J-A14043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ASHLEY PEDRICK,

                            Appellant               No. 1574 EDA 2016


             Appeal from the Judgment of Sentence April 14, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0000122-2016


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 30, 2017

        Appellant, Ashley Pedrick, appeals from the judgment of sentence

imposed after she was held in criminal contempt of court.1         We affirm

Appellant’s judgment of sentence, but remand for the correction of a clerical

error in the record.

        The trial court summarized the factual and procedural history of this

case as follows:

              [Appellant] and her co-defendant were charged with
        robbery and related offenses.1 Her case was held for court on
        December 4, 2015, with a next scheduled court date of January
        27, 2016. [Appellant] failed to appear on that date. Her
        attorney stated that [Appellant] was possibly injured by a
        gunshot wound and requested a continuance for further
        investigation. A judge–only bench warrant was issued by the
____________________________________________


1   42 Pa.C.S. § 4132(3).
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     Honorable Robert P. Coleman and that next court date was listed
     for February 24, 2016. [Appellant] failed to appear and Judge
     Coleman issued another judge-only bench warrant.

           1 This robbery case was docketed as CP-51-CR-
           0012246 -20[1]5.

           On March, 9, 2016, [Appellant] appeared before this
     [c]ourt for a contempt hearing.         This [c]ourt reviewed her
     history of failing to appear at prior court dates. Defense counsel
     Sonya Gross, Esquire stated that she had told the [c]ourt about
     [Appellant’s] possible gunshot wound on January 27 because
     that was the rumor she heard from other people; however, it
     was later found to be untrue. Ms. Gross further stated that she
     failed to send [Appellant] notice of her next court date on
     February 24, 2015 and took full responsibility for her failure to
     appear.     Ms. Gross stated that [Appellant] told her that
     [Appellant] failed to appear on January 27 because she had an
     abscess and was receiving medical treatment. [Appellant] told
     Ms. Gross that she lost her receipt from that doctor’s
     appointment. Ms. Gross further stated that [Appellant] told her
     that she tried to call the courtroom that day but did not have the
     phone number, and was given the incorrect phone number when
     she called police headquarters.           Ms. Gross stated that
     [Appellant] told her that she was unable to use public
     transportation to travel to the courthouse after her treatment
     because she didn’t have any money.


           Jessica Chung, Esquire, on behalf of the Commonwealth,
     stated that [Appellant] also failed to appear for a court date in
     2014. She asked that this Court raise bail in this matter to
     $100,000.

                                    ***

            This [c]ourt found that [Appellant] willfully failed to appear
     and found her in contempt. Ms. Gross stated that she did not
     know this was a contempt hearing and objected to the admission
     of prior bench warrant history. This [c]ourt replied that the prior
     bench warrant history was not taken into consideration; rather,
     this [c]ourt explained that [Appellant] did not have a legitimate,
     credible excuse for failing to appear.


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                                   ***

            This [c]ourt found [Appellant] in contempt and sentenced
     her to 2 months and 28 days to 5 months and 29 days of county
     incarceration, with credit for time served if applicable. Ms. Gross
     rejected the Commonwealth’s offer and requested a date for
     trial.

           On March 18, 2016, defense counsel filed a motion in
     arrest of judgment, arguing that neither she nor the
     Commonwealth had argued “as to the culpability for the criminal
     offense of contempt” and that neither she nor the
     Commonwealth were on notice that a contempt hearing would be
     held that date. Defense counsel further argued that “poverty
     and an inability to pay carfare were not “willful” acts.

            On April 6, 2016, defense counsel appeared before this
     [c]ourt without [Appellant] and asked this [c]ourt to grant her
     motion in arrest of judgment based upon an alleged lack of
     notice to counsel regarding the contempt hearing as well as this
     [c]ourt’s finding of contempt based upon [Appellant’s] lack of
     transportation funds. Defense counsel asked that this [c]ourt
     vacate the sentence. This [c]ourt stated that counsel had notice
     that there would be a “Judge-Only Bench Warrant” hearing, as
     the court file was clearly marked and there was no other issue
     except contempt if this [c]ourt found that [Appellant] willfully
     failed to appear. This [c]ourt further stated that it did not find
     [Appellant’s] testimony stating various reasons for failing to
     appear to be credible.

