further dependency proceedings are contemplated.
4
Parents’ concise statement is lengthier and more complex than the
statement of questions involved portion of their brief. However, we find that
they have preserved the challenge to the denial of their motion for recusal of
the trial court judge. Cf. Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal).
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abusers. Her nondisclosures and her conduct and conclusions at
the hearings of this matter, which were not based on evidence in
the record, further evidence her bias.
All of these factors, taken together, created the appearance that
Judge Bernstein prejudged this case and was biased against
alleged perpetrators of child abuse, such as Appellants. A
reasonable person looking at these facts would question the
judge’s impartiality and the fairness of the hearing.
Accordingly, the Trial Judge erred in refusing to grant the motion
for disqualification.
Parent’s Brief at 13.
At the outset, we address the procedural posture of the appeal before
us. In their recusal motion, Parents assert the cumulative effect of the trial
court’s rulings in the adjudicatory and dispositional orders is indicative of the
trial court’s inability to preside over the periodic permanency review
hearings in an impartial, unbiased fashion. The denial of a motion to recuse
is preserved as an assignment of error that can be raised on appeal following
the conclusion of the case. Reilly by Reilly v. S.E. Pa. Transp. Auth., 489
A.2d 1291, 1300-1303 (Pa. 1985). The question of whether Parents’
counsel was ineffective for failing to file a motion for recusal prior to the
adjudication and disposition of Child as dependent has been ruled upon by
this Court and our Supreme Court has denied allowance of appeal. Further,
the adjudication of dependency and the disposition at the time of that
adjudication have been conclusively decided. Therefore, it might appear
that the question of whether the trial court judge should have recused
herself in this matter is now moot.
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The legal principles that guide our review of whether to apply the
mootness doctrine are well settled:
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as
moot. In re Duran, PA Super 52, 769 A.2d 497 (Pa. Super.
2001). “An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or
due to an intervening change in the applicable law,” In re Cain,
527 Pa. 260, 263, 590 A.2d 291, 292 (1991). In that case, an
opinion of this Court is rendered advisory in nature. Jefferson
Bank v. Newton Associates, 454 Pa. Super. 654, 686 A.2d
834 (Pa. Super. 1996). “An issue before a court is moot if in
ruling upon the issue the court cannot enter an order that has
any legal force or effect.” Johnson v. Martofel, 2002 Pa. Super.
79, 8; In re T.J., 699 A.2d 1311 (Pa. Super. 1997).
...
Nevertheless, this Court will decide questions that otherwise
have been rendered moot when one or more of the following
exceptions to the mootness doctrine apply: 1) the case involves
a question of great public importance, 2) the question presented
is capable of repetition and apt to elude appellate review, or 3) a
party to the controversy will suffer some detriment due to the
decision of the trial court. Erie Insurance Exchange v.
Claypoole, 449 Pa. Super. 142, 673 A.2d 348 (Pa. Super.
1996); Commonwealth v. Smith, 336 Pa. Super. 636, 486
A.2d 445 (Pa. Super. 1984).
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002).
Here, the adjudication of dependency and the disposition at the time of
that adjudication have been conclusively decided, as this Court denied
reargument/reconsideration of our September 22, 2016 decision, and our
Supreme Court denied allowance of appeal. However, the dependency case
is ongoing, with periodic permanency review hearings. Accordingly, we find
the question of whether the trial court judge should have granted the motion
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to recuse herself from the dependency case is not moot, as any proven bias
would be capable of repetition yet evading review.
In turning to the merits of Parents’ claim, we note that we review a
trial court’s decision to deny a motion to recuse for an abuse of discretion.
Vargo v. Schwartz, 940 A.2d 459, 471 (Pa. Super. 2007). Our review of a
trial court’s denial of a motion to recuse allows for deference to the trial
court’s decision on the matter. Id. (“we extend extreme deference to a
trial court's decision not to recuse”). In Commonwealth v. Harris, 979
A.2d 387, 391-392 (Pa. Super. 2009), this Court stated, “We recognize that
our trial judges are ‘honorable, fair and competent,’ and although we employ
an abuse of discretion standard, we do so recognizing that the judge
[her]self is best qualified to gauge [her] ability to preside impartially.”
Harris, 979 at 391-392 quoting, in part, Commonwealth v. Bonds, 890
A.2d 414, 418 (Pa. Super. 2005). Thus, a trial court judge should grant the
motion to recuse only if a doubt exists as to his or her ability to preside
impartially or if his or her impartiality can be reasonably questioned. In re
Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa. Super. 2010).
In order to prevail on a motion for recusal, the party seeking recusal
must “produce evidence establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist’s ability to preside impartially.” In
re S.H., 879 A.2d 802, 808 (Pa. Super. 2005) quoting Arnold v. Arnold,
847 A.2d 674, 680–681 (Pa. Super. 2004).
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To the extent that Parents allege bias on the part of the trial court
judge with regard to the adjudication and disposition, we have already
reviewed and rejected such claim in In the Interest of: Z.P., a Minor,
Appeal of: L.P. and J.P., Natural Parents, 494 WDA 2016 (Memorandum
filed September 22, 2016), at 9-10. We have denied reargument and
reconsideration, and our Supreme Court has denied allowance of appeal.
