Com. v. Risoldi, C.

J-S44039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CARLA V. RISOLDI : No. 2673 EDA 2016
Appeal from the Order August 1, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-0002485-2015
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CARL ANTHONY RISOLDI : No. 2675 EDA 2016
Appeal from the Order August 1, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-0002474-2015
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CLAIRE A. RISOLDI : No. 2677 EDA 2016
Appeal from the Order August 1, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-0002487-2015
J-S44039-17
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
SHEILA MARIE RISOLDI : No. 2679 EDA 2016
Appeal from the Order August 1, 2016
in the Court of Common Pleas of Bucks County,
Criminal Division, No(s): CP-09-0002475-2015
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, JJ.: FILED AUGUST 15, 2017
In these consolidated appeals, the Commonwealth of Pennsylvania
appeals from the Order denying its Motion seeking recusal of the trial judge in
this case, the Honorable Thomas G. Gavin (“Judge Gavin”). We affirm.
By means of background, the Commonwealth alleges that Claire A.
Risoldi (“Claire”), Sheila Marie Risoldi (“Sheila”), Carl Anthony Risoldi (“Carl”),
Carla V. Risoldi (“Carla”), Mark Goldman (“Goldman”), Richard Holston
(“Holston”), and Tom French (collectively, “Defendants”), engaged in a course
of criminal conduct, over several years, to defraud various homeowner’s
insurance companies in a multi-million dollar insurance fraud scheme.1 Some
of the insurance claims involved three separate fires, in a span of less than
five years, at a multi-million dollar home in Bucks County owned by some of
the Defendants, known as “Clairemont.” The third fire at Clairemont in
1
The trial court provided a thorough factual background in its Opinion
entered on September 15, 2015. See Trial Court Opinion, 9/15/15, at 2-9.
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October 2013 resulted in the total loss of the residence. Following this fire,
Defendants made a claim with their homeowners’ insurer, American
International Group, Inc. (“AIG”). Defendants also claimed that more than
$10 million in jewelry was stolen during the firefighting efforts.
After a Grand Jury investigation, the Pennsylvania Attorney General’s
Office (the “AG”)2 filed Criminal Complaints against Defendants in January
2015, charging them with, inter alia, insurance fraud, intimidation of
witnesses and corrupt organizations.3 Due to the purported prominence of
Claire and her family in the Bucks County political community, the entire
Bucks County bench recused itself from the matter, and Judge Gavin, a
Chester County judge, was specially appointed to preside over Defendants’
cases.
In February 2015, the Commonwealth filed a Petition seeking to bypass
the preliminary hearings for Defendants, pursuant to Pa.R.Crim.P. 565. The
trial court denied this Petition following a hearing. At the preliminary
2
The Bucks County District Attorney’s Office requested that the AG handle
these cases.
3
During the Grand Jury investigation, Defendants instituted a civil suit
against AIG in federal court for refusing to pay damages pursuant to the
insurance policies in place at the time of the 2013 fire.
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hearings held in March 2015, the Magisterial District Judge bound over for
court the majority of the charges against Defendants.4
On June 15, 2015, Defendants respectively filed Petitions for habeas
corpus relief (collectively, “the Habeas Petitions”), seeking dismissal of the
charges.5 The Commonwealth thereafter filed a Reply to the Petitions. At the
close of a hearing on July 17, 2015, Judge Gavin (1) denied the Petitions filed
by Carl, Carla and Sheila; (2) granted the Petition filed by Claire as to one
count of corrupt organizations, but in all other regards denied Claire’s
Petition; and (3) granted the Petition filed by Goldman and dismissed all
charges against him.6
In October 2015, the Commonwealth filed a Motion to revoke and/or
raise Claire’s bail, pointing out that it had filed new charges against her
concerning witness intimidation. Judge Gavin denied this Motion.
In January 2016, Carla filed a Motion (“the Severance Motion”), which
was joined by Carl and Sheila, seeking severance of their respective criminal
4
In the interim, the Commonwealth filed a Motion seeking disqualification of
Claire’s counsel, Jack McMahon, Esquire (“Attorney McMahon”), which Judge
Gavin denied.
5
Holston filed his Petition for writ of habeas corpus later, on October 2, 2015.
In December 2015, Judge Gavin granted Holston’s Petition and dismissed all
of the charges against him. The Commonwealth filed an appeal from the
dismissal, docketed at 223 EDA 2016, which is pending before this Court.
