Commonwealth v. White

OPINION BY

BECK, J.:

¶ 1 In this case we consider whether the Commonwealth may appeal, as of right, a pretrial order denying recusal. We also consider the Commonwealth’s right to appeal an adverse ruling on its request for a jury trial. We hold that the Commonwealth may not appeal the denial of recu-sal as of right, but is entitled to an appeal in the event the trial court refuses its request for a jury trial.

FACTS

¶2 This case involves a homicide committed by an eleven-year-old girl, appellee Miriam White. The Commonwealth alleges and Ms. White appears to concede that on the afternoon of August 20, 1999, she stabbed fifty-five year old Rose Marie Knight in the chest, causing her death. By operation of law, Ms. White was charged as an adult for the crime of murder. 42 Pa.C.S.A. § 6355(e). Legal proceedings concerning the proper manner in which to punish, treat, restrain and rehabilitate Ms. White have been ongoing for nearly three years.

¶ 3 In a series of pretrial hearings before the Honorable Renee Cardwell Hughes, defense counsel and the Commonwealth attempted to reach a plea agreement, but the effort was unsuccessful. Thereafter, defense counsel moved to de-certify the case to juvenile court and the matter came before the Honorable Le-gróme D. Davis. Again, attempts at plea negotiations commenced, but again they proved unsuccessful. After extensive analysis and a thorough assessment of the case, Judge Davis denied decertification in November 2000 and the matter returned to Judge Hughes’s courtroom.

¶ 4 Defense counsel informed Judge Hughes that Ms. White intended to plead guilty to murder generally and requested that the court schedule a degree of guilt hearing. The prosecutor then inquired whether the judge believed that the degree of guilt hearing could result in a verdict of less than third degree murder, i. e., voluntary manslaughter. The court responded in the affirmative. One week later, the prosecutor appeared before Judge Hughes and asked that she recuse herself and assign the matter to another judge. Judge Hughes denied the request. The prosecutor then requested that the Commonwealth be afforded its right to a jury trial. Judge Hughes denied the request. Finally, the prosecutor asked the court to certify for appeal both the recusal issue and the request for a jury trial. Judge Hughes denied the request. The Commonwealth then filed this appeal.¹

APPEALABILITY OF THE RECUSAL ISSUE

¶ 5 The threshold question in this case is whether the orders for which the Commonwealth seeks review are appealable. We begin with the denial of recusal. The Rules of Appellate Procedure permit pretrial Commonwealth appeals in the event the prosecution is terminated or substantially handicapped:

In 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).

¶ 6 There exists a sizeable body of case law discussing the Commonwealth’s right under Rule" 311(d) to file pretrial appeals. The most familiar cases are those addressing the admission or exclusion of evidence. Rule 311(d) has been held applicable to an order of suppression, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); an order granting a defendant’s motion in limine to exclude certain evidence, Commonwealth v. King, 456 Pa.Super. 72, 689 A.2d 918 (1997); and an order granting a defendant’s motion in limine to admit certain evidence, Commonwealth v. Allburn, 721 A.2d 363 (Pa.Super.1998), appeal denied, 559 Pa. 662, 739 A.2d 163 (1999).

¶ 7 But in the past decade, we have deemed several non-evidentiary pretrial orders to be appealable as of right by the Commonwealth. For instance, the Commonwealth may appeal an order precluding it from seeking the death penalty, Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), appeal denied, 530 Pa. 651, 608 A.2d 27 (1992); an order transferring a case from criminal to juvenile court, Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995); and an order denying a Commonwealth request for a continuance in order to secure a witness, Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). In each qf these cases, the appellate court determined that the nature of the order made an appeal as of right proper.

¶ 8 The Commonwealth argues that its certification alone establishes its right of appeal and an appellate court may not inquire into the reasons upon which it relies to assert a substantial handicap under Rule 311(d). It is true that in cases regarding the admission or exclusion of evidence, we have not inquired into the appropriateness of the Commonwealth’s claim of substantial handicap and explicitly have held that the Commonwealth’s certification is determinative of its right to appeal. See, e.g., Dugger, supra; Allburn, supra; Commonwealth v. Pitts, 740 A.2d 726 (Pa.Super.1999).² This treatment of evidentiary issues is logical; the judiciary does not intrude upon evidentiary assessments made by the district attorney in the cases she chooses to bring to court. But the fact that we decline to probe evidentia-ry issues in this context does not mean that the district attorney alone decides what is and what is not appealable under Rule 311(d).