We will not revisit that decision.
To the extent that Parents are alleging that bias on the part of the trial
court judge necessitates her recusal in the ongoing permanency review
proceedings subsequent to the adjudication and disposition, again, we reject
the claim.
We agree with the trial court judge that Parents failed to satisfy their
burden of production. Our Supreme Court has stated, “[a] jurist’s former
affiliation, alone, is not grounds for disqualification.” Commonwealth v.
Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998). In this appeal, Parents are not
challenging the permanency review order that resulted from the permanency
review hearing held on September 7, 2016. We discern no bias from the
“cumulative effect” of the trial court judge presiding over the prior
adjudicatory and dispositional hearing, and the subsequent permanency
review hearings. The fact that the trial court judge knows a court-appointed
special advocate (“CASA”) professionally, or has been involved in shaken
baby syndrome matters and committees as an assistant district attorney
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does not warrant recusal. See id. (holding that a judge’s affiliation with the
Fraternal Order of Police was not grounds for disqualification); City of
Pittsburgh v. DeWald, 362 A.2d 1141, 1143-1144 (Pa. Cmwlth. 1976)
(holding that the trial judge was not required to recuse herself based on her
having practiced law with the attorney for one of the parties). Parents’ bias
argument does not warrant reversal in this instance. “It has long been held
that trial judges, sitting as factfinders, are presumed to ignore prejudicial
evidence in reaching a verdict.” Commonwealth v. Irwin, 579 A.2d 955,
957 (Pa. Super. 1990).
Accordingly, our review of the record in this matter supports the trial
court’s factual findings and conclusions. As we find that the record supports
the trial court’s assessment, we will not disturb the trial court judge’s
decision that her recusal was not required. We, therefore, affirm the trial
court’s September 8, 2016 order denying Parent’s Motion to Disqualify the
Honorable Judge Tamara Bernstein on the basis of the discussion in the trial
court’s opinion entered on November 3, 2016. Trial Court Opinion, 11/4/16,
at 7-17. In any future filing with this or any other court addressing this
ruling, the filing party shall attach a copy of Judge Bernstein’s opinion.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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Circulated 05/30/2017 02:50 PM
IN THE COURT OF COMMON PLEAS OF CAMBRIA'COUNTY, PENNSYLVANIA
JUVEN.ILE DlVISION . .
*
IN THE MATTER OF: * CP-ll-DP-0000004.,2016
*
Z.P., DOB 9/17/2015, Superior Court No. 1520 WDA2016
Appeal of.L.P.. and J,P~, Natural Parents
RULE OF APPELLATE PROCEDURE 1925·.(a}(2)
OPINION
Bernstein, J.: L.P. and lP~ tile appellants herein, are the natural parents of z. P.1who was
determined to be. a dependent child on March 8, 2016, at which time he remained in the care
of his mpthei' L.P. (Mother). In addition to finding Z;P. to be a dependent child the court
found that Z.P. was a victim of child abuse and that his father, J;p, (Father) was the
perpetrator of the abuse.
On April 6, 2016~ Appellants filed a Notice of Appeal and Concise Statement of
Ertors Complained of on. Appeal which included the issue of whether the Court erred by
failing to recuse.itselffor bias during the Dependency Hearing, On September 22. 2016. the
Pennsylvania Superior Court issued an order affirming the trial court' s decision at the
Dependency Hearing, including the trial court's decision not to recuse itself for bias .. Prior to
the subsequent Permanency Review Hearing on September 7, 2016, Appellants filed a
M:otjon to Disqualify and for Recusal of the trial court from any further hearings held in the
matter ofZJ>~ The trial court denied said motion and Appellants again filed a timely Notice
I Since the subject of this appeal is a Juvenile th.e primary p~J~ will be referred to by iheir iriitiaf s to provide
confidentiality:
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of Appeal and Concise Statement of Err.ors Complained of on Appeal ("Conci,se Statement')
on October 6~ 2016, pursuant to Peillisylvania Rules of Appellate Procedure 90S(a)(2) and
192S(a)(l)'. Pa,Rs.A.P, 905, 1925 (West.2016). Appellants' Concise Statement asserts that
Appell~ts' have been denied their due process rights and raises these three allegations of
error:
I, Did the Court err in denying the Motion for Reeusal since Judge Bernstein
previously served as an Assist.ant District Attorney during . which · time she
prosecuted child .abuse cases?
2. Did the Court err by denying Appellants' Motion for Recusal when. Judg~
Bernstein had previously served as a member of the CYS Near Death Review
Team and Coroner's Death Review Team?
3. Did the Court errin denying the Motion forRecusal when a Begiilnings Inc. Board
Member who serves as. a representative to the Court Appointed Special Advocates
(CASA) acted as treasurer for Judge Bernstein's.judicial campaign?
