J-S57018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MAURICE LOGAN

                            Appellant                     No. 3088 EDA 2013


             Appeal from the Judgment of Sentence August 8, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002345-2013


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                            FILED SEPTEMBER 26, 2014

        Appellant, Maurice Logan, appeals from the August 8, 2013 judgment



he was found guilty of three counts of copying recording devices, and two

counts of trademark counterfeiting.1           After careful review, we affirm the

judgment of sentence.

        The trial court summarized the relevant facts of this case as follows.

                     On August 18, 2012 at around 11:00 [p.m.],
              Philadelphia Police Sergeant Kevin Bernard was on
              patrol in the area of 2400 N. Cedar St. At that
              location he observed [] Appellant with a large
              backpack on his back engaging in what appeared to
              be a transaction with an unknown person. As he
              drove past, he noticed that the transaction involved
____________________________________________


1
    18 Pa.C.S.A. §§ 4116(b)(1), (d), (e), and 4119(a)(3), respectively.
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            either DVDs or CDs. Sergeant Bernard then heard a


            investigating recent robberies and Appellant fit the
            description of the suspect of those previous
            robberies, he stopped his vehicle and approached
            Appellant. Sgt. Bernard ordered [] Appellant to drop
            his bag, which was unzipped. Sgt. Bernard could
            easily see the bag contained numerous DVDs and
            CDs that based on his training he could tell were
            counterfe

            which at the time of the arrest was still being shown
            in movie theaters.     Both Commonwealth experts
            testified that the items recovered from Appellant
            were     counterfeit  and    contained      counterfeit
            trademarks.    In total, 104 DVDs and CDs were
            recovered.

Trial Court Opinion, 1/16/14, at 2-3 (citations to notes of testimony

omitted).

     Appellant was subsequently arrested and charged with multiple counts

of copying recording devices and trademark counterfeiting, which were

graded as felonies of the third degree. On April 12, 2013, Appellant filed an

omnibus pre-trial motion to suppress the physical evidence obtained from a

search incident to his arrest. On August 8, 2013, Appellant waived his right

to a jury and proceeded to a bench trial before the Honorable Carolyn H.

Nichols (Judge Nichols). Prior to the commencement of the bench trial, the



conclusion of which, it denied said motion.     See N.T., 8/8/13, at 56-60.

Thereafter, Appellant requested that Judge Nichols recuse herself on the




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basis she made a credibility determination adverse to Appellant. Id. at 60-

                                                  Id.

       The suppression hearing testimony of Sergeant Bernard was then

incorporated

Commonwealth also presented the expert testimony of Knox Owsley of the

Recording Industry Association of America, and the expert testimony of

William Mock of the Motion Picture Association of America. Id. at 9-33, 72-

93.    Additionally, the Commonwealth entered into evidence a property

receipt of the recovered contraband, and a photograph.          Id. at 66-67.

Appellant also testified on his own behalf. Id. at 36-45.

       As mentioned, following the bench trial, Appellant was found guilty of

the aforementioned charges and was sentenced on August 8, 2013, to an

                                                                     See Trial

Court Order, 8/8/13.        On August 19, 2013, Appellant filed a timely post-

sentence motion for reconsideration, and a hearing was scheduled for

October 3, 2013.2

post-sentence motion in part and denied it in part, reducing the grading of

one of the copying recording devices charges to a first-degree misdemeanor.
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2
                                                                          -
sentence motion was timely filed, as weekends are excluded from the
computation of time. See 1 Pa.C.S.A. § 1908 (providing that when the last
day of a calculated period of time falls on a Saturday or Sunday, as is the
case herein, such day shall be omitted from the computation).




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See N.T., 10/3/13, at 8-10, 23. All other aspects of the sentencing order

remained the same. This timely appeal followed on October 16, 2013.3

        On appeal, Appellant raises the following issue for our review.

              [1.]   Was not [A]ppellant denied his right to a fair

                     failure to recuse itself after the trial court


                     motion an
                     subsequently incorporated into the trial record?