6
The Commonwealth thereafter refiled the charges against Goldman, along
with some new charges. Following a preliminary hearing, Judge Gavin again
dismissed all charges against Goldman in December 2015. The
Commonwealth filed an appeal from the dismissal, docketed at 3822 EDA
2015, which is pending before this Court.
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cases from that of Claire. The Commonwealth thereafter filed a Response
opposing severance. After a hearing (“the severance hearing”), Judge Gavin
granted the Severance Motion.
On April 18, 2016, the Commonwealth filed a Motion to recuse Judge
Gavin. Three days later, it filed a Supplemental Motion to recuse. Carla
thereafter filed an Answer to the Motion to recuse, which was joined by the
remaining Defendants. Judge Gavin conducted a hearing on the Motion to
recuse on April 29, 2016.7
On June 10, 2016, the Commonwealth filed a Motion seeking to hold
Claire in contempt of a prior Order prohibiting her from contacting witnesses
and to revoke her bail. Following a hearing on the same date, Judge Gavin
found Claire in indirect criminal contempt and sentenced her to thirty days in
jail.8
By an Order entered on August 1, 2016, Judge Gavin denied the
Commonwealth’s Motion to recuse, and filed therewith an Opinion setting
forth his reasons for the denial (“Recusal Opinion”). In response, the
7
On May 12, 2016, the Commonwealth filed a Post-Hearing Memorandum in
support of the Motion to Recuse.
8
This Court affirmed Claire’s judgment of sentence on July 17, 2017. See
Commonwealth v. Risoldi, 1864 EDA 2016 (Pa. Super. filed July 17, 2017)
(unpublished memorandum).
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Commonwealth timely filed a Notice of Appeal.9 Judge Gavin ordered the
Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The Commonwealth timely filed a Concise
Statement, which included numerous issues and spanned sixteen pages.
Judge Gavin then issued a Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion”).
The Commonwealth now presents the following issue for our review:
“Whether the lower court abused its discretion by denying the
Commonwealth’s Motion to Recuse where objective scrutiny of the record
casts doubt on the court’s impartiality and/or where the court’s behavior
appears to be biased?” Brief for the Commonwealth at 4 (capitalization
omitted).10
Initially, we voice our disapproval of the Commonwealth’s Concise
Statement, which is anything but concise.11 Although Rule 1925(b) dictates
9
In filing this interlocutory appeal, the Commonwealth complied with
Pennsylvania Rule of Appellate Procedure 311(d), which provides that “[i]n a
criminal case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the entire
case where the Commonwealth certifies in the notice of appeal that the order
will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d);
see also Pa.R.A.P. 904(e).
10
Though the Commonwealth purports to raise only one issue, it sets forth a
multitude of discrete sub-issues in its eighty-four page Argument section,
which largely mirror those presented in its voluminous Rule 1925(b) Concise
Statement.
11
Judge Gavin, in his 1925(a) Opinion, also chastised the Commonwealth’s
Concise Statement, which the court stated “is in large measure a generalized
restatement of [the Commonwealth’s] position[,] which [Judge Gavin’s prior]
Recusal Opinion addressed.” 1925(a) Opinion, 10/17/16, at 1.
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that, without more, the number of issues raised in a concise statement will
not be grounds for finding waiver, this principle applies only “[w]here non-
redundant, non-frivolous issues are set forth in an appropriately concise
manner[.]” Pa.R.A.P. 1925(b)(4)(iv) (emphasis added); see also Kanter v.
Epstein, 866 A.2d 394, 401 (Pa. Super. 2004) (holding that “[b]y raising an
outrageous number of issues” in a Rule 1925(b) statement, an appellant
impedes the trial court’s ability to prepare an opinion addressing the issues on
appeal, thereby effectively precluding appellate review). In the instant case,
we, like the trial court, will address the merits of the sub-issues that the
Commonwealth sets forth in its voluminous Argument section, 12 as its brief
otherwise complies with our Appellate Rules. See, e.g., Mahonski v. Engel,
145 A.3d 175, 181 (Pa. Super. 2016) (stating that “the number of issues
raised in a Rule 1925(b) statement does not, without more, provide a basis
upon which to deny appellate review where an appeal otherwise complies with
the mandates of appellate practice,” and recognizing that the complexity of
the matter under review is a consideration for courts to make prior to finding
12
We note that although the Commonwealth’s brief is ninety-nine pages long
(and, according to the Commonwealth, is 23,255 words in length), it sought,
and was granted, permission by this Court to exceed the brief’s maximum
word count, prescribed by Pa.R.A.P. 2135(a)(1) (providing that “the principal
brief shall not exceed 14,000 words”). See Commonwealth v. Roane, 142
A.3d 79, 86 n.3 (Pa. Super. 2016) (where the appellant’s principal brief was
122 pages in length, stating that the Court would consider the issues on their
merits because counsel had filed a petition requesting permission to exceed
the brief’s maximum word count and page limit).
