Com. v. Vann, M. ( 2023 )

J-S11024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL VANN :
:
Appellant : No. 2502 EDA 2021
Appeal from the Judgment of Sentence Entered November 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002081-2020,
CP-51-CR-0003166-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL VANN :
:
Appellant : No. 2503 EDA 2021
Appeal from the Judgment of Sentence Entered November 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003166-2020
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 2, 2023
Michael Vann appeals from the judgment of sentence entered following
his bench trial conviction for aggravated assault, simple assault, recklessly
endangering another person (“REAP”), two counts of terroristic threats with
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intent to terrorize another, and three counts of harassment.1 He argues the
trial judge should have recused and exhibited bias in his comments and in his
questioning of Vann, and the errors resulted in cumulative prejudice. We
conclude Vann waived his claim that the trial judge should have recused and
find his remaining claims lack merit. We affirm the judgment of sentence.
In August 2019, Vann was arrested for the assault and REAP charges
for injuries sustained by his mother, who has dementia. 2 In March 2020, he
was charged at a separate docket for making threatening phone calls to his
niece.3 The trial court consolidated the cases.
In May 2021, the Honorable Vincent L. Johnson (“trial judge”) conducted
a bench trial. Prior to trial, the court conducted a colloquy and found Vann
knowingly and voluntarily waived his right to a jury trial. N.T., May 13, 2021,
at 5-8. The trial judge did not inform Vann during the colloquy that the trial
judge’s mother suffered from dementia and that the trial judge had been a
primary caregiver for his mother.
The Commonwealth first presented the testimony of Vann’s mother,
Theola Vann Allen. Allen testified that on the day that she was taken from her
home by EMS, she had been injured when Vann slapped her face. Id. at 10.
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, 2706(a)(1), and 2709(a)(4),
respectively.
2 The assault and REAP charges were docketed at CP-51-CR-0002081-2020
(“assault docket”).
3The harassment and terroristic threat charges were docket at CP-51-CR-
0003166-2020 (“harassment docket”).
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She further testified that Vann pushed her. Id. at 11. She did not recall how
many times he slapped her. Id. at 10. Allen testified she has used a wheelchair
since the incident. Id. at 12. During cross examination the following exchange
occurred, where the trial court expressed concern for Allen:
Q: And you went – when you came after and you attacked
your son [Vann] on that day? Do you remember that?
A: Did I?
Q: Do you remember charging at him?
A: No.
THE COURT: Can I talk to you in the back?
(Whereupon there was a brief discussion on the record in
camera.)
THE COURT: Here’s my problem. Nothing is wrong, except
it hasn’t been established that she has a problem with her
memory. You’re leading. He’s letting you. It’s fine with me.
[Defense Counsel] REILLY: It’s cross-examination.
THE COURT: It’s cross-examination, but I just want to make
sure that she’s okay. You know what I’m saying? We’ve
established that she’s mentally fine. You gave that
information to me.
[Assistant District Attorney] BLUMENTHAL: She’s well
enough to testify.
THE COURT: I just want to make sure, because I don’t want
her in a situation where she’ll say, I mean – you’re permitted
to lead on cross. I just want to make sure she’s mentally
fine. And I just want to establish that. We did that before. I
just want to make sure. I don’t want her to say yes to
everything.
MR. BLUMENTHAL: Your Honor, I think, as you can see, at
least as my impression of the witness, and it’s yours that,
ultimately, matters, but she wouldn’t let me lead her and
she -- I mean, in the sense that I was --
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THE COURT: You were fine.
MR. BLUMENTHAL: And she’s not letting him lead her.
THE COURT: Well, I mean, he’s asking a leading question,
and that’s his right to.
MR. BLUMENTHAL: Yes.
THE COURT: But the last question was, for example, she did
stop you when you said, as a child, you know, she would
slap him but not as an adult. And your last question was
what bothered me. Your last question was -- and I didn’t get
an answer from her, but you asked whether or not she hit
him. It was a pause with her, and it just concerned me. But
I see where you’re going from. It just bothered me because
of her age, but we’ll see where it goes.
