J-S06012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
LAMAR CALDWELL                         :
                                       :
                  Appellant            :   No. 160 EDA 2017

            Appeal from the Judgment of Sentence July 6, 2016
 In the Court of Common Pleas of Bucks County Criminal Division at No(s):
                          CP-09-0006260-2015,
                          CP-09-0008162-2015


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 1, 2018

     Lamar Caldwell appeals from the judgment of sentence of an

aggregate term of twenty to forty years imprisonment following his

convictions of, inter alia, two counts of burglary at the respective docket

numbers indicated above. We affirm.

     The trial court offered the following summary of the facts underlying

the two cases.

           On August 10, 2015, at approximately 9:30 a.m.,
     [Appellant] appeared at the Santos home on Cheltenham Drive
     in Bensalem, Bucks County. [Appellant] rang the doorbell at the
     front door. He waited a period of time and when there was no
     response, he rang the doorbell a second time. Again he waited a
     period of time.    When there was no response, [Appellant]
     pounded on the door. During this period of time, Mrs. Santos
     looked out a second-floor window and saw [Appellant].
     [Appellant] then walked to the side of the house. While there,
     he was observed by Mrs. Santo’s [fifteen]-year-old daughter
     (“S.T.”) from the window of her second-floor bedroom. Mrs.
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     Santos then looked out windows at the back of her home and
     saw [Appellant] behind the house. He was walking in the
     direction of a parking lot located behind her property. As he was
     walking away, [Appellant] looked back at the residence twice.

           One week later, on August 17, 2015, at approximately
     9:30 a.m., [Appellant] again approached the Santos residence.
     On this occasion, Mrs. Santos was not home. Mr. Santos was
     asleep in his second-floor bedroom. S.T. and her five-year-old
     brother were on the second floor as well. [Appellant] rang the
     front door bell. He waited a period of time and when no one
     responded, he banged on the door. S.T. looked out the upstairs
     windows to see if she could see who was at the door. When she
     didn’t see anyone, she went down stairs, looked out the
     “peephole” on the front door and again saw no one. She then
     went to the side door where she saw the silhouette of a man
     through the shade on the door. She also saw a gloved hand
     holding a round glass-like object through the panel of windows
     on the side of the door. She immediately looked to see if the
     door was locked. When she saw that the deadbolt was not
     engaged, she crouched down, went to the door, sat down and
     pushed her weight against the door to prevent the man from
     entering. She then felt the individual pushing against the door
     and heard the handle move. When the pressure being exerted
     against the door subsided, she engaged the deadbolt and went
     upstairs to get her father.

           Mr. Santos testified that he was asleep after just having
     come home from work when he was awakened by S.T. who was
     in tears.   Before he could get downstairs to see what [was]
     happening, he heard loud banging. Mr. Santos went to the front
     door, looked out the peephole and saw [Appellant]. He did not
     answer the door. He then saw [Appellant] walk to the neighbor’s
     house next to his and then walk back across his property to the
     neighbor’s residence on the other side. The next time Mr.
     Santos saw him, [Appellant] was at the side door of his
     residence looking through the side glass panel. Mr. Santos
     watched as [Appellant] tried to force the door open with his
     body. Mr. Santos then called 911.

           Officer Scott Merchiore of the Bensalem Police Department
     arrived on scene within two minutes and found [Appellant] at the
     side entrance of the home. White knit gloves were found in his
     pants pocket. [Appellant] told Officer Merchiore that he was

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     looking for work. There was no work truck or vehicle on the
     street. Detective Gregory Jackson and Detective Jack Gohl of
     the Bensalem Police Department also responded to the scene
     and canvassed the neighborhood.        None of the neighbors
     indicated they had spoken to [Appellant].

