Com. v. Spanier, G. ( 2018 )

J-A04034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
GRAHAM B. SPANIER
Appellant No. 1093 MDA 2017
Appeal from the Judgment of Sentence Entered June 2, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0003615-2013
MEMORANDUM
Stabile, J. Filed: August 10, 2018
Pending before this Court is the July 10, 2018 application of Appellant
Graham B. Spanier (“Appellant”), requesting my recusal in this appeal and a
vacatur of our panel decision issued June, 26, 2018 (“application”), affirming
Appellant’s misdemeanor conviction for endangering the welfare of children
(“EWOC”). The basis for this request lies in Appellant’s assertion that I, no
later than a dozen years ago, in a completely unrelated matter to Appellant’s
current criminal appeal, was part of an alumni association that opposed a
proposal by the Pennsylvania State University (“PSU”) to relocate the then
Dickinson School of Law (“DSL”) from Carlisle, Pennsylvania, to PSU’s main
campus in State College. Appellant asserts that my conduct constitutes prior,
personal involvement with Appellant that establishes bias or lack of
impartiality on my part requiring that I recuse myself from this appeal. I write
1
J-A04034-18
both to address the application and to provide the transparency to which the
citizens of this Commonwealth are entitled.
By way of background, more than 20 years ago in 1997, PSU announced
that it would affiliate and then merge with DSL located in Carlisle. I recall
attending a celebratory reception at DSL around that time attended by several
hundred people. I briefly met Appellant, then the PSU President, simply to
introduce myself as a member of the DSL community. To my knowledge, that
brief introduction over 20 years ago and to the present, was the first, only,
and last time I had any interaction, conversation, or communication
whatsoever with Appellant.
In late 2003, despite earlier assurances to the contrary, PSU announced
a proposal to close the DSL Carlisle campus and relocate the law school to
PSU’s main campus in State College. Carlisle, as of 2003, had been the home
of DSL for more than 170 years. This announcement surprised many and set
off a course of events wherein people for and against the proposal sought to
voice their concerns to the governing bodies that would be voting on the
proposal including, on behalf of DSL, its then Board of Governors (“Board of
Governors”). Almost immediate opposition to the announced plan was heard
from, inter alia, numerous state house representatives, senators, regional
chambers of commerce, economic development councils, newspapers, a large
cross-section of the Central Pennsylvania community, numerous members of
the Board of Governors, and the DSL General Alumni Association (“GAA”) of
-2-
J-A04034-18
which I was a member, but never an officer. I held membership on the GAA
board due to my position as the president of the Capital Area alumni chapter
of DSL.
After the DSL Board of Governors rejected PSU’s relocation proposal,
PSU submitted a second proposal to establish two law schools under a single
accreditation. PSU, inter alia, would build a new law school on its State College
campus and appropriate monies to upgrade and maintain the DSL Carlisle
campus. In early 2005, the DSL Board of Governors accepted this proposal.
During the years 2003-2005, when these proposals were considered, I made
my views known to the DSL community through the GAA and within the
Carlisle community. At no time did I attempt to communicate my views to
Appellant, or to the Penn State Board of Trustees. Moreover, I did not hold a
position individually, or within an organization entitled to vote on any
proposal. In summary, I was one person within the GAA who joined a
cacophony of people, representatives, and organizations that expressed an
interest in the future of DSL and opposition to its closure and relocation to
State College. The central purpose of an alumni association is to promote the
general welfare of its alma mater, which in this case was DSL. In brief, my
participation through the GAA was precisely to foster that objective.
After receipt of this Court’s panel decision (which I authored) upholding
Appellant’s conviction for misdemeanor EWOP, Appellant filed his application
seeking my retroactive recusal from his appeal based upon his claim that I
-3-
J-A04034-18
harbored a personal bias against him, or that there was an appearance of bias
suggesting impropriety by my participation in his appeal. The fundamental
flaw in Appellant’s application is that it conflates opposition to PSU’s relocation
plan and two-campus proposal as one directed at him personally. In effect,
Appellant attempts to supplant himself as the alter ego for PSU as the party
to the DSL dispute to argue bias as a basis for my recusal. The matter, and
my participation as a member of the GAA did not involve Appellant personally.