MR. BLUMENTHAL: Your Honor, I’m sensitive to this, too,
but I’m also sensitive to making sure you have a full picture
and letting him conduct his --
THE COURT: It’s fine. I mean, as long as you’re fine and her
mental stability is okay. I’ll see where this goes, and we’ll
see what happens at the end.
MR. BLUMENTHAL: She always – I shouldn’t characterize
her, but I was comfortable with her, and I mean, we got to
let her give her answers for better or worse from here.
THE COURT: She’s doing okay. I just wanted to make sure
what we’re doing.
Id. at 19-21. Vann did not object.
Allen’s home health aide, Marsha Conway, testified next. She said that
on the date of the incident, when she knocked on the door and rang the
doorbell, no one opened the door, even though she heard noise in the house.
Approximately 20 minutes later, Vann let her in the house. Vann told Conway
that he and his mom “had it out that day.” Id. at 33. She testified that the
house was in disarray, with a knife on the floor, plants and pots all over the
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floor, and bleach in the middle of the floor. Id. at 33, 35. She further testified
that Allen was laying in the upstairs hallway with a blanket and pillow. Id. at
33-34. Conway testified that Allen told her she does that sometimes. Id. at
34. She further stated that Allen told her that she and Vann “had it out, or
whatever,” and that Conway asked Allen if she wanted Conway to call the
cops, and Allen told her the police were there at 4:00 a.m. Id. Conway
testified that about an hour after she arrived, she called Allen’s
granddaughter, who also said Allen sometimes lays on the floor. Id. at 34-35.
Conway testified that she asked Vann to help her get Allen up, but he
said no. Id. at 37. She testified that Vann “was fussing, talking about she’s
crazy and we’re going to 302 her. And that’s what the cop said at 4 o’clock in
the morning.” Id. at 38. She further testified that Allen acted like she was
afraid of Vann, stating that “when he would go out, she would talk about him.
But when he [sic] come in, she would switch the conversation a bit . . . So she
didn’t want to say too much around him.” Id. at 39.
Conway testified that about 15 minutes before she was scheduled to
leave, Vann’s girlfriend came and helped her get Allen dressed and in bed. Id.
at 39-40. She testified that she did not see any injuries and did not call the
police because Allen and Vann had said the police had already been there. Id.
at 45, 50.
The trial court asked Conway if either Vann or Allen explained what “got
into it” meant, and she responded that they did not. Id. at 40-41.
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Allen’s granddaughter, Tawanna Vann (“Tawanna”), testified that on the
day of the incident she received calls from the home health care aid. During
one of the calls, she spoke to Allen, who told her that “[Vann] had beat her
up.” Id. at 54-55. Tawanna asked Allen if she wanted her to call the police,
but Allen said the police had already been to the house. Id. at 55. Tawanna
said a couple of hours later, she received a call stating the ambulance was
going to take Allen to the hospital. Id. Tawanna stated that when the hospital
called, she told them that Allen had told her that Vann beat her up. Id. at 56.
She stated that Vann then left messages on her phone calling her a “bitch”
and saying “Imma kill you” and that he was going to send people to touch her.
Id. at 56 and 59. The Commonwealth played the voicemails for the factfinder.
Tawanna testified that she had observed Allen lying on the floor prior to
this occasion. Id. at 61-63. The court asked Tawanna if she had ever observed
Vann strike Allen, and Tawanna testified that she had not. Id. at 71. When
the court asked if Allen had ever told her that Vann had hit her, Tawanna
testified that, “She would say like [Vann] – I told [Vann] to get that woman
out my house. He hit me upside my head. That kind of stuff.” Id. She further
testified that Allen had “never been in a place of incapacity,” and “[Vann] was
her son and they got into it, and . . . this has been going on for years.” Id. at
75-76. She further agreed with the assistant district attorney that one reason
she did not call the police was because she had had the discussion with Allen
on prior occasions and Allen was always reluctant to call the police. Id. at 73.
