Com. v. Lucky, A. ( 2020 )

J-A27037-19
2020 Pa. Super. 39
COMMONWEALTH OF : IN THE SUPERIOR COURT
PENNSYLVANIA, : OF PENNSYLVANIA
:
Appellee :
:
v. :
:
AARON LUCKY, :
:
Appellant : No. 1672 EDA 2018
Appeal from the Judgment of Sentence May 4, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008044-2013
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED FEBRUARY 13, 2020
Aaron Lucky (Appellant) appeals from the judgment of sentence of three
and one-half to seven years of incarceration entered following the revocation
of his probation. Upon review, we vacate the judgment of sentence and
remand for resentencing.
We glean the following factual and procedural background from the
record. On January 23, 2014, Appellant pleaded guilty to one count of third
degree felony retail theft1 for stealing $120 worth of body wash from a
drugstore in Philadelphia. On March 13, 2014, the trial court sentenced
Appellant to 6 to 23 months of county incarceration, followed by three years
of reporting probation. On June 2, 2014, Appellant was granted parole.
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1 Appellant had at least two prior retail theft convictions. See Information,
6/28/2013, at 1 (unnumbered).
* Retired Senior Judge assigned to the Superior Court.
J-A27037-19
Subsequently, a bench warrant was issued for Appellant based on his
failure to report to his probation officer and one failed drug test. Appellant
was arrested on February 29, 2016. On March 18, 2016, after a Gagnon I2
hearing, the revocation court found Appellant in technical violation of his
probation. N.T., 3/18/2016, at 21. The revocation court deferred sentencing
pending the completion of pre-sentence investigation and mental health
evaluation reports. Id. at 21-22. At a hearing on June 1, 2016, the revocation
court revoked Appellant’s probation and sentenced Appellant to a statutory
maximum term of three and one-half to seven years of incarceration.
Appellant did not file post-sentence motions or a direct appeal.
On December 19, 2016, Appellant timely filed a pro se petition seeking
relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, claiming, inter alia, ineffective assistance of counsel for failure to
present witnesses and other evidence at his June 1, 2016 sentencing hearing.
Counsel was appointed and filed an amended PCRA petition on September 19,
2017, which included additional claims relating to counsel’s ineffectiveness at
the sentencing hearing, as well as counsel’s failure to file post-sentence
motions or a direct appeal. On March 2, 2018, with the agreement of the
parties, the PCRA court granted, Appellant a new sentencing hearing.
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (outlining the procedure for the
revocation of probation and parole).
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Supplemental pre-sentence investigation and mental health evaluation
reports were ordered.
The resentencing hearing was held on May 4, 2018. At the hearing,
Appellant presented the testimony of his employer and mother. Appellant was
working about 40-50 hours per week for a retail supply company at the time
of his arrest for violation of his probation. N.T., 5/4/2018, at 10, 12-13.
Appellant’s employer testified that Appellant was a “very hard-honest good
worker,” was “good with people,” went “way above and beyond” on the job,
and was punctual. Id. at 13. His employer testified that he had a full-time
job offer waiting for Appellant upon his release from prison. Id. at 13-14.
Appellant’s mother, who is in her seventies, testified that before and
during Appellant’s probation, he assisted his mother on a regular basis,
performing chores such as cleaning, cooking, and shopping. Id. at 19. She
also testified that she loves Appellant and he is “very good” to her, her
husband, and Appellant’s siblings. Id. at 20, 32.
In addition, Appellant’s counsel offered medical records and information
relating to Appellant’s significant medical needs. Id. at 23. During argument,
Appellant’s counsel asked the resentencing court to reconsider its prior
sentence of total confinement and to impose a sentence which amounted to
time-served, with possibly one year of probation, because Appellant had
already served about two years and seven months of incarceration on this
conviction. Id. at 24-25. His counsel argued that the factors to consider in
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resentencing Appellant were the nature of his underlying offense, retail theft;
that his probation violations were technical, i.e., failure to report and one
failed drug test; that he has a job waiting for him upon release; that he has a
loving and supportive family; and that his serious medical needs could be
better treated outside of prison. Id. at 24.
The Commonwealth joined Appellant’s request for a time-served
sentence with a period of probation, and indicated on the record that it
supported Appellant’s release and return to work.3 Id. at 26-27.