While an appearance of impropriety may itself be enough to warrant
judicial recusal, In re McFall, 617 A.2d 707 (Pa. 1992), ‘‘[a] party seeking
recusal bears the burden of producing evidence to establish bias, prejudice,
or unfairness which raises a substantial doubt as to [a] . . . jurist’s ability to
preside impartially.’’ Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa.
2014) (citation omitted). In addition, when a motion for recusal is filed after
a decision has been rendered, the burden of proof is more exacting. In Reilly
by Reilly v. SEPTA, 489 A2d. 1291 (Pa. 1985), our Supreme Court explained
the rationale for this more exacting standard. While stated in the context of
addressing a post-verdict claim for recusal of a trial judge, the logic and
rationale apply equally here.
Charges of prejudice or unfairness made after trial expose the trial
bench to ridicule and litigants to the uncertain collateral attack of
adjudications upon which they have placed their reliance. One of
the strengths of our system of justice is that once decisions are
made by our tribunals, they are left undisturbed. Litigants are
given their opportunity to present their cause and once that
opportunity has passed, we are loathe to reopen the controversy
-4-
J-A04034-18
for another airing, save for the greatest of need. This must be so
for the security of the bench and the successful administration of
justice. Accordingly, rules have developed for the overturning of
verdicts and judgments for after-acquired evidence. In our view,
recusal motions raised after verdict should be treated no
differently than other after-acquired evidence situations which
compel the proponent to show that: 1) the evidence could not
have been brought to the attention of the trial court in the exercise
of due diligence, and 2) the existence of the evidence would have
compelled a different result in the case.
Id. at 1301.
Litigants also are counseled that a request for disqualification of a judge
should not be made lightly. See Lomas v. Kravitz, 170 A.3d 380, 390 (Pa.
2017) (Chief Justice Saylor, dissenting, citing cases). A request for
disqualification is a most serious undertaking not to be pursued absent
thorough factual investigation and legal research. Id. Here, inexplicably,
despite having the burden of proof in this matter, Appellant chose not to
provide this Court with the documentary evidence relied upon in his
application. Instead, Appellant principally relies upon his selection of passages
from documents apparently sent to him by DSL former Dean Philip
McConnaughay (2002-2013).1 Application at 9. Nevertheless, for purposes
of deciding Appellant’s application, I will assume Appellant’s document
____________________________________________
1 Appellant and former Dean Philip McConnaughay, resident at DSL during
2003-2005, now residing in Beijing, China, verified the application to the
extent the facts were within their respective personal knowledge. It is unclear
what alleged facts remain unverified.
-5-
J-A04034-18
selections represent his best attempt at demonstrating the necessary bias to
justify my recusal.
The standard under which a judge presented with a recusal motion must
conduct his or her inquiry is as follows.
A motion for disqualification or recusal is properly directed to and
decided by the jurist whose participation is challenged.
Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). In
disposing of a recusal request, a jurist must first make a
conscientious determination of his or her ability to assess the case
before the court 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.” Id. at 201, 565 A.2d at
764. Once satisfied with that self-examination, the jurist must
then consider whether or not continued involvement in the case
would tend to undermine public confidence in the judiciary. Id.
at 201-202, 565 A.2d at 764.
Commonwealth v. Travaglia, 661 A.2d 352, 370 (Pa. 1995). Consideration
of a recusal motion also must be tempered by a jurist’s obligation to hear and
decide cases assigned to the judge. See Pa. Code of Judicial Conduct Rule
2.7. Although there are times when disqualification or recusal is necessary to
protect the rights of litigants and to preserve the public’s confidence in the
judiciary, unwarranted recusal or disqualification may bring public disfavor
upon the court and judge. Id. cmt. Judges may not use recusal or
disqualification to avoid cases that are difficult, controversial, or present
unpopular issues. Id. Against the above background and standards, I now
address, seriatim, the bases upon which Appellant claims my recusal is
required in this matter.
-6-
J-A04034-18
Based upon emails and documents provided Appellant by former Dean
McConnaughay (application at 9), Appellant first generally identifies a writing
from November 2003 that he avers I wrote to a “DSL administrator”
expressing concern about exclusion of the GAA from discussions about the
move to State College. Appellant does not identify the “DSL administrator.”
Nonetheless, Appellant is not the subject of the communication and the
communication is not represented as containing any disparaging comments
about the Appellant.