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waiver based on the sheer volume of the concise statement) (quotation marks
and citation omitted).
Our standard of review for a denial of recusal is well settled.
Our [Pennsylvania] 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 ….
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.
Commonwealth v. Kearney, 92 A.3d 51, 60-61 (Pa. Super. 2014)
(citations, quotation marks, and brackets omitted); see also Pa. Code Jud.
Conduct Canon 1.2 (providing that “[a] judge shall act at all times in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance
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of impropriety.”). “Adverse rulings alone do not, however, establish the
requisite bias warranting recusal, especially where the rulings are legally
proper.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998).
In its first sub-issue, the Commonwealth contends that Judge Gavin
revealed his bias and an appearance of impropriety in his denial of the
Commonwealth’s Motion to disqualify Attorney McMahon as Claire’s counsel.
See Brief for the Commonwealth at 15-28. The Commonwealth asserts that
Judge Gavin improperly overlooked the fact that Attorney McMahon had a
conflict of interest in representing Claire, as the Commonwealth could call him
as a necessary fact witness in this case, and had considered filing criminal
charges against him. See id. at 18-23. The Commonwealth further claims
that “shockingly, the [trial] court did not consider significant Attorney
McMahon’s statement to Commonwealth witness James O’Keefe[, an AIG
insurance adjustor who performed an inspection of jewelry in 2014
concerning Defendants’ jewelry loss insurance claim from the 2013 fire,] that
‘snitches get stitches’” (hereinafter “the snitches comment”). Id. at 23; see
also id. (explaining the context of the snitches comment). According to the
Commonwealth, the snitches comment constituted intimidation of a witness
“in a verbally threatening manner[.]” Id. at 24. Finally, the Commonwealth
argues that several components of Judge Gavin’s reasoning regarding this
matter in the 1925(a) Opinion and Recusal Opinion exhibit an appearance of
impropriety, including, inter alia, the court’s (1) ignoring Attorney McMahon’s
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conflict of interest; (2) minimizing the significance of the snitches comment;
and (3) failing to address several of the Commonwealth’s arguments
regarding this matter raised in the Motion to recuse. See id. at 26-28.
In his Recusal Opinion, Judge Gavin thoroughly addressed and
expounded upon the Commonwealth’s claims, and determined that he
exhibited no bias or appearance of impropriety in denying the
Commonwealth’s Motion to disqualify Attorney McMahon. See Recusal
Opinion, 8/1/16, at 22-29; see also 1925(a) Opinion, 10/17/16, at 5. As
Judge Gavin’s analysis is supported by the record, and we agree with his
determination, we affirm on this basis as to the Commonwealth’s first sub-
issue. See id.
In its second sub-issue, the Commonwealth urges that Judge Gavin
abused his discretion by declining to recuse himself where he had engaged in
improper ex parte communications with Claire. See Brief for the
Commonwealth at 29-39; see also id. at 29-30 (explaining the context of the
ex parte communication, wherein Claire directly contacted Judge Gavin via
telephone and stated that she was without a lawyer and could not afford to
retain one). According to the Commonwealth, this ex parte communication
made Judge Gavin a potential fact witness. See id. at 32-33 (asserting that
Claire’s statement to Judge Gavin that she was destitute was relevant to the
criminal charges against Claire, as she previously had made representations
to AIG that she is a multi-millionaire and, thus, lacked a financial motive to
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commit insurance fraud); see also Pa.R.E. 605 (providing that “[t]he
presiding judge may not testify as a witness at the trial or other
proceeding.”). According to the Commonwealth,
the ex parte communication between the court and Claire[,]
including the court’s failure to disclose the communication[,]
coupled with the factual discrepancies and the court’s reaction to
the request to place the matter on the record[,] demonstrate
clear bias and raise the appearance of impropriety. The court
was required to disclose the communication pursuant to [Canon]
2.9 of the Code of Judicial Conduct[,13] as [Claire’s] claims to the
court directly contradicted statements to [AIG] and, therefore,
constitute proof of the elements of the crimes which she is
charged with.