           On April 8, 2016, this [c]ourt signed an order, in an
     abundance of caution, vacating the sentence imposed on March
     9, 2016 to allow for consideration of the motion in arrest of
     judgment and the hearing on contempt. On the record, this
     [c]ourt stated that while she had initially stated that this motion
     would be denied by operation of law, she had reconsidered and
     would allow a hearing on the matter with [Appellant] present so
     that the record was clear and counsel could make argument on
     the contempt offense.

           On April 14, 2016, this [c]ourt conducted the hearing
     referenced in the April 8, 2016 order. Defense counsel put forth
     a motion for recusal, arguing that this [c]ourt was no longer
     neutral and requested a new judge to hear the matter. This

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     motion was denied. Defense counsel then stated that she did
     not have any new testimony or evidence to present regarding
     whether [Appellant] was in contempt when she failed to appear
     on January 27, 2016. She reiterated that [Appellant] had been
     in the hospital that day, checked herself out against medical
     advice, did not have the correct telephone number for the
     courtroom, and did not have funds to pay for transportation to
     the courthouse. Defense counsel argued that lack of funds was
     not a “willful” failure to appear. This [c]ourt asked defense
     counsel whether she had any documentation showing that
     [Appellant] had been hospitalized that day and she did not.
     Based upon this argument and lack of new evidence, this [c]ourt
     found [Appellant] in contempt for failing to appear that day. . . .
     The Commonwealth recommended the same sentence
     [Appellant] received the first time: 2 months and 28 days to 5
     months and 29 days county incarceration. This [c]ourt agreed
     with the Commonwealth and imposed the same sentence. Last,
     this [c]ourt denied defense counsel’s oral motion to set bail.

           On May 13, 2016, [Appellant] filed a Notice of Appeal to
     Superior Court. On May 20, 2016, [Appellant’s] robbery charge
     was dismissed because the Commonwealth was not ready to
     proceed on that date. On July 13, 2016, upon receipt of all
     notes of testimony, this [c]ourt ordered defense counsel to file a
     Concise Statement of Errors Complained of on Appeal pursuant
     to Pa.R.A.P. 1925(b) and defense counsel did so on July 21,
     2016.

Trial Court Opinion, 10/25/16, at 2-5.

     Appellant presents the following issues for our review:

            1.    Where the only evidence at trial is that an individual
     did not appear for a scheduled court appearance, whether that is
     sufficient under Pennsylvania law and the Due Process Clause to
     establish the element of a wrongful, willful intent that is
     necessary for a conviction for criminal contempt?

           2.    Where a judge has made an adverse credibility
     determination against [Appellant] and convicted and sentenced
     her for non-summary criminal contempt, is it not an abuse of
     discretion and a violation of Due Process rights to refuse recusal
     at a new trial after the first adjudication was vacated?


                                    -4-
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Appellant’s Brief at 7.

      We first note that Appellant’s sentence entered April 14, 2016,

indicates that she was convicted of contempt under 42 Pa.C.S. § 4137(a)(2).

Order of Sentence Contempt of Court, 4/14/16, at 1. The order, however,

sentenced Appellant to a minimum of two months, twenty-eight days, to a

maximum of five months, twenty-nine days in county prison. Id.

      Section 4137 provides, in relevant part, as follows:

      § 4137. Contempt powers of magisterial district judges

      (a) General rule.--A magisterial district judge shall have the
      power to issue attachments and impose summary punishments
      for criminal contempts of a magisterial district judge court in the
      following cases:

                                       ***

            (2) Failure of a person to obey lawful process in the nature
            of a subpoena issued by a magisterial district judge.