Appellant next generally identifies a second writing from me the
following day (date unspecified) to GAA board members (again unspecified)
complaining about the response received from the “administrator” (again
unidentified) informing him that DSL alumni were adequately represented on
the Penn State Board of Trustees and, therefore, the GAA’s input was not
necessary. Appellant opines that I directed ire at “Penn State administrators
(which included Dr. Spanier),” complaining, “I still do not understand why
Penn State bothered to merge Dickinson if it seems intent on changing
everything about the school. They could’ve built their own damn school in
State College and accomplished the same thing without eradicating an
institution.” Application at 4. Once again, Appellant is not the subject of the
communication, nor is it personally critical of him. In a somewhat
disingenuous manner, Appellant attempts to paint broadly by recasting my
generic reference to “Penn State” as a reference to “Penn State
-7-
J-A04034-18
administrators,” which in turn must include—and therefore be personally
critical of—Appellant, “Dr. Spanier.” Id. Appellant repeats this unwarranted
overreaching several times in his application to give the false impression that
I made derogatory comments about him. This is an impermissible attempt to
bolster a claim of personal bias where none exists.
Continuing, Appellant again generally references another email
(undated) by me to GAA board members claiming that with regard to Penn
State’s proposal to relocate DSL “there is a certain arrogance here that is
unacceptable.” Id. Again, the statement is not directed toward any particular
person, and in particular Appellant, but once again only generically references
“Penn State.” I had no reason to reference Appellant, as I never interacted
with him in regard to any law school proposal. Appellant admits as much
when he states in his application, “[He did not deal directly with the GAA board
or regularly interact with opponents of the proposals.” Id. at 8.
Appellant next references a five-member ad-hoc committee of the GAA
on which I served. That committee issued a report urging the GAA board to
recommend that the Board of Governors not approve the two-campus
proposal. Id. at 5. Although I was a member of an ad-hoc committee that
produced a report, my recollection is that the GAA formed somewhere
between four to six different ad-hoc committees that produced reports. The
GAA decided it would form committees to research and report on each of the
rationales advanced in support of PSU’s proposals. I was assigned to one of
-8-
J-A04034-18
those committees chaired by another former Dean and professor of DSL, John
A. Maher (now deceased), whose knowledge of the proposals and of the inside
relationships between DSL and PSU and any administrators far surpassed that
of any other committee member. In point of fact, I possessed no personal
knowledge of any facts or comments referenced in the report authored by
Dean Maher regarding any PSU administrator.
Without producing the report, Appellant relates that the committee, of
which I was a member, issued a report extremely critical of Penn State and
describing its administration as “incompetent,” and states that the report
specifically mentioned and criticized Dr. Spanier several times. Appellant
however, accurately states that when I later testified in a lawsuit filed by
members of the DSL Board of Governors against PSU, I disassociated myself
from the language of the report, explaining that my endorsement was only as
to its “conclusions” and “substantive comments.” Any knowledge of inside
facts about Appellant contained within the report, and in particular those
critical of him, were exclusively within the personal knowledge of Dean Maher,
who authored the report. My testimony demonstrated that I was concerned
with substance as opposed to launching any personal attacks against persons
whose views on the topic differed from my own.
In an attempt to impute bias on my part toward Appellant through guilt
by association, Appellant highlights portions of another email, sent in June
2004 by an unidentified member of the GAA, commenting that Appellant was
-9-
J-A04034-18
a “chief hustler” pushing for approval of the PSU proposal. Id. at 4-5.
Notably, Appellant does not even feign to attribute this statement to me. Plain
and simple, this statement reflects the views of a third party entirely irrelevant
to Appellant’s burden to produce proof of bias against him by me. Appellant’s
attempt to attribute this statement by a third party to me is simply unfair and
does not do justice to fair advocacy. See Commonwealth v. Shannon, 184
A.3d 1010 (Pa. Super. 2018) (mere receipt of offensive emails does not
establish bias on the part of the person receiving the emails).
In early 2005, the DSL Board of Governors met to vote on the two-
campus proposal. Appellant points to an email I wrote to the GAA board the
day before the vote commenting, “I can’t imagine why many think this is a
great proposal. The emperor certainly has new clothes.” Application at p. 6.
Appellant further quotes my statement, “We should tell PSU ‘NO’ and insist
they honor their commitment; that is what honorable people do. The crisis
here has been wholly fabricated by PSU.” Appellant characterizes this writing
as accusing “Penn State administrators (which included Dr. Spanier) of
dishonorably breaching their commitments to DSL, fabricating a crisis, and
acting unjustly.” Id.