Next, Appellant addressed the court in allocution. He apologized and
took responsibility for his conduct that resulted in the technical probation
violations. Id. at 31. Appellant, who is in his fifties, also highlighted his lack
of any further criminal charges or convictions while on probation, his
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3 The prosecutor indicated that he had been instructed to recommend a
sentence of six to twelve months, but he did not think such a sentence was
necessary. The prosecutor explained as follows.
[ADA]: … At the risk of getting in trouble, I’ll be honest with you,
I don’t think six to 12 months is necessary here. I think, looking
at [Appellant’s] record, mainly his age, but even with the
exception of – there’s a couple – there’s a burglary and an
aggravated assault. Those did not result in convictions. They are
also from the 1980’s. Given the amount of time that he has spent
in custody, I’d actually join in the recommendation to reconsider
the sentence and give [Appellant] the opportunity to get out, to
work, place him on a new period of probation. I recognize that he
didn’t do all that well the first time on supervision, but the fact
that he served two-and-a-half years combined with the lack of
violence in his record, I think, I would like to see him do well with
getting out, so.
N.T., 5/4/2018, at 26-27.
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completion of a vocational program, his employment history, the length of
time he had already served on the retail theft conviction, his medical needs,
and his relationship with his aging parents. Id. at 28-35.
The resentencing court then considered the pre-sentence investigation
report, which included Appellant’s extensive criminal history dating back to
1982, and indicated that Appellant had been found guilty of two misconduct
charges while incarcerated in 2016 and 2017, that Appellant can be
manipulative and uncooperative, and that Appellant is at high risk for
reoffending. Id. at 35-36, 38. The resentencing court also considered
Appellant’s mental health evaluation report, including an evaluator’s prognosis
of Appellant as “guarded;” the conduct which resulted in technical probation
violations; his employment history and how it did not correspond to what had
been reported; his poor health; his past drug use which appeared to be in
remission; and his apparent lack of progress in completing certain programs
while incarcerated. Id. at 35-39.
The resentencing court then imposed a sentence of two and one-half to
five years of incarceration, with credit for time served, followed by two years
of probation. Id. at 40-41. After Appellant’s counsel clarified the sentence
with the resentencing court, Appellant asked for permission to address the
court, which was allowed. Id. at 42-43. Appellant asked questions about the
length of the sentence that the court had just imposed, and expressed his
view that the new sentence was really the same as the June 1, 2016 sentence,
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in terms of the overall period of time Appellant would be subject to
supervision. Id. at 43. The judge interrupted Appellant, asking Appellant
whether he was “seriously going to argue with” her when she had just reduced
his sentence, and stating she had not been inclined to do so. Id. at 44.
Appellant expressed he was upset by the sentence especially given the
Commonwealth’s recommendation of a time-served sentence. Id. at 45-46.
At this point, the resentencing court stated it had reconsidered the sentence
and re-imposed the statutory maximum sentence of three and one-half to
seven years of incarceration, with the same conditions.4, 5 Id. at 47.
On May 14, 2018, Appellant filed a post-sentence motion seeking
reconsideration of his sentence, which set forth the same claims of error
Appellant now raises on appeal. The court denied the motion for
____________________________________________
4 The May 4, 2018 order sentenced Appellant to three and one-half to seven
years of incarceration, with credit for time served, followed by two years of
probation, with rehabilitative conditions imposed. On March 12, 2019, the
lower court filed an amended order of sentence, which amended its May 4,
2018 order “to correct a scrivener’s error.” Order, 3/12/2019. The lower
court “vacated the two year probation period nunc pro tunc to May 4, 2018”
and ordered all other terms and conditions to remain. Id.
5 After the resentencing court re-imposed the statutory maximum sentence,
Appellant had a verbal outburst, which included profanity, slurs, and
inflammatory comments, some of which were directed to the judge personally.
N.T., 5/4/2018, at 48-54. Appellant was charged with, summarily convicted
of, and sentenced for contempt. Id. at 52-54. We strongly condemn
Appellant’s behavior and utter lack of respect for the judge and the court. The
judge subsequently vacated Appellant’s sentence for contempt. N.T.,
6/19/2018, at 4.
