Com. v. Abreu, J.

J-S32005-20 & J-S32007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE AMBIORIX ABREU :
:
Appellant : No. 2379 EDA 2019
Appeal from the Judgment of Sentence Entered April 30, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000657-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE AMBIORIX ABREU :
:
Appellant : No. 2414 EDA 2019
Appeal from the Judgment of Sentence Entered April 30, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000613-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: January 21, 2021
In docket number CP-45-CR-0000657-2018 Appellant, Jose Ambiorix
Abreu, appeals from the aggregate judgment of sentence of 12 to 32 years’
incarceration, which was imposed after he pleaded guilty to Attempted
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* Retired Senior Judge assigned to the Superior Court.
J-S32005-20 & J-S32007-20
Homicide, Aggravated Assault and Recklessly Endangering Another Person
(Attempted Murder case).1 In docket number CP-45-CR-0000613-2018
Appellant appeals from the aggregate judgment of sentence of 32 months to
96 months’ incarceration, which was imposed after he pleaded nolo
contendere to Endangering the Welfare of a Child (Child Endangerment) and
Corruption of a Minor (Child Endangerment case).2 We affirm.
The facts underlying this appeal, taken from the trial court opinion, are
as follows:
[Appellant] was arrested and charged with multiple counts
of Aggravated Indecent Assault, several counts of Indecent
Assault, Endangering the Welfare of a Child (“EWOC”),
Corruption of a Minor, and Unlawful Contact With a Minor
for sexually abusing his daughter, [A].A.3, between October
1, 2015 and November 17, 2017.4 The abuse came to light
[on November 17] 2017 when [A].A. was taken to the
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1 18 Pa.C.S. §§ 901, 2702, and 2705, respectively.
2 18 Pa.C.S. §§ 4304, 6301, respectively.
3 We note that in its Pa.R.A.P. 1925(a) opinion, the trial court refers to the
complaining witness as I.A., however, this appears to be a typographical error
as elsewhere in the record the complaining witness is referred to as A.A. We
will refer to the complaining witness herein as A.A.
4 On November 17, 2017, while in the hospital, A.A. reported to Detectives
that Appellant digitally penetrated her vagina with his fingers while his penis
was exposed on one occasion and from July 2016 through November 2017,
A.A. stated that Appellant would grab and feel her buttocks approximately 2
times a month. Each time this occurred, Appellant had an erection and would
press it against A.A.'s buttocks. See, Affidavit of Probable Cause, 3/5/18.
Through further investigation, A.A. reported that the conduct had been
occurring since October 1, 2015. See, Information, 4/6/18.
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hospital after attempting to kill herself. [A].A. reported that
she made the attempt because of the assaults.
In addition to the criminal investigation that concluded with
the sex offense charges, [Appellant’s] abuse of [A].A. gave
rise to parallel child welfare investigations which resulted in
[A].A., and later her brother, being adjudicated dependent,
and [Appellant’s] wife, [A].A.’s mother, being indicted for
failing to protect [A].A. The undersigned presided over the
hearing at which [A].A.’s brother was adjudicated
dependent. However, another judge of this Court
adjudicated [A].A. dependent. . . .[The Attempted Murder
case] has its Genesis in the sexual assault case. When
[A].A. first disclosed the sexual abuse, [A].A.’s mother
[Appellant’s wife] did not believe her. In fact, she aligned
herself with [Appellant] against [A].A. However, in late
February, 2018, a letter from [A].A. caused her mother to
briefly believe the allegations. [On February 23, 2018,
Appellant] was confronted by his wife, an altercation
ensued. During the altercation, [Appellant] assaulted his
wife and threatened his wife’s father and friend who were
also present.
[Appellant’s] wife did not want charges filed against
[Appellant]. She did, however, go to the courthouse to
obtain a temporary Protection From Abuse (PFA) order.
When [Appellant’s] wife was too late to obtain a PFA that
afternoon, she contacted the police for an escort to the
family’s residence so that she could retrieve some items,
including her son’s medicine.
While [Appellant’s] wife, her father, and her friend were in
her car waiting for the police escort, [Appellant] violently
crashed his vehicle into them. All three occupants were
injured. [Appellant’s] father-in-law sustained the most
severe injuries. [Appellant’s] wife and her friend were
trapped in the car. [Appellant] approached the car and said
to the entrapped occupants, “I’m glad you’re dead, killed
you all.” As a result, [Appellant] was arrested and charged
with multiple counts of Attempted Homicide, Aggravated
Assault, Simple Assault, and Recklessly Endangering
Another Person (REAP).
Subsequently, [Appellant’s] wife re-aligned herself with
[Appellant] and reverted back to disbelieving her daughter.
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She was not cooperative with authorities. In fact, she made
affirmative efforts to obtain [Appellant’s] release from jail
by attempting, through harassment, threats, and verbal
abuse, to get the friend who was with her during
[Appellant’s] in-person assault and the vehicular assault to
change her story. As a result, [Appellant’s] wife was
charged with Intimidation of a Witness and Solicitation to
Commit Perjury. Up through the time [Appellant] pled
[guilty], was sentenced, and filed post-sentence motions,
his wife remained distanced from the Commonwealth. This
was especially true after his wife pled nolo contendere to
one of the charges filed against her following [Appellant’s]
entry of pleas in both of these cases as discussed below.
Trial Court Opinion at 2-3 (footnote omitted).
On February 4, 2019, Appellant pleaded guilty to Attempted Homicide,
Aggravated Assault and REAP in the Attempted Murder case. On February 4,
2019, Appellant also pleaded nolo contendere to Child Endangerment and
Corruption of a Minor in the Child Endangerment case. As a part of the
negotiations, Appellant and the Commonwealth agreed that Appellant’s
aggregate minimum sentence in both docket numbers was to fall between 10
and 17 years and the maximum sentence was delegated to the discretion of
the trial court. Appellant was represented by counsel, Brandon R. Reish, Esq.,
in the former case and by the Public Defender in the latter case. A sentencing
hearing was scheduled for April 30, 2019. On February 22, 2019, Attorney
Earl Raynor, Jr. entered his appearance on behalf of Appellant in both docket
numbers.
