Com. v. Pedrick, A. ( 2017 )

J-A14043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ASHLEY PEDRICK,
Appellant No. 1574 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-MD-0000122-2016
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 30, 2017
Appellant, Ashley Pedrick, appeals from the judgment of sentence
imposed after she was held in criminal contempt of court.1 We affirm
Appellant’s judgment of sentence, but remand for the correction of a clerical
error in the record.
The trial court summarized the factual and procedural history of this
case as follows:
[Appellant] and her co-defendant were charged with
robbery and related offenses.1 Her case was held for court on
December 4, 2015, with a next scheduled court date of January
27, 2016. [Appellant] failed to appear on that date. Her
attorney stated that [Appellant] was possibly injured by a
gunshot wound and requested a continuance for further
investigation. A judge–only bench warrant was issued by the
____________________________________________
1 42 Pa.C.S. § 4132(3).
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Honorable Robert P. Coleman and that next court date was listed
for February 24, 2016. [Appellant] failed to appear and Judge
Coleman issued another judge-only bench warrant.
1 This robbery case was docketed as CP-51-CR-
0012246 -20[1]5.
On March, 9, 2016, [Appellant] appeared before this
[c]ourt for a contempt hearing. This [c]ourt reviewed her
history of failing to appear at prior court dates. Defense counsel
Sonya Gross, Esquire stated that she had told the [c]ourt about
[Appellant’s] possible gunshot wound on January 27 because
that was the rumor she heard from other people; however, it
was later found to be untrue. Ms. Gross further stated that she
failed to send [Appellant] notice of her next court date on
February 24, 2015 and took full responsibility for her failure to
appear. Ms. Gross stated that [Appellant] told her that
[Appellant] failed to appear on January 27 because she had an
abscess and was receiving medical treatment. [Appellant] told
Ms. Gross that she lost her receipt from that doctor’s
appointment. Ms. Gross further stated that [Appellant] told her
that she tried to call the courtroom that day but did not have the
phone number, and was given the incorrect phone number when
she called police headquarters. Ms. Gross stated that
[Appellant] told her that she was unable to use public
transportation to travel to the courthouse after her treatment
because she didn’t have any money.
Jessica Chung, Esquire, on behalf of the Commonwealth,
stated that [Appellant] also failed to appear for a court date in
2014. She asked that this Court raise bail in this matter to
$100,000.
***
This [c]ourt found that [Appellant] willfully failed to appear
and found her in contempt. Ms. Gross stated that she did not
know this was a contempt hearing and objected to the admission
of prior bench warrant history. This [c]ourt replied that the prior
bench warrant history was not taken into consideration; rather,
this [c]ourt explained that [Appellant] did not have a legitimate,
credible excuse for failing to appear.
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***
This [c]ourt found [Appellant] in contempt and sentenced
her to 2 months and 28 days to 5 months and 29 days of county
incarceration, with credit for time served if applicable. Ms. Gross
rejected the Commonwealth’s offer and requested a date for
trial.
On March 18, 2016, defense counsel filed a motion in
arrest of judgment, arguing that neither she nor the
Commonwealth had argued “as to the culpability for the criminal
offense of contempt” and that neither she nor the
Commonwealth were on notice that a contempt hearing would be
held that date. Defense counsel further argued that “poverty
and an inability to pay carfare were not “willful” acts.
On April 6, 2016, defense counsel appeared before this
[c]ourt without [Appellant] and asked this [c]ourt to grant her
motion in arrest of judgment based upon an alleged lack of
notice to counsel regarding the contempt hearing as well as this
[c]ourt’s finding of contempt based upon [Appellant’s] lack of
transportation funds. Defense counsel asked that this [c]ourt
vacate the sentence. This [c]ourt stated that counsel had notice
that there would be a “Judge-Only Bench Warrant” hearing, as
the court file was clearly marked and there was no other issue
except contempt if this [c]ourt found that [Appellant] willfully
failed to appear. This [c]ourt further stated that it did not find
[Appellant’s] testimony stating various reasons for failing to
appear to be credible.
On April 8, 2016, this [c]ourt signed an order, in an
abundance of caution, vacating the sentence imposed on March
9, 2016 to allow for consideration of the motion in arrest of
judgment and the hearing on contempt. On the record, this
[c]ourt stated that while she had initially stated that this motion
would be denied by operation of law, she had reconsidered and
would allow a hearing on the matter with [Appellant] present so
that the record was clear and counsel could make argument on
the contempt offense.