                                       ***

      (c) Punishment.--Punishment for contempt specified in
      subsection (a)(1) or (3) may be a fine of not more than $100 or
      imprisonment for not more than 30 days, or both. Punishment
      for contempt specified in subsection (a)(2) shall be a fine of not
      more than $100. Failure to pay within a reasonable time could
      result in imprisonment for not more than ten days. Punishment
      for contempt specified in subsection (a)(5) shall be in
      accordance with that specified in 23 Pa.C.S. § 6114(b) (relating
      to contempt for violation of order or agreement). Punishment
      for contempt in subsection (a)(4) would be imprisonment for not
      more than 90 days.

42 Pa.C.S. § 4137.




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      Thus, Section 4137 applies to magisterial district judges. Additionally,

a finding of contempt under Section 4137(a)(2) allows for a maximum fine

of $100.   42 Pa.C.S. §§ 4137(a)(2), (c).      Accordingly, the imposition of

contempt under this provision is inappropriate.      Indeed, in its Pa.R.A.P.

1925(a) opinion the trial court properly stated that 42 Pa.C.S. § 4137 is

inapplicable to the case at bar. Trial Court Opinion, 10/25/16, at 11-12. As

the trial court explained: “This statute is inapplicable. This [c]ourt is not a

magisterial district court; it is the Court of Common Pleas.”        Id. at 12.

Without acknowledging the reference to Section 4137 in its April 14, 2016

order, the trial court identifies 42 Pa.C.S. § 4132(3), quoting “the power of

the several courts of this Commonwealth to issue attachments and to

impose summary punishments for contempts of court shall be restricted to

the following cases: . . . the misbehavior of any person in the presence of

the court, thereby obstructing the administration of justice.” Id. at 12.

      Section 4132 provides, in relevant part, as follows:

      § 4132.   Attachment and summary                punishment for
      contempts

      The power of the several courts of this Commonwealth to issue
      attachments and to impose summary punishments for contempts
      of court shall be restricted to the following cases:

            (1) The official misconduct of the officers of such
            courts respectively.

            (2) Disobedience or neglect by officers, parties,
            jurors or witnesses of or to the lawful process of the
            court.


                                     -6-
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              (3) The misbehavior of any person in the presence of
              the court, thereby obstructing the administration of
              justice.

42 Pa.C.S. § 4132.

       After considering the plain terms of the relevant statutes, it is evident

that the trial court found Appellant in contempt of court under 42 Pa.C.S. §

4132(3). Trial Court Opinion, 10/25/16, at 12. The trial court demonstrated

its understanding of the distinction between the two statutes as reflected in

its explanation of the inapplicability of Section 4137 in its opinion.           It

appears that after the trial judge found Appellant guilty of criminal contempt

and sentenced Appellant in open court to a term of two months and twenty-

eight days to five months and twenty-nine days in the county jail, N.T.,

4/14/16, at 25, the trial judge mistakenly signed a sentencing order, which

declared that Appellant had been found in contempt under 42 Pa.C.S. §

4137(a)(2).    As such, the reference to Section 4137 in the April 14, 2016

order constitutes a mere clerical error.

       “A trial court has the inherent, common-law authority to correct ‘clear

clerical errors’ in its orders.”   Commonwealth v. Thompson, 106 A.3d

742,   766    (Pa.   Super.   2014)   (internal   corrections   omitted)   (quoting

Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc)).

“This authority exists even after the 30–day time limitation for the

modification of orders expires.” Thompson, 106 A.3d at 766; 42 Pa.C.S. §

5505. As our Supreme Court explained:


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             [The Pennsylvania Supreme Court has] set a high bar for
      differentiating between errors that may be corrected under the
      inherent powers of trial courts, and those that may not,
      describing correctible errors as those determined to be “patent
      and obvious mistakes.” The term “clerical error” has been long
      used by our courts to describe an omission or a statement in the
      record or an order shown to be inconsistent with what in fact
      occurred in a case, and, thus, subject to repair. See, e.g.,
      Commonwealth v. Silcox, 29 A. 105, 106 (Pa.1894)
      (upholding the trial court’s direction to correct a “clerical”
      omission and amend the record to state that the defendant was
      present at every stage of the proceedings); Commonwealth v.
      Liscinsky, 171 A.2d 560, 561 (Pa.Super.1961) (explaining that
      the sentencing order contained a “clerical” error subject to
      correction, as it did not reflect that the trial court specifically
      stated at sentencing that the sentence it imposed was effective
      on expiration of defendant’s federal sentence); Commonwealth
      v. Mount, 93 A.2d 887, 888 (Pa.Super.1953) (“Clerical errors”
      or inaccuracies in docket entries [or orders] may be corrected by
      the trial court so that they conform to the facts.”).