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reconsideration by order dated June 19, 2018. On June 4, 2018, Appellant
timely filed the instant appeal. Both Appellant and the resentencing court
complied with Pa.R.A.P. 1925.6
On appeal, Appellant presents the following four issues7 for our
consideration.
a. Did not the [resentencing] court err, abuse its discretion, and
violate general sentencing principles when, following a
revocation of probation for technical violations, the
[revocation] court imposed the statutory maximum sentence
for retail theft, which sentence was unduly harsh, and
manifestly excessive, unreasonable, and disproportionate to
the nature of the underlying offense and the probation
violations, and when the court failed to take into account and
weigh all mitigating, relevant and necessary factors to be
considered by a sentencing court, and when confinement in a
state correctional facility for the term imposed is inconsistent
with the aims of Pennsylvania’s sentencing laws and is violative
of Appellant’s right to due process under the United States and
Pennsylvania Constitutions?
____________________________________________
6 On December 3, 2018, Appellant filed in the lower court a motion for bail
pending appeal. On January 8, 2019, the court denied the motion without a
hearing. On January 25, 2019, Appellant filed an application for bail pending
appeal in this Court. The Commonwealth filed an answer on February 5, 2019,
stating it “would not oppose a limited remand to obtain a statement of the
reasons” for the lower court’s denial of bail. Answer, 2/5/2019, at ¶ 4. On
February 22, 2019, we directed the lower court to submit a statement of
reasons for denying bail pending appeal, which was filed on March 12, 2019.
On March 20, 2019, by per curiam order, this Court denied Appellant’s
application for bail.
7 In his Rule 1925(b) statement, Appellant raised a fifth issue, i.e., whether
his sentence of three and one-half to seven years of incarceration, followed
by two years of probation, was illegal because it exceeded the statutory
maximum sentence. As noted supra, the trial court corrected Appellant’s
judgment of sentence on March 12, 2019. Accordingly, Appellant indicates in
his brief that “this issue is resolved and there is no need to address it on
appeal.” Appellant’s Brief at 3 n.1.
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b. Did not the [resentencing] court violate the requirements of 42
Pa.C.S. § 9771(c) and the fundamental norms of sentencing by
imposing a sentence of total confinement when 1) Appellant
had not been convicted of a new crime; 2) Appellant’s conduct
did not demonstrate that he would commit a new crime if not
incarcerated; and, 3) incarceration was not essential to
vindicate the authority of the court?
c. Did not the [resentencing] court err when it imposed a
manifestly excessive and unreasonable sentence and failed to
articulate in open court at the time of sentencing adequate
reasons for the sentence imposed and failed to take into
account and weigh the relevant sentencing factors, including
the needs of community safety, the gravity of the offense as it
relates to the victim, and the rehabilitative needs of []
Appellant, as required by 42 Pa.C.S. § 9721(b)?
d. Was not the sentence imposed manifestly excessive and
unreasonable, the product of an abuse of discretion by the
court, and violative of Appellant’s due process rights under the
United States and Pennsylvania Constitutions, as it was not
based on factors set forth in the sentencing code and, instead,
was the result of the [resentencing] court’s partiality and bias
against, or ill will towards, Appellant, as reflected throughout
the proceedings in this case?
Appellant’s Brief at 3-5 (some capitalization altered).
These issues present a challenge to the discretionary aspects of
Appellant’s sentence, which we consider mindful of the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be 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.
***
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When imposing [a] sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal, preserved his issues in a post-sentence motion, and included
a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at 33-35.
Therefore, we now consider whether Appellant has raised a substantial
question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
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828 (Pa. Super. 2007). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant contends the resentencing
court violated the express provisions of the sentencing code and imposed an
excessive sentence in contravention to the fundamental norms underlying the
sentencing process. Appellant’s Brief at 33. Specifically, Appellant asserts
the resentencing court abused its discretion in that: (1) the court imposed a
statutory maximum sentence of total confinement for technical violations of
probation when the prerequisites in 42 Pa.C.S. § 9771(c) were not met; (2)
the sentence was disproportionate to Appellant’s conduct and was not justified
by sufficient reasons; (3) the sentence was manifestly excessive and does not
fulfill the requirements of 42 Pa.C.S. § 9721(b); and (4) the sentence was the
product of the court’s bias, prejudice, and ill will. Id. at 33-35.
We conclude Appellant has raised a substantial question with each of his
claims. See Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000)
(“On appeal from a revocation proceeding, … a substantial question is
presented when a sentence of total confinement, in excess of the original
sentence, is imposed as a result of a technical violation of parole or
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probation.”); Commonwealth v. Parlante, 823 A.2d 927, 930 (Pa. Super.