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On March 18, 2019, prior to sentencing, Appellant filed a Motion to
Withdraw his Guilty Plea in both docket numbers.5 In the Attempted Murder
case, Appellant argued that he was innocent of the charges and had evidence
to support his assertion. In the Child Endangerment case, Appellant argued
that he was innocent of the charges and offered evidence challenging the
credibility of A.A.’s allegations. The trial court set a consolidated hearing on
both motions for April 30, 2019. On April 30, 2019, after the hearing, the trial
court denied Appellant’s motions to withdraw his guilty pleas and proceeded
to sentencing on both docket numbers.
In the Attempted Murder case, Appellant was sentenced to 7.5 to 20
years’ incarceration on the Attempted Murder charge, and 4 to 10 years’
incarceration on the Aggravated Assault charge, to run consecutive to the
Attempted Murder charge. Order, 5/2/19. Appellant was sentenced to 6
months’ to 2 years’ incarceration on the REAP charge, to run consecutive to
the Attempted Murder and Aggravated Assault charge. Id. Appellant was
sentenced to an aggregate sentence of 12 to 32 years’ incarceration in the
Attempted Murder case.
On the same date, Appellant was sentenced in the Child Endangerment
case. Appellant was sentenced to 16 months to 4 years’ incarceration on the
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5 We note that Appellant titled both motions Motion to Withdraw Guilty Plea,
although he pleaded nolo contendere in the Child Endangerment case.
Initially, we note that “for purposes of a criminal case, a plea of nolo
contendere is equivalent to a plea of guilty.” Commonwealth v. Norton,
201 A.3d 112, 114 n.1 (Pa. 2019) (citation omitted). For continuity, we will
refer to both motions as Motion to Withdraw Guilty Plea.
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Child Endangerment charge and 16 months to 4 years’ incarceration on the
Corruption of Minors charge, to run consecutive to the Child Endangerment
charge. Order, 5/2/19. Appellant’s aggregate sentence in the Child
Endangerment case is 32 months to 96 months’ incarceration. Appellant’s
sentence in the Child Endangerment case is to run consecutive to the sentence
in the Attempted Murder case. Id. Appellant’s aggregate sentence on both
docket numbers is 14 years 8 months to 40 years’ incarceration.
On May 9, 2019, Appellant filed post-sentence motions in both docket
numbers challenging the discretionary aspects of his sentence and argued that
the trial court erred in failing to recuse itself. The motion also included an
additional argument that the trial court should recuse itself. On May 10, 2019,
Appellant filed a Motion for Reconsideration of Denial of Motion to Withdraw
Guilty Plea in both cases. On July 23, 2019, the trial court denied Appellant’s
post-sentence motions, including the motions to reconsider. On August 12,
2019, Appellant filed timely notices of appeal at both docket numbers.6
Appellant presents nearly identical issues in both appeals.
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6 Appellant complied with the trial court’s order and timely filed a Pa.R.A.P.
1925(b) statement of errors complained of on appeal in both docket numbers.
Appellant filed a supplemental Rule 1925(b) statement in his Child
Endangerment case and included an additional SORNA issue, however,
Appellant abandoned that issue by not including it in his brief. See
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(citation omitted) (holding that an issue identified on appeal but not developed
in appellant’s brief is abandoned and therefore waived).
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1. Whether the lower court abused its discretion in denying
Appellant’s pre-sentence motion to withdraw guilty plea and
motion for reconsideration.
2. Whether the sentencing court erred as a matter of law,
abused its discretion, violated the fundamental norms of
sentencing and specific provisions of the sentencing code
where the sentence imposed was manifestly excessive and
unreasonable?
3. Whether the sentencing court erred as a matter of law
and abused its discretion when it failed to recuse itself.
Appellant’s Brief at 5-6 (reworded for simplicity).
As Appellant presented nearly identical issues for our review in the Child
Endangerment and Attempted Murder cases, and the cases share nearly
identical procedural history in the trial court, we will address both cases.
Appellant’s first issue set forth on appeal contains two separate issues. First,
Appellant argued that the trial court erred in denying Appellant’s pre-sentence
motion to withdraw his guilty pleas. Second, Appellant argued that the trial
court erred in denying Appellant’s post-sentence motions for reconsideration
of Appellant’s pre-sentence motion to withdraw his guilty pleas.
Appellant argued that he has shown a “credible and plausible claim of
innocence” because he testified that he did not engage in the charged conduct
during his motion to withdraw guilty plea hearing, maintained his innocence
when speaking to the pre-sentence investigator, had no history of conduct
remotely similar to these allegations, and has a minimal criminal record.
Appellant’s Brief (Attempted Murder) at 29-30. Additionally, Appellant argued
that he presented exculpatory evidence to the trial court, “including a written
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confession of his wife.” Id. at 30.7 Appellant argued that the Commonwealth
would not be prejudiced by the grant of a new trial because “the prosecution
has an independent fact witness, corroborating the claims of the complaining
witness, as well as physical and expert testimony.” Id.
“We review a trial court’s ruling on a [pre]sentence motion to withdraw
a guilty plea for an abuse of discretion.” Commonwealth v. Williams, 198
A.3d 1181, 1184 (Pa. Super. 2018) (citation omitted).
When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the
appellant to show that this discretion has been abused. An
appellant cannot meet this burden by simply persuading an
appellate court that it may have reached a different
conclusion than that reached by the trial court; rather, to
overcome this heavy burden, the appellant must
demonstrate that the trial court actually abused its
discretionary power. An abuse of discretion will not be
found based on a mere error of judgment, but rather exists
where the trial court has reached a conclusion which
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. Absent an abuse of
discretion, an appellate court should not disturb a trial
court’s ruling.
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7 Appellant also argued that Ramon Abreu, Appellant’s father, “would have
testified that he observed the accident and saw that as Appellant was making
a left turn into the intersection the Complainant, Ivette Abreu, drove directly
into him.” Appellant’s Brief (Attempted Murder) at 5. Appellant did not raise
his argument concerning Mr. Ramon Abreu in his pre-sentence motion to
withdraw, and as such, this argument is waived for consideration on appeal
pertaining to this issue. Issues not raised before the lower court are waived
and cannot be raised for the first time on appeal, pursuant to Pa.R.A.P. 302(a).
