Com. v. Alexander, K. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH ALEXANDER
Appellant No. 1066 EDA 2014
Appeal from the Judgment of Sentence March 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0300451-1994
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 17, 2015
Appellant, Keith Alexander, appeals from the judgment of sentence
entered in the Philadelphia County Court of Commons Pleas, following the
revocation of his probation. We affirm.
The relevant facts and procedural history of this case are as follows.
On January 10, 1995, Appellant pled guilty to two counts of robbery and one
count each of possessing instruments of crime and criminal conspiracy.1
That day, the court sentenced Appellant for each robbery conviction to
concurrent terms of two and one-half (2½) to ten (10) years’ imprisonment,
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1
18 Pa.C.S.A. §§ 3701; 907; 903, respectively.
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plus ten (10) years’ probation.2 The court imposed no further penalty for
the remaining convictions. The record indicates Appellant’s probation was
set to begin on November 18, 2005, and expire on November 18, 2015.
Appellant was paroled on October 1, 2001.
On or about March 19, 2002, while Appellant was still on parole, police
arrested Appellant for new crimes. The Commonwealth charged Appellant at
docket number CP-51-CR-0702301-2002, with aggravated assault,
attempted murder, and related offenses, in connection with Appellant and
his co-defendant’s shooting of Victim on February 8, 2002, which left Victim
paralyzed from the waist down. A jury convicted Appellant on April 1, 2005,
of aggravated assault, attempted murder, criminal conspiracy, firearms not
to be carried without a license, and persons not to possess firearms (“2005
convictions”). On May 20, 2005, with the benefit of a pre-sentence
investigation (“PSI”) report, the court sentenced Appellant to an aggregate
term of twenty-six and one-half (26½) to fifty-six (56) years’ imprisonment
for the 2005 convictions.
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2
The court designated Appellant’s probationary terms as “special probation,”
directing the Pennsylvania Board of Probation and Parole (“Board”) to
supervise the probationary terms. See 61 Pa.C.S.A. § 331.17a(a) (stating:
“The board shall have exclusive power to supervise any person hereafter
placed on probation by any judge of a court having criminal jurisdiction,
when the court may by special order direct supervision by the board”).
Section 331.17a was repealed by 2009, Aug. 11, P.L. 147 No. 33, § 11(b)
(effective in 60 days) and re-codified at 61 Pa.C.S.A. § 6133. The language
of Section 331.17a(a) and Section 6133(a) are almost identical. See 61
Pa.C.S.A. § 6133(a) (effective October 13, 2009).
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Prior to Appellant’s 2005 convictions, the Board had revoked
Appellant’s parole for the underlying robbery offenses based on Appellant’s
commission of new crimes. Due to the retirement of the judge who presided
over Appellant’s robbery convictions, however, the trial court did not hold a
revocation of probation hearing following Appellant’s 2005 convictions. In
2013, the judge who presided over Appellant’s 2005 jury trial inquired about
the status of Appellant’s case and about the probationary term of Appellant’s
robbery convictions. Court administration subsequently assigned the
original 1995 case to that jurist.
On October 16, 2013, the trial court held a revocation of probation
hearing for Appellant’s robbery offenses based on Appellant’s 2005
convictions. The court determined Appellant’s 2005 convictions constituted
a direct violation of Appellant’s probation and revoked probation. The court
deferred sentencing pending a PSI report. On January 13, 2014, Appellant
filed a pro se motion for recusal of the trial judge.3 The court held a
sentencing hearing on March 7, 2014, after which the court sentenced
Appellant to five (5) to ten (10) years’ imprisonment for one count of
robbery; the court imposed a consecutive term of one year of probation at
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3
Appellant was represented by counsel at that time. The record is unclear
whether the court forwarded the pro se motion to counsel of record. See
Pa.R.A.P. 3304 (stating: “Where a litigant is represented by an attorney
before the [c]ourt and the litigant submits for filing a petition, motion, brief
or any other type of pleading in the matter, it shall not be docketed but
forwarded to counsel of record”).
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the remaining robbery count. The court imposed the sentences
consecutively to any other sentence Appellant was currently serving. The
court also denied Appellant’s motion for recusal on that date. On March 13,
2014, Appellant timely filed a motion for reconsideration. While the post-
sentence motion was still pending, Appellant timely filed a notice of appeal
on April 7, 2014.4 On April 17, 2014, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), which Appellant timely filed on May 8, 2014.
Appellant raises four issues for our review:
DID NOT THE [TRIAL] COURT ERR IN REVOKING
PROBATION ON THE BASIS OF A “DIRECT VIOLATION”
THAT HAD BEEN DULY ADDRESSED BY THE STATE PAROLE
BOARD AT THE TIME OF THE VIOLATION EIGHT YEARS
EARLIER, WHERE THERE WAS NO JUSTIFICATION FOR THE
DELAY AND WHERE PREJUDICE TO APPELLANT RESULTED?
DID NOT THE TRIAL COURT ERR IN BASING ITS
REVOCATION AND RESENTENCING IN PART ON
APPELLANT’S HAVING BEEN FOUND GUILTY OF
“MISCONDUCT” IN STATE PRISON, WHERE NEITHER THE
EXISTENCE OF THE MISCONDUCT CITATIONS NOR THE
BEHAVIOR ALLEGED CONSTITUTED A VIOLATION OF THE
CONDITIONS OF PROBATION, AND WHERE THE MOST
RECENT OF THOSE CITATIONS WAS ISSUED FOUR YEARS
PRIOR TO THE REVOCATION HEARING?
DID NOT THE TRIAL COURT ERR IN BASING ITS NEW
SENTENCE ON APPELLANT’S REFUSAL TO “ACCEPT
RESPONSIBILITY” WITH REGARD TO A SEPARATE
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4
See Pa.R.Crim.P. 708(E) (stating motion to modify sentence imposed after
revocation shall be filed within 10 days of date of imposition; filing of motion
to modify sentence will not toll 30-day appeal period).
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CRIMINAL MATTER, HIS ASSERTION THAT HIS TRIAL ON
THAT SEPARATE MATTER WAS CONDUCTED UNFAIRLY,
AND HIS CONTINUING ATTEMPTS TO PURSUE POST-
CONVICTION RELIEF AS TO THAT SEPARATE MATTER?
DID NOT THE TRIAL COURT ERR IN REFUSING TO RECUSE
ITSELF ON APPELLANT’S MOTION, WHERE THE COURT
HAD DEMONSTRATED THE EXISTENCE OR APPEARANCE
OF BIAS, ANIMUS, AND A LACK OF IMPARTIALITY
TOWARDS APPELLANT BY, INTER ALIA: CONDUCTING ITS
OWN INVESTIGATION OF A PROBATION CASE IN WHICH
IT HAD NO PRIOR INVOLVEMENT, WHICH INVESTIGATION
IT INITIATED IN RESPONSE TO APPELLANT’S LEGAL
FILLINGS IN AN UNRELATED MATTER; ASSUMING OR
ARRANGING TO ASSUME SUPERVISION OF APPELLANT’S
PROBATION EVEN THOUGH IT HAD ALREADY CONDUCTED
AN INDEPENDENT INVESTIGATION, AND DOING SO WITH
THE APPARENT INTENTION OF FINDING HIM IN
VIOLATION; AND REFERRING TO APPELLANT AS, AMONG
OTHER THINGS, A “LIAR,” A “VIOLENT THUG,” AND A
“ONE-MAN CRIME WAVE”?