2003) (a claim that the trial court disproportionately sentenced a defendant
without providing a justification raises a substantial question);
Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (finding
a claim that “court imposed a sentence unreasonably disproportionate to her
crimes and unduly excessive” raised a substantial question); Commonwealth
v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011) (“An allegation of bias in
sentencing implicates the fundamental norms underlying sentencing and …
raises a substantial question.”). Thus, we may consider the merits of his
claims.
Because we find it dispositive, we first address Appellant’s assertion that
the resentencing court abused its discretion when it fashioned his sentence as
a result of the judge’s partiality and bias against, or ill will toward Appellant.
Appellant argues that the conduct of the judge in this matter demonstrated
bias against and ill will toward Appellant “in the court’s assumption of a
prosecutorial role in the proceedings and in its engagement in an ongoing
controversy with [Appellant] during the re-sentencing hearing.” Appellant’s
Brief at 51. Specifically, he contends that the court interfered with the district
attorney’s prosecutorial decisions, the court’s comments reflected an
indication of a “power struggle” with the district attorney’s office which
“infected” Appellant’s proceedings and sentence, the court’s questioning of
witnesses demonstrated a prosecutorial bent, and during an “increasingly
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heated exchange” the court became “personally embroiled” with Appellant and
suddenly increased the sentence to the statutory maximum without providing
any reason for the increase. Id. at 52-58. Accordingly, Appellant requests
that we vacate the judgment of sentence and remand the case for
resentencing before a different judge. Id. at 58-59.
The Commonwealth concedes that while it “does not agree with every
reason [Appellant] gives in support of his [partiality, bias, or ill will] claim, it
does agree that the [] court’s sudden increase in sentence to the maximum
was an abuse of discretion, because it could appear to have resulted from the
court’s personal frustration with [Appellant], rather than a legally legitimate
basis.” Commonwealth’s Brief at 17-18.
In its Rule 1925(a) opinion, the resentencing court did not respond to
Appellant’s claim of bias, partiality, and ill will, but suggested it reconsidered
Appellant’s sentence and re-imposed a sentence of three and one-half to
seven years because “Appellant argued with the [c]ourt and displayed
disrespect.” Rule 1925(a) Opinion, 4/10/2019, at 11 (pagination supplied).8
We consider this issue mindful of the following.
Our Supreme Court has stated that it presumes that judges
of this Commonwealth are “honorable, fair and competent,” and
vests in each jurist the duty to determine, in the first instance,
whether he or she can preside impartially. Commonwealth v.
White, [] 734 A.2d 374, 384 ([Pa.] 1999).
____________________________________________
8 Appellant also had raised this issue in his post-sentence motion, but the
court did not address it in its order denying said motion. See Post-Sentence
Motion to Modify Sentence, 5/14/2018, at ¶26; Order, 6/19/2018.
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***
The sentencing decision is of paramount importance
in our criminal justice system, and must be
adjudicated by a fair and unbiased judge.
Commonwealth v. Knighton, [] 415 A.2d 9 ([Pa.]
1980). This means[ ] a jurist who “assesses the case
in an impartial manner, free of personal bias or
interest in the outcome.” Commonwealth v. Abu-
Jamal, [] 720 A.2d 79, 89 ([Pa.] 1998). Because of
the tremendous discretion a judge has when
sentencing, “a defendant is entitled to sentencing by
a judge whose impartiality cannot reasonably be
questioned.” Commonwealth v. Darush, [] 459
A.2d 727, 732 ([Pa.] 1983). “A tribunal is either fair
or unfair. There is no need to find actual prejudice,
but rather, the appearance of prejudice is sufficient to
warrant the grant of new proceedings.” In Interest
of McFall, [] 617 A.2d 707, 714 ([Pa.] 1992).
[Commonwealth v. ]Rhodes, 990 A.2d [732, ]748 [(Pa. Super.
2009)], quoting Commonwealth v. Druce, [] 848 A.2d 104, 108
([Pa.] 2004) (some quotation marks and brackets omitted).