For the reasons discussed below the appeal. should be dismissed and the Court's Order
affirmed.
FACTUAL BACKGROUND2
Thisjurist was elected to the Cambria County Court of Common Pleas ~er serving as
a career prosecutor in the Commonwealth.of Pennsylvania, Duringthat time; this jurist served
as a representative of the District Atto111ey's Office on both the CYS Near Death Review
Team and the Cambria Courtty. Coronet's Death Review Team. Both teams create positions to
be filled by certain offices and agencies having an interest iii the subject matter relevant to
2 This summary is ~istiiled jrom the transcripts without citation to specific portions ofthe record.
. Page 2 of 11 .
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each team, 'Both teams created a position.for the Cambria County District Attorney's Office
and the District.Attorney's-office assigned this jurist, inher .capacity as an .AssistanfDi'strict
Attorney, to attend the teams' meetings. Cambria County Coroner Jeff Lees testified that;
"The District Attorney's Office Is assigned to· the [Death· Review Team], the District.
Attorney assigns a: representative from their office; to attend meetings that are held at my
office, >TN .T; 917120 ff, pp. 15.. 'Furthermore, when asked by Appellants:, counsel, i'So (ram a
.technical point of view, [Judge Bernstein] wasn't a: member, but her' attendance was as
representative," Mr. Lees responded that tl,li!> was correct . Id.
The-purpose ofthe teams is to review and analyze data from relevantcasesand then
try to educate arid prevent similar cases from occurring in the future. The-teams .do not work
(?il current or even recent .eases, ·but rather· review each case .a significant amount of time after
the incident in question .. Specifically, the Coroner' s Death 'Review Team reviews every
f~tality of individuals under age 2t~ whether the-death occurred by homicide, .auto accident, or
any other means. During the tune that this jurist served as a representative oil the CYS Near
Death ReviewTeam, the Team .di-4 not 'review any case related to Z,P. ai:id this jurist. had no
outside knowledge o:f:Z.P. norhis parents priorto this· case coming before the court
This juristattended the team meetings atthe direction of the. District: Attorney's Office·
and cl.id no.t serve in her individual capacity, After· being. elected to the Court of Common
Pleas, this.juristresigned her posltion as ah Assistant DistrictA ttomey on December 3 I, 210s·
.and W8:S sworn in asJudge in January .201-6. Upon-resignation on December 31, 2.0i5, this
jurist could no longer attend team meetings as a.representative cf the District Ariomeis
Office because this jurist was no longer art Assistant District Atr:orney;. This jurist' was never
appointed to the. teams and, as -sucb, d•d·:·not formally resign from them. It logically follows
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that, since this jurist was no longer an Assistant.District Attorney, thisjurist was .no longer
eligible to attend the meetings on behalf of the DistrictAttomey's Office.
During the time that this jurist was assigned to the CYS Near Death Review team, Pr.
Wolford, a witness in the case at hand, did inter.act with the: Near Death Review team on a
limited number of occasions. Michelle Rager; Assistant Administrator for 'Cambria County
Children-and Youth Services, testified thatDr; Wolford was never a member of the CYS Near
Death Review Team. N. T. 9/7/2016 pp. 27. Rather; Dr. Wolford would have only participated
when she was treating a child that the Team was involved with. For example, Ms. Rager
testified that Dr .. Wolford may call the Team to· give her ~'input ... regarding that specific
child and what the child may need following discharge from tile hospital:" Id; Dr. Wolford;
like any otherdoctor who was treatinga.child that the Team
. was involved with, merely
. gave
information to the team as to the status of the child whom she was treating. She. participated in
meetings where the child at issue was her patient. In fact, as this jurist disclosed at the
hearing, this jurist did recall that while Dr. Wolfo1:d · maY. have participated. with the Near
_Death Review Team, this jurist had no recollection of the. facts of the case inwhich Dr.
Wolford was witness or what children Dr. Wolford was treating.
As an Assistant. District Attorney, .this jurist prosecuted a multitude of different kinds
of cases, including some shaken-baby cases. In one instance; the Commonwealth and the
defendant agreed to a, stipulation that was read by the judge to the jury, ''The Commonwealth
agrees that they did not maintain proper contact withthe [victim;s mother], regarding the case
agafnst the defendant." Comm. v .. Millel'., No. 1802 WDA20l3; 2014 WL 10844216.at *l (Pa:
Super, Aug. S, 2104). The court ultimately found that the Commonwealth did not
intentionally withhold a supplemental·report, but that "it was inadvertently not printed from
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[the Detective's] computer arid was not provided to the Commonwealth until a week before
ma.l. "iId.. at *4~
During the campaign in. 2015, the Campaign Committee.to Elect Tammy Bernstein for
Judge posted .a quote. .from this jurist. onits Facebcok page where. this jurist.stated, "while
working as an.Assistant District Attorney, it is nevereasy when 'it comes-to these cases, but to
come across ·it again and ~gain and. this time when the child dies, It's frustrating and
disappointing," PETil'IONER's.'EXfHBIT #2. The Campaign Committee's post .continued, ''At
Charles' sentencing, Tammy became. emotional in speaking · about the infant's death, saying
~This was not.a brief, uncontrolled act, not the first. time he took him from. his bedroom. He
shook (his 'infant son) three times before, he had a history of violence, "' Id. Among many
other .quotes by this jurist used · by the .Caml?.aign Committee referencing ~I different kinds of
.crirnes. and victims, the Campaign Committee again posted on its Faoebook page that,
"Tammy has prosecuted all.types ·of crimes, inthe courtroom, She is esp~~i~W proud of all. the.