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The Commonwealth admitted the medical records into evidence,
including records showing that there was bruising on Allen’s fingers and eye,
markings around her neck, and bruising on her leg. Id. at 80. Further, the
records stated that Allen “states that [Vann] grabbed her by the neck, choked
her, punched her in the right eye and shoved her to the ground, breaking her
hip in the process.” Id. at 83. The parties stipulated that the police dispatch
report incident history details from July 1 through July 30 at Ms. Allen’s
address “show[ed] no police response before July 10th, at approximately . . .
a military time of 18:18:25, which . . . is 6:00 p.m.,” with “a report of [an
individual] not feeling well.” Id. at 78. They stipulated that “there [wa]s no
incident report on the Philadelphia Police records before 6:00 p.m. on July
10th.” Id. The Commonwealth entered the EMS Dispatch Report into the
record. Id.
Vann’s girlfriend at the time of the incident, Carla Hall, testified for the
defense. She stated that on the day before Allen went to the hospital, Hall
went to Vann’s house after work and took Allen for ice cream. Id. at 90. She
stated they drove around and Allen was happy, and then an hour or two later,
Hall took Allen home. Id. Hall testified that after they returned Allen “did a
360 change.” Id. Allen was saying that she did not want Vann in the house,
and closed and locked the door. Id. at 92. Hall testified that she and Vann
were on the enclosed porch, and Allen came out with a hammer, which Hall
got from her. Id. at 92. Allen returned with an ice pick, which Hall also took
from her. Id. at 93. She testified that the police came, and Allen said she
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wanted Vann out, but the police said they could not do that. Id. at 94-95. Hall
testified that Vann and Allen went upstairs, and Hall thought Allen got a knife
and tried to jab Vann, which caused Allen to fall and hit her face on a table.
Id. at 95. Hall eventually left around 3:00 or 4:00 a.m. Id. at 116-17. She
returned the next day when Conway was at the house. Id. at 97. Hall testified
that she got mad when she arrived because Allen was on the floor. Id. Hall
testified she tried to get Allen up, but could not, and that she went to the
hospital with Allen. Id. Hall testified that she previously had seen Allen fight
Vann, but he did not fight back. Id. at 106.
The trial court asked Hall how long she was there with the home health
care aide, and Hall responded she and the aide were there about an hour and
that the aide was there when the ambulance arrived. The court also asked
what the house looked like when the ambulance arrived, and Hall said the
upstairs was a little messy, but the downstairs was nice. Id. at 118-19.
Vann also testified. He stated that he was taking care of Allen at the
time of the incident. Id. at 123-24. He testified that on the day before Allen
was taken to the hospital, Hall took Allen for a drive. When they got back,
Allen ate dinner, and then she and Vann got into an argument. Id. at 127-
130. Vann testified that Allen attacked him with a steak knife, and “caught
[him] on [his] right [wrist].” Id. at 130. Vann said Allen tried to throw a
concoction of bleach and ammonia in his face, and that she just kept coming
at him, including with a hammer and an icepick. Id. 130-31. He testified that
the police had told him that he would have to go to the crisis center at Mercy
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Hospital to make a report to have Allen committed. Id. at 131-32. He stated
that when Allen heard that, she started swinging and when he ducked, she
fell and hit her face, and he left her there. Id. at 132. He testified that he and
Hall took turns watching her that night. Id. He testified that he eventually
offered to help Allen up, but she said no. Id. He testified it was not uncommon
for Allen to want to stay on the floor. Id.
During Vann’s testimony, the court conducted the following questioning:
THE COURT: Hold on. Just remember where you were. What
time and what date did your mother fall?
THE DEFENDANT: My mother fell, I think, Tuesday evening,
sir.
THE COURT: So she fell Tuesday. This is now -- she finally
was moved on Wednesday?
THE DEFENDANT: Yes.
THE COURT: So you're telling me that your mother was --
she fell sometime -- what time Tuesday?
THE DEFENDANT: This went on until about 1:00 or 2:00 in
the morning.
THE COURT: So now, what time did your mother fall?
Tuesday at what time? A.m.? P.m.?
THE DEFENDANT: Like in the a.m., sir.
THE COURT: So on Tuesday, wouldn't that be July 9th?
THE DEFENDANT: That would be like...
THE COURT: I don’t need a date, but she fell on Tuesday in
the a.m.