Commonwealth v. Bernal, 200 A.3d 995, 999-1000 (Pa. Super. 2018); see
also Commonwealth v. McCauley, 199 A.3d 947, 950 (Pa. Super. 2018)
(“[T]he appearance of bias or prejudice can be as damaging to public
confidence in the administration of justice as the actual presence of bias or
prejudice.”) (citation omitted).
As discussed supra, at the resentencing hearing on May 4, 2018, the
judge initially sentenced Appellant to two and one-half years to five years of
incarceration, followed by two years of probation. The record indicates that
the judge considered multiple factors before imposing that sentence, including
testimony from Appellant’s employer and mother, counsel’s arguments,
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Appellant’s allocution, and pre-sentence investigation and mental health
evaluation reports. However, the judge did not disclose her sentencing
rationale to Appellant when she suddenly increased it to the statutory
maximum. The following exchange occurred.
THE COURT: … [T]he sentence of this Court is that you serve
two-and-a-half years to five years’ state time incarceration,
followed by two years of reporting probation, supervised by the
state. Credit for time served to be calculated by the prison
authorities.
***
[DEFENSE COUNSEL]: Your Honor, could I just ask for
clarification? For the two-and-a-half to five years’ sentence with
credit for time served, is that a time-served sentence then?
THE COURT: Not necessarily. It depends on how they
calculate it. And then what will happen is, he will be up, subject
to parole, and depending on whether or not he’s deemed suitable
to be paroled at his minimum or at whatever time is calculated,
that’s up to the Parole Board.
They will ask my recommendation and I’m pretty darn sure
I may have a comment or two, depending on how you do.
So I don’t know where that comes in, because I don’t
calculate things, but all I’m telling you is, credit for time served.
So that’s my sentence.
It may well end up being time served. I don’t know. Yes?
[APPELLANT]: You said two-and-a-half to be followed by
what?
THE COURT: Two-and-a-half plus two.
[DEFENSE COUNSEL]: For the state to supervise you.
THE COURT: State supervised.
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[APPELLANT]: Can I say something to you, Your Honor?
THE COURT: Yes, go ahead.
[APPELLANT]: It seems like --
(Defense counsel conferring with [Appellant].)
[APPELLANT]: No. I have to say what I have to say. It
doesn’t matter right now. I’m getting seven years all over again,
is that correct?
THE COURT: No.
[APPELLANT]: Two-and-a-half to five plus two years’
probation, that’s seven years, right?
THE COURT: You are under supervision for seven years.
[APPELLANT]: Right. So altogether that’s seven years again,
right --
THE COURT: It’s not.
[APPELLANT]: -- because before I had time served to 23
[months], followed by three years, which was five years. And then
you turned that into three-and-a-half to seven, correct?
THE COURT: Right.
[APPELLANT]: Okay. Now --
THE COURT: Now it’s two-and-a-half to five. Are you
seriously going to argue with me as I reduced your sentence?
[APPELLANT]: No, I wasn’t arguing with you. I was just
letting you know --
THE COURT: I seriously, seriously think you need to stop
and think before you speak, because let me tell you something,
[Appellant], I was not inclined to reduce that sentence.
Not inclined to reduce the sentence, which I just did,
because every fiber in my body thinks you are going to re-offend,
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because to date, and what you just told me, sir, means that you
have absolutely, sitting at this grand age, have presented yourself
in such a so [sic] self-centered manner.
It’s everybody else’s fault but you. Well, wake up, sir,
because if you’re not going to wake up at 50-something years old,
you’re never going to wake up.
You are not one of these kids running in here that don’t think
past their nose.
So are you asking me anything else?
[APPELLANT]: Yes. Yes. I want to ask you something else--
THE COURT: Really?
[APPELLANT]: Please --
[DEFENSE COUNSEL]: Your Honor may --
[APPELLANT]: Have a seat.
THE COURT: Hey, if he wants to, go right ahead --
[DEFENSE COUNSEL]: -- I have a talk with him?
THE COURT: -- he has a right to.
(Defense counsel conferring with [Appellant].)
[APPELLANT]: Listen, have a seat.
THE COURT: You go right ahead, because you know what--
(Defense counsel conferring with [Appellant].)
[APPELLANT]: I’m not getting emotional.
THE COURT: -- I think I’m going to reconsider what I just
ordered.
[APPELLANT]: You can do that. Can you not cut me off this
time? I listened to you. I was trying to make my point.
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THE COURT: Okay.
[APPELLANT9]: It was just this. Your Honor -- if you would
let me understand something.