work she has. done for child victims." Id.'The Campaign Committee also posted, "Tammy has
spent her career seeking justice. for children as an assistant DA/ and created an-advertisement
that.was posted online and 11181le4 to voters which, among .other things, stated that this jurist,
as an AssistantDistrict Aitorile:y;·had prosecutedmurders, child abusers, anddrugdealers. Id.;
PETITIONER'$ EXHIB IT·#7.
Finally, the Campaign Committee. was made. up of a number of people which included
Julie Katz. Ms. Katz' also served as a Board Member for Beginnings Inc. where she. acted as·
·the representative from Beginnings Inc. to the Pennsylvania Court Appointed Special
Advocates (CASA). On March 22~ 2015~ the CampaiWi Committee posted a picture of this
juristandMs. Kati at:a local CA$A fundraiser .
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DISCUSSION
I, Did the Cou11 err in denying the Motion for Re.cusal when Judge
Bernstein previously served as an Assistant District Attorney
during which time she prosecuted child abuse casesJ .
Appellants' first allegation of error is thatthe trial court erred by failing to recuse.itself
for bias slnce Judge Bemstein previously served as an Assistant District Attorney and
prosecuted child abuse cases. At the outset, it is irilportant to note that Appellants raised this
identical issue in their earlier appeal of the Dependency Order in this case. See In the Interest
of Z.P., 494 WDA 2016. The Pennsylvania Superior Court. affirmed the trial court's order and
held that "Parents' contention :that Judge Bernstein was impartial because she had, in her
former position as a prosecutor, prosecuted a shakell-baby case is indeed the 'start ofa quick
slide down.a very slippery slope[.tld atp. lQ.
Appellants. again assert that they have been. denied due process as the trial court should
mive recused itself based on this jurist's past position as anAssistant District Attorney, the.
shaken-baby cases that this jurist prosecuted in her past position, and the statementmade by
this jurist's Campaign Committee that; "Tammy became emotional inspeaking about the
infant's death. n PETITIONER'S EXHI8IT#2.
The question of recusal has been consistently addressed by the courts to determine
whether due process has been violated .. Although "[o]ut .Code of Judicial Conduct '[s]ets a
norm of conduct for all our judges [it] does not impose a substantive legal dut[y] on them.?'
Lomas v, Kravitz, 130 A.3d .l 07, 126 (Pa, Super 201 ~) (quoting 'Commonweaith. v. Druce, 577
Pa. 581, 848 A.2d 104, 109 (2004)). Rather, the courts have set out a two-part test to be
applied by a trial court to determine whether recusal is proper.
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The standards for recusal are well established:
It is the burden ofthe party requesting recusal to produce evidence establishing
bias, prejudice .or unfairness which raises a substantial doubt .as to the jurist's
ability to preside impartially. Rizzo v. Haines, 520 Pa. 484~ 512;..;513,. 555 A2d
58, 72. '(1989); Commonwealth v, Miller, 541 Pa 531, 664 A.2d nio (1995).
As a general rule, a motion for recusal is. initially directed. to and decided by
the jurist whose impartiality is being challenged. Commonwealth v. Travaglio,
541 Pa. at 143-145, 661 A:2c:t at.370, citing Goodheart v. Casey, 52) Pa. 18(
565 .A;2d 757 (1989); In considerii.lg 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 ofpersonal bias or interest in the outcome, The jurist
must then consider whether his or· her continued involvement in the case
creates an. ~ppeara.n.ce of impropriety and/or would tend to undermine public
confidence in the judiciary. 'This is a: personal and unreviewable decisionthat
Ollly the jurist canmake. Goodheart v, Casey, 523 Pa. 188, 201-203, 565 A.2d
757, 764 (1989). Where a jurist rules that he or she can hear anddispose ofa
case fairly and without pre}udice, that decision Will not.be overruled on appeal
but for an abuse of discretion. Id, at199-:-201, 565 A.2d at 763. In reviewing .a
denial of a disqualification motion, we recognize that our judges are honorable,
fair and competent. Reilly v. SEPT.A., 507 :Pa. 204, 22l~223., 489 Pt..2d.1291?
1300 (1985).
Commonwealth v. Abu-Jamal; 553 Pa.485, 506, 720 A.2d 79, 89 (1998). Furthermore, "[a]ny
tribunalpermitted to· try cases and controversies must not only be unbiased, but must avoid
even the appearance of bias." In the Interest of McFall, .$33 Pa .. 24, 617, .A..2d 707~ 71.3.