On April 14, 2016, this [c]ourt conducted the hearing
referenced in the April 8, 2016 order. Defense counsel put forth
a motion for recusal, arguing that this [c]ourt was no longer
neutral and requested a new judge to hear the matter. This
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motion was denied. Defense counsel then stated that she did
not have any new testimony or evidence to present regarding
whether [Appellant] was in contempt when she failed to appear
on January 27, 2016. She reiterated that [Appellant] had been
in the hospital that day, checked herself out against medical
advice, did not have the correct telephone number for the
courtroom, and did not have funds to pay for transportation to
the courthouse. Defense counsel argued that lack of funds was
not a “willful” failure to appear. This [c]ourt asked defense
counsel whether she had any documentation showing that
[Appellant] had been hospitalized that day and she did not.
Based upon this argument and lack of new evidence, this [c]ourt
found [Appellant] in contempt for failing to appear that day. . . .
The Commonwealth recommended the same sentence
[Appellant] received the first time: 2 months and 28 days to 5
months and 29 days county incarceration. This [c]ourt agreed
with the Commonwealth and imposed the same sentence. Last,
this [c]ourt denied defense counsel’s oral motion to set bail.
On May 13, 2016, [Appellant] filed a Notice of Appeal to
Superior Court. On May 20, 2016, [Appellant’s] robbery charge
was dismissed because the Commonwealth was not ready to
proceed on that date. On July 13, 2016, upon receipt of all
notes of testimony, this [c]ourt ordered defense counsel to file a
Concise Statement of Errors Complained of on Appeal pursuant
to Pa.R.A.P. 1925(b) and defense counsel did so on July 21,
2016.
Trial Court Opinion, 10/25/16, at 2-5.
Appellant presents the following issues for our review:
1. Where the only evidence at trial is that an individual
did not appear for a scheduled court appearance, whether that is
sufficient under Pennsylvania law and the Due Process Clause to
establish the element of a wrongful, willful intent that is
necessary for a conviction for criminal contempt?
2. Where a judge has made an adverse credibility
determination against [Appellant] and convicted and sentenced
her for non-summary criminal contempt, is it not an abuse of
discretion and a violation of Due Process rights to refuse recusal
at a new trial after the first adjudication was vacated?
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Appellant’s Brief at 7.
We first note that Appellant’s sentence entered April 14, 2016,
indicates that she was convicted of contempt under 42 Pa.C.S. § 4137(a)(2).
Order of Sentence Contempt of Court, 4/14/16, at 1. The order, however,
sentenced Appellant to a minimum of two months, twenty-eight days, to a
maximum of five months, twenty-nine days in county prison. Id.
Section 4137 provides, in relevant part, as follows:
§ 4137. Contempt powers of magisterial district judges
(a) General rule.--A magisterial district judge shall have the
power to issue attachments and impose summary punishments
for criminal contempts of a magisterial district judge court in the
following cases:
***
(2) Failure of a person to obey lawful process in the nature
of a subpoena issued by a magisterial district judge.
***
(c) Punishment.--Punishment for contempt specified in
subsection (a)(1) or (3) may be a fine of not more than $100 or
imprisonment for not more than 30 days, or both. Punishment
for contempt specified in subsection (a)(2) shall be a fine of not
more than $100. Failure to pay within a reasonable time could
result in imprisonment for not more than ten days. Punishment
for contempt specified in subsection (a)(5) shall be in
accordance with that specified in 23 Pa.C.S. § 6114(b) (relating
to contempt for violation of order or agreement). Punishment
for contempt in subsection (a)(4) would be imprisonment for not
more than 90 days.
42 Pa.C.S. § 4137.
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Thus, Section 4137 applies to magisterial district judges. Additionally,
a finding of contempt under Section 4137(a)(2) allows for a maximum fine
of $100. 42 Pa.C.S. §§ 4137(a)(2), (c). Accordingly, the imposition of
contempt under this provision is inappropriate. Indeed, in its Pa.R.A.P.
1925(a) opinion the trial court properly stated that 42 Pa.C.S. § 4137 is
inapplicable to the case at bar. Trial Court Opinion, 10/25/16, at 11-12. As
the trial court explained: “This statute is inapplicable. This [c]ourt is not a
magisterial district court; it is the Court of Common Pleas.” Id. at 12.
Without acknowledging the reference to Section 4137 in its April 14, 2016
order, the trial court identifies 42 Pa.C.S. § 4132(3), quoting “the power of
the several courts of this Commonwealth to issue attachments and to
impose summary punishments for contempts of court shall be restricted to
the following cases: . . . the misbehavior of any person in the presence of
the court, thereby obstructing the administration of justice.” Id. at 12.