(Appellant’s Brief at 3-4).
In his first issue, Appellant explains the court did not revoke his
probation for the underlying robbery convictions until more than eight years
after his 2005 convictions. Appellant argues the eight-year delay in
conducting the revocation hearing was unreasonable. Appellant asserts that
in the absence of a revocation hearing much sooner, he anticipated an
earlier release from prison. Appellant contends he suffered prejudice as a
result of the delayed revocation hearing because he has a right to expect
finality in his cases. Appellant maintains the sole reason that the revocation
hearing did not take place until 2013, is simply because the Commonwealth,
court, and Board failed to request it. Appellant claims the Board declined to
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take any action relative to Appellant’s robbery convictions beyond the
revocation of his parole. Appellant avers he had every reason to believe that
he knew with certainty and finality, the total length of his sentence, once the
Board revoked his parole and took no action regarding his probation.
Appellant insists that because the Board did not revoke his probation at the
time it revoked parole, Appellant had no reason to expect a future
revocation of probation proceeding. Appellant complains the trial court’s
decision to revoke probation eight years after his 2005 convictions
disappointed his reliance on an expected release date. Given Appellant’s
age, he suggests the court’s imposition of an additional five-to-ten year
sentence following revocation of his probation effectively converted his
already very lengthy sentence into a virtual life sentence. Appellant
concludes the court erred by unreasonably delaying his revocation of
probation proceeding, resulting in prejudice to Appellant, and this Court
should vacate his revocation sentence. We disagree.
Pennsylvania Rule of Criminal Procedure 708 governs proceedings for
the revocation of parole and probation and provides, in relevant part:
Rule 708. Violation of Probation, Intermediate
Punishment, or Parole: Hearing and Disposition
* * *
(B) Whenever a defendant has been sentenced to
probation or intermediate punishment, or placed on parole,
the judge shall not revoke such probation, intermediate
punishment, or parole as allowed by law unless there has
been:
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(1) a hearing held as speedily as possible at which
the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or parole.
* * *
Pa.R.Crim.P. 708(B).
The Rule does not define the phrase “as speedily as possible,” but our
courts have interpreted this language to require a hearing within a
reasonable time. Commonwealth v. Christmas, 995 A.2d 1259, 1262
(Pa.Super. 2010), appeal denied, 617 Pa. 628, 53 A.3d 756 (2012). “Rule
708 does not establish a presumptive period in which the Commonwealth
must revoke probation; but instead, the question is whether the delay was
reasonable under the circumstances of the specific case and whether the
appellant was prejudiced by the delay.” Id. at 1262-63 (quoting
Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009)). “In
evaluating the reasonableness of a delay, the court examines three factors:
the length of the delay; the reasons for the delay; and the prejudice
resulting to the defendant from the delay.” Christmas, supra at 1263(quoting Woods, supra).“The measure of delay extends from the defendant’s date of conviction
or entry of a guilty plea on the new charges to the date the court holds the
revocation hearing.” Christmas, supra. “This Court has previously held
delays of fifteen months, two years, and four years are not ‘intrinsically
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reasonable.’” Id.“When examining the reasons for delay, the court looks at the
circumstances surrounding the delay to determine whether the
Commonwealth acted with due diligence in scheduling the revocation
hearing.” Id. “[C]ertain delays incident to the scheduling of revocation
hearings are reasonable.” Commonwealth v. Bischof, 616 A.2d 6, 8
(Pa.Super. 1992). For example, “[t]he court should not fault the
Commonwealth for delays resulting from the Department of Corrections’
inability to find, transport, or house defendants in their custody.”
Christmas, supra at 1263. See also Commonwealth v. Clark, 847 A.2d
122 (Pa.Super. 2004) (holding delay in scheduling revocation hearing due to
unavailability of prison beds in county jail did not constitute lack of diligence
and unreasonable delay by Commonwealth or court). “Similarly, a court
should not attribute to the Commonwealth delays caused by the defendant.”
Christmas, supra. See also Bischof, supra (stating where appellant
successfully conceals violation or evades arrest, then any consequent delay
will be attributed to appellant). Nevertheless, “where the Commonwealth
provides no explanation for the delay, the court should not attribute the
delay to the defendant; instead, the court should analyze whether the delay
prejudiced the defendant.” Christmas, supra.
“To demonstrate a violation of a right to a speedy probation revocation
hearing, a defendant must allege and prove the delay in holding the
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revocation hearing prejudiced him.” Id. at 1263. Importantly, “there is no
per se rule of prejudice for technical violations of the Rules of Criminal
Procedure.” Id. In evaluating the prejudice prong of the test, “we must
bear in mind the nature of the proceeding. Parole, as well as probation, is
primarily concerned with the rehabilitation and restoration of the individual
to useful life. It is a discretionary penological measure to which a defendant
has no absolute right.” Commonwealth v. Marchesano, 519 Pa. 1, 6, 544
A.2d 1333, 1336 (1988). “Thus, the controlling consideration at a
revocation hearing is whether the facts presented to the court are probative
and reliable and not whether traditional rules of procedure have been strictly
observed.” Id. at 6-7, 544 A.2d at 1336.
Prejudice in this context has been interpreted as being
something which would detract from the probative value
and reliability of the facts considered, vitiating the
reliability of the outcome itself. One specific purpose of
our rule in requiring a prompt revocation hearing is
to avoid such prejudice by preventing the loss of
essential witnesses or evidence, the absence of
which would contribute adversely to the
determination. Another is to prevent unnecessary
restraint of personal liberty.
Id. at 7, 544 A.2d at 1336 (emphasis added).
Significantly, a defendant who is already incarcerated on the charges
which triggered the probation revocation cannot claim the delay in holding a
revocation hearing caused him any loss of personal liberty. Christmas,
supra at 1263. See also Commonwealth v. Diaz, 392 A.2d 827, 829
(Pa.Super. 1978) (stating: “[A] probationer awaiting his probation violation
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hearing while being imprisoned for another offense does not suffer much if
there is a delay in holding the revocation hearing, for he is already
imprisoned”). Likewise, “where a conviction on new charges conclusively
establishes the defendant’s probation violation, the defendant cannot claim a
delay in his [revocation] hearing prejudiced him because he lost favorable
witnesses and evidence.” Christmas, supra at 1263-64. See also
Marchesano, supra (holding defendant suffered no prejudice from delay in
holding revocation of probation hearing where he pled guilty to charges
which constituted probation violations; in addition, defendant was already
incarcerated as result of prior convictions, therefore he was not subject to
incarceration as result of any delay in revocation hearing); Clark, supra
(holding more than four year delay in holding revocation of probation
hearing did not constitute basis for court to vacate appellant’s revocation
sentence; appellant provided no specific argument in terms of prejudice
suffered due to delay such as deprivation of essential witnesses or evidence;
instead, appellant focused solely on length of delay as amounting to
prejudice; during period of delay, appellant was still serving sentence
imposed as result of convictions which gave rise to probation violation; thus,
appellant failed to demonstrate prejudice).
