Com. v. Calhoun, G.

J-S20039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY CALHOUN :
:
Appellant : No. 1363 WDA 2021
Appeal from the Order Entered October 20, 2021
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000449-2012
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JULY 28, 2022
Appellant, Gary Calhoun, appeals from the order entered in the Cambria
County Court of Common Pleas, which dismissed his motion for disqualification
of judge. We affirm.
The relevant facts and procedural history of this appeal are as follows.
A jury convicted Appellant of one count of corruption of minors. On December
17, 2013, the court sentenced Appellant to a mandatory minimum term of
twenty-five (25) years’ imprisonment, pursuant to 42 Pa.C.S.A. § 9718.2.1
This Court affirmed the judgment of sentence on November 12, 2014, and
Appellant did not seek further review. See Commonwealth v. G.C., 113
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1Section 9718.2 imposes a mandatory 25-year sentence on offenders who
have a prior conviction for certain offenses enumerated in 42 Pa.C.S.A. §
9799.14.
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A.3d 347 (Pa.Super. 2014) (unpublished memorandum).
On January 5, 2015, Appellant timely filed his first petition pursuant to
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. The
court appointed counsel, who filed an amended petition on March 12, 2015.
On April 28, 2015, the court denied PCRA relief. This Court affirmed the order
denying PCRA relief on July 11, 2016, and Appellant did not seek further
review. See Commonwealth v. Calhoun, 154 A.3d 851 (Pa.Super. 2016)
(unpublished memorandum). Thereafter, Appellant filed several unsuccessful
PCRA petitions.
On September 13, 2021, Appellant filed another pro se PCRA petition,
his fifth, and a pro se motion for disqualification of judge. In the pro se PCRA
petition, Appellant raised various claims regarding “newly discovered” medical
and court records. In the pro se recusal motion, Appellant claimed that the
PCRA jurist possessed “personal knowledge of new evidence that proves
[Appellant’s] innocence that was not available at the time of trial.” (Recusal
Motion, filed 9/13/21, at ¶1). Appellant also argued that the jurist possessed
“personal knowledge of a court proceeding impeaching the credibility of
Commonwealth … witnesses.” (Id. at ¶2). Appellant maintained that “the
above facts reasonably call into question the impartiality of the [jurist] and
dictate that [he] recuse [himself] from further action herein.” (Id. at ¶8).
On September 20, 2021, the court issued notice of its intent to dismiss
the PCRA petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant
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did not file a response to the Rule 907 notice. On October 20, 2021, the court
dismissed the current PCRA petition as untimely. In a separate order entered
that same day, the court denied Appellant’s recusal motion.
On November 5, 2021 and November 8, 2021, Appellant timely filed
separate, pro se notices of appeal from the orders denying the recusal motion
and PCRA petition.2 The court subsequently ordered Appellant to file Pa.R.A.P.
1925(b) concise statements of matters complained of on appeal. Appellant
complied with the court’s Rule 1925(b) orders.
On appeal, Appellant now raises one issue for our review:
Did the PCRA court err in denying [Appellant’s] motion for
disqualification of judge.
(Appellant’s Brief at 6) (unnumbered).
Appellant alleges that the PCRA judge presided over 2005 dependency
proceedings involving Appellant and his children. Appellant insists that the
proceedings stemmed from the “personal bias” of certain Children and Youth
Services employees, and the judge was aware of such bias because he
ultimately dismissed the dependency petitions. (Id. at 9). Further, Appellant
relies on his most recent PCRA filing for the proposition that the judge has
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2 While an order denying a motion to recuse is interlocutory and not a final,
appealable order, “[o]nce an appeal is filed from a final order, all prior
interlocutory orders become reviewable.” In re Bridgeport Fire Litigation,
51 A.3d 224, 229 (Pa.Super. 2012). Here, Appellant filed an appeal from the
dismissal of his PCRA petition, docketed at 1364 WDA 2021, which was a final
order. Therefore, the order denying Appellant’s recusal motion became
reviewable, and Appellant may proceed with the instant appeal.
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personal knowledge of the fact that the Commonwealth illegally “suppressed”
certain mental health records at the time of Appellant’s trial. (Id. at 10). Due
to this “personal knowledge,” Appellant contends that the judge “is likely to
be a material witness in this matter,” as the case obtains further review under
the PCRA. (Id.) Appellant concludes that the judge’s continued involvement
creates an appearance of impropriety, and this Court must reverse the order
denying his recusal motion. We disagree.
“Where a jurist rules that he … can hear and dispose of a case fairly and
without prejudice, that decision will not be overturned on appeal but for an
abuse of discretion.” Commonwealth v. White, 557 Pa. 408, 426, 734 A.2d
374, 384 (1999).
In reviewing the denial of a recusal motion to determine
whether the judge abused his discretion, we recognize that
our judges are honorable, fair and competent. Based on
this premise, where a judge has refused to recuse himself,
on appeal, we place the burden on the party requesting
recusal to establish that the judge abused his discretion.
* * *
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion, within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused when the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill will.
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Commonwealth v. King, 576 Pa. 318, 322-23, 839 A.2d 237, 239-40 (2003)
(internal citations, quotation marks, and emphasis omitted).
“In general, a motion for recusal is properly directed to and decided by
the jurist whose participation the moving party is challenging.” Id. at 322,
839 A.2d at 239. “It is the burden of the party requesting recusal to produce
evidence establishing bias, prejudice or unfairness, which raises a substantial
doubt as to the jurist’s ability to preside impartially.” White, supra at 426,
734 A.2d at 383-84 (1999) (quoting Commonwealth v. Abu-Jamal, 553 Pa.
485, 507, 720 A.2d 79, 89 (1998)).
The inquiry is not whether a judge was in fact biased against
the party moving for recusal, but whether, even if actual
bias or prejudice is lacking, the conduct or statement of the
court raises an appearance of impropriety. The rule is
simply that disqualification of a judge is mandated whenever
a significant minority of the lay community could reasonably
question the court’s impartiality.
Commonwealth v. Druce, 796 A.2d 321, 327 (Pa.Super. 2002), aff’d, 577
Pa. 581, 848 A.2d 104 (2004) (internal citations and quotation marks
omitted).
Instantly, the court addressed this issue as follows:
[O]n October 20, 2021, the [c]ourt issued an Opinion and
Order denying the [current PCRA] petition as untimely. This
decision made [Appellant’s recusal] motion moot, as there
would be no hearing on the [PCRA] petition and thus this
jurist would not be a material witness. As such there is little
chance that a significant minority of the lay community
could reasonably question the court’s impartiality in regards
to [Appellant’s PCRA] petition.
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(PCRA Court Opinion, filed 12/13/21, at 3) (internal citations omitted).3 We
agree with the court’s determination and emphasize that our review of the
record does not reveal any conduct of the court that raises an appearance of
impropriety. See Druce, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2022
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3 Further, in the appeal docketed at 1364 WDA 2021, we have affirmed the
order dismissing Appellant’s current PCRA petition.
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