Section 4132 provides, in relevant part, as follows:
§ 4132. Attachment and summary punishment for
contempts
The power of the several courts of this Commonwealth to issue
attachments and to impose summary punishments for contempts
of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such
courts respectively.
(2) Disobedience or neglect by officers, parties,
jurors or witnesses of or to the lawful process of the
court.
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(3) The misbehavior of any person in the presence of
the court, thereby obstructing the administration of
justice.
42 Pa.C.S. § 4132.
After considering the plain terms of the relevant statutes, it is evident
that the trial court found Appellant in contempt of court under 42 Pa.C.S. §
4132(3). Trial Court Opinion, 10/25/16, at 12. The trial court demonstrated
its understanding of the distinction between the two statutes as reflected in
its explanation of the inapplicability of Section 4137 in its opinion. It
appears that after the trial judge found Appellant guilty of criminal contempt
and sentenced Appellant in open court to a term of two months and twenty-
eight days to five months and twenty-nine days in the county jail, N.T.,
4/14/16, at 25, the trial judge mistakenly signed a sentencing order, which
declared that Appellant had been found in contempt under 42 Pa.C.S. §
4137(a)(2). As such, the reference to Section 4137 in the April 14, 2016
order constitutes a mere clerical error.
“A trial court has the inherent, common-law authority to correct ‘clear
clerical errors’ in its orders.” Commonwealth v. Thompson, 106 A.3d
742, 766 (Pa. Super. 2014) (internal corrections omitted) (quoting
Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc)).
“This authority exists even after the 30–day time limitation for the
modification of orders expires.” Thompson, 106 A.3d at 766; 42 Pa.C.S. §
5505. As our Supreme Court explained:
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[The Pennsylvania Supreme Court has] set a high bar for
differentiating between errors that may be corrected under the
inherent powers of trial courts, and those that may not,
describing correctible errors as those determined to be “patent
and obvious mistakes.” The term “clerical error” has been long
used by our courts to describe an omission or a statement in the
record or an order shown to be inconsistent with what in fact
occurred in a case, and, thus, subject to repair. See, e.g.,
Commonwealth v. Silcox, 29 A. 105, 106 (Pa.1894)
(upholding the trial court’s direction to correct a “clerical”
omission and amend the record to state that the defendant was
present at every stage of the proceedings); Commonwealth v.
Liscinsky, 171 A.2d 560, 561 (Pa.Super.1961) (explaining that
the sentencing order contained a “clerical” error subject to
correction, as it did not reflect that the trial court specifically
stated at sentencing that the sentence it imposed was effective
on expiration of defendant’s federal sentence); Commonwealth
v. Mount, 93 A.2d 887, 888 (Pa.Super.1953) (“Clerical errors”
or inaccuracies in docket entries [or orders] may be corrected by
the trial court so that they conform to the facts.”).
Commonwealth v. Borrin, 80 A.3d 1219, 1227–1228 (Pa. 2013) (some
internal citations omitted). Thus, we remand the case so that the trial court
may correct the clerical error in the record.
Turning to the merits of this appeal, Appellant first argues that there
was insufficient evidence to convict her of criminal contempt. Appellant’s
Brief at 10. Appellant asserts that the Commonwealth did not present any
evidence at the April 14, 2016 hearing. Id. at 10. Thus, Appellant
contends, the trial court convicted Appellant of criminal contempt without
any evidence of a critical element of the offense, specifically, wrongful,
willful intent. Id. at 11. Appellant maintains that non-appearance at a
scheduled court date does not establish the element of wrongful intent
necessary to a conviction of criminal contempt. Id. at 12. Appellant further
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asserts that the trial court’s conviction of criminal contempt violates her due
process rights because the Commonwealth did not prove every element of
the offense beyond a reasonable doubt, and the burden was improperly
shifted to her to prove her innocence. Id. at 11. According to Appellant,
the conviction should be vacated and judgment should be arrested. Id. at
14.
Our standard of review is well established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder[’s]. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
The power of the courts
to impose summary punishments for contempts of court shall be
restricted to ... cases ... where the misbehavior of any person in
the presence of the court ... obstructs the administration of
justice. To sustain a conviction for direct criminal contempt
under [Section 4132(3)] there must be proof beyond reasonable
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doubt (1) of misconduct, (2) in the presence of the court, (3)
committed with the intent to obstruct the proceedings, (4) that
obstructs the administration of justice.