THE DEFENDANT: Correct. I was off that Wednesday.
THE COURT: So Tuesday in the a.m., and that’s when the
altercation took place?
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THE DEFENDANT: Excuse me?
THE COURT: And that’s when the altercation took place?
Sometime in the a.m. she’s on the ground?
THE DEFENDANT: The altercation started Tuesday evening
into --
THE COURT: Well, I'm asking you. When she fell and stayed
on the floor, that was Tuesday?
THE DEFENDANT: Yes.
THE COURT: And you tell me Tuesday a.m.? You know a.m.
and p.m.?
THE WITNESS: Yes. A.m. is in the morning and p.m. is in
the evening.
This is like – I’m sorry -- Wednesday in the a.m. I’m sorry.
Wednesday in the a.m. I’m sorry.
THE COURT: You sure?
THE DEFENDANT: Yes, I’m positive.
THE COURT: Now, Wednesday morning, a.m., she’s on the
floor?
THE DEFENDANT: Yes. We called the police Wednesday
evening.
THE COURT: You called them Wednesday evening.
Now, they came before, right?
THE DEFENDANT: Yes, they did.
THE COURT: What time did they come before?
THE DEFENDANT: Sir, I really don't know.
THE COURT: Was that Tuesday or was it Wednesday?
THE DEFENDANT: That was like...
THE COURT: It was between -- 4'clock before, right?
THE DEFENDANT: I can’t recall.
THE COURT: You don’t remember?
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THE DEFENDANT: No, sir.
THE COURT: So it’s your recollection today that your mom
fell Wednesday morning?
THE DEFENDANT: Yes.
THE COURT: And she stayed on the ground Wednesday
morning until Wednesday night?
THE WITNESS: Until Wednesday, like, afternoon.
THE COURT: Until Wednesday afternoon?
THE DEFENDANT: Yes.
THE COURT: Okay. Well, what I’m trying to figure out is
what happened at 8:30 a.m.? You know, you said your mom
was in the robe -- 8:30 p.m. I'm sorry.
THE DEFENDANT: Excuse me?
THE COURT: Your mom was in the robe?
THE DEFENDANT: That was Tuesday.
THE COURT: You’re [sic] mom is in the robe Tuesday?
THE DEFENDANT: Yes, that was Tuesday afternoon. Carla -
- yes.
THE COURT: Tuesday – that’s what I’m saying. So it started
Tuesday?
THE DEFENDANT: Yes.
THE COURT: It started Tuesday. At least Tuesday 8:30 p.m.,
that’s what you just told me?
THE DEFENDANT: Yes. Probably so, yes.
THE COURT: And she was in a robe Tuesday, 8:30 p.m.?
THE DEFENDANT: Yes.
THE COURT: Because that’s what I wrote down.
THE DEFENDANT: Yeah.
THE COURT: And you told me the ride took place Tuesday
afternoon?
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THE DEFENDANT: Tuesday afternoon.
THE COURT: So Carla came on Tuesday.
THE DEFENDANT: Yes.
THE COURT: The day before Wednesday. This is what you
told me. That’s when she went for the ride. Is that what
you’re saying?
THE DEFENDANT: Yes. I think so, yes, sir.
THE COURT: All right. And the fight takes place, not
Tuesday, but she has argument with you on Tuesday?
THE DEFENDANT: Yeah. She tried to --
THE COURT: She tried to hurt you on Tuesday?
THE DEFENDANT: Yeah. Sir, I believe...
MR. REILLY: Judge, can I just --
THE COURT: No, I’m not done. You can clarify anything I’m
missing. I just want to finish this one question.
MR. REILLY: It is his direct examination for the record.
THE COURT: Yes. Just one question -- all right. I’m going to
stop.
Id. at 135-140. Vann did not object to the questioning.
After the trial, the court found Tawanna, Conway, and Allen to be
credible, and accepted their testimony in full. It found Hall not credible, and
found Vann to be credible in part and not credible in part. The trial judge then
made comments regarding his experience as a primary caregiver for his
mother, who had dementia, and made factual findings:
Domestic violence is difficult to deal with when you have a
patient who has dementia.