        In reviewing the denial of a motion to recuse, our standard of review is

for an abuse of discretion. Commonwealth v. Hutchinson, 25 A.3d 277,

319 (Pa. 2011), cert. denied, Hutchinson v. Pennsylvania, 132 S. Ct.

2711 (2012).

Rather, it involves bias, ill will, manifest unreasonableness, misapplication of

                                         Commonwealth v. King, 990 A.2d 1172,

1180 (Pa. Super. 2010) (citations omitted), appeal denied, 53 A.3d 50 (Pa.



honorable, fair and competent, and, when confronted with a recusal

demand, have the ability to determine whether they can rule impartially and

                          Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa.



____________________________________________


3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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burden of the party requesting recusal to produce evidence establishing bias,



                                        Commonwealth v. Flor, 998 A.2d 606,

641 (Pa. 2010) (citation omitted), cert. denied, Flor v. Pennsylvania, 131

S. Ct. 2102 (2011).

       Upon careful review, we discern no abuse of discretion on the part of




                  n the part of Judge Nichols that would warrant her recusal in

this matter. Id. The evidence introduced at the August 8, 2013 suppression

hearing was not inadmissible or unfairly prejudicial, and Appellant has failed

to articulate any substantive reason t




the suppression hearing,4                                             apparent

____________________________________________


4
    Specifically, Judge Nichols stated the following at the conclusion of the



              testified to was so out of bounds and so incredible


                    Accordingly, I will conclude that the sergeant
              acted lawfully and had sufficient cause to stop,
              detain, arrest and subsequently search [Appellant]
              after the arrest and the bag was inventoried, that
(Footnote Continued Next Page)


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ability to wipe the credibility slate clean [during the subsequent bench trial]

                                                     -13. We disagree.

      In situations where a trial court judge has presided over an earlier

stage of the proceedings, as is the case here, the determination of whether a

trial court judge should recuse herself is dependent, in part, on her ability to

preside impartially.      See Kearney, supra                        ]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



prejudicial information was considered by the trial court, a judge, as

factfinder, is presumed to disregard inadmissible evidence and consider only

                              Commonwealth v. Fears, 836 A.2d 52, 71 n.19

(Pa. 2003) (citation omitted), cert. denied, Fears v. Pennsylvania, 545

U.S. 1141 (2005).

      Instantly, the trial court concluded that recusal was unwarranted in



                                                                           sion,
                       _______________________
(Footnote Continued)

             the contraband CDs were in plain view. There was
             sufficient cause, the Commonwealth has met its
             burden and the motion to suppress is accordingly
             denied.

N.T, 8/8/13, at 59-60.




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provided at the [August 8, 2013] hearing, not merely on the credibility of

[Appellant or Sergeant B             Id.   The trial court further noted that



              Id. at 5-6.



                                 udge himself [or herself] is best qualified to

                                                         Commonwealth v.

Bonds, 890 A.2d 414, 418 (Pa. Super. 2005) (citation and internal

quotation marks omitted), appeal denied, 906 A.2d 537 (Pa. 2006).           As

evidenced by her comments in her Rule 1925(a) opinion, this is exactly what

Judge Nichols did in this case.     Furthermore, the mere fact that Judge



question her ability to remain impartial



an earlier stage of the proceeding neither suggests the existence of actual

impropriety nor provides a basis for a finding of the appearance of

               Commonwealth v. Reyes, 870 A.2d 888, 898 (Pa. 2005)

(citation omitted); see also Kearney, supra at 61-62.          Similar to the

instant matter, Reyes involved a scenario where an appellant called into

question the impartiality of a trial court judge who presided over both the


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suppression motion hearing and his bench trial. See Reyes, supra at 897-

898.

       Accordingly, we discern no abuse of discretion on the part of the trial

court in                                           See Hutchinson, supra.

Therefore, we affirm the August 8, 2013 judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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