Commonwealth v. Moody, 125 A.3d 1, 5 n.4 (quoting Williams v.
Williams, 721 A.2d 1072, 1073 (Pa. 1998)).
Our courts have interpreted the phrase “in the presence of the court”
in a relatively expansive fashion, so that the phrase extends beyond “those
acts that the judge sees with his or her own eyes.” Commonwealth v.
Brown, 622 A.2d 946, 948 (Pa. Super. 1993). As summarized by this
Court:
many prison sentences for direct contempt have been upheld
although the act was not committed “in front of” the judge
finding the contempt. See Commonwealth v. Crawford, 352
A.2d 52 (Pa.1976) (contemnor stated he would not testify
though he did not actually refuse to answer questions in open
court); Commonwealth v. Shaw, 421 A.2d 1081(Pa.Super.1980) (defendant failed to return to court for
afternoon session); Rosenberg Appeal, 142 A.2d 449(Pa.Super.1958) (holding that, in proceedings before a grand
jury, a witness’ refusal to testify is considered as taking place in
the presence of the court).
Brown, 622 A.2d at 948. Additionally, “[t]he minimum intent required to
prove criminal contempt is ‘a volitional act done by one who knows or should
reasonably be aware that his conduct is wrongful.’” Commonwealth v.
Debose, 833 A.2d 147, 149 (Pa. Super. 2003).
With regard to the fourth element of contempt, it is well-
established that for conduct to constitute an obstruction of the
administration of justice, it must significantly disrupt the
proceedings. Contempt requires “actual, imminent prejudice to
a fair proceeding or prejudice to the preservation of the court’s
orderly procedure and authority.”
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Commonwealth v. Odom, 764 A.2d 53, 57 (Pa. Super. 2000) (internal
citations omitted).
Here, the trial court provided the following explanation for determining
there was sufficient evidence to support its determination that Appellant was
in contempt:
In the case at bar, the evidence was sufficient to support
this [c]ourt’s finding that [Appellant] was in contempt for failing
to appear in court. The record shows that on January 27, 2016,
this [c]ourt was convened and open for the transaction for
business. [Appellant] was scheduled to appear that day and had
proper notice of the proceedings. However, [Appellant] failed to
appear; thereby obstructing the operations of this [c]ourt as it
could not proceed with her matter that day. This [c]ourt issued
a judge-only bench warrant. On March 9, 2016, when
[Appellant] appeared for the judge-only bench warrant hearing,
she stated that she failed to appear because she was in the
hospital for an abscess, that she checked herself out against
medical advice, that she didn’t know the phone number to the
courtroom, that she called police headquarters and that they
gave her incorrect contact information for the courtroom, and
that she didn’t have any money for public transportation. This
[c]ourt did not find [Appellant] to be credible. Rather, this
[c]ourt found that [Appellant] willfully failed to appear. Later,
after defense counsel filed and argued motions regarding lack of
notice for the contempt hearing, this [c]ourt vacated the original
sentence and conducted a second hearing so that defense
counsel and [Appellant] could prepare additional arguments and
provide documentation to support their claims. At the second
hearing on April 14, 2016, defense counsel made the same
arguments and did not provide any documentation, such as
hospital discharge paperwork or a doctor’s note, to support
[Appellant’s] story that she had been hospitalized that day for an
abscess. Based upon this information, this [c]ourt once again
found [Appellant] in contempt and imposed the same sentence
of 2 months 28 days to 5 months 29 days county incarceration.
This finding of contempt was based upon sufficient evidence;
specifically, that [Appellant] knew she was supposed to appear
in court, she failed to appear that day, she was of adult age and
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had prior experience with the court system, and could not
provide any reasonable legitimate excuse for her failure to
appear.
[Appellant] further claims that this [c]ourt improperly
“shifted the burden of proof” to her, arguing that this [c]ourt
failed to presume [Appellant] innocent and put the burden on
[Appellant] “to introduce evidence that would prove her
innocence.” This claim is without merit. [Appellant] was not
required to prove her innocence; rather, [Appellant] was given
the opportunity to prepare and present her defense. The record
was clear that [Appellant] failed to appear at her January 27,
2016 court date, despite having received adequate notice.
[Appellant] initially stated that she had been hospitalized, then
she said she didn’t have the phone number for the courtroom,
then she said she received incorrect contact information from the
police, then she said she didn’t have money for transportation.