Instantly, on January 10, 1995, Appellant pled guilty to two counts of
robbery and other offenses; the court sentenced Appellant that day to
concurrent terms of two and one-half (2½) to ten (10) years’ imprisonment,
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plus ten (10) years’ special probation, for each robbery conviction. On
October 1, 2001, Appellant was paroled. In 2002, while still on parole,
Appellant committed new crimes. A jury convicted Appellant for these new
crimes on April 1, 2005. The court sentenced Appellant on May 20, 2005, to
an aggregate term of twenty-six and one-half (26½) to fifty-six (56) years’
imprisonment. On October 16, 2013, the court held a revocation of
probation hearing for Appellant’s underlying robbery offenses. Based on
Appellant’s 2005 convictions, the court revoked probation. The court
deferred sentencing until March 7, 2014, at which time the court sentenced
Appellant to five (5) to ten (10) years’ imprisonment for one of the robbery
convictions; the court imposed one year of probation for the remaining
robbery conviction.
Initially, the approximate eight year delay between Appellant’s 2005
convictions and his 2013 revocation hearing was not “intrinsically
reasonable.” See Christmas, supra. The certified record is unclear why
this significant delay occurred. The Commonwealth suggests the delay
resulted from administrative oversight following the retirement of the judge
who presided over Appellant’s 1995 convictions. This “administrative
oversight” should not be attributed to Appellant where the record shows no
due diligence by the Commonwealth to schedule the revocation hearing
sooner. See Bischof, supra (holding Commonwealth failed to act with due
diligence in scheduling appellant’s revocation hearing; Commonwealth
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alleged it did not receive certified copy of appellant’s new convictions for
fifteen months; Commonwealth did not schedule revocation hearing for
appellant’s underlying crimes until five months after receipt of certified copy
of appellant’s new convictions; Commonwealth should have scheduled
revocation hearing within weeks of receiving certified copy of appellant’s
new convictions). Compare Clark, supra (holding Commonwealth acted
with due diligence in scheduling revocation hearing; record demonstrated
more than twenty-five attempts by Commonwealth to schedule revocation
hearing and transport defendant from state custody so he could be available
for revocation proceeding, but each writ for defendant’s appearance was
canceled due to lack of available beds at county jail).
Nevertheless, in addressing the prejudice prong of the test, the trial
court explained:
[T]here has been a lengthy delay between the probation
violation and the revocation hearing. However, Appellant
has suffered no prejudice because he has been in custody
continuously since 2002 for his crimes that he was later
convicted [of] and thus has not lost any personal liberty.
Appellant’s convictions in 2005 conclusively established his
violations of probation. Tellingly, Appellant suffered no
prejudice from the delay as he cites no loss of favorable
witnesses or evidence. Thus, Appellant cannot meet the
requisite prejudice required to avoid suffering the
consequences of his continued violent behavior.
Appellant further argues that his direct violation had
already been addressed by the State Parole Board at the
time of the violation. At the time of Appellant’s 2002
arrest he was still subject to state parole. Appellant
served 28 months while his case moved to trial. Appellant
argued in his October 16, 2013 [revocation] hearing that
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the parole board already violated him for the 2002 matter
and the probation imposed by [the trial court in 1995]
would not start until 2005. However,…Appellant’s 2002
actions can be considered an anticipatory breach of…the
probationary components of the sentences that were
imposed by [the trial court in 1995]. The parole board’s
ten year jurisdiction is entirely distinct from the trial
court’s ten year probationary supervision.
In summation, Appellant cannot meet the necessary
standards in establishing that the trial court erred in
revoking probation and imposing a new sentence.
(Trial Court Opinion, filed July 28, 2014, at 10-11). We agree with the trial
court that Appellant failed to demonstrate prejudice under the facts of this
case.
Appellant’s 2005 convictions constituted a direct violation of his parole
and an anticipatory breach of his probation, warranting revocation of his
probation. See Commonwealth v. Nava, 966 A.2d 630 (Pa.Super. 2009)
(explaining commission of new crime violates implied condition of
probation); Commonwealth v. Ware, 737 A.2d 251 (Pa.Super. 1999),
appeal denied, 561 Pa. 657, 747 A.2d 900 (1999) (explaining term of
probation may and should be construed for revocation purposes as including
term beginning at time probation is granted; otherwise, having been granted
probation, defendant could commit criminal acts with impunity—as far as
revocation of probation is concerned—until she commenced actual service of
probationary period; fact that appellant had not commenced serving
probation when she committed new offenses did not prevent court from
revoking probation).
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Additionally, the 2005 convictions were conclusive evidence of
Appellant’s probation violation. See Nava, supra. Consequently, the delay
in holding the revocation hearing did not deprive Appellant of the loss of any
favorable evidence or witnesses that might otherwise be presented at a
revocation hearing. See Marchesano, supra; Christmas, supra. Further,
during the approximate eight (8) year period between Appellant’s 2005
convictions and revocation of probation hearing, Appellant remained
incarcerated as a result of his 2005 convictions. Thus, Appellant suffered no
prejudice arising from a loss of personal liberty. See Marchesano, supra;Christmas, supra; Clark, supra; Diaz, supra.Appellant cites no legal authority to support his arguments that his
mere reliance on an expected release date amounts to prejudice for
purposes of Rule 708, or that the trial court somehow lacked authority to
revoke probation because the Board only terminated Appellant’s parole.
See Pa.R.A.P. 2119(a) (stating argument shall be divided into as many parts
as there are questions to be argued, followed by such discussion and citation
of authorities as are deemed pertinent); Commonwealth v. McMullen, 745
A.2d 683 (Pa.Super. 2000) (holding appellant waived issues for failure to
develop them on appeal with citation to relevant statutory authority or case
law; when appellant fails to develop his argument adequately, meaningful
appellate review is not possible). Moreover, the trial court retained authority
to revoke probation and to resentence Appellant for his probation violation,
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regardless of any actions taken by the Board. See 42 Pa.C.S.A. § 9771(a)
(stating: “The court may at any time terminate continued supervision or
lessen or increase the conditions upon which an order of probation has been
imposed”); Commonwealth v. Mitchell, 955 A.2d 433 (Pa.Super. 2008),
appeal denied, 600 Pa. 744, 964 A.2d 894 (2009) (holding trial court
retained power, authority, and jurisdiction to determine whether appellant
violated special probation, to revoke it, and to resentence appellant following
revocation of special probation, notwithstanding Board’s duties of
supervision). Therefore, Appellant has failed to establish prejudice for
purposes of Rule 708 under the circumstances of this case. See
Marchesano, supra; Christmas, supra; Clark, supra; Diaz, supra.Regarding Appellant’s remaining issues, after a thorough review of the
record, the briefs of the parties, the applicable law, and the well-reasoned
opinion of the Honorable Chris R. Wogan, we conclude Appellant’s second,
third, and fourth issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of those questions. (See
Trial Court Opinion at 11-23) (finding: (issue 2) in 2005, jury convicted
Appellant of attempted murder, aggravated assault, firearms not to be
carried without license, and other offenses, which constituted direct
violations of Appellant’s probation; while in custody for 2005 convictions,
Appellant committed prison misconduct by using profanity, refusing to obey
orders on two occasions, gambling, and possessing contraband, which
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constituted technical probation violations; Appellant’s misconduct in prison
indicates Appellant will continue to violate laws of Pennsylvania upon his
release; in any event, notwithstanding court’s consideration of Appellant’s
prison misconduct at time of revocation hearing, revocation of probation was
proper based solely on Appellant’s 2005 convictions; (issue 3)5 court based
revocation sentence on Appellant’s criminal actions in connection with 2005
convictions, which left Victim in wheelchair and permanently paralyzed from
waist down, as well as Appellant’s prison misconduct; contrary to Appellant’s
assertions, court did not revoke probation and determine length of sentence
based on Appellant’s continued pursuit of post-conviction relief in case
concerning 2005 convictions; court commented at sentencing on Appellant’s
refusal to accept responsibility, but court did not base revocation of
probation or resentencing on that refusal; in any event, court is permitted to
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5
To the extent Appellant’s third issue on appeal implicates the discretionary
aspects of sentencing, that claim is waived because Appellant failed to
preserve in his post-sentence motion any claim that the court considered
improper factors upon resentencing. See Commonwealth v. Malovich,
903 A.2d 1247 (Pa.Super. 2006) (explaining appellant must raise claim
challenging discretionary aspects of sentencing at sentencing or in post-
sentence motion; issues not presented to sentencing court are waived and
cannot be raised for first time on appeal). Appellant also did not include the
requisite Pa.R.A.P. 2119(f) statement in his appellate brief, but the
Commonwealth did not object to that omission, so we can ignore that defect.