This argument may be considered only with respect to his post-sentence
motion for reconsideration of the trial court’s denial of Appellant’s Motion to
Withdraw Guilty Plea.
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Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (citations
omitted).
Pennsylvania Rule of Criminal Procedure 591(A) provides:
At any time before the imposition of sentence, the court
may, in its discretion, permit, upon motion of the defendant,
or direct, sua sponte, the withdrawal of a plea of guilty
or nolo contendere and the substitution of a plea of not
guilty.
Pa.R.Crim.P. 591(A). Similarly, in Commonwealth v. Forbes, the
Pennsylvania Supreme Court concluded: “[a]lthough there is no absolute right
to withdraw a guilty plea, properly received by the trial court, it is clear that
a request made before sentencing ... should be liberally allowed.”
Commonwealth v. Forbes, 299 A.2d 268, 271 (1973) (citation omitted)
(emphasis in original). The Court in Forbes explained:
[I]n determining whether to grant a pre-sentence motion
for withdrawal of a guilty plea, the test to be applied by the
trial courts is fairness and justice. If the trial court finds
“any fair and just reason”, withdrawal of the plea before
sentence should be freely permitted, unless the prosecution
has been “substantially prejudiced.”
Id. (internal citations and some internal quotations omitted).
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the
Pennsylvania Supreme Court expressly reaffirmed that the trial court’s
discretion should be administered liberally in favor of the accused, but added,
[T]here is no absolute right to withdraw a guilty plea; trial
courts have discretion in determining whether a withdrawal
request will be granted . . . and any demonstration by a
defendant of a fair-and-just reason will suffice to support a
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grant, unless withdrawal would work substantial prejudice
to the Commonwealth.
Carrasquillo, 115 A.3d at 1291–92 (citation and internal footnote omitted).
Specifically, this Court clarified that when reviewing whether a
defendant’s claim of innocence is a fair and just reason to permit him to
withdraw his guilty plea before sentencing,
[A] defendant’s innocence claim must be at least plausible
to demonstrate, in and of itself, a fair and just reason for
presentence withdraw of a plea. More broadly, the proper
inquiry on consideration of such a withdraw motion is
whether the accused has made some colorable
demonstration, under the circumstances, such that
permitting withdraw of the plea would promote fairness and
justice.
Commonwealth v. Islas, 156 A.3d 1185, 1189 (Pa. Super. 2017) (citation
omitted). This Court has directed trial courts to distinguish between “mere,
bare, or non-colorable” assertions of innocence on the one hand and those
that are “at least plausible” on the other. Id. at 1190 (citation omitted).
Importantly, this Court directed that “as trial courts undertake the task of
making that distinction, both the timing and the nature of the innocence claim,
along with the relationship to the strength of the government’s evidence, are
relevant.” Id.
During the hearing on Appellant’s motion to withdraw his guilty plea,
Appellant presented to the trial court a card written in Spanish, from his wife.
An interpreter for the trial court read the card sent by Appellant’s wife to
Appellant, which stated, in relevant part, “I know that it was an accident that
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happened because last Tuesday I had a vision and I moved my car and caused
the accident.” N.T. 4/30/19 at 47. Appellant testified:
I was driving. All of a sudden in the intersection about five
seconds later my wife put her car in the middle. I didn’t
have any other option but to brake. I couldn’t brake; I can‘t
cause magic to happen and so I didn’t have any other option
but to hit her car.
N.T. 4/30/19 at 45. Appellant testified he was driving a Chevy Suburban
approximately 30-38 miles per hour, approaching a T-shaped intersection, to
make a right turn. Id. at 55. Appellant testified that he was heading to the
supermarket. Id. at 54.
The Commonwealth presented an eyewitness, Alta Gracia Reyes, who
testified that the car containing Appellant’s wife, her friend and father, was
parked and the Appellant “moved her car with his car and then – then he came
and on the left side he hit her car on the driver’s side.” Id. At 35. Ms. Reyes
also testified that Appellant’s wife’s car was parked “on the side not right in
the middle” of the street; she stated “[Appellant] put it in the middle.” Id.
The Commonwealth also proffered evidence that Appellant was driving
approximately 51 miles per hour, on a residential road. Id. at 25. The
Commonwealth proffered that an expert’s report would state:
the operator of the Chevrolet [Suburban, Appellant,] applied
heavy pressure to the accelerator pedal to accelerate the
vehicle from approximately 25 miles per hour to 51 miles
per hour just before the collision . . . did apply the brake for
a minimum of one second prior to collision traveling
approximately 28 to 38 miles per hour at the time of impact.
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Id. at 25. The Commonwealth also presented photographs of the scene which
depicted the Appellant’s wife’s car on the side of the road. Id. at 23-24.
Additionally, the Commonwealth presented evidence that Appellant fled the
scene after the incident. Id. at 23.
With regard to both docket numbers, before ruling on the motions to
withdraw the guilty pleas, the trial court stated,
[A]s both parties know under the standard by which I need
to review the motion I need to look to determine on the one
hand is the defendant’s defense plausible and colorable and
all the verbiage that is in the cases and on the other hand
you know one of the very clear factors is how does the
defense jive with the evidence of the case and what is the
strength relative and otherwise of the Commonwealth’s
evidence.
N.T. 4/30/19 at 26.
In deciding the motion to withdraw the guilty plea with regard to the
Attempted Murder case, the trial court determined,
The defendant’s story by itself isn’t plausible; it doesn’t
match the expert or layperson’s assessment of the situation.
It’s inconsistent with the statement given by other people
to the police and the other matters that are of record both
in the criminal cases and in the dependency case. And
simply saying that, now I have another version of events
because I don’t want to be sentenced on this doesn’t mean
it’s a plausible assertion of innocence that has any basis in
fact. That’s one. Number two is, everything that I’ve heard
today from [Appellant’s new counsel] which isn’t testimony
and from the defendant which is and much if not everything
that’s in the motion all pre-dated the plea. This is not a
situation where a defendant was misled, where an attorney
didn’t fully or properly explain a legal issue to a client or
where evidence was disclosed by the Commonwealth or
learned by the defense after the plea or where there was
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any claim of even ineffective assistance of counsel or
anything that alone or in conjunction with what the
defendant tried to plead here would allow him to withdraw
the plea and fairness and justice don’t necessitate that. . .