¶ 9 Prior case law establishes that the courts have placed and continue to place limits on the Commonwealth when it invokes the Rule. In Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988) (plurality), our Supreme Court held that an order for severance did not constitute one that substantially handicapped the prosecution because the Commonwealth still was permitted to seek convictions on the charges it filed, albeit in two separate proceedings rather than one, Id. at 527-28, 544 A.2d at 945. Just this year, a panel of this court did not accept blindly the Commonwealth’s certification of substantial handicap. In Commonwealth v. Shearer, 2002 WL 398798 (Pa.Super.2002), the panel’s majority held that a pretrial order directing that a child witness be examined by a psychologist could not be appealed under Rule 311(d) because the order did not affect the Commonwealth’s ability to pursue the charges against the accused. The Shearer majority observed:

[Djespite the Commonwealth’s certification, ... the order [will not] in and of itself hamper, much less terminate, prosecution of the case. Only if the child is ultimately ruled incompetent by the trial court, with or without the assistance of a psychologist’s prior expert opinion, will the Commonwealth be obstructed in its actions.

Id. at *2.

¶ 10 Although Shearer has since been withdrawn so that the Superior Court may consider the case en banc,³ its rationale is compelling and its conclusion, along with that of the plurality in Smith, suggests that when issues other than those eviden-tiary in nature are raised, we may pause to consider the propriety of the Commonwealth’s certification.⁴ No doubt this is due in part to a concern that invocation of Rule 311(d) not become the norm, but rather remain an exception to be utilized only where necessary.

¶ 11 With that precise concern in mind, and based on Rule 311(d) case law generally, we find that notwithstanding the Commonwealth’s certification, we are authorized to consider whether an order denying recusal is appealable. Further, our consideration of the issue leads us to conclude that such order falls short of establishing a substantial handicap.

¶ 12 The ability of the Commonwealth to present its case has not been affected by the court’s order denying recusal. Not only are there no adverse evidentiary rulings facing the Commonwealth, but, unlike in Johnson, the charges remain intact. Unlike in Buonopane, the possible punishment has not been altered. And unlike in Matis, the availability of witnesses is not compromised. Further, to expand the Rule would be to disturb the orderly process of litigation. Strict application of the Rule assures that trials will go forward as scheduled. We decline to expand Rule 311(d) to include an appeal from an order denying recusal.⁵ We find that such an order is beyond the scope of Rule 311(d) and, therefore, is not appealable as of right.

MERITS OF THE RECUSAL ISSUE

¶ 13 Although we find that the court’s recusal order is not appealable, we address its merits in response to the dissent’s consideration of the issue. The dissent believes that recusal was proper in this case, but we do not agree that bias or prejudice is established by the record nor do we believe that an appearance of bias or prejudice is evident.

¶ 14 The Commonwealth devotes a substantial portion of its brief to comments Judge Hughes made to Ms. White prior to the decertification proceedings, while plea negotiations were ongoing. Those comments included questions about Ms. White’s diet, food preferences and other factors concerning her condition and treatment while awaiting trial. The Commonwealth argues that the court’s “fulsome praise” of and “solicitous concern” for Ms. White combined to “create an appearance of improper personal involvement.” Appellant’s Brief at 32. We disagree.

¶ 15 The exchanges between Judge Hughes and Ms. White were proper when viewed in context. The court had before it a twelve-year-old girl, whom all parties conceded was severely troubled. It appeared at that time that a negotiated resolution would be reached. Judge Hughes, in questioning and reassuring Ms. White, attempted to put the child at ease, to reassure the child and to put a human face on the judicial system, which surely was mystifying and frightening to the twelve-year-old. The court’s interaction with the child, while admittedly uncommon, was not inappropriate considering the uncommon facts before the court, particularly the child’s age and her troubled mental state.

¶ 16 The Commonwealth also refers us to other comments made by the court once decertification was denied and it became clear that a negotiated resolution would not be reached. Among them is the judge’s statement that she would not be “forced to treat this [case]' like a regular case” and believed “the law [placing Ms. White in criminal court instead of juvenile court] was wrong.” Obvious from those comments and others is the fact that the judge was disappointed with the turn of events, particularly because the case involved such novel — and tragic — circumstances.

¶ 17 These comments revealed the court’s frustration in having to deal with this unique case in a standard manner, as well as her exasperation with the fact that the matter was not proceeding smoothly. The judge candidly admitted that she did not want to treat this case as a garden-variety juvenile matter that had been denied decertification. But her disclosure was tempered with her statements that she had no intention of placing either party at a disadvantage and had every intention of upholding the law. After reviewing all of the comments of which the Commonwealth complains, we would not find that Judge Hughes pre-judged the ease. Nor would we find that her remarks established that she was unwilling to follow the law or even appeared so.

¶ 18 Thus, even if we could address the recusal issue, we would not find for the Commonwealth on the merits.