The Court is familiar with dementia and Alzheimer patients
because the Court had to solely take care of his mother for
eight years. So the Court does find credible periods of time
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when the patient will lose it. Will come at you with knives,
cups and water, and throw things at you.
But what’s interesting about this case -- and I can tell you
that I witnessed that with my mother -- and I’m an only
child. I took care of her. I took care of her with aid[e]s, but
I took care of her for the evenings.
But one thing that I found is that during these periods of
sundown, or whatever incidents take place, dementia
patient is violent, is uncontrollable. It’s limited. Their
memory is limited. They don’t remember that they threw
water at you. They don’t remember that they attacked you
with a knife or icepick. They don’t remember. It’s part of the
illness.
But what is clear and what is damning in this situation, is
that this is 2021. 2021. Ms. Vann Allen remembers her son
slapping her in the face.
Now, today, that’s all she remembers. Today, that’s all she
remembers. Incident took place in 2019. A normal aging,
despite the past history of dementia, has this effect. But this
one incident of slapping in the face is a constant -- she
testified to it with such credibility, with such sincerity,
despite my fear of her not being able -- because of her
mental ability to be swayed, but she wasn’t swayed at cross.
That was my fear. But she wasn’t swayed. She was
consistent. Consistent that she remembers her son, and she
knows her son slapped her in the face.
So the Court looks at the records, looks at the exhibits. And
the Court sees the bruise. The Court sees the bruise under
the eye. That substantiates the fact that the mother was hit
in the face.
Then the Court is challenged with looking at all the medical
information and all of the medical records, and the Court
notes that Mainline Health Lankenau Hospital indicates,
Patient states she called the police after she was choked.
Now, I did not expect to find a picture of bruises around the
neck. Bruises around neck. This was done -- interview was
done at Lankenau Hospital where she indicates she was
choked, and there are bruises.
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While Ms. Vann Allen cannot remember being choked today,
evidence supports the fact that [in] 2019 she was choked
then. She was choked then.
Now, I don’t believe that [Vann] is a bad person. I do believe
that it is difficult. It is extremely difficult -- I know -- to deal
with dementia or Alzheimer patients. No matter how m[uch]
you love them. It’s hard.
I know for a fact that dementia patients – it’s not hereditary
-- they lay on the floor -- they don’t know why. They just
get up one day and say they can’t walk. Can’t walk. You
don’t leave them there. 911. Emergency will come to the
home and pick the patient up for you. They don’t charge
you. They’re not mad at you. Paramedics will come. I know.
The multiple times my mother was on the floor, they came.
Hey, Judge, back again for the 99th time. How you doing?
I’m fine. Let’s put your mom in bed.
It’s outrageous for me to hear that someone laid on the floor
for hours. I don’t know how many hours. I’m not sure how
many days. Because one testimony said it took place on a
Tuesday. That travels over to Wednesday. How many hours
was that?
And counsel’s right. That does disturb me. It shows lack of
disregard. Lack of disregard for the safety of your mother.
Lack of disregard for her welfare. Lack of disregard for the
respect you should have for a mother. Whether she’s
dementia, Alzheimer or whatever.
And that goes back to the fact that, hmmm, why didn’t he
let the home health aid[e] in? She got there early. Heard
people in the house. Knocked on the door. Made phone calls,
but she was kept out for 20 minutes on the steps. She was
credible. She came in. She asked what was going on. She
saw the disarray of the house. Son and mother get into it.
Just because you’re the son, doesn’t mean – you’re the only
caretaker available. Your mom has a new caretaker now. If
you couldn’t do the job, you could have given her to
someone else to take care of it. It[] wasn’t your
responsibility, if you could not manage the stress that goes
with it. And there is stress -- and I understand -- that goes
with it.
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The Court finds all those credible I indicated credible. I find
you incredible in your testimony about what you claim the
incident was that surrounded your mother. I do believe that
your mom probably did threatened [sic] you. I do believe
your mom probably chased you around the house. I do
believe you handled it all wrong. All wrong.