THE COURT: You go ahead.
[APPELLANT]: What I’m saying to you was that I came in
here -- even this guy right here [referring to the assistant district
attorney] said, you know what, I believe that [Appellant’s] age
now, that he’s changed. And he’s a DA and he was willing to give
me a chance.
I’m sitting here, it’s two-and-a-half to five, followed by two
years, that’s seven years.
Before, I had six to 23 [months], followed by three years’
probation. She turned that into a seven.
This has been going on since 2013. You understand what
I’m saying to you? I’m being calm, but the problem is --
(Defense counsel conferring with [Appellant].)
[APPELLANT]: No. I don’t want to calm down. Listen. What
I’m saying to you is that you’re saying two-and-a-half to five. My
parents here -- I’d like to go home, too. I go to sit up here.
THE COURT: Sir, I just gave you credit for time served.
[APPELLANT]: You said you was going to let me finish and
then you stood up and said to me --
THE COURT: Now, I’ve reconsidered the sentence.
[APPELLANT]: That’s okay. Fine.
THE COURT: Three-and-a-half to seven. Original sentence
already set. Conditions as is set forth. Advise him. Fines and costs.
Every other condition. I’ve had enough.
____________________________________________
9 The notes of transcript indicate the court stated this, but from the context,
it is obvious that it was Appellant who was speaking.
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N.T., 5/4/2018, at 40-47.
In addition, the following exchange, which occurred at the March 2,
2018 PCRA hearing, demonstrated the judge’s animus against the Philadelphia
District Attorney’s office. The parties appeared before the judge after the
Commonwealth was directed to respond to Appellant’s amended PCRA petition
and motion for discovery relating to whether Appellant had requested his
counsel to file a direct appeal. The judge inquired as to the Commonwealth’s
response, and the Assistant District Attorney (ADA) explained that the
Commonwealth decided not to oppose Appellant’s motion. The ADA
responded as follows.
[ADA]: Yes, Your Honor. So what happened, Your Honor, is
that I did prepare a motion and then, upon our supervisor
reviewing it, I was told that in concert with new guidelines and
procedures and policies within our office, which the Court is
probably aware of in terms of what types of pleas we would be
offering and what types of recommendations we make on cases,
that we actually do not oppose the motion. So in other words, we
don’t oppose the Court granting a nunc pro tunc direct appeal and
we don’t oppose the Court granting post-sentence motion
reconsideration of sentence, and then we would have a
recommendation as far as what that sentence would be from the
Commonwealth’s recommendation.
THE COURT: Absolutely not.
[ADA]: Of course, this is all at the Court’s discretion.
THE COURT: Who’s your supervisor?
[ADA]: Tracey Kavanagh, Your Honor.
THE COURT: Tracey should know better.
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[ADA]: And she discussed this with Nancy Winkleman and
Paul George.
THE COURT: Uh-huh. Yeah, well, you waste my bloody time
on nonsense.
[ADA]: Your honor, if I could address at least one of the
claims that I think that we can separate it out and I can tell the
Court what was going on with that. So we have a group of claims
that basically are getting at the sentence. Putting those aside, we
have a separate claim wherein counsel asked that the right to
direct appeal be reinstated nunc pro tunc. I investigated that.
THE COURT: But there has to be a basis for the right to
reinstate it.
[ADA]: I know. There may not be much left, Your Honor.
But simply saying it is a separate claim, I did investigate that. I
got some correspondence from [counsel for Appellant’s] files that
corroborate [Appellant’s] assertion that he wanted an appeal and
he was writing to [his counsel] about that appeal. So again, to
just separate that out off to the side.
N.T., 3/2/2018, at 4-5. The ADA then explained that in investigating whether
Appellant’s former defense counsel failed to file a direct appeal despite
Appellant’s request, counsel provided the ADA with two undated letters in his
file relating to Appellant’s request for a direct appeal. The PCRA court then
responded as follows.
THE COURT: All right. Let me go back and take a look at
[Appellant’s] matter. Because I’ll be honest with you, right now
I’m more than a little annoyed, more than a little annoyed. We
are going to rewrite history to suit our social policies that we wish
to promote. That’s not what we’re here for. We’re here to follow
the law.
[DEFENSE COUNSEL]: Your Honor, if I may.
THE COURT: Yes.