The reference to the “emperor certainly has new clothes” harkens back
to a children’s fable written by Hans Christian Anderson meant to describe
situations where people willfully disbelieve something they know to be true.
The subject of the email is the “proposal” to create two law school campuses,
- 10 -
J-A04034-18
not an individual. The point was that PSU was trying to convince people that
State College presented better professional opportunities for law students
than Carlisle, whose location, inter alia, is in close proximity to all three
branches of state government and a multitude of law firms. As for my
statement regarding PSU honoring its commitment, to be clear once again,
my email nowhere refers to “Penn State administrators” or to “Dr. Spanier.”
As before, I generically referenced “PSU” and nowhere criticized any individual
by name.
The DSL Board of Governors, by a split vote, accepted PSU’s two-
campus proposal. Appellant relates that on February 3, 2005, three members
of the DSL Board of Governors filed suit against PSU, Appellant, and the DSL
Board of Governors to enjoin implementation of the plan. Appellant further
avers that the plaintiffs asked the GAA board to consider intervening in the
suit on behalf of the plaintiffs. As a member of the GAA board at that time, I
recall participating in discussions both for and against the request. The GAA
board declined the invitation to intervene. I respected that decision. At no
time did I become a party to the plaintiffs’ suit. I therefore fail to see how
Appellant claims bias by me based upon a lawsuit filed by third parties. See
Shannon, supra.
It is true that I testified during the course of the plaintiffs’ prosecution
of their suit. I did so under compulsion of subpoena that obligated me to
appear and be subject to questioning. Appellant avers that during the course
- 11 -
J-A04034-18
of my testimony, I stated that “emotions were running high on both sides”
and that the GAA viewed the “proposal’s supporters” as personally attacking
the GAA members, by casting them as being angry or malcontents, and that
we were further disappointed our research on substantive issues was not
addressed. Without doubt, the threatened closing or relocation of DSL was an
issue that riveted many different interests. People who considered themselves
stakeholders in the continued preservation of DSL felt anxiety. More to the
point, Appellant does not identify the “proposal’s supporters” that engaged in
personal attacks. Appellant certainly has not included himself in this category
and nowhere does Appellant indicate that I charged him with hurling personal
attacks against any member of the GAA, including me.
Appellant has the burden of producing evidence establishing bias,
prejudice, or unfairness that raises a substantial doubt as to my ability as a
judge to participate in his criminal appeal. Watkins, supra. He has failed to
do so. All Appellant has established is that I, as a member of the GAA, in an
unrelated matter concluded more than a dozen years ago, expressed
opposition to proposals by PSU to fundamentally change DSL. Appellant has
produced no proof that I was personally critical of him in that matter, or that
I ever viewed the PSU/DSL dispute as anything other than a matter that had
to be decided between the governing bodies of those institutions. Recusal is
not warranted under these circumstances.
- 12 -
J-A04034-18
In Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super. 2004),
this Court, sua sponte, directed that a new trial judge be assigned to preside
over resentencing to ensure that any appearance of bias was dispelled, since,
inter alia, the trial court during sentencing commented that the defendant
“should go to jail for about 50 years.” The trial court was entitled to sentence
the defendant to a maximum of 20 years, which it did. Our Supreme Court
granted allowance of appeal to decide whether this Court exceeded its
authority by sua sponte removing the sentencing judge. It concluded that
error was committed. Commonwealth v. Whitmore, 912 A.2d 827 (Pa.
2006). The Court acknowledged that comments made by the trial judge
considered factors beyond the defendant’s prior conviction. However, during
sentencing, the trial court also referenced the defendant’s neighborhood,
inability of inhabitants to leave, other charges pending against defendant, his
history of trouble with the legal system, the nature of the area, and the like.
It concluded that the single comment made by the trial court that the
defendant should go to jail for 50 years was taken out of context and did not
warrant a per se recusal. A trial judge who has made some ill-advised
comments does not necessarily abuse discretion in denying a motion for
disqualification. Id.