See Commonwealth v. Roser, 914 A.2d 447 (Pa.Super. 2006), appeal
denied, 592 Pa. 788, 927 A.2d 624 (2007) (stating appellant who challenges
discretionary aspects of sentence shall set forth in brief concise statement of
reasons relied upon for allowance of appeal per Pa.R.A.P. 2119(f); failure to
include Rule 2119(f) statement does not automatically waive appellant’s
argument where Commonwealth does not object to such deficiency).
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consider Appellant’s lack of remorse upon resentencing; (issue 4)6 court
administration transferred Appellant’s case to this jurist’s docket following
retirement of judge who presided over Appellant’s 1995 robbery convictions;
court’s order directing preparation of PSI report prior to resentencing
hearing does not constitute improper “independent investigation” of case;
court called Appellant “liar” based on Appellant’s materially false statements
in court filings relative to 2005 convictions; court’s alleged biased remarks
also resulted from court’s efforts to control its courtroom; court’s recognition
of Appellant’s character and conduct which court observed during revocation
proceedings does not rise to level of judicial bias that would warrant recusal;
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6
Appellant’s fourth issue on appeal concerns the trial court’s denial of his
pro se motion for recusal. Appellant filed this motion while he was still
represented by counsel. Generally, there is no right to hybrid representation
and pro se filings by a counseled defendant constitute legal nullities. See
Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (holding there
is no constitutional right to hybrid representation at trial or on appeal; thus,
this Court will not review pro se documents filed by represented appellants);
Commonwealth v. Nischan, 928 A.2d 349 (Pa.Super. 2007) (explaining
pro se filings submitted by counseled defendants are legal nullities). Thus,
Appellant’s pro se motion for recusal is a legal nullity. Counsel did not file a
subsequent motion for recusal articulating the complaints Appellant raised in
his Rule 1925(b) statement and now on appeal. Additionally, Appellant did
not even include in his pro se motion for recusal the same complaints he
raised in his Rule 1925(b) statement and now on appeal. Therefore,
Appellant’s claim that the court erred by denying his recusal motion is
waived. See Commonwealth v. Pappas, 845 A.2d 829 (Pa.Super. 2004),
appeal denied, 580 Pa. 712, 862 A.2d 1254 (2004) (explaining party seeking
recusal of trial judge must raise objection at earliest stage of proceedings or
face waiver of claim). Moreover, even if Appellant had preserved his fourth
issue on appeal, we would affirm the denial of relief based on the reasons
set forth in the trial court’s opinion.
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further, Appellant’s 2005 case is not “unrelated matter,” where 2005
convictions formed basis of probation violations for underlying robbery
convictions7). Accordingly, as to Appellant’s second and third issues, we
affirm on the basis of the trial court’s opinion. Appellant’s fourth issue is
waived; even if Appellant had preserved this claim, we would affirm on the
basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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7
The correct citation for Commonwealth v. Jones is 541 Pa. 351, 663
A.2d 142 (1995).
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Circulated 11/06/2015 02:55 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
CP-51-CR-0300451-1994
CP-51-CR-0300451-1994 C
Opini``m. v, Alexander, Keith
Ill/II I7179060981
v.
I/Ill l/1 /IIII /I l/l SUPERIOR COURT
KEITH ALEXANDER
FILED
IJUL 2 .8 2014
OPINION Criminal Appeals Unit
First Judicial District of PA
CHRIS R. WOGAN,J.
Procedural Posture
Appellant originally appeared before The Honorable Arthur
Kafrissen, a retired Common Pleas Court judge, on January 10,
1995, and was charged with two counts of Robbery, Possession of
Instrument of Crime With/Intent, and Criminal Conspiracy (CP-51-
03004511994). The Defendant pled guilty to Robbery and was
sentenced to 2 ~ - 10 years in a state correctional facility,
followed by 10 years county probation on each Robbery count.
Appellant was sentenced to no further penalty on Possession of
Instrument of Crime, and Criminal Conspiracy to Commit Robbery.
Probation was to start on November 18, 2005 and end on November
18, 2015. The Appellant was paroled on 10/01/2001.
1
Circulated 11/06/2015 02:55 PM
On February 8, 2002, while Appellant was on parole, at
approximately 8:00 p.m., Maurice Stuart encountered his friend
Lamont Reese, also known as "Peanut," near the 30th Street and
Huntington Street intersection in Philadelphia, Pennsylvania.
Reese explained to Stuart that he was going to rob Appellant
Keith Alexander and Terrance Holmes, who were standing across
the street. Stuart told Reese that he knew both of the
individuals and then he walked to 27th and Lehigh Street. Reese
called over to Terrance Holmes, who had crossed the street and
was walking toward him. Stuart then began walking off from the
intersection. Alexander yelled to him "that's fucked up."
Stuart flagged him with a hand down motion and kept walking.
Approximately fifteen to twenty minutes after Reese robbed
Holmes; Defendant Alexander drove his motor vehicle to Stuart's
location and stopped it directly in front of him. Holmes was
seated in the backseat. Holmes then exited the vehicle and
walked toward Stuart with a firearm in his hand. Holmes pointed
the gun to Stuart's face and asked Stuart "why you let him rob
me?" Stuart grabbed Holmes' arm pushing it away from his face;
but, Holmes fired the gun, only three to five inches away.
Mr. Stuart was shot several times in the left lower chest
and abdomen area and lost consciousness. He suffered two bullet
wounds to his abdomen, two additional gunshot wounds on the
right-hand side of his lower back, and one in his right
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shoulder. He was hospitalized for a year and he had several
operations. Mr. Stuart remains permanently paralyzed from the
waist down.
On March 19, 2002, defendant was arrested and charged with
Aggravated Assault, Attempted Murder, Carrying Firearms Without
License, Carrying Firearms in Public Street or place, Possessing
an Instrument of Crime, Simple Assault, Recklessly Endangering
Another Person, and Criminal Conspiracy, (CP-51-CR-0702301-2001)
for his attack that left Mr. Stuart partially paralyzed.