This [c]ourt did not find her version of events to be credible. At
the second hearing scheduled, after the Commonwealth and the
[c]ourt file demonstrated that [Appellant] had failed to appear,
[Appellant] was given a second opportunity, if she chose to do
so, to present any documentary evidence which would support
her position. This was not improperly shifting the burden of
proof; rather, it was another chance to rebut the evidence that
showed she willfully failed to appear for court and possibly to
lend some credibility to her version of events. [Appellant] failed
to do so; therefore, this [c]ourt once again found her in direct
criminal contempt beyond a reasonable doubt for failing to
appear in court.
Trial Court Opinion, 10/25/16, at 8-9.
We agree with the trial court’s analysis and conclusion. Appellant does
not assert that she did not have proper notice of the court date for which
she failed to appear. Instead, she provided an excuse, indeed multiple
contradictory excuses, for her failure to appear at the court proceeding
without providing any proof to support her claim. The trial court found her
explanation to be incredible. Pennsylvania courts have upheld convictions
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for direct criminal contempt in similar situations. In Commonwealth v.
Ferrara, 409 A.2d 407, 410–411, 412 n.5 (Pa. 1979), our Supreme Court
held that two defendants were in direct criminal contempt of court where
“the clerk of courts sent notices to the last known addresses of appellants
(each of whom [was] released on bail), notifying them of the dates for
arraignment and the commencement of trial; however, neither appellant
appeared on the specified dates.” See also Commonwealth v. Edwards,
703 A.2d 1058, 1060 (Pa. Super. 1997) (holding that the failure to appear in
court as required by previous court proceedings may be considered an act of
direct criminal contempt when the defendant is finally brought to court);
Commonwealth v. Marcone, 410 A.2d 759, 764 n.5 (Pa. 1980) (“there is
authority for finding a deliberate and unexcused absence by counsel from a
scheduled court appearance to be direct contempt. The gravamen of this
type of misconduct is the absence which is witnessed by the court”). Thus,
we agree that there was sufficient evidence to establish that Appellant was
in direct criminal contempt.
Furthermore, the trial court did not shift the burden to Appellant and
thereby require her to prove her innocence, as maintained by Appellant.
The Commonwealth established the elements of the crime of contempt
beyond a reasonable doubt. The trial court gave Appellant an opportunity to
rebut that determination by allowing her to prove that her absence was not
volitional. Appellant failed to take advantage of that opportunity. Thus, we
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agree with the trial court that there was sufficient evidence to support the
conviction of criminal contempt.
In her second issue, Appellant argues that the trial judge, Judge
Genece E. Brinkley, abused her discretion and violated due process by
refusing to recuse herself from the April 14, 2016 hearing, which Appellant
maintains was a new trial for non-summary criminal contempt. Appellant’s
Brief at 15. Appellant asserts that at the March 9, 2016 proceeding, Judge
Brinkley made a credibility determination against Appellant and found her in
criminal contempt and accordingly sentenced her. Id. at 15. Appellant
argues that she had no notice that the March 9, 2016 proceeding would be a
contempt hearing and instead believed it was simply a bench warrant
hearing. Id. at 15. Appellant posits that in response to Appellant’s motion
to vacate the verdict and sentence of March 9, 2016, Judge Brinkley vacated
the sentence and scheduled a criminal contempt trial for April 14, 2016. Id.
In further support of her claim that the trial judge should have recused,
Appellant provides the following argument:
The defense moved for recusal based on the judge’s prior
adverse credibility determination in finding [Appellant] guilty and
sentencing her for criminal contempt after the bench warrant
hearing on March 9, 2016. There was no jurisprudential reason
for Judge Brinkley to retain the case for this trial because she
was not even the judge who issued the bench warrant in
question and it was a non-summary trial involving a non-
appearance at a court proceeding months earlier. Nevertheless,
the judge denied the recusal motion, thus abusing her discretion
and denying due process of law.
***
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In this case, where [Appellant] had no right to a jury trial, she
was entitled to a judge only trial with a judge who had not made
an adverse critical credibility determination against her at the
vacated proceeding, and who had not thought it appropriate to
convict and sentence her for criminal contempt without any
notice that there was even a contempt trial taking place.
Appellant’s Brief at 18-19.
Our standard of review is well settled:
[Our Supreme] Court presumes judges of this
Commonwealth are honorable, fair and competent, and, when
confronted with a recusal demand, have the ability to determine
whether they can rule impartially and without prejudice. The
party who asserts a trial judge must be disqualified bears the
burden of producing evidence establishing bias, prejudice, or
unfairness necessitating recusal, and the decision by a judge
against whom a plea of prejudice is made will not be disturbed
except for an abuse of discretion.