In Travaglia, supra, a jury convicted co-defendants of first-degree
murder of a police officer. Both received death sentences. After the first post-
- 13 -
J-A04034-18
conviction2 review proceedings for one of the defendants, the trial judge was
quoted in newspapers commenting about the case. The trial judge
commented that the defendant’s case was an example of how cumbersome
and protracted the appeals process can be when there has been a sentence
of death. He further stated that something is drastically wrong with our
system. In another press interview, he was quoted as saying, “If it takes 10
years to determine if I gave them a fair trial, there’s something wrong with
the judicial system. . . .” He later was quoted as saying he was “shocked that
it takes 11 years in our judicial system to find an excuse to avoid the death
penalty. If anyone deserves to die, these two individuals . . . do for killing
four people for fun.” After one defendant filed his second PCRA petition, the
trial judge was quoted as saying he was not biased, he gave defendant a fair
trial, and he could give him a fair hearing on the present petition. In his
second PCRA petition, the defendant asserted that the trial judge should have
recused himself. In response, the trial judge detailed the examination of his
conscience and admitted that while he was highly dissatisfied with the present
system of perpetual appellant activity, that was not to say the court would
vent its frustration by arbitrarily giving the defendant less than full and
complete attention required by law. He candidly admitted that the crime that
defendant committed was heinous, but observed courts are often required to
____________________________________________
2 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
- 14 -
J-A04034-18
preside over cases where the subject matter is disturbing. However, due
process required he be unaffected by such circumstances. Our Supreme Court
found no abuse of discretion in the trial court’s denial of the recusal request.
In Commonwealth v. Druce, 848 A.2d 104 (Pa. 2004), our Supreme
Court affirmed a trial court’s denial of a recusal motion when the trial judge
gave a press interview prior to imposing sentence and called some of the
defendant’s claims “strange,” but then also indicated that public sentiment
would not sway his handling of the case. Immediately before sentencing, the
trial judge told the defendant he held no bias, prejudice or ill will against him.
Our Supreme Court held that the trial court did not abuse its discretion in
denying recusal where the trial judge asserted his impartiality, both in the
public interview and from the bench, in response to the petition to recuse.
In contrast, in McFall, supra, the trial judge had been working for
several months as an undercover FBI agent regarding illegal payments by
union officials to common pleas court judges in Philadelphia. The trial judge
wore a recording device and recorded conversations with other judges. This
continued during the period the trial judge continued to preside over criminal
matters. While the trial judge’s agreement with federal authorities did not
provide for immunity from prosecution, it did promise that the federal
authorities would make known to any other court or investigating or
prosecuting body the extent of the judge’s cooperation. On these facts, this
Court held that the trial judge had a real and tangible bias in the criminal
- 15 -
J-A04034-18
cases heard by her, since she was subject to prosecution for her actions by
the District Attorney of Philadelphia, the prosecuting authority in each of the
cases before her. See also cases cited in McFall; Commonwealth v.
Bryant, 476 A.2d 422 (Pa. Super. 1984) (recusal necessary where the trial
judge had commented that, in order to generate pre-election publicity for
himself, the date for a defendant’s sentencing would be moved up to the day
proceeding an election in which the judge was a candidate and he would
impose the maximum possible sentence); Armor v. Armor, 398 A.2d 173
(Pa. Super. 1978) (full bench recusal required where woman remarried to a
common pleas judge of that county’s bench would have to appear before one
of her husband’s judicial colleagues on support matters).
Where the appearance of bias is less attenuated, but arises in an
instance where great deference is given to a trial judge’s discretion, recusal
may be required. In Commonwealth v. Darush, 459 A.2d 727 (Pa. 1983),
the trial judge made derogatory comments about a defendant while the judge
was a district attorney. The judge could not admit or deny that he had made
the statements, claiming he had no recollection. He nonetheless indicated
that the defendant would receive a fair trial. In concluding that recusal was
required, our Supreme Court held that while it could discern no evidence of
bias and was convinced the judge acted with complete integrity, the largely
- 16 -
J-A04034-18
unfettered sentencing discretion afforded a judge required that sentencing be
exercised by a judge without a hint of animosity towards the defendant.3
In Commonwealth v. Berrigan, 535 A.2d 91 (Pa. Super. 1987), this
Court, following our Supreme Court’s lead in Darush, held that while a judge’s
denial of a request that he recuse at trial was not reversible error, the judge’s
refusal to recuse at sentencing was improper. The trial judge made comments
both during and after trial indicating that he became emotionally involved in
an acrimonious series of confrontations with the defendants. Although the
defendants claimed on appeal that the judge’s rulings during trial were
motivated by bias, we did not find that to be prejudicial error, as we found the
allegations of error to be without merit. Nonetheless, that did not settle the
question of whether it was proper for the trial judge to preside at sentencing.