Appellant was tried before a jury on March 28, 2005,
through April 1, 2005. Appellant was found guilty of Attempted
Murder, 18 Pa. C.S. § 2702, Aggravated Assault, 18 Pa. C.S. §
2702,1 Carrying a Firearm Without a License 18 Pa.C.S. §6106, and
Possessing a Firearm by a Person Unauthorized under the Act to
carry one, 18 Pa. C.S. §6105.
On May 20, 2005, Appellant appeared before The Honorable
Chris Wogan and was sentenced to a mandatory minimum third
strike 25-50 years for Aggravated Assault, and a consecutive 1 ~
to 6 years for Carrying Firearms Without a License, for a total
of 26 ~ - 56 years. Defendant was sentenced to no further
penalty for Attempted Murder; defendant was also given no
further penalty for Criminal Conspiracy to Commit Murder.
1
The attempted murder and aggravated assault convictions represented the
Appellant's "third strike" for a crime of violence. See Pa.C.S. §9714
(mandatory minimum sentence of 25 years imprisonment for a "third strike"
conviction) .
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At the time of Mr. Alexander's 2002 arrest he was still on
state parole as a result of the sentence imposed by retired
Common Pleas Judge Arthur Kafrissen. On January 10, 1995, Judge
Kafrissen imposed a sentence of 2 ~ to 10 years in state prison
followed by ten years special probation concurrently on two
robbery counts, with probation set to end on November 18, 2015.
On October 16, 2013 this probation was revoked and a pre-
sentence report was ordered. On March 7, 2014, Appellant was
sentenced to 5-10 years of incarceration for one robbery count
and a consecutive sentence of one year probation for the second
robbery count.
On April 7, 2014, counsel for Appellant filed a Notice of
Appeal to the Superior Court. A Pa.R.A.P. 1925(b) Order was
issued on April 17, 2014. On May 8, 2014, Appellant filed his
Statement of Matters Complained on Appeal and Statement of
Errors Complained of on Appeal.
Discussion
Defendant first questions: "a. The trial court erred in revoking
probation and imposing a new sentence, where appellant was not
yet on probation at the time of the alleged direct violation,
where a revocation hearing was not requested or held until
approximately eight years after the alleged direct violation and
four years after the alleged technical violations, where
appellant's direct violation had already been addressed by the
State Parole Board at the time of the violation, where no
justification was given for the delay, where appellant was
prejudiced by the delay, and where the delay therefore violated
the provisions of Pa.R.Cr.P. 708(B) (1) as well as petitioner's
right to due process of the law under the Pennsylvania and
United States Constitutions."
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The trial court was correct in revoking probation and
imposing a new sentence on the Appellant because the Appellant's
2002 actions that resulted in the convictions in front of Judge
Wogan can be considered an anticipatory breach of probation.
A court can revoke a defendant's probation even before the
probation has actually begun, where revocation was based on
actions occurring during the parole period and not the
probationary period. Commonwealth v. Ware, 737 A.2d 251 (1999).
In addition, technical violations are sufficient to trigger the
revocation. Commonwealth v. Sierra, 752 A.2d 910 (2001). A
court is justified in revoking probation if the technical
violations indicate that probation will not be in the best
interests of the public or of the defendant. Commonwealth v.
Miller, 516 A.2d 1263, 1265 (1986). The Superior Court has cited
the United States Supreme Court in holding that a court may
revoke probation at any time before its completion:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun
service of his probation, he should commit offenses of
such nature as to demonstrate to the court that he is
unworthy of probation and that the granting of the
same would not be in subservience to the ends of
justice and the best interests of the public, or the
defendant, the court could revoke or change the order
of probation. A defendant on probation has no
contract with the court. He is still a person
convicted of crime, and the expressed intent of the
Court to have him under probation beginning at a
future time does not "change his position from the
possession of a privilege to the enjoyment of right.
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Commonwealth v. 420 A.2d 628, 630, 278 Pa. Super.
Wendowski,
453, 457 (quoting Burns v. United States, 287 U.S. 216, 222
(1932)).
Here, the -trial court correctly and appropriately revoked
Mr. Alexander's probation and imposed a new sentence for his
2002 violation of probation for his convictions of Attempted
Murder, and Carrying a Firearm Without a License.
Appellant's convictions are an anticipatory breach of
probation and his prison misconducts are a direct violation of
his probation. Following Wendowski, he should be punished
accordingly for his additional violations.
Appellant also argues that this court "erred in revoking
probation and imposing a new sentence ... where a revocation
hearing was not requested or held until approximately eight
years after the alleged direct violation and four years after
the alleged technical violations ... no justification was
given for the delay ... where appellant was prejudiced by the
delay, and where the delay violated the provisions of Pa.R.C.P.
708(8) (1) as well as petitioner's right to due process of law
under the Pennsylvania and United States Constitutions.
Appellant's argument can be disposed of by first examining
Rule 708. Pennsylvania Rule of Criminal Procedure 708 states:
Rule 708. Violation of Probation, Intermediate Punishment, or
Parole: Hearing and Disposition
***
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Whenever a defendant has been sentenced to probation or
intermediate punishment, or placed on parole, the judge shall
not revoke such probation, intermediate punishment or parole as
allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the
defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition
of probation, intermediate punishment, or parole.
***
Pa.R.Crim.P. 708.
The language "speedily as possiblen means holding a hearing
within a reasonable time. Commonwealth v. Christmas, 995 A.2d
1259, 1262, 2010 PA Super. 92 (2010). Under Rule 708, the
question is whether. the delay was reasonable under the
circumstances of the particular case and whether the appellant
was actually prejudiced by the alleged delay. Id. at 1262-63.
A court looks to three factors to determine the
appropriateness of the delay: the length of the delay; the
reasons for the delay; and the prejudice suffered by the
defendant as a result of the delay. Id. at 1263 (citing
Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009)
(quoting Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa.Super.
2004) ) ) .
The length of a delay is measured from the defendant's date
of conviction or entry of a guilty plea on the new charges to
the date the court holds the revocation hearing. Christimas at
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1263 (citing Commonwealth v. Bischof, 420 Pa.Super. 115, 616
A.2d 6, 8 (1992).
In determining the reasons for the delay, the court
examines the surrounding circumstances and to evaluate whether
the Commonwealth acted with due diligence in scheduling the
revocation hearing. Christmas at 1263 (citing Clark, supra at
124). In cases in which the Commonwealth provides no
explanation for the delay, the court should not attribute the
delay to the defendant; rather, the court should look to whether
the defendant was actually prejudiced by the delay. Christmas at
1263 (citing Woods, supra at 1228) (emphasis added).
An appellant must allege and prove that the delay in
holding the revocation hearing violated the appellant's right to
a speedy probation revocation hearing and in turn prejudiced
him. Christmas at 1263 (citing Woods, supra at 1229; Clark,
supra at 125; Bischof, supra at 9). "There is no per se rule of
prejudice for technical violations of the Rules of Criminal
Procedure." Christmas at 1263 (citing Commonwealth v.
Marchesano, 519 Pa. 1, 7-8, 544 A.2d 1333, 1336-37 (1988)).
"The controlling consideration at a revocation hearing is
whether the facts presented to the court are probative and
reliable and not whether traditional rules of procedure have
been strictly observed." Christmas at 1263 (quoting Commonwealth
v. Marchesano, at 6-7, 544 A.2d at 1336).