I do believe the fact that your niece has indicated that
you’ve threatened your mother in the past. I do believe the
fact that the caretaker said that you guys got into it. I
believe there’s a history of domestic violence. Or domestic
– let’s put it this way – unkindness, uncaring.
Id. at 181-86. Vann did not argue that the judge’s comments were improper
or seek recusal or a new trial before a different judge.
At the harassment docket, the court found Vann guilty of two counts of
terroristic threats and three counts of harassment and found him not guilty of
intimidating a witness and retaliation against a witness. At the assault docket,
the court found Vann guilty of REAP, simple assault, and aggravated assault.
In reaching the aggravated assault verdict, the court stated:
[T]he Court was not sure with regard to Count 1, aggravated
assault, because the Court thought maybe, maybe, maybe
you’re just guilty of simple assault with losing your temper
and, unfortunately, losing your temper or hitting your
mother -- or slapping your mother. But when Court saw
these finger marks around the neck, when the Court saw
these around the neck -- and there’s no explanation for
them – and the Mainline Health Lankenau Hospital indicates
you choked your mother, that forced the Court to rethink,
and the Court now finds you guilty of aggravated assault,
F1.
Id. at 187.
At sentencing, Vann’s counsel included in his argument to the court the
following, invoking the trial judge’s experience with his mother:
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[D]uring the reading of the verdict, this court shared a little
bit about how you had similar experiences with an elderly
mother who declined mentally, and I don’t mean to be
personal[.]. . . And the reason I remind the Court today is,
by no means am I saying you saw yourself in the shoes of
Mr. Vann or you ever committed the acts that Mr. Vann has
been convicted of, but I think you probably recognize it was
tough for Mr. Vann.
N.T., Nov. 9, 2021, at 7.
The court sentenced Vann to an aggregate term of eight to 16 years’
imprisonment and four years’ probation.
Vann filed a timely notice of appeal and raises the following issues:
1. Was there not a violation of state law and due process
because there was an objective appearance of a lack of
impartiality by the judge at this non-jury trial who did not
timely disclose that his mother had dementia, like the
complainant who alleged that her son [Vann], had assaulted
her, and whose statements while rendering the verdict
revealed how his extensive experiences with his mother
gave him knowledge and feelings about people with
dementia that played a role in his decision?
2. Was there not a violation of state law and due process
because the judge’s intervention in the questioning of
witnesses gave the appearance of a lack of neutral
impartiality?
3. Did not the judge’s conduct at this trial cumulatively
present an appearance of a lack of impartiality in violation
of state law and due process?
Vann’s Br. at 2 (capitalization regularized).
Vann argues the trial court violated his due process right to an impartial
factfinder because the trial judge did not reveal that his mother had dementia
and that he had been a primary caregiver for her. Vann points out the main
charge was aggravated assault of Vann’s mother, who had dementia. He
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argues the trial judge’s “lengthy statement about his experiences with his
mother, and what he learned about dementia as a result, left an objectively
undeniable appearance that these feelings played a role in his resolution of
this case, and that it was not decided solely on the evidence.” Vann’s Br. at
12. Vann maintains that the trial judge failed to disclose that he had been a
caretaker for his mother until he was rendering the verdict, and this failure
“denied [Vann] the opportunity to seek recusal or to decide to have a jury
trial.” Id. at 12-13. Vann argues the trial judge knew the victim had dementia
prior to trial, as a docket entry states a motion to present expert testimony
was granted “limited to overview of dementia and any tests of complainant.”
Id. at 15 n.2.
Vann points out that in a jury trial, it is reversible error if a party is
denied the right to ask potential jurors questions that may expose biases. He
states that a party cannot voir dire a judge, and therefore “it is imperative
that the judge fulfill his duty to disclose any possibly relevant information
about personal circumstances and feelings about those experiences to
counsel.” Id. at 16-17. He points out that Code of Judicial Conduct Rule 2.11
requires judges to disclose information the judge believes the parties or
lawyers might reasonably consider relevant to a motion to disqualify, even if
the judge does not believe it to be a basis for disqualification.