We held that “[s]ince the judge is the sole finder of fact at that sentencing
proceeding, any possible indication of judicial bias-even bias of which the jury
was wholly unaware--must be carefully considered when a motion to recuse
at sentencing is denied.” Berrigan, 535 A.2d at 104.
____________________________________________
3 When Darush was decided, an appearance of impropriety was to be
measured against what a significant minority of the lay community could
reasonably question regarding a court’s impartiality. The test for appearance
of impropriety now is whether conduct would create in reasonable minds a
perception a judge violated the Code of Judicial Conduct or engaged in other
conduct that reflects adversely on the judge’s honesty, impartiality,
temperament, or fitness to serve. Pa. Code Jud. Conduct, Canon 1, Rule 1.2,
cmt 5. For purposes of deciding the present application, I find no need to
discern whether this difference in standard would affect my decision on this
application.
- 17 -
J-A04034-18
In Commonwealth v. Dougherty, 18 A.3d 1095 (Pa. 2011), in a
concurring statement joined by a majority of the Justices of our Supreme
Court, Justice Baer felt compelled to comment on why he believed recusal of
the trial judge was necessary. During the defendant’s PCRA hearing, the trial
judge called the defendant “vile.” The hearing transcript, however, did not
reflect this comment. At a hearing, the PCRA judge acknowledged that she
privately directed the court reporter to remove that comment, which she
deemed “non-judicial,” from the record. Of interest, while the Court held that
the trial judge calling the defendant “vile” would not require recusal,
recognizing that an utterance can be understood as an emotional outburst
during a difficult proceeding, the trial judge’s alteration of the transcript was
another matter. In the Court’s view, the alteration struck at the very pillars
of meaningful appellate review and concomitantly therewith, the basic tenets
of due process, which should precipitate serious repercussions. Consequently,
the utterance, together with the transcript alteration, was deemed sufficient
to create an appearance of impropriety requiring the judge’s disqualification.
Upon review, I find that Shannon, Whitmore, Travaglia, Druce, and
Dougherty counsel that Appellant’s application asking for my recusal be
denied. The comments of third parties may not be used to attribute bias to
me. Shannon. Comments by a judge that are generally critical of
proceedings, without more, do not suffice to establish bias creating an
appearance of impropriety. Whitmore, Travaglia and Druce. Statements
- 18 -
J-A04034-18
that do evidence actual bias create an appearance of impropriety, McFall,
Bryant, although an inappropriate utterance when taken in context may not
suffice to establish bias warranting recusal. Druce, Whitmore, and
Dougherty. I also add that while an appearance of impropriety may be found
more easily in instances where a trial judge is entitled to great deference on
the exercise of discretion, such as in sentencing where the court must make
findings of fact, Darush, Berrigan, and Dougherty, such is not the case with
the Superior Court of Pennsylvania. This Court is an error-correcting court
whose review of decisions from our trial courts is circumscribed by well-
defined scopes and standards of review. This Court does not sit as a factfinder,
does not make findings of fact, and does not pass upon the demeanor or
credibility of witnesses. In this sense, heightened concerns, such as those
reflected in sentencing cases, are not applicable here. The issues in
Appellant’s appeal concerned whether his conviction for EWOC was barred by
the applicable statute of limitations, whether he violated a legal duty, and
whether jury instructions on the statute of limitations were sufficient. These
were questions of law.
Finally, I address the aspect of Appellant’s additional burden of proof as
to whether his application could have been brought to the attention of this
Court in the exercise of due diligence before the issuance of our panel decision.
Reilly, supra.
- 19 -
J-A04034-18
The Superior Court docket in this case reveals that by letter dated
December 21, 2017, Appellant’s counsel was advised by this Court that the
appeal in his case was scheduled for argument on February 7, 2018, before
the A4-2018 argument panel of this Court. The notice further cautioned that
any application for continuance must be filed within two weeks of the notice
date and, thereafter, only in cases of emergency. This Court also identifies
on its website the cases to be heard during an argument session and the
names of the judges who will hear the panel cases. In this particular appeal,
that information indicated that Appellant’s case would be heard on the second
day of argument, February 7, 2018, before a panel consisting of Judge Nichols,
Judge Ransom, and me.4 This Court’s website also provides biographical
information for all judges on the Superior Court. My profile on this Court’s
website clearly identifies me as a 1982 graduate of DSL, and further, as the
President, General Alumni Association, Dickinson School of Law, Capital Area
Chapter 2000-2013.5 To prevent litigants from filing motions to obtain tactical
advantages in proceedings before a Court, a party seeking recusal of a judge
must do so at the earliest possible moment. Lomas, 170 A.3d at 390 (Pa.