Brief for the Commonwealth at 29 (footnote added). Finally, the
Commonwealth asserts that Judge Gavin further exhibited his bias concerning
the ex parte communications in addressing this matter in his Recusal Opinion
and 1925(a) Opinion. See id. at 35-39.
Judge Gavin adeptly addressed and expounded upon the
Commonwealth’s above claims in his Recusal Opinion and 1925(a) Opinion,
and determined that (1) no improper ex parte communication had occurred;
and (2) there was no reason for Judge Gavin to recuse himself in this regard.
See Recusal Opinion, 8/1/16, at 7-9, 29-32; see also 1925(a) Opinion,
13
Canon 2.9 provides, in relevant part, that, generally, “[a] judge shall not
initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or
their lawyers, concerning a pending or impending matter[.]” Pa. Code Jud.
Conduct Canon 2.9(A); see also id. Canon 2.9(B) (stating that “[i]f a judge
inadvertently receives an unauthorized ex parte communication bearing upon
the substance of a matter, the judge shall promptly notify the parties of the
substance of the communication and provide the parties with an opportunity
to respond.”).
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10/17/16, at 1-3. We agree with Judge Gavin’s sound rationale and
determination, which, contrary to the Commonwealth’s claim, does not exhibit
bias or an appearance of impropriety. Accordingly, we affirm on this basis as
to the Commonwealth’s second sub-issue. See id.
In its third sub-issue, the Commonwealth argues that “[t]he trial court
abdicated its responsibility to protect witnesses from repeated efforts by
Claire [] to intimidate and improperly influence [them,] which demonstrates
clear bias and advances the appearance of impropriety.” Brief for the
Commonwealth at 39; see also id. at 39-52. The Commonwealth maintains
that Claire engaged in multiple instances of intimidation of Commonwealth
witnesses, all of which the trial court “made light of … and exhibited a clear
misunderstanding of the charges.” Id. at 41; see also id. at 39-43, 45-46
(detailing the alleged instances of witness intimidation). According to the
Commonwealth,
[t]he court failed to hold [Claire] accountable for [her] continued
efforts to intimidate and influence witnesses[,] by giving her at
least a fourth “bite” at intimidation[,] which clearly raised an
appearance of impropriety. The court itself appeared to
acknowledge that it had “bent over backwards” for Claire []. As
such, a significant minority of the lay community could reasonably
question the court’s impartiality.
Id. at 47 (citation omitted); see also id. at 42 (asserting that “[t]he trial
court was [] aware that, despite being held for court on two charges of
intimidation, Claire [] continued that conduct following her preliminary
hearing and subsequent habeas proceedings.”).
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In his Recusal Opinion and 1925(a) Opinion, Judge Gavin exhaustively
addressed the Commonwealth’s claim, set forth the applicable law, explained
the complained-of instances of Claire’s purported intimidation of witnesses,
and determined that the court did not exhibit any bias or appearance of
impropriety in this regard to merit recusal. See Recusal Opinion, 8/1/16, at
9-22; see also 1925(a) Opinion, 10/17/16, at 4-5. We agree with Judge
Gavin’s sound rationale and determination, which, contrary to the
Commonwealth’s claim, does not exhibit bias or an appearance of
impropriety. Accordingly, we affirm on this basis as to the Commonwealth’s
third sub-issue. See id.
In its fourth sub-issue, the Commonwealth argues that Judge Gavin’s
resolution of the Habeas Petitions demonstrated his bias against the
Commonwealth and evidenced an appearance of impropriety. See Brief for
the Commonwealth at 52-86. The Commonwealth complains that “[d]uring
the oral argument on the [H]abeas [P]etitions, [] it appeared that the court
had not reviewed either” “the 199 exhibits that were admitted during the
preliminary hearing … [or] the transcript from the lengthy preliminary hearing
….” Id. at 53. According to the Commonwealth,
[d]espite not having read the transcript or reviewed the evidence,
during the oral argument on the [H]abeas [P]etitions, the court
repeatedly challenged the Commonwealth’s version of facts and
accepted the defense version[,] in contravention of the well-
established standards for evaluating whether or not a prima facie
case had been established. While under normal circumstances
this would be troubling, in the present case it is even more
alarming because the court did so without having read the
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transcript. And, because the court had not read the transcript, it
relied on averments in the defense filings which were not part of
the record.