Vann further argues that with voir dire, a court must grant a challenge
for cause if the record objectively leaves doubt as to the juror’s ability to
eliminate the “influences of his scruples and render a verdict according to the
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evidence.” Id. at 19 (citation omitted). He notes that the Code of Judicial
Conduct requires that a judge “shall not permit family, social, political,
financial, or other interests or relationships to influence the judge’s judicial
conduct or judgment.” Id. at 20 (quoting Code of Judicial Conduct Rule
2.4(B)). He also points out the Code requires a judge to recuse if his or her
“impartiality might reasonably be questioned.” Id. (quoting Code of Judicial
Conduct Rule 2.11). He notes the standard of whether impartiality might
reasonably be questioned is an objective one, and therefore the trial judge’s
belief that his experience did not impact the decision is irrelevant. Vann
maintains the verdict was not based solely on the evidence. He argues the
lack of an impartial judge was a structural error, requiring remand.
In his reply brief, Vann argues he did not waive the claim of judicial bias.
He argues the trial judge did not disclose that he had been a caregiver for his
mother, who had dementia, until rendering the verdict. Vann argues this is
not a situation where he had information necessary to seek recusal, but waited
as a matter of trial strategy. Further, he argues that although a judge is
presumed to be honest, fair and impartial, the presumption “does not
overcome the need for a jurist to disclose critical information that may
objectively disclose a potential for bias.” Vann’s Reply Br. at 6-7.
“[A] party must seek recusal of a jurist at the earliest possible moment,
i.e., when the party knows of the facts that form the basis for a motion to
recuse.” Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017). “If the party fails
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to present a motion to recuse at that time, then the party’s recusal issue is
time-barred and waived.” Id.In Commonwealth v. Blount, 207 A.3d 925 (Pa.Super. 2019), the
defendant argued the court should have recused because the judge did not
accept the sentence agreed upon by the parties. We concluded that the
defendant had not preserved the claim because she did not object or make a
motion to recuse at the earliest possible moment. There, at the
commencement of a re-sentencing hearing, the trial judge “expressly
indicated she had discretion to accept or reject the negotiated sentence, and
she would not make a decision until after she considered the appropriate
sentencing factors.” Id. at 932. In finding the defendant had not preserved
the claim, the Court pointed out that the defendant did not object or make a
motion for recusal at that time. “Rather, [the defendant] waited until after the
close of all testimony, evidence, and arguments before seeking [the trial
judge’s] recusal.” Id.Similarly, here, Vann did not object or seek a recusal at the earliest
possible moment, that is, when the trial judge discussed his experience in
caring for his mother, or even after the verdict, which was immediately after
the comments. Rather, Vann attended and participated in sentencing, with his
counsel specifically mentioning the trial judge’s experience when discussing
sentencing considerations. Vann never filed a motion for recusal in the trial
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court. Instead, he raised the recusal issue for the first time on appeal. We
therefore conclude he waived this issue.4
Vann next argues that “there was . . . the appearance of bias during
questioning of witnesses.” Vann’s Br. at 13. He argues the court interrupted
defense counsel to express his concern for Allen, and claims the court feared
Allen “would be swayed by cross-examination.” Id. He noted that the
prosecutor acknowledged Allen was doing fine and not simply being led by
defense counsel. Vann argues the trial judge’s intervention to tell counsel his
concerns that the witness would say yes to his leading questions was improper
____________________________________________
4 In his reply brief, Vann relies on United States v. Kelly, 888 F.2d 732 (11th
Cir. 1989), a decision from the Unites States Court of Appeals for the Eleventh
Circuit. There, the trial judge’s wife was close friends with a wife of a defense
witness. The trial judge had known the witness would be a witness in a case
before him and learned on the third day of trial that he would be a witness in
the defendant’s case. The judge did not inform the parties of the relationship
until the fifth day of trial. He at first said he would recuse, but then decided
not to recuse. The judge “made it clear” that he would have recused if he was
confident retrial would not be barred by double jeopardy principles. He
informed the parties they could either consent to a mistrial or to his continuing
with the case. The prosecution stated it would consent to a mistrial, but the
defendant declined, reasoning he had spent a “great deal of money” and “gone
through a great deal.” Id. at 738. The Court noted that the trial judge
indicated on multiple occasions that he held the defendant responsible for his
difficult position. Applying federal law, the Court of Appeals found the claim
was not barred as untimely, as it was not a case where the recusal issue had
been abused as an element of trial strategy. The Court noted that although
the defendant knew of an indirect social relationship between the judge and
witness, he did not know the extent until the next-to-last day of trial and that
it was not until the court was rendering its verdict that the defendant became
aware that the judge was irritated with the defendant. Here, we must apply
Pennsylvania law, and note Vann could have filed a motion for recusal
following the verdict and prior to sentencing, but rather he waited until after
sentencing to raise his claim.