. So this was a voluntary, knowing, and intelligent plea in
an attempted homicide case in every sense of that term,
legal and practical, and the assertions of the defendant now
after the fact all of which were known prior to the plea being
entered, just don’t rise to the level of permitting him to
withdraw the plea and so that’s what I’m going to find.
Id. at 68-72.
We find that the trial court did not abuse its discretion in denying
Appellant’s pre-sentence motion to withdraw his guilty plea. The trial court
correctly applied the law and assessed the plausibility of Appellant’s claim of
innocence. The trial court, after hearing the testimony presented and
proffered by Appellant and the Commonwealth, determined that Appellant’s
innocence claim was not plausible. It correctly considered the strength of the
Commonwealth’s evidence in assessing the plausibility of Appellant’s claim of
innocence. Islas, 156 A.3d at 1191. We find that the trial court did not abuse
its discretion in determining that Appellant’s claim of innocence was not
plausible and, therefore, there existed no fair and just reason to allow a pre-
sentence withdraw of his guilty plea. We discern no abuse of discretion in the
trial court’s application of the law.
Next, Appellant argued that the trial court erred in denying his pre-
sentence motion to withdraw his guilty plea in the Child Endangerment case.
Appellant argued that he “offers a credible and plausible claim of innocence.”
Appellant’s Brief (Child Endangerment) at 25.
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[T]rial courts have the discretion to assess the plausibility
of claims of innocence. Consistent with the well-established
standards governing trial court discretion it is important that
appellate courts honor trial courts’ discretion in these
matters, as trial courts are in the unique position to assess
the credibility of claims of innocence and measure, under
the circumstances, whether defendants have made sincere
and colorable claims that permitting withdraw of their pleas
would promote fairness and justice. . . . Thus, a court’s
discretion in ruling on a presentence motion to withdraw a
guilty plea must be informed by the law, which, for example,
requires courts to grant these motions liberally, and to make
credibility determinations that are supported by the record.
Commonwealth v. Norton, 201 A.3d at 121.
At the hearing on the pre-trial motion to withdraw the guilty plea,
Appellant did not testify regarding the Child Endangerment case. Counsel
read into the record a statement that Appellant gave to the pre-sentence
investigator,
You go ask my daughter what happened. Her boyfriend
followed her from New Jersey to here. Her boyfriend had a
birthday party on November 17th. My wife didn’t want my
daughter to go to the party. The daughter was a liar. My
daughter called me to pick her up and I told her I was
working. She asked me if he could come to our house. I
said if he was going to come someone would have to be
there. . . . I think he said something to her. She took
medicine and tried to kill herself and then she blames it on
me.
The DA had to find somebody to charge. They didn’t want
to charge my wife so they charged me. How are they going
to believe this charge with no evidence or nothing? I would
never do anything to her. I would never do nothing to
nobody to do things they don’t want to. How would I do this
to my daughter.
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N.T. 4/30/19 at 59-60. Counsel also proffered to the trial court that A.A.
made similar allegations against Appellant in 2015 that were unfounded by
CYS (Child & Youth Services). Additionally, counsel proffered a video from
Appellant depicting the Appellant and A.A. together on November 17, 2017,
the date of A.A.’s attempted suicide and disclosure of the abuse to authorities,
where A.A. does not appear to be in distress. Counsel also asserted that
Appellant only pleaded guilty in this case because of the advice of his prior
attorney.
During the hearing on Appellant’s motion to withdraw, the trial court
stated,
[w]ith respect to the [Child Endangerment] case, there is no
testimony, there is no specific evidence, there’s just simply
argument and all that really is saying is my daughter is not
credible and there’s a mere assertion of innocence. No
testimony, no anything else other than [Appellant’s new
counsel], to use a law school statement[,] banging on the
table and that simply doesn’t meet the standard either.
N.T. 4/30/19 at 72. The trial court expounded during the post-trial motion
hearing stating,
[a]nd as I said at the original hearing and I’ll say again now,
none of what you’re talking about was unknown to Mr. Abreu
and his attorney at the time of the plea. I don’t believe that
this [motion to withdraw guilty] plea is properly motivated.
I also did not find credible Mr. Abreu’s testimony and
nothing about the video - - since you already told us what’s
on that . . . is going to change my mind about that.
N.T. 5/31/19 at 21-22.
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We find that the trial court did not abuse its discretion in denying
Appellant’s motion to withdraw his guilty plea in the Child Endangerment case.
The record supports the trial court’s credibility determination regarding
Appellant. Appellant made the self-serving statement professing his
innocence to the pre-sentence investigator on April 9, 2019, which was after
he pleaded guilty and submitted his motion to withdraw his guilty plea. The
trial court was in the best position to assess the credibility of the Appellant,
and we will not disturb that credibility determination. Norton, 201 A.3d at
121.
Additionally, we will not disturb the trial court’s determination with
regard to the video. The allegations against Appellant span from 2015-2017
and the video depicted one day that Appellant and A.A. were together; we do
not find that the trial court abused its discretion in its determination that the
video did not provide a fair and just reason to permit withdrawal of the guilty
plea, particularly in light of the ongoing nature of the allegations of abuse and
we will not disturb the trial court’s credibility determination. Id. Further,
Appellant does not aver that prior counsel gave him erroneous advice in
pleading guilty in the Child Endangerment case because of the Attempted
Murder case, and we find no abuse of discretion in the denial of the motion to
withdraw the guilty plea with regard to this claim.
With regard to the prior allegations made by A.A. in 2015 that were
unfounded by CYS, the Supreme Court’s determination in Commonwealth v.