Id. at 53-54. The Commonwealth further avers that, “the court repeatedly
refused to give effect to reasonable inferences drawn from the
Commonwealth’s evidence as required[,] as well as failed to view the
evidence in the light most favorable to the Commonwealth.” Id.; see also
id. at 54-57 (detailing the alleged occurrences). The Commonwealth
contends that Judge Gavin also “made improper credibility determinations, []
exhibited a misunderstanding of or refusal to acknowledge the elements of
the offenses charged[,] as well as mischaracterized the Commonwealth’s
theory of the case.” Id. at 52. Finally, the Commonwealth asserts that Judge
Gavin’s granting the Habeas Petitions filed by Goldman and Holston, and
dismissing all charges against them, reveals the court’s bias against the
Commonwealth and “demonstrate glaring examples of the court’s failure to
view the evidence in the light most favorable to the Commonwealth[.]” Id. at
59.14
In his Recusal Opinion and 1925(a) Opinion, Judge Gavin thoroughly
addressed and expounded upon the Commonwealth’s claims, and determined
that he did not abuse his discretion in declining to recuse in this regard. See
14
In the interest of brevity, we will not set forth herein the Commonwealth’s
voluminous argument in support of the claim that Judge Gavin erred in
granting the Habeas Petitions filed by Goldman and Holston, but instead refer
to its brief. See Brief for the Commonwealth at 59-86. Further, as noted
above, the Commonwealth’s appeals from the Orders granting these Petitions
are pending before this Court.
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Recusal Opinion, 8/1/16, at 32-40; see also 1925(a) Opinion, 10/17/16, at
6-7. Judge Gavin’s analysis is supported by the record, and we agree with his
determination; accordingly, we affirm on this basis as to the Commonwealth’s
fourth sub-issue. See id.
In its fifth sub-issue, the Commonwealth contends that Judge Gavin’s
resolution of the Severance Motion demonstrates his bias against the
Commonwealth and misunderstanding of the case. Brief for the
Commonwealth at 86; see also id. at 87 (asserting that “[t]he court’s
resolution also demonstrated … an effort to prevent the Commonwealth from
presenting relevant evidence.”). According to the Commonwealth, “[t]he fact
that the court sua sponte fashioned a severance that significantly damaged
the prosecution as to all [D]efendants[,] and provided a potentially viable
appellate issue for the lead defendant[, i.e., Claire,] provides substantial
evidence that the court has lost objectivity.” Id. at 87.
In his Recusal Opinion and 1925(a) Opinion, Judge Gavin addressed the
Commonwealth’s claim and determined that recusal was not warranted in this
regard. See Recusal Opinion, 8/1/16, at 40-42; see also 1925(a) Opinion,
10/17/16, at 7-8. Judge Gavin’s cogent reasoning is supported by the record,
and we discern no abuse of his discretion in declining to recuse. Accordingly,
we affirm on this basis concerning the Commonwealth’s fifth sub-issue. See
id.
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In its sixth sub-issue, the Commonwealth argues that “because []
[D]efendants have never claimed that they would be prejudiced from the
recusal, [Judge Gavin’s] response to the recusal [M]otion added to the
appearance of impropriety.” Brief for the Commonwealth at 91; see also id.
at 88-91.
Judge Gavin concisely addressed and rejected this claim in his 1925(a)
Opinion. See 1925(a) Opinion, 10/17/16, at 8. We affirm on this basis as to
the Commonwealth’s sixth sub-issue. See id.
In its seventh sub-issue, which the Commonwealth titles
“Miscellaneous,” it avers that Judge Gavin exhibited an appearance of
impropriety in his (1) mischaracterization of the testimony of Commonwealth
witness Ashley Rodrigues (“Rodrigues”);15 and (2) “continued unfamiliarity
with the record” as concerns Rodrigues’s testimony. Brief for the
Commonwealth at 91-93. The Commonwealth asserts that “[t]he court’s
characterization of Rodrigues as ‘a cleaning lady’ rather than an individual
specially trained to evaluate and painstakingly catalog the contents of
properties exhibits a continued unfamiliarity with the record[,] as well as an
ongoing effort to minimize evidence[,] to the detriment of the
Commonwealth[.]” Id. at 92; see also id. at 92-93 (asserting that the
15
The Commonwealth asserts that Rodrigues is an employee of a company
that “evaluates building contents alleged to be damaged or lost in connection
with an insurance claim[,]” who “led a team of individuals trained to evaluate
and catalog the contents of [Clairemont, after the 2013 fire,] including
window treatments.” Brief for the Commonwealth at 92.