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A goal of the prompt revocation hearing requirement is to
avoid prejudice by preventing the loss of essential witnesses or
evidence. Christmas at 1263 (quoting Marchesano, supra).Another is to prevent unnecessary incarceration and restraint of
personal liberty. Id. If a defendant is already in custody
for charges that prompted the probation revocation then he
cannot argue that the delay in holding the revocation hearing
resulted in restricting his personal liberty and, therefore,
prejudice would not be present. See Christmas at 1263 (citing
Clark, supra; Bischof, supra at 9.
The appellant in Christmas pled guilty On July 15, 2004 to
two violations of the Uniform Firearm Act ("UFA") and was
sentenced to forty-eight months of probation. Id. On July 19,
2005, the appellant was arrested for third degree murder and
other offenses. Id. On April 12, 2007 the appellant pled guilty
to third degree murder and possession of a firearm without a
license. Id. The court sentenced Appellant on these charges to
an aggregate of twenty-two and one-half (22 1/2) to forty-five
(45) years of incarceration. Id.On December 23, 2008, the court supervising the probation
court held a revocation hearing and on February 20, 2009, found
appellant's new convictions violated his probation imposed on
the 2004 UFA convictions. Id. The court revoked appellant's
probation and sentenced him to six (6) to twelve (12) years of
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incarceration, to run consecutive to the sentence imposed on
appellant's new convictions. Id. at 1261-62.
The Christmas court ruled that the appellant's new
convictions were conclusive violations of probation and
explained that the twenty-month delay between the appellant's
new convictions and his probation violation hearing was not
intrinsically reasonable. Id. (citing Woods, supra; Clark,
supra}. However, because the appellant was already incarcerated
for the twenty months delay he suffered no prejudice arising
from a loss of personal liberty during the delay. Christmas
(citing Clark, supra; Bischof, supra). The court affirmed the
judgment of sentence imposed following revocation of appellant's
probation. Commonwealth v. Christmas at 1264.
This matter is similar to Christmas and should be disposed
of in the same manner. Like Christmas, there has been a lengthy
delay between the probation violation and the revocation
hearing. However, the Appellant has suffered no prejudice
because he has been in custody continuously since 2002 for his
crimes that he was later convicted and thus has not lost any
personal liberty. Appellant's convictions in 2005 conclusively
established his violations of probation. Tellingly, Appellant
suffered no prejudice from the delay as he cites no loss of
favorable witnesses or evidence. See Christmas at 1264; Bischof,
supra. Thus, Appellant cannot meet the requisite prejudice
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required to avoid suffering the consequences of his continued
violent behavior.
Appellant further argues that his direct violation had
already been addressed by the State Parole Board at the time of
the violation. At the time of Appellant's 2002 arrest he was
still subject to state parole. Appellant served 28 months while
his case moved to trial. Appellant argued in his October 16,
2013 hearing that the parole board already violated him for the
2002 matter and the probation imposed by Judge Wogan would not
start until 2005. However, under Wendowski, the Appellant's
2002 actions can be considered an anticipatory breach of two of
the probationary components of the sentences that were imposed
by Judge Kafrissen. The parole board's ten year jurisdiction is
entirely distinct from the trial court's ten year probationary
supervision.
In summation, the Appellant cannot meet the necessary
standards in establishing that the trial court erred in revoking
probation and imposing a new sentence.
Appellant's second claim is: "b. The trial court erred in
basing its revocation and resentencing in part on appellant's
having been found guilty of 'misconduct' in state prison, where
neither the fact of the misconduct citations nor the behavior
alleged constituted a violation of the conditions of probation."
The Appellant's argument is flawed because a trial court
may revoke an inmate's probation sentence for misconduct in
state prison. Here, the facts of misconduct and the behavior
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alleged support the court's actions to revoke and resentence the
Appellant. Further, the Appellant's probation may be revoked and
revised for the aforementioned violations.
Probation may be revoked upon proof of the violation of
specified conditions of the probation. 42 Pa.C.S.A. § 9771. A
probation violation occurs whenever it is demonstrated that the
violator's conduct indicates that probation is an ineffective
way to effectively accomplish rehabilitation and prevent future
criminal conduct. Commonwealth v. Ortega, 2010 PA Super. 87,
995 A.2d 879 (2010, appeal denied, 20 A.3d 1211 (Pa. 2011);
Commonwealth v. A.R., 2010 PA Super. 4, 990 A.2d 1 (2010). A
court can alter the defendant's probation based on the
defendant's behavior. 42 Pa.C.S.A. § 9771.
42 Pa.C.S.A. § 9771 states:
(a) General Rule.- The court may revoke an order of probation upon
proof of the violation of specified conditions of the probation.
Upon revocation the sentencing alternatives available to the
court shall be the same as were available at the time of initial
sentencing, due consideration being given to the time spent
serving the order of probation.
(b) Revocation.- The court may revoke an order of probation upon
proof of the violation specified conditions of the probation.
Upon revocation the sentencing alternatives available to the
court shall be the same as were available at the time of initial
sentencing, due consideration being given to the time spent
serving the order of probation.
(c) Limitation on sentence of total confinement. - The court shall
not impose a sentence of total confinement upon revocation unless
it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that
he will commit another crime if he is not imprisoned; or
(3) such sentence is essential to vindicate the authority of the
court.
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42 Pa.C.S.A. § 9771
Further, probation may be revoked for technical violations.
Commonwealth v. Carver, 2007 PA Super. 122, 923 A.2d 495 (2007};
Commonwealth v. Sierra, 2000 PA Super. 151, 752 A.2d 910 (2000}.
Technical violations have included prison misconduct. See
Commonwealth v. Moore, 931 A.2d 49 (Memorandum Opinion, Doc. No.
1085 WDA 2006}. In Moore, the Superior Court affirmed the lower
court's decision to revoke and revise the defendant's probation
sentence due to a technical violation that occurred while he was
incarcerated and explained that a sentencing court may revoke
probation when it is proven that the defendant violated specific
conditions of the probation. Moore, No. 1085 WDA 2006 (citing
Commonwealth v. Infante, 585 Pa. 408, 419, 888 A.2d 783, 770
(2005)). When a court has determined that probation should be
revoked it can institute a punishment of total confinement; "a
sentence of total confinement may be imposed if and only if the
following conditions exist: (1) the defendant has been convicted
of another crime; or (2) the conduct of the defendant indicates
that it is likely he will commit another crime if he is not
imprisoned; or, (3) such a sentence is essential to vindicate
the authority of (the] court.n Moore, at 6 (quoting Commonwealth
v. Hoover, 909 A.2d 321, 323 (Pa.Super. 2006) (citing 42
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Pa.C.S.A. § 9771(c); Commonwealth v. Coolbaugh, 770 A.2d 788,
792 (Pa. Super. 2001)), 42 Pa.C.S.A. §977l(c).
However, for the purposes of this matter it is of little
consequence that this court took the Appellant's prison
misconducts into consideration when revoking and resentencing
him for probation violations because he was already convicted of
attempted murder, aggravated assault, and carrying a loaded
firearm without a license. Thus, a sentence of total confinement
for probation violations was proper because of the Appellant's
conviction in 2005.
