Com. v. Allen, J. ( 2017 )

J-S03031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JACK EDWARD ALLEN :
:
Appellant : No. 965 WDA 2016
Appeal from the Order Entered June 22, 2016
in the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000738-1995
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ
JUDGMENT ORDER BY STRASSBURGER, J.: FILED FEBRUARY 22, 2017
Jack Edward Allen (Appellant) appeals from the order entered June 22,
2016, wherein the PCRA1 court denied his motion to recuse. Upon review,
we quash this appeal.
On July 19, 1995, Appellant shot his wife in the back of the head in the
presence of their children and several witnesses. She later died from this
injury. Appellant was convicted of, inter alia, first-degree murder, and he
was sentenced to life imprisonment.2 This Court affirmed Appellant’s
judgment of sentence on June 3, 2008, and our Supreme Court denied
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1
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2
Appellant was first convicted on April 24, 1996. On December 12, 2000,
Appellant obtained PCRA relief through this Court. A second trial
commenced on December 18, 2006, and Appellant was again convicted.
*
Retired Senior Judge assigned to the Superior Court.
J-S03031-17
Appellant’s petition for allowance of appeal on October 14, 2008.
Commonwealth v. Allen, 959 A.2d 456 (Pa. Super. 2008), appeal denied,
959 A.2d 927 (Pa. 2008).
On May 11 and June 13, 2016, Appellant filed PCRA petitions. The
case was assigned to Judge Frederic Ammerman, who had presided over
Appellant’s second jury trial.3 On June 20, 2016, Appellant filed a motion to
recuse Judge Ammerman. The PCRA court denied that motion on June 22,
2016. Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
In considering whether an appeal from an order denying a motion to
recuse is appealable, this Court has held the following.
This Court ordinarily has jurisdiction only over appeals taken
from final orders. As defined in the Pennsylvania Rules of
Appellate Procedure, a final order disposes of all claims and of all
parties. A final order may also be defined as final by a statute or
may be made final if an order disposes of fewer than all claims
or parties if the trial court makes an express determination of
finality.
This Court has held that, pursuant to the above-mentioned rules,
a pre-trial motion seeking to recuse a judge from further
proceedings is not a final order. See Hahalyak v. Integra
Financial Corp., [] 678 A.2d 819 ([Pa. Super.] 1996); Kenis v.
Perini Corp., [] 682 A.2d 845 ([Pa. Super.] 1996). Moreover,
this Court has indicated that an appeal from a denial of a pre-
trial motion to recuse does not fit into any of the categories
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3
“Generally, it is deemed preferable for the same judge who presided at trial
to preside over the post-conviction proceedings since familiarity with the
case will likely assist the proper administration of justice.” Commonwealth
v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998). See also Pa.R.Crim.P. 903(A).
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J-S03031-17
listed in Rules 311 and 313, and, therefore, it is not an
interlocutory or collateral order that is immediately appealable.
See Hahalyak, supra; Kenis, supra.
Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. 1999) (some citations
omitted).4
Based on the foregoing, we quash this appeal.5
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
____________________________________________
4
We recognize that there are some circumstances where this Court has
found an order granting or denying a motion to recuse immediately
appealable. Commonwealth v. King, 839 A.2d 237 (Pa. 2003) (considering
an appeal where the PCRA court granted King’s request for recusal to
expedite the PCRA process in this capital case, and our Supreme Court
granted the Commonwealth’s petition for permission to appeal that order);
Commonwealth v. Stevenson, 829 A.2d 701 (Pa. Super. 2003)
(considering an appeal where the Commonwealth certified the order granting
Stevenson’s motion for recusal handicapped its case pursuant to Pa.R.A.P.
311(d)); Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (plurality)
(considering an appeal where the Commonwealth certified the order denying
its motion for recusal handicapped its case pursuant to Pa.R.A.P. 311(d)).
5
We point out to Appellant that “[t]he denial of a motion to recuse is
preserved as an assignment of error that can be raised on appeal following
the conclusion of the case.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014).
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