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court’s Recusal Opinion is factually incorrect to the extent it states that
Rodrigues was involved in the investigation of the 2010 fire at Clairemont,
which exhibits the court’s unfamiliarity with the record). Additionally, the
Commonwealth argues that Judge Gavin improperly considered credibility
issues in resolving the Habeas Petitions. Id. at 93 (citing Recusal Opinion,
8/1/16, at 44-45 (wherein Judge Gavin stated that his Opinions “are written
to demonstrate [his] compliance with the controlling legal principles applied to
the credible facts.”)) (emphasis supplied by the Commonwealth).
In his 1925(a) Opinion, Judge Gavin addressed the above claims and
opined that he did not abuse his discretion in refusing to recuse in this
regard. See 1925(a) Opinion, 10/17/16, at 8-9; see also Recusal Opinion,
8/1/16, at 42-44 (addressing the court’s remarks concerning Rodrigues). We
affirm on this basis as to this sub-issue, see id., with the following
addendum. Contrary to the Commonwealth’s claim, we discern no bias or
appearance of impropriety as to either Judge Gavin’s (1) remark in the
1925(a) Opinion concerning the alleged public perception (and media
reporting) of the court’s bias in favor of Defendants; or (2) purportedly
disparate allocation of peremptory challenges to the parties. See Brief for the
Commonwealth at 93-94.
In its final sub-issue, the Commonwealth contends that the cumulative
effect of Judge Gavin’s above-mentioned actions “demands” recusal. See
Brief for the Commonwealth at 95-97 (citing Commonwealth v. Johnson,
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966 A.2d 523, 532 (Pa. 2009) (stating “if multiple instances of deficient
performance are found, the assessment of prejudice properly may be
premised upon cumulation”), and Commonwealth v. Rhodes, 990 A.2d
732, 748-49 (Pa. Super. 2009) (stating that “a party’s call for recusal need
not be based only upon discreet incidents, but may also assert the cumulative
effect of a judge’s remarks and conduct even though no single act creates an
appearance of bias or impropriety.”)). According to the Commonwealth,
“[w]hen considered as a whole, the totality of [Judge Gavin’s] errors,
misstatements of facts, failure to adhere to well-established legal principles,
ex parte communications, exhibition of hostility towards the Commonwealth’s
attorneys, deference to [] [D]efendants, and abdication of judicial
responsibilities, the appearance of bias and impropriety is unmistakable” and
“painfully evident”). Brief for the Commonwealth at 95, 97. We disagree.
Judge Gavin addressed and rejected this claim in his 1925(a) Opinion
and Recusal Opinion. See 1925(a) Opinion, 10/17/16, at 9-10 (distinguishing
Rhodes, supra and Johnson, supra); see also Recusal Opinion, 8/1/16, at
57-58 (citing Commonwealth v. Williams, 615 A.2d 716, 722 (Pa. 1992)
(stating that no number of failed claims may collectively attain merit if they
could not do so individually)). We agree with Judge Gavin’s analysis and
determination, which is supported by the record and the law. Accordingly, we
affirm on this basis with regard to the Commonwealth’s final sub-issue. See
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1925(a) Opinion, 10/17/16, at 9-10; see also Recusal Opinion, 8/1/16, at
57-58.
In closing, we discern no bias or appearance of impropriety in Judge
Gavin’s evenhanded handling of these contentious cases. Judge Gavin
articulated sound, thorough reasoning supporting his determination that he
could preside over these cases impartially, which is supported by the record.
In this regard, we incorporate herein Judge Gavin’s summarization of his
position, as set forth in the Recusal Opinion. See Recusal Opinion, 8/1/16, at
2-3, 4 (wherein Judge Gavin stated, inter alia, as follows: “The main thrust of
the [] [M]otion[] to recuse is that I am favoring the defense at the expense of
the prosecution. I flatly reject this suggestion. The only party favored is the
one with the facts and law on its side, something I have adhered to in my
rulings in this case. … I have no bias for or against any party. I believe that
an objective review of my handling of this case will show an evenhanded
approach[,] guided by the applicable legal principles and the credible
objective evidence pertinent to the decision then being made.”).
Accordingly, we affirm the Order denying the Commonwealth’s Motion
to recuse.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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Circulated 07/21/2017 11:37 AM
Circulated 07/21/2017 11:37 AM