           Detective Jackson and Detective Gohl later interviewed
     [Appellant]. During that interview, [Appellant] gave a false
     address. He also gave false information about why he was in
     Bensalem and how he had arrived there. [Appellant] told the
     detectives that he did not drive, did not have a car and did not
     have a driver’s license. He stated that he took the bus to
     Bensalem that morning from the Frankford terminal in
     Philadelphia arriving at Byberry Road in Bensalem after 9:00
     a.m. He stated that he then walked to Street Road to look for
     work.    When asked where he had inquired as to possible
     employment, [Appellant] told the detectives he had only been to
     one business because the rest of the businesses in the area were
     closed. Detective Jackson testified that, contrary to [Appellant]’s
     assertion, most businesses on Street Road and between Byberry
     Road and Street Road are open before 9:00 a.m. Subsequent
     investigation also revealed that [Appellant] did not travel by bus
     to Bensalem but rather had driven his daughter’s car to Bucks
     County and had left it parked in a parking lot located behind the
     Santos property. [Appellant] also advised the detectives that he
     had been to Bensalem only once or twice before and that on
     both occasions it was to the Golden Corral restaurant. When
     confronted, [Appellant] admitted that he had been at the Santos
     residence the week before his arrest.          [Appellant] further
     claimed he was at the Santos’[s] residence because the property
     appeared to need lawn care. Detective Jackson testified that the
     grounds did not need lawn care and that [Appellant] admitted
     that he did not have any lawn care equipment with him.

           During this interview, Detective Jackson obtained a DNA
     buccal swab from [Appellant] and sent the sample to a DNA
     laboratory for analysis. [Appellant]’s DNA profile was developed
     from this sample. That profile was later compared to a DNA
     sample taken from a Coca Cola bottle found at the scene of the
     Czach burglary several weeks before.

          The Czach burglary occurred on July 29, 2015.          At
     approximately 3:20 p.m. that date, Gabriella Czach returned to
     her home on Buttonwood Avenue in Bensalem, Bucks County

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      and discovered that her home had been burglarized after she
      and her husband had left the residence that morning. Damage
      to the front door proved that an unsuccessful attempt had been
      made to enter the residence through the front door. A garden
      border stone taken from the back yard was then used to smash
      the rear sliding glass door, allowing entry into the home. When
      the [owners] entered the residence, they found that their home
      had been ransacked; items had been removed from where they
      had been stored and were strewn about. Various pieces of
      electronic equipment and jewelry had been taken. The value of
      the stolen items and the cost to repair the damage totaled
      $13,660.23

             An open bottle of Coca Cola was found on the floor of the
      living room. Detective Leith of the Bensalem Township Police
      Department swabbed the mouth of the bottle with a DNA swab.
      This sample was later compared to [Appellant’s] DNA profile.
      DNA analysis subsequently revealed that the DNA found on the
      soda bottle matched [Appellant’s] DNA profile. . . .

Trial Court Opinion, 6/23/17, at 2-6 (footnotes omitted).

      Appellant was arrested at the Santos home and charged with

attempted burglary and related charges on August 17, 2015, in case number

6260 of 2015. On December 9, 2015, Appellant was charged with a burglary

and related offenses as a result of the DNA match at case number 8162 of

2015. The cases were consolidated for a jury trial, after which Appellant was

convicted of, inter alia, burglary and attempted burglary.       Following a

presentence investigation, Appellant was sentenced to consecutive terms of

ten to twenty years imprisonment. Appellant filed a timely notice of appeal

following the denial of his post-sentence motion, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.




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      Appellant presents the following questions to this Court for review,

which we have re-ordered for ease of disposition.

            I.    Whether the trial court erred by denying suppression
      of the Appellant’s DNA evidence?

            II.    Whether the trial court erred by admitting the
      Appellant’s DNA evidence during the Appellant’s trial, where the
      DNA evidence was previously suppressed and/or suppression
      was considered moot because the Commonwealth conceded that
      they will not introduce DNA evidence?

            III. Whether the Appellant’s warrantless        DNA sample
      was obtained in violation of [his] Pennsylvania      constitutional
      rights, and his United States 4th Amendment           rights under
      Birchfield v. North Dakota, as a significantly       intrusive test
      obtained without a warrant, and where his consent    was unlawful,
      coerced, involuntary, and unreasonable?