APPEALABILITY OF THE JURY TRIAL ISSUE

¶ 19 The Commonwealth also challenges the trial judge’s order denying it a jury trial. We find without question that the Commonwealth may appeal this order as of right under Rule 311(d). The Commonwealth’s asserted right is constitutional in its basis: “[I]n criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.” Pa. Const, art I, § 6 (amended 1998). The amendment has been upheld by the Pennsylvania Supreme Court and so is valid. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251 (2000). Precluding the Commonwealth from appellate review on this issue would permit the trial court to override a constitutional provision based on its own interpretation of that provision. After trial, the constitutional issue would never reach an appellate court.⁶

¶ 20 A trial court’s denial of the Commonwealth’s constitutional right to a jury trial no doubt constitutes a substantial handicap under Rule 311(d), much the same way a court’s order decertifying a juvenile case or precluding the death penalty does. See Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995) (decertifi-cation); Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), appeal denied, 530 Pa. 651, 608 A.2d 27 (1992) (death penalty).

¶ 21 It is the genesis of the Commonwealth’s asserted right to a jury trial, our state Constitution, that requires the order be appealable as of right.

MERITS OF THE JURY TRIAL ISSUE

¶ 22 In determining that a degree of guilt hearing could go forward and the Commonwealth’s request for a jury trial was precluded, the trial court erroneously relied on the Pennsylvania Rules of Criminal Procedure.⁷ The Rules provide that in a non-capital case, a defendant may plead guilty to murder generally and in such cases, “the judge before whom the plea was entered shall alone determine the degree of guilt.” Pa.R.Crim.P. 590(c). This procedural rule affords a criminal defendant the option of having the trial judge, rather than a jury, determine her degree of guilt. But implementation of the Rule is irrelevant in the event that the Commonwealth seeks to exercise its constitutional right to a jury trial.

¶ 23 The Commonwealth’s right, as set out in the Constitution, is reciprocal. It attaches in all instances in which the criminal defendant has the right to a jury trial. Its effect, simply, is to permit the Commonwealth to insist on a jury trial despite a criminal defendant’s decision to waive that same right. It is clear that the Commonwealth’s exercise of its right to a jury trial in this case was intended to preclude the trial judge from sitting as fact finder and determining the degree of guilt. The Constitution, as amended, entitles the Commonwealth to do just that. As a result, and based on the rationale set forth infra, we hold that the Commonwealth may demand a jury trial in the face of the defendant’s request to plead guilty to murder generally.

¶ 24 A plea of guilty to murder generally is a unique plea, unlike anything else provided in statute or decisional law. It appears to be like a guilty plea because the defendant concedes at least some level of guilt. But the option of proceeding under Rule 590(c) is not the same as a defendant pleading guilty to the charges filed against her. In a guilty plea, no evidence is presented against the defendant. The judge in her colloquy merely assures that the defendant is aware of the facts underlying the plea. A Rule 590(c) proceeding, on the other hand still requires the presentation of evidence, the arguments of counsel and the finding of facts in support of a verdict. As a practical matter, the procedure set out in Rule 590(c) is akin to a bench or waiver trial. The criminal defendant first waives her right to be tried by a jury.⁸ Thereafter, evidence is presented against her by the district attorney and her counsel advocates on her behalf via testimony, argument or both. At the end of this proceeding, a verdict is rendered by the court. The Rule in essence provides for a form of a waiver trial for the defendant facing murder charges. Under the newly adopted constitutional provision, the Commonwealth can oppose this procedure and demand that the matter be resolved by a jury trial.

¶ 25 It is for the reasons set out above that we disagree with the trial court that the Commonwealth’s exercise of its right to demand a jury trial denies an accused the right to plead guilty. We reiterate that the distinctive nature of murder charges sets them apart from others. In most instances, a criminal defendant’s decision to plead guilty would be met with approval by the district attorney and the notion that the district attorney could or would oppose such a plea appears absurd.⁹ Murder is the only crime wherein we permit a guilty plea to a general charge and allow, at least in non-capital cases, that the degree of guilt be determined by the judge. See Pa.R.Crim.P. 590(c). This option, created by rule and available only to murder defendants, is not a simple guilty plea. It is instead a variation of a waiver trial and as such, it cannot trump the Commonwealth’s constitutional right to demand a jury trial. Where the Commonwealth seeks to assert its right to a jury trial, a criminal defendant facing murder charges simply may not invoke Rule 590(c).

¶ 26 The constitutional provision giving the Commonwealth a reciprocal right to a jury trial certainly permits the Commonwealth to insist that a jury, and not the court, render the verdict in a criminal case. Tharp, supra; Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79,148 L.Ed.2d 42 (2000).

¶ 27 Based on the applicable law, the trial judge erred in concluding that the Commonwealth had no right to a jury trial. The court’s reliance on a procedural rule to oppose a clear constitutional right was misplaced. The trial court’s order must be reversed and the Commonwealth permitted to exercise its constitutional right to a jury trial.