Norton, 201 A.3d at 121 is instructive. There, the Supreme Court determined
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that the appellant’s “belated wish for a trial fails to bolster his claim of
innocence” where appellant did testify at the hearing on the motion to
withdraw his nolo contendere plea and stated that he was innocent, he could
not live with himself for pleading nolo contendere to indecent assault
charges he did not commit, and that he wished to test the Commonwealth’s
evidence because the complaining witness answered “I don’t know” at least
fifteen times at the preliminary hearing. Id. The Court stated that appellant’s
belated wish for a trial failed to bolster his claim of innocence, “particularly in
light of the fact that any vulnerability in the Commonwealth’s evidence
specifically the victim’s testimony, was well known to Appellant prior to him
entering the plea,” id, and stated, “[i]n other words, for all intents and
purposes, the reality is that Appellant solely asserted his innocence in an
attempt to withdraw his plea presentence.” Id.
The trial court correctly stated that Appellant is challenging the
complaining witness’s credibility with this evidence, and that the Appellant
was aware of this information at the time that he entered his plea of nolo
contendere. We find no abuse of discretion in the trial court’s determination
that the Appellant did not offer a plausible claim of innocence, when he was
challenging the complaining witness’ credibility, known to him at the time he
pleaded nolo contendere, and did not testify at the hearing regarding the
motion to withdraw, and the trial court did not find Appellant credible. Id.
In both cases, Appellant next argued that the trial court erred in denying
his motion to reconsider the denial of his pre-sentence motion to withdraw his
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guilty plea. In the Attempted Murder motion, Appellant included an affidavit
from Appellant’s father, Ramon Abreu, which stated he saw Appellant’s wife
drive her car into Appellant’s car. Motion to Reconsider (Attempted Murder),
5/10/19. The Motion for Reconsideration of Denial of Motion to Withdraw
Guilty Plea in the Child Endangerment case included an affidavit from two of
the victim’s cousins, who stated that the victim fabricated the allegations
against Appellant. Motion to Reconsider (Child Endangerment), 5/10/19.
However, Appellant does not include an argument in his brief pertaining to the
trial court’s denial of Appellant’s motion to reconsider the motion to withdraw
guilty plea. As such, we find this argument is waived in both docket numbers.
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(holding that an issue identified on appeal but not developed in appellant’s
brief is abandoned and therefore waived).
Appellant next argued that the trial court abused its discretion in
imposing an excessive consecutive sentence in both docket numbers.8
Initially, we must determine whether Appellant has the right to seek
permission to appeal the trial court’s exercise of its discretion.
____________________________________________
8 In it’s Pa.R.A.P. 1925(a) opinion, the trial court found this issue waived
because Appellant failed to provide the sentencing transcripts to the trial
court. Trial Court Opinion at 9-10; See Pa.R.A.P. 1911. On 3/6/2020,
Appellant filed a “Motion to Remand” with this Court in order to provide this
Court with the necessary transcripts. In a per curiam Order, this Court
granted Appellant’s request pursuant to Pa.R.A.P. 1926. The transcripts were
subsequently provided to this Court on 4/20/2020. As such we do not find
Appellant’s issue waived for failure to provide transcripts.
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[W]here a defendant pleads guilty pursuant to a plea
agreement specifying particular penalties, the defendant
may not seek a discretionary appeal relating to those
agreed-upon penalties. Permitting a defendant to petition
for such an appeal would undermine the integrity of the plea
negotiation process and could ultimately deprive the
Commonwealth of sentencing particulars for which it
bargained.
Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)
(citations omitted).
For an Appellant challenging the discretionary aspects of his sentence
after entering a guilty plea, the distinction between whether the plea was
negotiated or open is crucial in determining whether or not an appeal from
such a sentence will stand. Commonwealth v. Dalberto, 648 A.2d 16, 19
(Pa. Super. 1994) (where appellant and Commonwealth agreed to consecutive
sentence for 2 of 8 charges, appellant was permitted to challenge the length
of sentence, not the consecutive nature of the two charges); Brown, 982 A.2d
at 1017 (appellant was permitted to pursue an appeal regarding the trial
court’s exercise of discretion with respect to the maximum term of his
sentence and the location of his incarceration, but not the minimum term as
appellant and Commonwealth entered into a plea bargain where appellant
would be sentenced to a minimum term at the bottom end of the standard
range of his sentencing guidelines and a maximum term to be set in the trial
court’s discretion and the sentencing court imposed a minimum term at the
bottom of the standard range of appellant’s sentencing guidelines).
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Appellant, in his Attempted Murder case signed a guilty plea colloquy
form containing the following statement:
Prosecution Agreement(s). In return for this guilty plea, the
Commonwealth has agreed to the following things:
Commonwealth and Defendant agree that there will be no
Deadly Weapon Enhancements. Defendant should receive
a standard guideline range sentence with an [sic] minimum
that falls between 10 years and 17 years.
Guilty Plea Colloquy Form (Attempted Murder), 2/4/19.
In the Child Endangerment case, Appellant signed a nolo contendere
plea colloquy form stating, “In return for his guilty plea, the Commonwealth
has agreed to . . . nol pros remaining charges. No objection to standard range
sentence on all charges in both cases.” Nolo Contendere Plea Form (Child
Endangerment), 2/4/19.
Additionally, at the guilty plea hearing, the trial court stated,
The Court: I’ve been advised that you and the
Commonwealth have agreed that the minimum number that
I’m going to give when I add up all the charges in the two
cases will be somewhere between ten years and seventeen
years. Is that also your understanding?
Appellant: Yes.
The Court: And is that also your agreement?
Appellant: Yes.
The Court: Part two of that arrangement is that there is no
agreement on the maximum sentence that could be
imposed so that you told me you understand all of the
maximum penalties for each crime, right?
Appellant: Yes.
...
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The Court: And that is a matter completely in my discretion
as I understand it in accordance with the agreement that
you have reached with the Commonwealth and have
discussed with your attorney. Is that also your
understanding?
Appellant: Yes.
N.T. 2/4/19 at 18-20.
Appellant, in both his appellate briefs argued that the minimum
sentence imposed was excessive. In the Attempted Murder case, Appellant
argued that his sentence was excessive because “the trial court imposed an
aggregate cumulative sentence of twelve (12) to thirty-two (32) years, which
was twice as great as the minimum standard concurrent sentence of six (6)
to twelve (12) years.” Appellant’s Brief (Attempted Murder) at 39. Appellant
stated that “the minimum sentence of twelve years imposed by the court was
two times greater than the concurrent standard minimum sentence of six
years.” Id. at 41.