(1992). Even so, "there is-a presumption that judges of.the Commonwealth are honorable, fair
· and competent, and that when confronted with a recusal demand, are able to determine
• whether they can rulein an. impartial manner; free of personal bias or interest in the outcome."
Cellucci v. LaurelHomeowners Ass 'n, 142 A.3d 1032, 1043 (P~.Commw. Gt. 2016) .
. Here, Appellants take issue With essentially three. different factors relating· to this
jurist's time as ah Assistant District.Attorney that they allege show bias. or .the appearance of
bias. First, that this jurist had prosecuted shaken-baby cases in the. past. Second, that this
jurist's Campaign Committee made representations regarding this jurist's record as a
prosecutor, and finally, that thisjurlst became emotional ~er a shaken-baby case .
. Page7of 17
Appellaµts' first argument is that once a judge. has served as a prosecutor in a case
involving a shaken baby; she cannot beimpartial in any case witha similar fact pattern. This
argument. is identical to that .raised by Appellants in their earlier appeal of a Dependency·
Order .in this. case. See In the Interest ofZP.; 494 WDA20l6. As stated supra; the.Superior
Court affirmed the trialcourt' s decision not to recuse. stating that-to hold otherwise would be.
the "start of a quick slide down a very slippery slopel.]" Id. at p. lO. Again, Appellants'
position .is not supported by the· evidence in this matter.
Taken to its logical.conclusion, Appellants' argument. would mean thatany judge who
previously practiced criminal law as a prosecutor or defense attorney would be precluded
from presiding over any criminal matter since their prior position rendered them automatically
biased. Similarly; no judge who had represented civil clients could oversee a civil proceeding,
those who practiced in the area. o~ domestic relations would be barred. from presiding over
those cases, etc. The result. is. patently absµi:d mid the Court has found no. case that reached
such a holding. Instead, as noted above, in each case the party seeking recusal must''produce
evidence establishing bias, prejudice or unfaimess which raises a substantial doubt as to the
jurist's ability to preside impartially." Abu-Jamal, 720 A.2d at 89. Here there was no evidence
offered that established any degree of bias;
In Appellants Concise Statement they also point to shaken-baby case where this jurist
served as a member· of the "prosecotorial team for which .misconduct was found by the trial
court requiring a curative instruction to the jury. (Comm v, Miller, Superior Ct. 672 WDA
2()11);'' APPELLANTS' CONCISE STATEMENT. In Miller, the prosecution failed lo (iniely tum
over a supplemental report regarding a witness in the case. However; any insinuation made by
Appellants that this jurist somehow purposefully· participated in unethical behavior ·is a
Page 8 c,f 17
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mischaracterization
. and patently
. false.. The Superior
. Court addressed the case in. question
when the defendant appealed the denial of his petition for Post Conviction Relief.and found
that, "the (trial] court : . . ruled out a curative Instruction," Commonwelath v. Miller, .l 802
WDA 2013 (Pa. Super.), Instead, the parties merely agreed on a stipulation that corrected the
error. The .court further found that, "the record reveals that the Commonwealth did not
intentionally withhold tl1e supplemental report, but that it was. inadvertently not printed from
Detective Wagner's [cJomputer and was not provided to the Commonwealth until.the week
before trial." Id: Thus, this jurist's p$11icipation as an Assistant District Attorney during the
case in. question neither shows bias nor the appearance of impropriety such that recusal would
be required in the case at hand.
Next, Appellants provide evidence of representations made by this jurist's Campaign
Committee alleging that· such s~tements and representations must prove bias .6r the
appearance of bias. Though not determinative as to the issue of due process, the trial· court
considered the Pennsylvania Code of Judicial Conduct and the relat~d Formal Advisory
Opinions. The United. States Supreme Court has held that, "It is important to riote that due
process 'demarks only the outer boundaries of judicial disqualifications.' Most questions of
recusal are addressed by more stringent and detailed ethical rules." Williams v. Pennsylvania,
136 S, Ct. 1899, 1908(2016) (qµotingAetna Lif~ Ins.. V. Lavoie, 475 U.S. 8B, 828(1986)).
At hearing, Appellants entered the Judicial. Ethics Committee of the Pennsylvania Conference
of State Trial Judges Formal Advisory Opinion '.§99-1 as Petitioner's Exhibit 4. Opinion §99-
1, titled. "Campaign Advertising," Which advises that. ''The electorate is best served by
adv~ising which accurately showcases the candidate's credentials." Furthermore, "[t]he
candidate .must take p~cular care that tile ad does not in any way suggest that he or she will
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favor any particular group of litigants or make decisions on any basis other than the facts and
This jurist's Campaign Committee posted on its Facebook page that this jurist was
"especially proud of the work she has done. for child victims . .As judge, Tammy will continue
to fight for justice and protect our communities," PETITION.ER'S EXHIBIT #2. On May 12, 2015.