            IV.     Whether the trial court erred by presenting an
      instruction to the jury concerning the Appellant’s absence from
      the trial, where the instruction was prejudicial against the
      Appellant, and commented on the Appellant’s character,
      credibility, and truthfulness?

             V.    Whether the trial judge erred in failing to recuse
      herself, where the trial judge was previously involved in the
      prosecution of the Appellant when she was in the Bucks County
      District Attorney’s Office in 1994-1995 (#5486-1994)?

           VI.   Whether the trial court abused its discretion in
      sentencing the Appellant to a sentence which exceeded the
      standard and aggravated guideline ranges for the burglary and
      attempted burglary?

Appellant’s brief at 9 (unnecessary capitalization omitted).

      We begin with Appellant’s claims regarding the suppression of

evidence, mindful of the following.

      An appellate court’s standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining

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       whether the suppression court’s factual findings are supported
       by the record and whether the legal conclusions drawn from
       those facts are correct. Because the Commonwealth prevailed
       before the suppression court, we may consider only the evidence
       of the Commonwealth and so much of the evidence for the
       defense as remains uncontradicted when read in the context of
       the record as a whole. Where the suppression court’s factual
       findings are supported by the record, the appellate court is
       bound by those findings and may reverse only if the court’s legal
       conclusions are erroneous.        Where the appeal of the
       determination of the suppression court turns on allegations of
       legal error, the suppression court’s legal conclusions are not
       binding on an appellate court, whose duty it is to determine if
       the suppression court properly applied the law to the facts.
       Thus, the conclusions of law of the courts below are subject to
       plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned

up).

       The trial court offered the following summary of the procedural history

of Appellant’s suppression motions.

             The [trial court held a suppression hearing] in the Santos
       attempted burglary case (Criminal Information 6260 of 2015) on
       November 30, 2015. At the time of that hearing, [Appellant]
       had not yet been charged with the burglary of the Czach
       residence. At the outset of the hearing, counsel for [Appellant]
       supplemented his motion to suppress [Appellant’s] statement to
       police with an oral motion to suppress any DNA evidence
       obtained by the Commonwealth as a result of receiving the DNA
       sample from [Appellant]. In response to the defense counsel’s
       oral motion, the Commonwealth advised the court that it would
       not be seeking to introduce DNA evidence in the Santos case,
       rendering any challenge to the admissibility of DNA evidence at
       that stage moot.

             Subsequently, [Appellant] was charged with the burglary
       of the Czach residence when [Appellant’s] DNA, obtained from
       the sample [he] gave following his arrest for the Santos
       attempted burglary, was determined to match DNA found at the
       Czach crime scene. (Criminal Information 8162 of 2015). On

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        December 28, 2015, the Commonwealth moved to consolidate
        the two cases. In light of the new evidence, the Commonwealth
        sought to introduce the DNA evidence in the consolidated trial.
        On January 15, 2016, a hearing was held to determine whether
        [Appellant’s] consent to provide the DNA sample was voluntary.
        By order dated January 29, 2016, [Appellant’s] motion to
        suppress [his] DNA sample, the analysis performed on that
        sample and the results of the comparison of [his] DNA to the
        DNA found at the Czach crime scene was denied.

Trial   Court   Opinion,   6/23/17,   at   8-9   (footnotes   and   unnecessary

capitalization omitted).

        Appellant first contends that the DNA evidence should have been

suppressed because he had relied upon the trial court’s “final determination

on his motion to suppress his DNA evidence” made in the Santos case on

November 30, 2015, which was not appealed by the Commonwealth within

30 days as required by Pa.R.Crim.P. 1005(c). Appellant’s brief at 26-27.

        Appellant’s argument is fatuous.    The court made no decision as to

DNA evidence at the November 30, 2015 hearing.            The court expressly

stated that there was no issue before it concerning DNA evidence, as the

Commonwealth’s indication that it was not introducing the evidence

rendered the issue moot.      Trial Court Opinion, 6/23/17, at 9 (citing N.T.

Suppression (Santos case), 11/30/15, at 35).        Hence, there was no trial

court decision to appeal under Rule 1005(c).