Commonwealth v. Borrin, 80 A.3d 1219, 1227–1228 (Pa. 2013) (some

internal citations omitted). Thus, we remand the case so that the trial court

may correct the clerical error in the record.

      Turning to the merits of this appeal, Appellant first argues that there

was insufficient evidence to convict her of criminal contempt.     Appellant’s

Brief at 10. Appellant asserts that the Commonwealth did not present any

evidence at the April 14, 2016 hearing.         Id. at 10.    Thus, Appellant

contends, the trial court convicted Appellant of criminal contempt without

any evidence of a critical element of the offense, specifically, wrongful,

willful intent.   Id. at 11.   Appellant maintains that non-appearance at a

scheduled court date does not establish the element of wrongful intent

necessary to a conviction of criminal contempt. Id. at 12. Appellant further

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asserts that the trial court’s conviction of criminal contempt violates her due

process rights because the Commonwealth did not prove every element of

the offense beyond a reasonable doubt, and the burden was improperly

shifted to her to prove her innocence. Id. at 11. According to Appellant,

the conviction should be vacated and judgment should be arrested. Id. at

14.

      Our standard of review is well established:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder[’s]. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      The power of the courts

      to impose summary punishments for contempts of court shall be
      restricted to ... cases ... where the misbehavior of any person in
      the presence of the court ... obstructs the administration of
      justice. To sustain a conviction for direct criminal contempt
      under [Section 4132(3)] there must be proof beyond reasonable

                                     -9-
J-A14043-17


     doubt (1) of misconduct, (2) in the presence of the court, (3)
     committed with the intent to obstruct the proceedings, (4) that
     obstructs the administration of justice.

Commonwealth v. Moody, 125 A.3d 1, 5 n.4 (quoting Williams v.

Williams, 721 A.2d 1072, 1073 (Pa. 1998)).

     Our courts have interpreted the phrase “in the presence of the court”

in a relatively expansive fashion, so that the phrase extends beyond “those

acts that the judge sees with his or her own eyes.”      Commonwealth v.

Brown, 622 A.2d 946, 948 (Pa. Super. 1993).          As summarized by this

Court:

     many prison sentences for direct contempt have been upheld
     although the act was not committed “in front of” the judge
     finding the contempt. See Commonwealth v. Crawford, 352
     A.2d 52 (Pa.1976) (contemnor stated he would not testify
     though he did not actually refuse to answer questions in open
     court);    Commonwealth         v.     Shaw,    421    A.2d    1081
     (Pa.Super.1980) (defendant failed to return to court for
     afternoon session); Rosenberg Appeal, 142 A.2d 449
     (Pa.Super.1958) (holding that, in proceedings before a grand
     jury, a witness’ refusal to testify is considered as taking place in
     the presence of the court).

Brown, 622 A.2d at 948. Additionally, “[t]he minimum intent required to

prove criminal contempt is ‘a volitional act done by one who knows or should

reasonably be aware that his conduct is wrongful.’”      Commonwealth v.

Debose, 833 A.2d 147, 149 (Pa. Super. 2003).

     With regard to the fourth element of contempt, it is well-
     established that for conduct to constitute an obstruction of the
     administration of justice, it must significantly disrupt the
     proceedings. Contempt requires “actual, imminent prejudice to
     a fair proceeding or prejudice to the preservation of the court’s
     orderly procedure and authority.”

                                    - 10 -
J-A14043-17



Commonwealth v. Odom, 764 A.2d 53, 57 (Pa. Super. 2000) (internal

citations omitted).