The sentencing courts are empowered with a broad standard
to utilize in determining whether probation has indeed been
violated: "A probation violation is established whenever it is
shown that the conduct of the probationer indicates the
probation has proven to have been an ineffective vehicle to
accomplish rehabilitation and not sufficient to deter against
future antisocial conduct." Infante, supra at 421, 888 A.2d at
791 (quoting Commonwealth v. Brown, 503 Pa. 514, 524, 469 A.2d
1371, 1376 (1983) (citations omitted)).
Further, as stated above, the Superior Court holds:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun
service of his probation, he should commit offenses of
such nature as to demonstrate to the court that he is
unworthy of probation and that the granting of the
same would not be in subservience to the ends of
justice and the best interests of the public, or the
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defendant, the court could revoke or change the order
of probation. A defendant on probation has no
contract with the court. He is still a person
convicted of crime, and the expressed intent of the
Court to have him under probation beginning at a
future time does not "change his position from the
possession of a privilege to the enjoyment of right.
Commonwealth v. Wendowski, 420 A.2d 628, 630, 278 Pa. Super.
453, 457 (quoting Burns v. United States, 287 U.S. 216, 222
(1932)).
In Moore, the Commonwealth presented evidence at the
Defendant's Gagnon II hearing that he violated specific
conditions of his probation. Moore, at 7 (citing Infante,
supra). The court explained that when the defendant flooded his
jail cell he engaged in dangerous and threatening behavior,
violating conditions of his probation. Moore, at 7. Thus, the
Superior Court affirmed the trial court's decision to revoke the
defendant's probation while he was still incarcerated and prior
to the start of his probationary period. Moore, at 7 (citing
Hoover, supra; Wendowski, supra). Further, the Superior Court
explained that the defendant's conduct indicated that it was
likely he would re-offend if not imprisoned and that total
confinement was necessary to control the defendant. v. Moore, at
7-8, (citing Hoover, supra; Coolbaugh, supra).The Appellant committed the following violations while in
state custody: using profanity in 2005, for which he received 30
days of disciplinary custody; refusing to obey an order in 2007,
for which he received 30 days of disciplinary custody; for
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gambling in 2008, which he received 75 days in disciplinary
custody; for refusing to obey an order in 2008, for which he
received 45 days; and for possession of contraband in 2009,
which he received 30 days of disciplinary custody.
The Appellant's misconducts fall within the purview of
technical violations and therefore probation should be revoked
for this behavior. The technical violations while in state
custody make it highly likely that he will continue to violate
the laws of Pennsylvania upon his release.
Therefore, the trial court did not err in considering the
Appellant's prison misconducts in revoking and resentencing the
Appellant for probation violations.
Appellant's third claim is: ''c. The trial court erred in
basing its new sentence on appellant's refusal to 'accept
responsibility' with regard to a separate·criminal matter, his
assertion that his trial on that separate matter was conducted
unfairly, and his continuing attempts to pursue post-conviction
relief as to that separate matter.''
The Appellant is incorrect in his argument that this court
based its new sentence on his assertion that his trial on a
separate criminal matter was conducted unfairly, and/or his
continuing attempts to pursue post-conviction relief as to the
separate criminal matter. Rather, this court based its new
sentence on Appellant's criminal actions in which he left his
victim in a wheelchair and paralyzed from the waist down for the
rest of his life as well as his misconducts in prison.
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Appellant's argument is also flawed because a trial court
may consider the offender's remorse or lack of remorse prior to
sentencing.
Simply, the Appellant's argument that the trial court based
its new sentence solely on Appellant's refusal to accept
responsibility for his actions is without merit.
Contrary to Appellant's contentions, it is entirely
appropriate for this court to base its new sentence on
appellant's failure to 'accept responsibility.' A trial judge
may consider many factors when imposing a sentence, including:
the seriousness of the offense; the situation that faced first
responders; the impact of the crime on the victim's family and
friends; the de£endant's unwi11ingness to accept responsibility;
and defendant's misconduct while incarcerated. Commonwealth v.
Miller, 2009 PA Super 14, 965 A.2d 276, 280 (2009) (emphasis
added).
Additionally, the Superior Court has held that the trial
court is in the best position to judge the defendant's character
and sentence appropriately:
We must accord the sentencing court great weight as it
is in the best position to view the defendant's
character, displays of remorse, defiance or
indifference, and the overall effect and nature of the
crime. An appellate court will not disturb the lower
court's judgment absent a manifest abuse of
discretion. In order to constitute an abuse of
discretion, a sentence must either exceed the
statutory limits or be so manifestly excessive as to
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constitute an abuse of discretion. Further, a
sentence should not be disturbed where it is evident
that the sentencing court was aware of sentencing
considerations and weighed the considerations in a
meaningful fashion.
Commonwealth v. Miller at 277 (quoting Commonwealth v. Fish, 752
A.2d 921, 923 (Pa. Super. 2000)).
Although the trial court based its decision of revoking and
resentencing for probation violations on Appellant's criminal
actions, if the trial court had based its decision on
Appellant's reluctance to accept responsibility it would have
been permitted to do so.
Specifically, the court stated, during the October 16, 2013
hearing: "Eleven years after you helped put a man in a
wheelchair, you're still not sorry for it. You still don't show
any remorse. You still don't accept any responsibility."
The court was pointing to the Appellant's lack of remorse
after serving over eleven years in prison, which is indicative
of the Appellant's potential to reoffend.
The Appellant's unwillingness to accept responsibility and
the consequences of his actions is clear evidence that he
believes his behavior is acceptable. Thus, it is proper for
this court to incorporate the Appellant's refusal to accept
responsibility for his actions into the sentence.
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The trial court did not err in considering the Appellant's
behavior and failure to accept responsibility for his violent
crimes when fashioning an appropriate sentence.
Appellant's fourth claim is: "d. The trial court erred in
refusing to recuse itself on appellant's motion, where the court
had demonstrated the existence or appearance of bias, animus,
and lack of impartiality towards appellant by, inter alia:
conducting its own investigation of a probation case in which it
had no prior involvement, which investigation it initiated in
response to appellant's legal filings in an unrelated matter;
assuming or arranging to assume supervision of appellant's
probation even though it had already conducted an independent
investigation, and doing so with the apparent intention of
finding him in violation; and referring to appellant as, among
other things, a "liar," a "violent thug," and a "one-man crime
wave."
The Pennsylvania Supreme Court presumes that judges of its
courts are "honorable, fair and competent,u and, when faced with
a demand for recusal, can determine on their own whether they
can hear the case impartially and without prejudice.
Commonwealth v. Kearney, 2014 PA Super. 97 (Pa. Super. Ct. May
6, 2014) (quoting Commonwealth v. White, 557 Pa. 408, 734 A.2d
374, 384 (1999)). A trial judge should recuse himself when a
reasonable question of impartiality is presented, even if actual
prejudice is not found; however, a judge's recusal decision will
not be bothered unless there is an abuse of discretion or bias.
Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993).
Recusal of a judge is unnecessary unless there is an allegation
or showing of specific prejudgment or bias against the
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petitioner . . Commonwealth v. Jones, 541 Pa. 361, 663 A.2d
142 (1995). The party seeking disqualification bears the burden
of producing evidence that demonstrates the bias, prejudice, or
unfairness that requires the trial judge's recusal. Kearney,
2014 PA Super. 97 (citing Commonwealth v. Darush, 501 Pa. 15,
459 A.2d 727, 731 (1983)).
Here, the court called the Appellant a liar because he has
lied throughout his PCRA petition concerning the victim's
inability to speak while in intensive care with tubes inserted
in his throat. The court is not required to ignore the
petitioner lying about what happened at trial and this
recognition does not constitute bias.