        Moreover, the Commonwealth’s representation regarding the DNA

evidence was made in the Santos case, before Appellant had been identified

as the Czach burglar, let alone charged with any crimes related to the


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Czachs’ residence. Appellant offers no explanation why the Commonwealth’s

decision about foregoing DNA evidence made on November 30, 2015, in

relation to the Santos case (6260 of 2015), should have any effect on its

ability to pursue that evidence in the Czach case (8162 of 2015), which was

initiated by criminal complaint filed on December 8, 2015. This argument

merits no relief.

      Appellant next asserts that the DNA evidence should have been

suppressed as involuntary because his consent “was given under the guise

that the police were excluding him from being a sexual predator.”

Appellant’s   brief   at   25.        He    maintains   that   the   detective’s

“misrepresentation” about the reason for giving a sample “nullified” the

consent. Id. Appellant further insists that the detective’s indication that the

sample would be used for “investigative purposes” was insufficient for

obtaining valid consent. Id. at 26.

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      citizens from unreasonable searches and seizures. A search
      conducted without a warrant is deemed to be unreasonable and
      therefore constitutionally impermissible, unless an established
      exception applies.     Exceptions to the warrant requirement
      include the consent exception. . . .

Commonwealth v. Kurtz, 172 A.3d 1153, 1159 (Pa.Super. 2017) (internal

citations and quotation marks omitted).

      In determining the validity of a given consent, the
      Commonwealth bears the burden of establishing that a consent
      is the product of an essentially free and unconstrained choice—
      not the result of duress or coercion, express or implied, or a will

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      overborne—under the totality of the circumstances.          The
      standard for measuring the scope of a person’s consent is based
      on an objective evaluation of what a reasonable person would
      have understood by the exchange between the officer and the
      person who gave the consent. Such evaluation includes an
      objective examination of the maturity, sophistication and mental
      or emotional state of the defendant. Gauging the scope of a
      defendant’s consent is an inherent and necessary part of the
      process of determining, on the totality of the circumstances
      presented, whether the consent is objectively valid, or instead
      the product of coercion, deceit, or misrepresentation.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations

and quotation marks omitted).

      The trial court addressed the voluntariness of Appellant’s consent as

follows.

            The challenged DNA sample was obtained during
      [Appellant’s] interview with Detective Jackson and Detective
      Gohl on August 17, 2015. Prior to that interview, Detective
      Jackson advised [Appellant] of his Miranda[ v. Arizona, 384
      U.S. 436 (1966),] rights, reading verbatim from a pre-printed
      Miranda warnings card. [Appellant] acknowledged, in writing,
      that he understood each right and agreed in writing to speak to
      the detectives without a lawyer being present.       [Appellant]
      signed the card at 11:30 a.m.

            The interview lasted approximately one hour, maybe less.
      At no time during the interview did [Appellant] indicate that he
      wanted to speak to a lawyer or that he no longer wished to
      speak to the detectives. The detectives were dressed in plain
      clothes and were not carrying their service weapons. [Appellant]
      was not threatened, coerced or promised anything in order to
      induce him to make a statement against his will.

             During the course of the interview, Detective Jackson
      asked [Appellant] if he would voluntarily consent to provide a
      DNA sample using a buccal swab. Detective Jackson explained
      to [Appellant] that the swab would be used to obtain [his] DNA
      profile and that his DNA profile could be used for investigation
      purposes. Detective Jackson told [Appellant] that he did not

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     have to consent. Prior to submitting his DNA, [Appellant] read,
     signed and dated the following consent provision:
                 I, [Appellant], freely and voluntarily consent to
           provide a DNA swab sample to only be used for the
           purpose of criminal investigation.       I have been
           advised that I have a right to refuse permission to
           obtain samples at any time. If I do refuse, I know
           the Officer may apply for a search warrant or court
           order prior to obtaining the samples. I know that
           any evidence seized may be used against me in a
           criminal prosecution.

          After [Appellant] gave his consent, he was handed two
     buccal swabs. He removed the swabs from their packaging and
     swabbed his own mouth.