      Here, the trial court provided the following explanation for determining

there was sufficient evidence to support its determination that Appellant was

in contempt:

             In the case at bar, the evidence was sufficient to support
      this [c]ourt’s finding that [Appellant] was in contempt for failing
      to appear in court. The record shows that on January 27, 2016,
      this [c]ourt was convened and open for the transaction for
      business. [Appellant] was scheduled to appear that day and had
      proper notice of the proceedings. However, [Appellant] failed to
      appear; thereby obstructing the operations of this [c]ourt as it
      could not proceed with her matter that day. This [c]ourt issued
      a judge-only bench warrant.          On March 9, 2016, when
      [Appellant] appeared for the judge-only bench warrant hearing,
      she stated that she failed to appear because she was in the
      hospital for an abscess, that she checked herself out against
      medical advice, that she didn’t know the phone number to the
      courtroom, that she called police headquarters and that they
      gave her incorrect contact information for the courtroom, and
      that she didn’t have any money for public transportation. This
      [c]ourt did not find [Appellant] to be credible. Rather, this
      [c]ourt found that [Appellant] willfully failed to appear. Later,
      after defense counsel filed and argued motions regarding lack of
      notice for the contempt hearing, this [c]ourt vacated the original
      sentence and conducted a second hearing so that defense
      counsel and [Appellant] could prepare additional arguments and
      provide documentation to support their claims. At the second
      hearing on April 14, 2016, defense counsel made the same
      arguments and did not provide any documentation, such as
      hospital discharge paperwork or a doctor’s note, to support
      [Appellant’s] story that she had been hospitalized that day for an
      abscess. Based upon this information, this [c]ourt once again
      found [Appellant] in contempt and imposed the same sentence
      of 2 months 28 days to 5 months 29 days county incarceration.
      This finding of contempt was based upon sufficient evidence;
      specifically, that [Appellant] knew she was supposed to appear
      in court, she failed to appear that day, she was of adult age and

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     had prior experience with the court system, and could not
     provide any reasonable legitimate excuse for her failure to
     appear.

            [Appellant] further claims that this [c]ourt improperly
     “shifted the burden of proof” to her, arguing that this [c]ourt
     failed to presume [Appellant] innocent and put the burden on
     [Appellant] “to introduce evidence that would prove her
     innocence.” This claim is without merit. [Appellant] was not
     required to prove her innocence; rather, [Appellant] was given
     the opportunity to prepare and present her defense. The record
     was clear that [Appellant] failed to appear at her January 27,
     2016 court date, despite having received adequate notice.
     [Appellant] initially stated that she had been hospitalized, then
     she said she didn’t have the phone number for the courtroom,
     then she said she received incorrect contact information from the
     police, then she said she didn’t have money for transportation.
     This [c]ourt did not find her version of events to be credible. At
     the second hearing scheduled, after the Commonwealth and the
     [c]ourt file demonstrated that [Appellant] had failed to appear,
     [Appellant] was given a second opportunity, if she chose to do
     so, to present any documentary evidence which would support
     her position. This was not improperly shifting the burden of
     proof; rather, it was another chance to rebut the evidence that
     showed she willfully failed to appear for court and possibly to
     lend some credibility to her version of events. [Appellant] failed
     to do so; therefore, this [c]ourt once again found her in direct
     criminal contempt beyond a reasonable doubt for failing to
     appear in court.

Trial Court Opinion, 10/25/16, at 8-9.

     We agree with the trial court’s analysis and conclusion. Appellant does

not assert that she did not have proper notice of the court date for which

she failed to appear.   Instead, she provided an excuse, indeed multiple

contradictory excuses, for her failure to appear at the court proceeding

without providing any proof to support her claim. The trial court found her

explanation to be incredible.   Pennsylvania courts have upheld convictions


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for direct criminal contempt in similar situations.   In Commonwealth v.