In the Child Endangerment case, Appellant first noted that the standard
range sentence for both charges was nine (9) months to sixteen (16) months,
plus or minus (6) months. Appellant’s Brief (Child Endangerment) at 35.
Appellant argued that his sentence was excessive because the trial court
“sentenced Appellant to sixteen to forty-eight months for each offense, which
yielded and imposed an aggregate cumulative sentence of thirty-two (32)
months to ninety-six (96) months, which was more than three times greater
than the minimum standard concurrent sentence of nine (9) months to
eighteen (18) months.” Appellant’s Brief (Child Endangerment) at 35. He
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further stated that “[t]he minimum sentence of thirty-two months imposed by
the court was three and one-half times greater than the concurrent standard
minimum sentence of nine months.” Id. at 37.
Since the minimum sentence is implicated by the plea bargain reached
between the Commonwealth and the Appellant, Appellant is not permitted to
challenge the trial court’s discretion regarding the minimum sentence.
Appellant agreed to an aggregate minimum sentence of between 10 and 17
years as part of the plea bargain. As Appellant received an aggregate
minimum sentence of 14 years, he cannot complain of an abuse of discretion.
The trial court imposed a sentence within the agreed upon range. Appellant
also appeared to raise an issue with regard to the trial court’s discretion in
imposing consecutive sentences. The consecutive nature of the charges is not
implicated by the plea bargain, so Appellant will be permitted to petition this
Court.
Appellant’s challenge to the consecutive nature of his sentences
implicates the discretionary aspects of his sentences. A defendant does not
have an automatic right of appeal of the discretionary aspects of a sentence
and instead must petition this Court for allowance of appeal, which “may be
granted at the discretion of the appellate court where it appears that there is
a substantial question that the sentence imposed is not appropriate under”
the Sentencing Code. 42 Pa.C.S. § 9781(b); see also Commonwealth v.
Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018).
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Prior to reaching the merits of a discretionary sentencing issue, we must
engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his [ ] issue; (3) whether Appellant's brief
includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects
of sentence [pursuant to Pa.R.A.P. 2119(f) ]; and (4)
whether the concise statement raises a substantial question
that the sentence is [not] appropriate under the
[S]entencing [C]ode.
Williams, 198 A.3d at 1186 (citation omitted).
Appellant, in both docket numbers, satisfied the first three
requirements; he filed a timely notice of appeal, he preserved his issue in a
timely post-sentence motion, and his brief contains a concise statement of the
reasons relied upon for allowance of appeal. We must determine whether
Appellant’s concise statement raises a substantial question that the sentence
is not appropriate under the Sentencing Code.
[W]e cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to
determine whether a substantial question exists.
It is settled that this Court does not accept bald assertions
of sentencing errors. When we examine an appellant's Rule
2119(f) statement to determine whether a substantial
question exists, “[o]ur inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide
the appeal on the merits.” A Rule 2119(f) statement is
inadequate when it “contains incantations of statutory
provisions and pronouncements of conclusions of law[.]”
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Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (citations
and some internal quotation marks omitted).
In the Attempted Murder case, Appellant asserts in his Pa.R.A.P. 2119(f)
statement,
The trial court abused its discretion in imposing an
unreasonable, manifestly excessive consecutive sentence of
Twelve (12) to Thirty-Two (32) years, where the sentence
was grossly disproportionate to the gravity of the offense,
Appellant’s rehabilitative needs, and the protection of the
community, and was the product of ill will and bias, which
warranted the grant of recusal, thereby violating 42
Pa.C.S.A. Section 9712(b) of the sentencing code and the
fundamental norms of sentencing.
Appellant’s Brief (Attempted Murder) at 32. In the Child Endangerment case,
Appellant’s Pa.R.A.P. 2119(f) statement is as follows,
the trial court abused its discretion in imposing an
unreasonable, manifestly excessive consecutive sentence of
thirty-two (32) months to ninety-six (96) [months], where
the sentence was grossly disproportionate to the gravity of
the offense, Appellant’s rehabilitative needs, and the
protection of the community, and was the product of ill will
and bias, which warranted the grant of recusal, thereby
violating 42 Pa.C.S.A. Section 9712(b) of the sentencing
code and the fundamental norms of sentencing.
Appellant’s Brief (Child Endangerment) at 28.
We therefore consider whether Appellant has presented a substantial
question for our review.
A defendant presents a substantial question when he [or
she] sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to
the fundamental norms of the sentencing process. One of
the fundamental norms in the sentencing process is that a
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defendant's sentence be individualized.... The Sentencing
Code prescribes individualized sentencing by requiring the
sentencing court to consider the protection of the public, the
gravity of the offense in relation to its impact on the victim
and the community, and the rehabilitative needs of the
defendant, . . . and prohibiting a sentence of total
confinement without consideration of the nature and
circumstances of the crime[,] and the history, character,
and condition of the defendant,
Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)
(some internal citations and quotation marks omitted).
This Court has found a substantial question exists where a sentencing
court failed to consider a defendant's individualized circumstances in its
imposition of sentence in violation of the Sentencing
Code. See Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super.
2008).
[A] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges
if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness
due to the consecutive nature of a sentence will not raise a
substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (emphasis
in original and some internal citations omitted); See Commonwealth v.
Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (averment that court “failed to
consider relevant sentencing criteria, including the protection of the public,
the gravity of the underlying offense and the rehabilitative needs” of the
defendant raised a substantial question).
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In the current action, Appellant presents a substantial question by
setting forth an argument that his consecutive sentence is contrary to the
fundamental norm of the sentencing process that a defendant's sentence must
be individualized, because the sentence was grossly disproportionate to the
gravity of the offense, his rehabilitative needs and the protection of the
community. See Appellant's Brief (Child Endangerment) at 28; Appellant’s
Brief (Attempted Murder) at 32; Luketic, 162 A.3d at 1160. Therefore, we
will consider the substantive merits of Appellant's sentencing claim.