However, alleged bias based on the words of the trial judge
and that allegedly result from the facts revealed from the
matter will rarely be grounds for recusal. Kearney 2014 PA
Super. 97 (citing Commonwealth v. Druce, 577 Pa. 581, 848 A.2d
104, 110 (2004)) (emphasis added). The recent Kearney opinion
cited Liteky in support of its decision:
[O]pinions for~ed by the judge on the basis of facts
introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion
unless they displace a deep-seated favoritism or
antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of trial that
are critical or disapproving of, or even hostile to,
counsel, the parties or their cases, ordinarily do not
support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an
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extrajudicial source;and they will do so if they
reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible .... Not
establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what
imperfect men and women, even after having been
confirmed as [ ] judges, sometimes display. A
judge's ordinary efforts at courtroom administration -
even a stern and short-tempered judge's ordinary
efforts at courtroom administration - remain immune.
Commonwealth v. Kearney, 2014 PA Super. 97 (quoting Liteky v.
U.S. 510 U.S. 540, 555-56, 114 S.Ct. 1147 (some emphasis in
original, some emphasis deleted, some emphasis added) (citations
omitted).
Here, the trial judge's remarks were in an effort to
control his courtroom and fall within the precedent cited
herein.
Some examples cited by the Appellant are as follows:
You make up stories about things I've said. I haven't
seen you since the sentencing, you liar. You've been
demanding that I recuse myself. You don't like me
having your case because I do my job. That's what you
don't like.
March 7, 2014 VOP sentencing hearing (22:20-:25).
Twelve years later, this is no longer a guessing
project. This is now known after twelve years that
you don't have one shred of remorse for what you did
to that poor victim. You haven't accepted any
responsibility and you keep blaming detectives and
blaming the victim when the only people who weren't
truthful about any of this were you and Mr. Holmes.
My obligation hasn't ended. I know approximately when
you're supposed to be paroled, but I will say you are
a violent thug who frightens me, who frightens. It's
incredible that you have with - I read in this report
that you're only out for eight months or so and you've
been in custody since the date of your arrest on March
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18, 2002 and you still manage to get 28 adult arrests.
How did you do that? You're a one man crime wave, a
one man crime wave. And, yes, you are a danger to
society.
March 7 VOP sentencing hearing (50:14-51:10).
These comments by this court fall into the Liteky precedent
as they do not support a bias against the Appellant. Rather, it
was this court's efforts to control its courtroom.
The Liteky Court went on:
As Judge Jerome Frank pithily put it: "Impartiality is
not gullibility. Disinterestedness does not mean
child-like innocence. If the judge did not form
judgments of the actors in those court-house dramas
called trials, he could never render decisions." In re
J.P. Linahan, Inc., 138 F.2d 650, 654 (C.A.2 1943).
Also not subject to deprecatory characterization as
"bias" or "prejudice" are opinions held by judges as a
result of what they learned in earlier proceedings.
It has long been regarded as normal and proper for a
judge to sit in the same case upon its remand and to
sit in successive trials involving the same defendant.
Kearney, (quoting Liteky, supra at 551 (emphasis added). Accord
Commonwealth v. Bryant, 328 Pa.Super. 1, 476 A.2d 422, 424 n. 1
(1984) ("A judge is not automatically disqualified from hearing
a case merely because he has presided over prior cases involving
the same defendant.") ( citations omitted) .
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Moreover, it is ludicrous to assert that the trial court
conducted its own independent investigation in this case. Judge
Kafrissen's probation case was properly assigned to this court
by court administration. The Appellant seems to argue that once
a judge retires, as Judge Kafrissen has, then all of his
probationary sentences disappear and it is somehow improper for
a sitting judge to be assigned such cases. Further, a judge
reading a presentence report which contains a defendant's
criminal record does not equate to the court conducting its own
independent investigation. Simply, it is patently absurd to call
the PCRA case an "unrelated" matter as the appellant has. A
conviction in 2005 which violates probation from a 1995 case is
clearly related and the Appellant's prose distortions of trial
testimony show that paralyzing the victim means absolutely
nothing to him.
Appellant's fifth claim is: "e. The trial court's sentence
of five to ten years, imposed consecutively to a twenty-five to
fifty year sentence already being served, was excessive and an
abuse of discretion, insofar as it was vastly disproportionate
to the technical violations alleged, far surpassed what was
necessary to protect the conununity or foster appellant's
rehabilitation, and was the produce of bias and-animus on the
part of the court."
The Appellant is incorrect in his argument that this
court's sentence was excessive and an abuse of discretion. The
sentence was appropriate and within this court's rights.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
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disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion
is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias, or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006) (citation omitted)) .
"When imposing a sentence, the sentencing court must
consider the factors set out in 42 P.C.S.A. § 9721(b), that is,
protection of the public, gravity of offense in relation to
impact on victim and community, and rehabilitative needs of the
defendant .... " Id. When crafting a sentence, a court must
take into account the circumstances of the crime and the
character of the defendant. Commonwealth v. Griffin, 804 A.2d
1, 10 (Pa. Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d
1198 (2005) cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). This court did exactly that in crafting its
sentence. As this court stated in the October 16, 2013 VOP
Hearing:
You always wonder, if you're a judge, am I striking
the balance right, am I really protecting society by
giving him a 26-1/2 year minimum sentence when I could
have given him a 35 year, perhaps, minimum sentence?
There's a chance that he can be rehabilitated.
I know now you can never be rehabilitated. You put
this individual in a wheelchair on February 8, 2002.
This is 11-1/2 years later. And all the things you
filed. You're still calling him a liar. You're
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stilling calling the detective a liar. You have no
potential for remorse.
October 16, 2013 VOP Hearing, 51:21-52:08.
The court clearly took into account the circumstances of
the crime and the character of the defendant when crafting a
sentence for the Appellant's violations of probation. See
Griffin, supra. Also, the court reiterated its responsibility
in the March 7, 2014 VOP sentencing proceeding: "When I framed
those sentences back in 2005, my obligation was to balance my
duty to protect the public against your potential for
rehabilitation.n March 7, 2014 VOP Sentencing, 49:24-50:03.
This court's VOP sentence of five to ten years, imposed
consecutively to a twenty-five to fifty year sentence already
being served was an attempt to balance the public's protection
against the Appellant's potential for rehabilitation and in no
way an abuse of this court's discretion. See Commonwealth v.
Ware, 737 A.2d 251, 254 (Pa. Super. 1999) (sentencing court
empowered to impose statutory maximum upon revocation of
probation); Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super.
2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (''the
trial court was correct in determining that a sentence of total
confinement was necessary to vindicate the authority of the
court because [a]ppellant had demonstrated an unwillingness to
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comply with the multiple court orders entered in this case. We
find no abuse of discretion in sentencing").
Based on the above, it is clear that there was no abuse of
discretion where this court imposed an individualized sentence
balancing its duty to the public with the Appellant's total lack
of potential for rehabilitation.
Conclusion
The issues raised in defendant's appeal are without merit.
Defendant's VOP sentences should remain.
BY THE COURT:
(f wo~,``
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