Ferrara, 409 A.2d 407, 410–411, 412 n.5 (Pa. 1979), our Supreme Court

held that two defendants were in direct criminal contempt of court where

“the clerk of courts sent notices to the last known addresses of appellants

(each of whom [was] released on bail), notifying them of the dates for

arraignment and the commencement of trial; however, neither appellant

appeared on the specified dates.” See also Commonwealth v. Edwards,

703 A.2d 1058, 1060 (Pa. Super. 1997) (holding that the failure to appear in

court as required by previous court proceedings may be considered an act of

direct criminal contempt when the defendant is finally brought to court);

Commonwealth v. Marcone, 410 A.2d 759, 764 n.5 (Pa. 1980) (“there is

authority for finding a deliberate and unexcused absence by counsel from a

scheduled court appearance to be direct contempt.      The gravamen of this

type of misconduct is the absence which is witnessed by the court”). Thus,

we agree that there was sufficient evidence to establish that Appellant was

in direct criminal contempt.

      Furthermore, the trial court did not shift the burden to Appellant and

thereby require her to prove her innocence, as maintained by Appellant.

The Commonwealth established the elements of the crime of contempt

beyond a reasonable doubt. The trial court gave Appellant an opportunity to

rebut that determination by allowing her to prove that her absence was not

volitional. Appellant failed to take advantage of that opportunity. Thus, we


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agree with the trial court that there was sufficient evidence to support the

conviction of criminal contempt.

     In her second issue, Appellant argues that the trial judge, Judge

Genece E. Brinkley, abused her discretion and violated due process by

refusing to recuse herself from the April 14, 2016 hearing, which Appellant

maintains was a new trial for non-summary criminal contempt. Appellant’s

Brief at 15. Appellant asserts that at the March 9, 2016 proceeding, Judge

Brinkley made a credibility determination against Appellant and found her in

criminal contempt and accordingly sentenced her.      Id. at 15.    Appellant

argues that she had no notice that the March 9, 2016 proceeding would be a

contempt hearing and instead believed it was simply a bench warrant

hearing. Id. at 15. Appellant posits that in response to Appellant’s motion

to vacate the verdict and sentence of March 9, 2016, Judge Brinkley vacated

the sentence and scheduled a criminal contempt trial for April 14, 2016. Id.

In further support of her claim that the trial judge should have recused,

Appellant provides the following argument:

           The defense moved for recusal based on the judge’s prior
     adverse credibility determination in finding [Appellant] guilty and
     sentencing her for criminal contempt after the bench warrant
     hearing on March 9, 2016. There was no jurisprudential reason
     for Judge Brinkley to retain the case for this trial because she
     was not even the judge who issued the bench warrant in
     question and it was a non-summary trial involving a non-
     appearance at a court proceeding months earlier. Nevertheless,
     the judge denied the recusal motion, thus abusing her discretion
     and denying due process of law.

                                   ***

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      In this case, where [Appellant] had no right to a jury trial, she
      was entitled to a judge only trial with a judge who had not made
      an adverse critical credibility determination against her at the
      vacated proceeding, and who had not thought it appropriate to
      convict and sentence her for criminal contempt without any
      notice that there was even a contempt trial taking place.

Appellant’s Brief at 18-19.

      Our standard of review is well settled:

            [Our Supreme] Court presumes judges of this
      Commonwealth are honorable, fair and competent, and, when
      confronted with a recusal demand, have the ability to determine
      whether they can rule impartially and without prejudice. The
      party who asserts a trial judge must be disqualified bears the
      burden of producing evidence establishing bias, prejudice, or
      unfairness necessitating recusal, and the decision by a judge
      against whom a plea of prejudice is made will not be disturbed
      except for an abuse of discretion.

             As a general rule, a motion for recusal is initially directed
      to and decided by the jurist whose impartiality is being
      challenged. In considering a recusal request, the jurist must
      first make a conscientious determination of his or her ability to
      assess the case in an impartial manner, free of personal bias or
      interest in the outcome. The jurist must then consider whether
      his or her continued involvement in the case creates an
      appearance of impropriety and/or would tend to undermine
      public confidence in the judiciary.     This is a personal and
      unreviewable decision that only the jurist can make. Where a
      jurist rules that he or she can hear and dispose of a case fairly
      and without prejudice, that decision will not be overruled on
      appeal but for an abuse of discretion.