2017); Pa. Code of Judicial Conduct Rule Preamble ¶ 7. Simply because a
____________________________________________
4 http://www.pacourts.us/courts/superior-court/calendar
5http://www.pacourts.us/courts/superior-court/superior-court-judges/judge-
victor-p-stabile
- 20 -
J-A04034-18
judge does not raise sua sponte the issue of his impartiality, a party is not
entitled to question a judge’s partiality after the case has ended without
substantiation in the record that the complaining party did not receive a full,
fair, and impartial trial. Reilly, 489 A.2d at 1301. Further, our Supreme
Court has held that, in determining whether due diligence has been satisfied,
in addition to actual knowledge of facts underlying an application, facts that
“should have been known” also are to be considered in determining timeliness.
See Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989); Reilly, supra. The
fact of my association with DSL and the GAA was easily ascertainable and for
the relevant time discussed in Appellant’s application, i.e., 2003-2005. This
publicly available information would have, at a minimum, provided more than
sufficient information for Appellant to conduct due diligence on my background
and, in particular, to inquire with his former colleague Dean McConnaughay.
Under the circumstances, I do not find Appellant’s application timely given its
filing after the rendering of our decision in this case. See Lomas, supra
(untimeliness of a recusal petition will result in waiver even when there may
be an appearance of impropriety).
I also note a Google search of my association with DSL and in particular,
with respect to the two-campus proposal, affirms my contention that my
participation in the DSL matter was not personal to Appellant. After the two-
campus proposal was made final in 2005, when asked, I publicly expressed
my support for the success of the proposal and my hope that ranks would
- 21 -
J-A04034-18
close to support the decision made.6 There is a time to be heard and a time
to move on. Coincidentally, I also helped to facilitate the two-campus proposal
by voting to accept a much-needed zoning text amendment to the Middlesex
Township, Cumberland County, zoning ordinance to permit the temporary use
of a township building by DSL during reconstruction of the Carlisle campus.7
At the time, I was an elected member of the Middlesex Township Board of
Supervisors and recall declaring the amendment was a “win-win” for all
parties. This publicly available information should have been considered in
Appellant’s formulation of his opinion as to whether I harbored any personal
bias to support a recusal application.
Upon receipt of Appellant’s recusal application, I engaged in a
conscientious determination of my ability to assess this appeal in an impartial
manner, free of personal bias or interest in its outcome. I can state with clear
conscience that I felt no compulsion of bias, partiality, or interest in the
outcome of this case to prevent me from deciding this matter solely on its
merits, regardless of the fact Appellant was the party to this appeal. As to
whether Appellant proved bias sufficient to establish an appearance of
impropriety, he has not. As already stated, I do not personally know Appellant
____________________________________________
6 http://cumberlink.com/news/local/can-carlisle-compete/article_fcfa0dad-
5ea8-5a17-a527-a13a8ff3beac.html
7https://cumberlink.com/news/trickett-hall-use-to-end-by-this-
fall/article_4dce8ec4-28cf-5aaa-8f60-9b0d59c40eae.html
- 22 -
J-A04034-18
and only once met him more than 20 years ago to exchange a cordial greeting.
My participation in the events surrounding PSU’s plans to either relocate DSL
or create a law school comprised of two campuses was as a member of the
GAA. Portions of statements by me produced by Appellant are more than a
dozen years old, have no relation to this criminal appeal, and are not
personally directed at Appellant. Moreover, after resolution of the DSL
campus dispute, I publicly made statements and took action supportive of
PSU’s two-campus plan, well before the advent of this appeal or before anyone
could claim it was in my interest to do so. As stated, I also do not find the
Appellant’s post-decision application to be timely. For all the foregoing
reasons, an order will be entered denying Appellant’s application.
*Judges Ransom and Nichols did not participate in the consideration or
decision of this application.
- 23 -