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[DEFENSE COUNSEL]: We did submit exhibits along with the
[PCRA] petition that show that [Appellant] did --
THE COURT: All right. Give me a second. I sentenced
[Appellant] because that was the sentence that I deemed
appropriate given his extensive history.
[DEFENSE COUNSEL]: And, Your Honor, the claim is that
[Appellant] wished to appeal that. That’s the only claim right now.
THE COURT: [] I’m reading it. I know that. I remember
[Appellant] very well.
I tell you what. I’ll play your game. All right? You can convey
that back to your supervisors.
[ADA]: I certainly will, Your Honor.
THE COURT: Uh-huh. I’ll grant [Appellant] a resentencing
hearing. We’ll have it over again by agreement. So we’ll have
another sentencing hearing for [Appellant]. Bring him in.
[ADA]: Your Honor, if I may just for the record.
THE COURT: You all can say whatever you want. What?
[ADA]: I was asked to tell the Court that [the
Commonwealth] would not oppose moving immediately to
sentencing and asking for a sentence of six months.
THE COURT: Yeah. Well, you can ask all you want, but I’ll
bring him in here and I’ll do what I think is right and you can tell
them that. And if this is going to be a pattern of activity, there is
going to be a problem with this Court. …
***
THE COURT: Unbelievable. Violates ten ways to Sunday and
six months is appropriate.
Id. at 8-10.
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Upon review, we conclude under these circumstances there is potential
for an appearance of bias, partiality, or ill will by the resentencing court. In
her Rule 1925(a) opinion, the judge did not respond to such accusations by
denying them, by reflecting on her ability to proceed impartially, or by
analyzing whether her actions might give rise to the appearance of bias,
impartiality, or ill will. Instead, she quoted a portion of the notes of transcript
from the May 4, 2018 resentencing hearing where she rebuked Appellant as
disrespectful when he sought clarification of his sentence. See Rule 1925(a)
Opinion, 4/10/2019, at 11 (pagination supplied). Notably, the portion of the
notes of transcript which the judge quoted occurred after she re-imposed the
statutory maximum sentence of three and one-half to seven years of
incarceration.
There is nothing in the record to indicate that the judge’s reason for
abruptly re-imposing the increased statutory maximum sentence was for any
reason other than her frustration with Appellant or her belief that Appellant
was being disrespectful. This, coupled with the animus against the district
attorney’s office that the judge revealed in her comments at the March 2,
2018 PCRA hearing lead us to conclude that a reasonable observer could
question whether the judge comported herself in an unbiased and impartial
manner without ill will toward Appellant. Commonwealth v. Whitmore, 912
A.2d 827, 834 (Pa. 2006) (“Because of the tremendous discretion a judge has
when sentencing, a defendant is entitled to sentencing by a judge whose
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impartiality cannot be questioned.”), citing Darush, 459 A.2d at 732
(remanding for resentencing where there was an appearance of judicial
impartiality and noting “the largely unfettered sentencing discretion afforded
a judge is better exercised by one without hint of animosity toward
appellant”). To protect the integrity of the resentencing proceeding and
ensure any appearance of bias, partiality or ill will is eliminated, we remand
for resentencing.
Finally, we address Appellant’s request for remand for resentencing
before a different judge. Appellant’s Brief at 59. This Court does not have
power to order the removal of a judge from a case, where that judge has
made no ruling concerning her recusal because she was never asked to recuse.
Whitmore, 912 A.2d at 834 (holding “the sua sponte removal of the trial
court judge on remand for resentencing exceeded the authority of the Superior
Court” where no recusal motion had been filed in the court below). However,
Appellant is not precluded from filing a motion to recuse on remand.
As a general rule, the proper practice on a plea of prejudice is to
address an application by petition to the judge before whom the
proceedings are being tried. He [or she] may determine the
question in the first instance, and ordinarily his [or her] disposition
of it will not be disturbed unless there is an abuse of discretion.
This is, in part, to allow the requested judge to state his or her
reasons for granting or denying the motion and, as the allegedly
biased party, to develop a record on the matter.
Id. at 833 (quotation marks, citation, and some brackets omitted).
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Based on the foregoing, we vacate the judgment of sentence and
remand for resentencing.10
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
____________________________________________
10In light of our disposition, we need not address the merits of Appellant’s
remaining claims regarding the discretionary aspects of his sentence.
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