             [A] trial judge should recuse himself whenever he has any
      doubt as to his ability to preside impartially in a criminal case or
      whenever he believes his impartiality can be reasonably
      questioned. It is presumed that the judge has the ability to
      determine whether he will be able to rule impartially and without
      prejudice, and his assessment is personal, unreviewable, and
      final. Where a jurist rules that he or she can hear and dispose of


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       a case fairly and without prejudice, that decision will not be
       overturned on appeal but for an abuse of discretion.

Commonwealth v. Kearney, 92 A.3d 51, 60–61 (Pa. Super. 2014)

(internal citations and quotation marks omitted). Additionally, we have held

that “[i]n general, a judge before whom contemptuous conduct occurs has

the power to impose punishment for such conduct and appropriate sanctions

without recusing himself. However, recusal is required if there is a running,

bitter controversy between the judge and offender.” Debose, 833 A.2d at

150.

       In addressing Appellant’s motion for recusal, Judge Brinkley explained:

              In the case at bar, this [c]ourt properly denied
       [Appellant’s] motion for recusal as there was no evidence that
       this [c]ourt could not preside impartially over [Appellant’s]
       contempt hearing. Indeed, the [c]ourt had granted [Appellant]
       an actual hearing on her motion in arrest of judgment which,
       clearly, was not required. [Appellant] then asserted at this very
       hearing that even though her request for a hearing had been
       granted, that same judge could not be fair and impartial. This
       claim is entirely without merit. While it is true that this [c]ourt
       previously had found [Appellant] guilty of contempt, this second
       hearing was an opportunity for [Appellant] to present new
       arguments and evidence to support her claim that her failure to
       appear on January 27, 2016 had not been willful. This [c]ourt
       was more than able to listen to the evidence presented at the
       second contempt hearing and fairly dispose of the case. As this
       [c]ourt explained at the hearing, “So you have had actual notice
       that this is now a contempt hearing; and that was done, if there
       was any problem with notice, to correct that problem with
       notice. That does not mean in any way that I am not able to be
       fair to your client, so we’ll proceed.” [Appellant] produced no
       evidence that this [c]ourt was biased or prejudiced toward her in
       anyway [sic].

Trial Court Opinion, 10/25/16, at 10-11 (internal citation omitted).


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      The sentence issued March 9, 2016, was vacated due to an arguable

procedural violation that Appellant was not provided sufficient notice of the

contempt hearing. The evidence of record reflects that out of an abundance

of caution, the trial court vacated the original contempt finding made on

March 9, 2016, provided Appellant notice of a subsequent contempt hearing,

and subsequently conducted a contempt hearing on April 14, 2016.

Appellant presented no evidence regarding her whereabouts on January 27,

2016, at the March 9, 2016 hearing, and also failed to present any at the

April 14, 2016 hearing. Thus, it cannot reasonably be concluded that Judge

Brinkley was prejudiced by testimony heard at the March 9, 2016 hearing.

      Moreover, in addressing Appellant’s petition for recusal, Judge Brinkley

asserted that she was not biased toward or prejudiced against Appellant.

Trial Court Opinion, 10/25/16, at 11.            Appellant has failed to establish

otherwise. Furthermore, Appellant does not allege and the record is devoid

of any evidence of a running or bitter controversy between Judge Brinkley

and Appellant. Because Appellant has failed to establish bias, prejudice, or

unfairness   necessitating   recusal,    the     trial   judge’s   decision   to   deny

Appellant’s request was not an abuse of discretion. Appellant’s second claim

fails. See Debose, 833 A.2d at 151 (recusal not required where court found

appellant in contempt, vacated ruling and ordered new hearing where no

impartiality on part of judge indicated).




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      Judgment of sentence affirmed. Case remanded for the correction of a

clerical error. Jurisdiction relinquished.

      P.J.E. Bender joins the Memorandum.

      Judge Bowes files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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