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and gave the appearance of bias. Vann further claims the court treated him
differently when he took the stand, claiming the judge “conduct[ed] a vigorous
challenging cross-examination of [Vann], and only stopped when counsel
interjected and pointed out that he was still doing direct examination.” Id. at
25. Vann claims the court does not have a right to cross-examine a defendant,
asserting that a judge can ask questions only if clarification is needed. Vann
argues the judge assumed the role of advocate, with questions that were not
merely clarification, and “displayed a lack of patience, neutrality and
impartiality required of a jurist at any trial.” Id. at 27.
Vann did not object below to the judge’s expression of concern about
Ms. Allen or his questioning of Vann, or otherwise claim below that “the judge’s
intervention in the questioning of witnesses gave the appearance of a lack of
neutral impartiality.” He has therefore waived this issue as well. See Pa.R.A.P.
302(a).
The issue lacks merit in any event. Pennsylvania Rule of Evidence 614
provides that, if the interest of justice requires, the trial court “may examine
a witness regardless of who calls the witness.” See Pa.R.E. 614(b). Further,
the Pennsylvania Supreme Court has stated that although “a trial judge should
normally leave questioning of witnesses to counsel, justice may require that
a trial judge ask questions when absurd, ambiguous, or frivolous testimony is
given or testimony is in need of further elucidation.” Commonwealth v.
Carson, 913 A.2d 220, 249 (Pa. 2006); see also Commonwealth v. Lanza,
323 A.2d 178, 179 (Pa.Super. 1974) (“A trial judge has the inherent right,
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and, at times, the duty to question witnesses to clarify existing facts and to
elicit new information”). “A major reason for the restrictions on a trial judge’s
questioning is the concern that his conduct may lead the jury to conclude that
the court has made up its mind on the question of the defendant’s guilt, and
that the jury should follow the judge’s opinion.” Commonwealth. Seabrook,
379 A.2d 564, 567 (Pa. 1977). “That consideration, of course, is not present
in a bench trial.” Id. at 568. Regardless, even in a bench trial, “questioning
from the bench should not show bias or feeling nor be unduly protracted[.]”
Id. (citation omitted). This is because “the parties are entitled to a fair fact-
finder who, while not allowing himself to be put in a straightjacket by the
adversary system, does not attempt to banish the restraints of that system
from the courtroom.” Id.
Here, during the bench trial, the trial judge asked questions of each
witness except Allen. The questions sought clarification of the trial testimony,
and at times elicited testimony favorable to the defense. In questioning Vann,
the court sought clarification of the timeline of the fight and how long Allen
had remained on the floor, and, although the questioning spanned a couple
pages of testimony, the defendant’s answers needed further clarification, as
exemplified by his admission that he had been incorrect and she had fallen on
Wednesday morning, not Tuesday morning. Further, that the court expressed
concern for Allen, who all parties admit had memory problems, did not exhibit
a bias that would require a new trial. This issue lacks merit.
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In his final argument, Vann argues a new trial is required due to the
“cumulative effect of the judge’s missteps suggesting an appearance of a lack
of requisite impartiality.” Vann’s Br. at 28.
A court should engage in a cumulative prejudice analysis only where the
individual claims failed due to a lack of prejudice. Commonwealth v.
Hutchinson, 25 A.3d 277, 319 (Pa. 2011). Here, as Vann’s first two claims
did not fail due to a lack of prejudice, we need not engage in a cumulative
prejudice analysis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/02/2023
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