the Committee posted, ''Tammy has spent her career seeking justice for children as an
assistant DA" Id. Finally; on.May 3,2015 the Committee posted that "Tammy achieved.a.l S-
30 year sentence for third degree murder against Justin Charles . . . who violently shook llis
seven week old son to death .•.. Tammy, who has prosecuted multipleshaken baby cases
said, 'It .is never easy when it comes to these cases, but to come across it again and this time
when. the child dies; ifs frustrating and disappointing,' At Charles' sentencing, Tammy
became emotional jn speaking about the infant's death, saying, 'This was not a brief,
uncontrolled act, not the first time.he took him from his bedroom. He shook (his infant son)
three times before. He had a history of violence. ,u Id:
This court found no case or other .authority which would require a judge to recuse
when the judge. merely outlined her history as a prosecutor d.Uring a campaign. Nothing posted
by the Campaign. Committee committed this juristto teach a certain decision in child ..abuse
cases; Rather; as the committee posted on May 3, 2015, this jurist is,~d has been, committed
to resorting justice and.order.
Furthermore, it should.be noted that the Committee did post and advertise this jurist's
record asa prosecutor as to multiple.other typesof cases, For ex~ple,.the Committee posted
on its website that. this jurist had, as an ADA, "successfully tried· arid convicted many 'high
profile homicide, drug and assault cases resulting in lenf¢iyjail sentences for dangerous
Page lO of 17
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criminals." P.ETITJONER'S EXHISIT #3. Additionally, the Committee created an advertisement
and mailer that listed this jurist's qualifications which included, •'Prosecutes murders, child
abusers.and drug dealers," :PETJTIQNER'SEXH1s1r#7.AppeUaritspick and chooseparts of this
jurist's campaign materials, but if Appellants' argument was logically extended, then this
ju.rist and any other jurist or candidate who had practiced law would be precluded from
hearing the types ofcases that thejurist handled while practicing or would at least be unable.
to advertise-the jurist's record and experience as an attorney when campaigning in an election.
Specifically, this jurist would be required to recuse herself from not only sheken-baby cases,
but .also criminal homicide· and drug-related cases since this jurist's Campaign Committee
posted and advertised regarding experience in these types of case .e
Formal· Advisory Opinion §99-1 states that, "The electorate is best. served by
advertising which accurately showcases the candidate's credentials." Requiring recusal from
cases based on Appellants' logic would either require an unheard of rate of recusal or
essentially prohibit a candidate. from advertising her credentials· and record as .an attorney.
Bath possibilities would be a disservice to the electorate and in. contradiction to Formal
Advisory Opinion §99-l.
Finally, Appellants assert that because thisjurist, as a prosecutor, "became. emotional''
at the conclusion of a shaken-baby case, this jurist must not be able to ii:nparti~ly and
objectively preside over shaken-baby cases as a judge. At hearing; Appellants argued,
I would, suggest that becoming emotional, you lose objectivity when you have
emotion and your campaign committee has told us that at least in 'one case,
now you. may, again you have become emotional in .other cases, but I
may
can't find that your campaign committee ever chose to tell the public. that you
became emotional in anything but a shaken baby syndrome case.
· N .r, 9/'J /2016. pp. 3 7. Furthermore, Appellants asserted that.:
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We'.te blind to our bias. So when we suggest that maybe there is an appearance
ofiinpropriety, 'it's not that there is ~Y criticism that you're a be;d person, or
that there is arty evil intent. But it may be that you have the inability to see that
you don't have the capacity to be impartial in this case/
N.T:9f7/2Ql6 pp.3();
Appellants" arguments lack merit as the trial court was unable to · find any case that
required recusal where a jurist had, in the past; showed emotion when dealing with. a similar
case. In Comm.onwelc,11'111; Tharp, the. Pennsylvania.Supreme Court
. considered the appellant's
argument on appeal that the trial court should have recused itself as it was too emotionally
involved in the case before it. The appellant in Tharp was convicted at trial of first-degree
murder and came before the trial court for formal sentencing. Our Supreme Court held,
Appellant's final argument is that the. trial judge erred -in failing to recuse
himself sua sponte and, as.a result, she. is entitled to a new trial. Specifically,
appellant complains that, prior to formally sentencing appellantcthe trial judge
played an audio recording of the song "The Little Girl," performed by country
and. western singer John Michael Montgomery. After the song was played, the
trial court compared the "sad little life" of the .fictitious girl portrayed in the
song to· the life of Tausha. In addition, the trial court noted that, unlike the girl
in the song; Tausha did not get a new chance. at life with new parents.
Appellant did not move for recusal at sentencing, oi: at any earlier point during
the proceedings before the trial court. Appellant now alleges, however; that, "if
the [trial] court was so emotionally effected [sic) and impassioned by the facts
of this case as to take the time to locate th.is song and orchestrate its playing
prior to [formal] sentencing, thecourt should have foreseen that Itsimpartiality
could be· reasonably questioned and. should have .recused itself" on its 0WI1
motion. No reliefis due.