In the Attempted Murder case, Appellant argued that this Court should
vacate his sentence because it is “unreasonable and grossly disproportionate
to Appellant’s rehabilitative needs, the gravity of the offense, [and] protection
of the public. Appellant’s Brief (Attempted Murder) at 38. In the Child
Endangerment case, Appellant argued that the trial court abused its
discretion, violated the fundamental norms of sentencing, and provisions of
the sentencing code, in sentencing him to a manifestly excessive and
unreasonable sentence that far surpassed what was required to protect the
public, the complainant and the community, went well beyond what was
required to foster Appellant’s rehabilitation, and was grossly disproportionate
to the offense. Appellant’s Brief (Child Endangerment) at 29. Appellant
argued that the trial court should have sentenced him to the minimum
standard range for each charge, to run concurrently. Appellant’s Brief
(Attempted Murder) at 29; Appellant’s Brief (Child Endangerment) at 35.
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Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted).
[W]here the sentencing judge had the benefit of a
presentence report, it will be presumed that he was aware
of relevant information regarding appellant's character and
weighed those considerations along with the mitigating
statutory factors.
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (citations
and internal brackets and quotation marks omitted) (some additional
formatting).
During sentencing, the trial court stated that it received and read the
pre-sentence investigation report in this case. N.T. 4/30/19 at 73. The trial
court heard testimony from a defense and Commonwealth witness regarding
Appellant at sentencing, and both defense and the Commonwealth identified
family members that were in the courtroom. Appellant was given the right to
allocution. Id. at 88. Before sentencing Appellant in both cases, the prior
record score, offense gravity score and standard sentencing range for each
charge was placed on the record. The trial court was aware that the parties
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had agreed that the aggregate minimum sentence for both docket numbers
would fall between 10 and 17 years.
Before sentencing Appellant in both cases, the court stated,
Mr. Abreu, in imposing the sentence you’re about to hear I
have considered several things.
First, the pleas that were taken before the Court.
Second, the content of the pre-sentence investigation report
that was prepared by our probation office. And as I
mentioned before, attached to that report was the report of
the Sexual Offender Assessment Board which had some
pertinent information but also concluded that you did not
meet the criteria to be designated as a sexually violent
predator; but I did consider that repot [sic] as well.
In addition I have considered the Court’s record and file in
both cases, the sentencing laws, rules, and guidelines and
then what the attorneys have argued and stated today.
I’ve also listened to and am now considering the statements
made by family members as has been characterized on both
sides of this issue.
N.T. 4/30/19 at 88-89. Additionally, the trial court stated,
In sentencing persons in Pennsylvania we need to consider
several things; the seriousness and nature and grading of
the crimes for which there was a conviction, public safety,
the need for punishment and accountability, a defendant’s
rehabilitative prospects, impacts on the victims, impact on
the community and many other facts and factors with an
individualized view toward the defendant.
With respect to you, you have a prior record score of two
that you earned through a prior record consisting of five
adult arrests and four convictions.
You had very serious charges in this case that could well
have resulted in even more serious injuries to the other two
occupants and/or yourself or even death that made a
situation that was already spiraling out of control even
worse, that impacted family members, friends, the
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community including both of your children, your son and
your daughter, and is a type of crime that cries out for
sanctions and punishment because your actions have put
the public as well as the victims at risk.
The crimes with respect to your daughter are inexcusable
and they have had a substantial impact on her. They are
also of the type that are unsettling to members of the
community, friends, family and neighbors, and also cry out
for sanctions and punishment.
Beyond the individual view of a criminal defendant
sentencing is, when reduced to the basics, comprised of
several elements. One is punishment, the second is
deterrents, and the third is rehabilitation. Within those
there also needs to be victim restoration and
acknowledgment and recognition of the impact on the lives
of the victim, their family members, their friends and their
communities.
So when I look at this case and I add up all that up what
you did was devastating to many people. It was dangerous,
had a substantial impact on the victims as well as those
close to the victims and given your attitude, given your
history, given your age and given the fact that you decided
at this point after pleading to lash out at others I believe
that your rehabilitative prospects are minimum.
N.T. 4/30/19 at 97-99. The trial court sentenced defendant to a total
aggregate sentence of not less than 14 years, 8 months’ incarceration nor
more than 40 years in a State Correctional Institution. Id. at 102. Each
sentence for each charge falls in the standard range sentencing guidelines.
After a thorough review of the record including the PSI, the briefs of the
parties, the applicable law, and the sentencing transcripts, we conclude
Appellant's issue merits no relief. The trial court considered Appellant’s
rehabilitative needs, and determined that Appellant had minimum
rehabilitative prospects based on his history. The trial court also stated that
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the sentence was based on the gravity of the offenses, which it found
particularly egregious and had effected not only Appellant’s immediate family
but the community. Based on the foregoing, we will not disturb the trial
court’s discretion, and Appellant is not entitled to relief. See Lekka, 210 A.3d
at 353; Conte, 198 A.3d at 1177.
In his final issue, Appellant argued in both docket numbers that the trial
court erred in failing to recuse itself because the court “castigated his
attitude.” Appellant’s Brief (Attempted Murder) at 42; Appellant’s Brief (Child
Endangerment) at 42. We discuss these arguments together. In his Child
Endangerment case, Appellant raised an additional argument that the trial
court erred in failing to recuse itself because the trial court presided over
Appellant’s dependency cases. Appellant’s Brief (Child Endangerment) at 6.
Appellant argued that during sentencing the trial court was “visibly
angered and concluded that Appellant is not amenable to rehabilitation
because he voiced distrust of the prosecutor.” Appellant’s Brief (Attempted
Murder) at 43. Appellant argued that “[d]uring Appellant’s sentencing hearing
the trial court expressed anger and displeasure over Appellant’s statement
criticizing the prosecutor handling the case and concluded that the Appellant’s
bitterness toward the criminal justice system militated against his
rehabilitation.” Appellant’s Brief (Child Endangerment) at 38.
This Court reviews the denial of a motion to recuse for an
abuse of discretion. An abuse of discretion is not merely an
error of judgment, but occurs only where the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality,
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prejudice, bias or ill will, as shown by the evidence or the
record.
Lomas v. Kravitz, 170 A.3d 380, 389 (Pa. 2017) (citations and quotation
marks omitted).