CONCLUSION

¶ 28 In light of our analysis, we conclude that the Commonwealth’s appeal of the order denying recusal must be quashed because the order is not appealable under Rule 311(d). We further conclude that the order of the trial court denying the Commonwealth’s request for a jury trial is appealable. Under the rationale stated above we reverse the order of the trial court and direct that the Commonwealth be permitted to exercise its constitutional right to a jury trial.

¶ 29 Order quashed in part and reversed in part; matter remanded for further proceedings consistent with this Opinion.

¶ 30 Jurisdiction relinquished.

¶ 31 JOYCE, J. files a Dissenting Opinion.

1 . When the trial court refused to certify the matter for interlocutory appeal, the Commonwealth filed a Petition for Review under Pa. R.A.P. 1511, which was docketed at 108 EDM 2000, as well as an appeal as of right under Pa.R.A.P. 311(d) (the instant action), which was docketed at 3282 EDA 2000. This court denied the Petition for Review on January 21, 2001. However, the panel refused to quash the appeal as of right and permitted it to continue without prejudice to appellee’s right to request quashal before the merits panel. As a result, we have before us the Commonwealth's appeal as of right under Rule 311(d) DefendanVAppellee once more seeks to quash the appeal, arguing that it is not appealable under Rule 311 (d).

2 . In the non-evidentiary cases that we have treated as appeals as of right, we either did not address the application of Rule 311(d), see, e.g., Buonopane, supra (imposition of the death penalty) and Johnson supra (transfer to juvenile court) or we analogized the order on appeal to one addressing evidentiary issues. See Matis, supra (continuance in order to secure a witness).

3 .The Shearer majority, Justice Montemuro and Judge Musmanno, inquired into the validity of the Commonwealth’s claim that it was substantially handicapped by the trial court's order. Distinguishing clear evidentiary rulings of a trial judge, such as an order admitting or excluding certain evidence, the majority concluded that an appeal under Rule 311(d) was unwarranted under the facts. Shearer, slip op., at *2 n. 2. In dissent, Judge Olszewski stated that the Commonwealth’s certification of substantial handicap was sufficient to allow an appeal under Rule 311(d) since there was no evidence that the certification was made in bad faith. Id. at *2 (Olsz-ewski, J., dissenting).

What the en banc panel will decide on this issue is uncertain. However, the case law to date has not required an assessment of bad faith when considering a Commonwealth appeal under Rule 311(d). We decline to engage in one here.

4 . The Smith plurality explicitly distinguished appeals based on an evidentiary ruling from those rendered in other cases, such as the severance order before it.

5 . Our holding does not preclude the Commonwealth from ever appealing a denial of recusal pretrial. As the Commonwealth itself recognized in this case, the proper manner for raising such a claim is via a Petition for Review under Pa.R.A.P. 1511. While such Petition was unsuccessful here, its availability to the Commonwealth remains.

6 . In the event of an acquittal, the Commonwealth would have no right of appeal because it is precluded from challenging a not guilty verdict. In the event of a conviction, the Commonwealth would have no right of appeal because it would not be an aggrieved party.

7 . In a related claim, the Commonwealth also asserts that Ms. White is not entitled to a degree of guilt hearing in any event, because the only charge pending against her is third degree murder. According to the Commonwealth, if Ms. White wishes to plead guilty, she must enter a plea to third degree murder. In support of its claim, the Commonwealth refers us to case law that precludes a trial judge from instructing a jury on voluntary manslaughter where there is no evidence to support the charge. These cases are not controlling as they address jury instructions following a murder trial whereas this case presents an initial charge of murder generally, followed by the Commonwealth’s statement that it would not proceed with first degree murder charges.

Our Supreme Court clearly has stated that a guilty plea to murder generally can result in first, second or third degree murder, as well as voluntary manslaughter, as long as there is evidence presented by the accused to support it. See Commonwealth v. Myers, 481 Pa. 217, 392 A.2d 685 (1978). See also Commonwealth v. Bickley, 448 Pa. 319, 292 A.2d 317 (1972); Commonwealth v. Swaney, 445 Pa. 244, 284 A.2d 732 (1971). Although this issue is likely irrelevant in light of our decision on the Commonwealth’s right to a jury trial, it is nonetheless the law that where a degree of guilt hearing goes forward, the possibility of a voluntary manslaughter conviction goes with it. Id.

8 . The Comment to the Rule directs that the trial judge elicit from the defendant her recognition of this fact.

9 . A defendant's decision to admit guilt for rape when charged with rape, or to plead guilty to aggravated assault when charged with aggravated assault, would not prompt a challenge from the district attorney.