Commonw.elaih v. Tharp, 574 Pa. 202, 830 A.2d. 519, 533~34 (Pa. 2003). Ultimately, the
Court stated that, "Appellant fails to demonstrate that recusal was warranted in this case ..
Appellant' does not identify a'single statement, action, ruling by the trial court ... that reveals
bias or partiality against her," Id. at 534.
Here, the facts that Appellants allege warrant recusal fall far short of the actions of the
trial court in Tharp, This jurist's Campaign Comminee merely stated. that; long before the.
Pageliof17
v
commencement ofthe case at hand, this jurist had become emotional at ·the completion ofa
shaken-baby case '; where.the child haddied. This jurist made ..no.statements, rulings, or actions
during this case that would resultin the appearance offmpartialiry or bias .
.Furthermore, Appellants' argument.that·this. jurist-must 'be blindto her. own: bias and,
as a result, unable .to act impartially and ·qbjectively 'i~ unfounded and clearly contradicts the
recusal standards and· analysfs· under the law. The law requires . a jurist- to consider both-
whether· the Jurist can act. impartially and whether her · involvement would create the
appearance ofimpropriety. See Abu-Jamal, 720 A.2d at·89. At the second prong of a jurist's.
recusal analysis,
The jurist must then Consider whether his or her continued involvement in the
case creates an appearance ofimpropriety and/or would . tend to undermine the.
public confidence in .the judiciary. This 'is a personal and unreviewable
decision that .only- thejurist can make. Wh~re.-a jurist ·nil es thathe or sl\e can,
hear or dispose of a case fairly and without prejudice, that.decisionwill not be
overturned on. appeal but 'for the abuse of discretion.
Id.
Tb:e law not only acknowledges· that a jurist is not "blind to bias," but places the
responsibility of-determining bias or the appearance of'bias op each individual jurist.' The case
law clearly holds that a jurist. is themost.qualified person.to rule on her bias or app_earance of
bias, The law goes so far as t9 describe such a decision as "personal' and unreviewable,"
absent -an abuse of discretion, Thus, Appellants' contentions that this. jurist is· biased or
.appears biased because she became emotional in the . past and now must. he blind to; her .own
bias is directly contrary tothe law arid the·.facts in thiscase. Accordingly, thereis.no.meritre
'this allegationof error,
~ag~ i3 of17
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... . . ,,,, , ,---····--··--- ··-----····---· .. -- ..··--······----- .. ·--·--- ,.,.,._ .. ~.,--·-·- ..--. . ._, ,._,, ,. ,.,. _ _ ...,
Il, ,Did the Court err by denying Appellant's Mlltion fc,r Reeusal when
Judge Bernstein had• previously served as a .-ieinber of the CYS
Near Death Review Team and Ceronerts Death Review Team?
Appellants' second allegation of error is that the. trial court erred by failing to recuse
when this Jurist had been. assigned to i.itt.end CYS Near Death Review Team meetings and
Coroner's Death Review Team meetings while serving as an Assistant District Attorney:
Appellant specifically alleges. that .an.appearance of impropriety .exists since Dr; Wolford
worked with the Near Death Review Teamon the. few occasions when she. was treating 'a
patient who. the Near Death ReviewTeam was also reviewing.
Our Supreme Court has recognized that it "would be an. unworkable .rule which
demanded that a trial judge recuse whenever .an acquaintance was a party to or had an. interest
in the controversy. · Such a rule ignores that judges throughout the Commonwealth know and
are known by many people, . . ·. arid assumes that no judge can remain impartial when
presiding in such a case." Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 31$ (1976).
Moreover,
[w]hile the mediation of courts is based upon the principle of judicial.
impartiality, disinterestedness, and fairness pervading the whole system of
judicature, so that courts may as near as possible be above suspicion, there is,
on the other side; an ilriportimt issue at stakei that is, that causes may not be
unfairly prejudiced, unduly delayed, .or discontent created through unfounded
charges of. prejudice or unfairness made against the judge. in the trial of a
cause. It is of great Importance to the administration of justice that.such should
not occur. Ifthe judge feels that he canhear and dispose of the case fairly and.
without prejudice, his decision will be final unless there is aii abuse of
discretion. This must be so for the security of the. bench and. the successful
administration ofjustice, Otherwise, unfounded and ofttimes malicious charges
made during the trial by bold and unscrupulous advocates might be fatal to a
cause, or litigation might be unfairly and · improperly held up awaiting the
'.decision of such a question or the· assignment of another judge to try the case.
If lightly countenanced, such practice might be resorted to, thereby tending to
discredit the judicial system. The conscience of the judge alone is brought in
question; he should, as far as possible, avoid any feeling of unfairness or
hostility to the litigants in a case. ·
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]l.eilly byR.eillyv. SouiheastemPx. Transp., 489 A'.2D ~2.91, 1299 (Pa.1985).