The standards for recusal are well established. 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. 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. In reviewing a denial of a disqualification motion,
we recognize that our judges are honorable, fair and
competent.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations
omitted).
[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make
fair judgment impossible. Thus, judicial remarks during
the course of a trial that are critical or disapproving
of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion that
derives from an extrajudicial source; and they will do so
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if they reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible.... Not establishing
bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men
and women, even after having been confirmed as [ ] judges,
sometimes display.
Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (internal
citations omitted and emphasis in original).
Appellant argued that the following comment made by the trial court
compelled recusal. During Appellant’s sentencing, the trial court stated,
when I look at this case and I add all that up what you did
was devastating to many people. It was dangerous, had a
substantial impact on the victims as well as those close to
the victims and given your attitude, your history, given
your age and given the fact that you had decided at this
point after pleading to lash out at others I believe that your
rehabilitative prospects are minimum.
N.T. 4/30/19 at 98-99 (emphasis added). During the hearing on Appellant’s
post-sentence motion, the trial court stated that it,
conducted the required self-assessment and concluded
without reservation or hesitation that, First, I have no
interest in the outcome of this case other than to ensure
that all parties receive a fair trial and fair proceedings
because this was actually a plea case - - - receive fair
proceedings from the beginning to the end. Second, I have
no bias against any party and have no doubt in my ability
to be fair and impartial to Mr. Abreu and for the record the
other cases that were heard that day as well including the
ones that Mr. Raynor represented defendants in. And also
third, I believe that an objective contextual review of my
handling of this case as well as other case in this court
involving Mr. Abreu show that I have been guided by the
facts and the law applicable in rendering all of my decisions.
. . . I do not believe that an objective person, lawyer or lay,
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who is aware of all relevant facts, history, and rulings would
perceive that my presiding over both the hearing on
defendant’s motion to withdraw his plea and the sentencing
hearing considered alone or in conjunction with my handling
of the dependency case or my continuing to preside over
this case or any remarks that I made at or before the
sentencing hearing demonstrates impartiality, bias, loss of
objectivity, unfitness, or inability to be fair and impartial
sufficient to require either disqualification or recusal.
...
I don’t think I told Mr. Abreu he had an attitude; I think
what I said was, you know, in the course of a matter where
he had admitted to some pretty significant conduct towards
three adults and also to his daughter, the idea now of
blaming other people including his daughter and officers of
the law and prosecutors really wasn’t the best strategy to
employ at the time.
...
I don’t believe that if you even take it in the light most
favorable to Mr. Raynor’s argument that it comes even close
to requiring recusal so I already denied the motion. Now for
those reasons in the post-sentence motions I will deny that
aspect.
N.T. 5/31/19 at 13-17.
We find that the trial court did not abuse its discretion in denying
Appellant’s motion to recuse based on the trial court’s comment about
Appellant’s attitude. The trial court conducted the proper assessment in
considering the motion to recuse and concluded it could be fair and impartial
and that its continued involvement in the case did not give the appearance of
impropriety. The trial court’s use of the word “attitude” in regard to Appellant
in no way displays a “deep-seated antagonism” toward Appellant. Kearney,
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92 A.3d at 61. Nor does a trial court’s visible display of anger because
Appellant “voiced distrust of the prosecutor” compel recusal.
Additionally, in the Child Endangerment case, Appellant argued that the
trial court erred and abused its discretion when it failed to recuse itself for
presiding over Appellant’s dependency hearing. Appellant’s Brief (Child
Endangerment) at 38.
In its Pa.R.A.P. 1925(a) opinion, the trial court stated,
it is clear that Defendant, both of his prior attorneys, and
his current counsel knew for more than 10 months before
the plea withdraw/sentencing hearing that I had presided
over the dependency adjudication of [A].A.’s brother. In
fact, the Superior Court affirmed the adjudication of [A].A.’s
brother almost four months before Defendant was
sentenced. Nonetheless, Defendant waited until the
hearing to request recusal based on my participation in his
son’s dependency case. Since recusal was not sought at the
“earliest possible moment,” the motions were time-barred
and the recusal issue was waived. For this additional
reason, Defendant’s motions for recusal were properly
denied.
TCO at 12-13.
[A] party must seek recusal of a jurist at the earliest
possible moment, i.e., when a party knows of the facts that
form the basis for a motion to recuse. If the party fails to
present a motion to recuse at the time, then the party’s
recusal issue is time-barred and waived.
Kravitz, 170 A.3d at 390.
Our review of the record reveals that Appellant first raised this issue
orally during the May 31, 2019 hearing on his post-sentence motions.
Specifically, Appellant argued, “due to the fact that you presided over the
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dependency matter and you were aware of the facts - - you did find apparently
that the child was dependent that there had apparently been abuse in that
case – Your Honor had already made a determination and that should have
precluded you from presiding over the criminal case.” N.T. 5/31/19 at 10.
Appellant neglected to raise this issue when the trial court first stated that it
presided over Appellant’s dependency case [involving Appellant’s son] on April
30, 2019, before sentencing. Additionally, Appellant neglected to raise this
issue in his post-sentence motion. We agree with the trial court that
Appellant’s motion to recuse based on this claim was untimely.
Even if Appellant's motion was timely, we would find the trial court did
not abuse its discretion in denying the motion to recuse on this claim. The
trial court stated that it conducted the self-assessment and has “no interest
in the outcome of this case” and “no doubt in [its] ability to be fair and
impartial to Mr. Abreu.” N.T. 5/31/19 at 13-17.
[T]he mere participation by the trial judge in an earlier stage of
the proceedings does not provide a per se basis for requiring
recusal of the trial judge.
Commonwealth v. Postie, 110 A.3d 1034, 1038 (Pa. Super. 2015) (citation
omitted). The trial court conducted the proper assessment in considering the
motion to recuse. Appellant failed to establish any evidence of bias, prejudice,
or unfairness by the judge based on his participation in a dependency hearing
involving Appellant, nor did our independent review uncover any. We find no
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abuse of discretion in the trial court’s denial of the motion to recuse on this
ground. Kearney, 92 A.3d at 61.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
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