As a general rule, a motion for recusal is initially directed
to and decided by the jurist whose impartiality is being
challenged. In considering a recusal request, the jurist must
first make a conscientious determination of his or her ability to
assess the case in an impartial manner, free of personal bias or
interest in the outcome. The jurist must then consider whether
his or her continued involvement in the case creates an
appearance of impropriety and/or would tend to undermine
public confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make. Where a
jurist rules that he or she can hear and dispose of a case fairly
and without prejudice, that decision will not be overruled on
appeal but for an abuse of discretion.
[A] trial judge should recuse himself whenever he has any
doubt as to his ability to preside impartially in a criminal case or
whenever he believes his impartiality can be reasonably
questioned. It is presumed that the judge has the ability to
determine whether he will be able to rule impartially and without
prejudice, and his assessment is personal, unreviewable, and
final. Where a jurist rules that he or she can hear and dispose of
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a case fairly and without prejudice, that decision will not be
overturned on appeal but for an abuse of discretion.
Commonwealth v. Kearney, 92 A.3d 51, 60–61 (Pa. Super. 2014)
(internal citations and quotation marks omitted). Additionally, we have held
that “[i]n general, a judge before whom contemptuous conduct occurs has
the power to impose punishment for such conduct and appropriate sanctions
without recusing himself. However, recusal is required if there is a running,
bitter controversy between the judge and offender.” Debose, 833 A.2d at
150.
In addressing Appellant’s motion for recusal, Judge Brinkley explained:
In the case at bar, this [c]ourt properly denied
[Appellant’s] motion for recusal as there was no evidence that
this [c]ourt could not preside impartially over [Appellant’s]
contempt hearing. Indeed, the [c]ourt had granted [Appellant]
an actual hearing on her motion in arrest of judgment which,
clearly, was not required. [Appellant] then asserted at this very
hearing that even though her request for a hearing had been
granted, that same judge could not be fair and impartial. This
claim is entirely without merit. While it is true that this [c]ourt
previously had found [Appellant] guilty of contempt, this second
hearing was an opportunity for [Appellant] to present new
arguments and evidence to support her claim that her failure to
appear on January 27, 2016 had not been willful. This [c]ourt
was more than able to listen to the evidence presented at the
second contempt hearing and fairly dispose of the case. As this
[c]ourt explained at the hearing, “So you have had actual notice
that this is now a contempt hearing; and that was done, if there
was any problem with notice, to correct that problem with
notice. That does not mean in any way that I am not able to be
fair to your client, so we’ll proceed.” [Appellant] produced no
evidence that this [c]ourt was biased or prejudiced toward her in
anyway [sic].
Trial Court Opinion, 10/25/16, at 10-11 (internal citation omitted).
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The sentence issued March 9, 2016, was vacated due to an arguable
procedural violation that Appellant was not provided sufficient notice of the
contempt hearing. The evidence of record reflects that out of an abundance
of caution, the trial court vacated the original contempt finding made on
March 9, 2016, provided Appellant notice of a subsequent contempt hearing,
and subsequently conducted a contempt hearing on April 14, 2016.
Appellant presented no evidence regarding her whereabouts on January 27,
2016, at the March 9, 2016 hearing, and also failed to present any at the
April 14, 2016 hearing. Thus, it cannot reasonably be concluded that Judge
Brinkley was prejudiced by testimony heard at the March 9, 2016 hearing.
Moreover, in addressing Appellant’s petition for recusal, Judge Brinkley
asserted that she was not biased toward or prejudiced against Appellant.
Trial Court Opinion, 10/25/16, at 11. Appellant has failed to establish
otherwise. Furthermore, Appellant does not allege and the record is devoid
of any evidence of a running or bitter controversy between Judge Brinkley
and Appellant. Because Appellant has failed to establish bias, prejudice, or
unfairness necessitating recusal, the trial judge’s decision to deny
Appellant’s request was not an abuse of discretion. Appellant’s second claim
fails. See Debose, 833 A.2d at 151 (recusal not required where court found
appellant in contempt, vacated ruling and ordered new hearing where no
impartiality on part of judge indicated).
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J-A14043-17
Judgment of sentence affirmed. Case remanded for the correction of a
clerical error. Jurisdiction relinquished.
P.J.E. Bender joins the Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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