Here, Appellants assert thatthe trial court should have recused itselfbased on past
attendance ofCYS Near Death ReviewTeam andCoroner'sDeath.ReviewTeam meetings.
f\dditfonally, Appellants argue that since Dr. Wolford "also served in 2015 and 2016'' on the
CYS Near Death Review Team, the trial court had further reason to recuse in this case as
.CYS called Dr; Wolford as. a witness. First, Appelbmts misrepresent this-jurist's participation
with the Near Death and Death Review teams. This jurist was appointed to either team and, as
such, was never required to resign. As an.. Assistant District Attorney, this jurist was assigned
by the District Attorney to attend these meetings. As both . Jeff. tees, Cambria County
Coroner, and Michelle Rager, Cambria County CYS Assistant Administrator, stated at the
· hearing, the Cambria County District Attorney was a member of each team. This jurist was
assigned by the DA to attend these meetings as a representative of the DA. When this jurist
resigned her position as Assistant District Attorney on December 31, 2015, it would have.
been impossible for this.jurist to participate with these Teams as a representative of the
District Attorney. Rather than having to resign, thisjurist could no longer receive assignments
to attend the meetings from the D.A. as this jurist no longer worked for·the District Attorney.
This jurist never served oneither team in her individual capacity.
Next, Appella.nts misconstrue Pr. Wolford's participation and relationship with the
CYS Near Death Review Team. IntheirConcise Statement;Appellimts state that Dr. Wolford
served on the CYS NearDeath Review team in.2015 and 2016: However, Dr. Wolford did not
. serve on this CYS Near Death Review team as amember, Rather. she was consulted by. the.
Team when she treated .a child whose case the Team was reviewing. For example, Michelle
Rager testified at the hearing that in February '2016 Dr. Wolford spoke to the Team via
Page 15 of17
telephone from the Pittsburgh Children;s Hospital .. N.T: 9/7/2016 pp. 28 .. Dr. Wolford's
participation with the Team was limited to. cases in which she was treating the child who the
Team was reviewing. Dr. Wolford did not attend every meeting and, in fact; did not even
participate in a majQrity of the meetings. Thus, the characterization of Dr. Wolford as a
member of the Team who has a "very close association through [the) Near Death Review
Team" with this jurist is factually incorrect. As such, this jurist's contact with Dr. Wolford
and past participation on theNeerDeath Review Team and Death·Review. Team do not cause
this jurist any bias. nor create the appearance of bias. Accordingly, there is no merit to this
allegation of.error.
IIL .Did the Court err in de.Jiylng· the M~tion for Recusal when a Beginnings·
Inc. Board. Member who served as a. representative to the · Court
Appoi11t~d Special Advocates (CASA) acted. as treasurer for Judge
Bernstein's }udici~I camp~igli?
The .final allegation of error. raised by Appellants is that the trial court erred. by f'ailing
to recuse when a Beginnings Inc. Board Member who.served as the. Board representative for
CASA also acted as the treasure of this jurist's Campaign Committee. As stated supra; the.
Pennsylv.ania Supreme Court has helcl thatit "would be an unworkable rule which demanded
that a trial judge recuse whenever an acquaintance was a party to qt had an interest in the
controversy, Such .a rule ignores that judges
.
throughout the Commonwealth know
'
and 'are
known by.many people, ... and assumes that.no judge can remain impartial when presiding in
such a case." Perry, 364 A .. 2d at 318 (197.6),
Although Ms. Katz does not have a personal .interest in this case, Appellants. seem to
argue that as a CASA representative Ms. Katz's interests are . somehow aligned with those of
Children and Youth Services in the case at hand. Even.if this were true, the courts have .never
Page 16 of'l7
required recusal where aperson involved in a jurist's campaignmay have some remote and
-indirect connection to a· later casebeforeihat jurist.If this. was required by the courts, iJ would
again create · a slippery slope, mandating: recusal whenever an !lcquairi~ance. of a jurist Is
remotely connected to a case, This would igp.or.e the two-step analysis that ajudgeis-required
by law to employ when considering whether recusal is proper; See Abu-Jamal, 720 A.2d at
Here; however, the issue of Ms ...Katz'sinvolvement on this jurist's· campaign does not
create bias or the appearance of bias.There was no. evidence.that CASA 'Vas ·iiivoltted in the.
case at hand. Even if CASA had, been involved, a CASA volunteer does. not work for a party
to the c~e,,:Childt.en and Youth Services'. Rather; a Cf\;SA volunteer would interact with the
. child and everyone involved · in the child' s life. The CASA volunteer would then make
recommendations to the court based, art the best interests of the· child. These recommendations
'would notnecessarily coincide with the concurrent.recommendations ofCYS. Thus, sincea
CASA Board Member serving oil this jurist's Campaign Committee neither causes this jurist
to be biased norcreates the .appearance of bias, the. trial· courl did .noterr by. failing 'to recuse
itself and there is no merino this final allegation of error.
Asthere is nomeritto .any allegatien.of errorand forthe reascns discussed herein.the
appeal.should be dismissed and the Court' s Order of September 7, 2016, affirmed,
RESPE · TFULLY SlJBMITTED,
.m~~
November J;.2016
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