           ....

            There was no evidence that [Appellant] was in any way
     coerced or improperly induced to provide a DNA sample.
     [Appellant] was told that the DNA sample would be used for
     purpose of criminal investigation and that the sample could be
     used against him in a criminal prosecution. He was told that he
     had a right to refuse to provide a sample. Considered the
     totality of the circumstances, th[e trial c]ourt found that
     [Appellant’s] consent was the product of an essentially free and
     unconstrained choice-not the result of duress or coercion,
     express or implied, or a will overborne and was therefore
     voluntary.

           The fact that the evidence ultimately incriminated
     [Appellant] in another criminal offense does not alter the
     conclusion that his consent was voluntary. Detective Jackson
     was not involved in the investigation into the Czach burglary and
     is there is no evidence that [Appellant] was deceived as to the
     potential use of the DNA sample.

Trial Court Opinion, 6/23/17, at 10-11.

     The trial court’s factual findings are supported by the record, and we

discern no error of law. Thus, we have no reason to disturb the trial court’s

determination that Appellant’s consent was validly obtained.      See, e.g.,

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Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (holding trial court

properly denied suppression motion because defendant’s consent was

voluntary, although officer did not advise the defendant of the full criminal

ramifications of the blood draw following car accident, where the defendant

was informed of his right to refuse and a reasonable person in the

defendant’s position “would have contemplated the potentiality of the results

being used for criminal, investigative, or prosecutorial purposes”).

      In his last suppression argument, Appellant suggests that the United

States Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct.

2160 (2016), supports his claim that the consent was invalid.          Appellant’s

brief at 27-28. The Birchfield Court held that “motorists cannot be deemed

to have consented to submit to a blood test on pain of committing a criminal

offense.”   Birchfield, supra at 2186.       The Birchfield decision has no

application to the instant case, for, as the trial court aptly noted,

“Appellant’s consent to the DNA swab was not obtained as a result of a

threat that refusal would lead to criminal penalties.”    Trial Court Opinion,

6/23/17, at 13. Appellant’s suppression motion was properly denied on the

basis of his voluntary consent.

      We next consider Appellant’s claim that the trial court erred in giving a

curative instruction to the jury that amounted to a prejudicial commentary

on “Appellant’s character, credibility, and truthfulness.” Appellant’s brief at




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28. The record supports the following explanation given by the trial court of

the incident giving rise to this issue.

              On the second day of trial, while Detective Jackson was
      testifying and in the presence of the jury, [Appellant] interrupted
      the proceedings stating, “They’re framing me. That’s not my
      DNA.” [Appellant] told the jury, “They suppressed my DNA.”
      The outburst continued after the jury was removed from the
      courtroom. Following a recess to allow [Appellant] to regain his
      composure, the court engaged in an extensive colloquy with
      [Appellant] advising him of his obligation to refrain from such
      outbursts, his right to be present during trial and his right to
      remain in the courtroom or return to the courtroom at any time
      upon his representation to the court that he would refrain from
      any further outbursts. [Appellant] advised th[e trial] court that
      he could not refrain from further outbursts and requested to be
      removed from the courtroom.

            Th[e trial] court requested proposed curative instructions
      from the defense and the Commonwealth. Defense counsel
      requested that the jury be instructed that [Appellant] chose to
      absent himself as a less prejudicial alternative to the possible
      negative inferences that the jury could draw from his absence.

            Pursuant to this request, the jury was instructed as
      follows:

            You may notice that the defendant is not in court
            since the last we heard from Detective Jackson. He
            has made a decision to not be present during the
            course of the remainder of these proceedings. He
            can change his mind at any time and return to the
            courtroom, but he has chosen not to be in the
            courtroom and so he is not here.

            I want to make perfectly clear the fact that he is not
            present is not any evidence against him and you
            may not consider this as any - - you may not infer
            anything from his decision to not be present in the
            courtroom. It has nothing, absolutely nothing to do
            with your determination about whether or not the
            evidence that is presented by the Commonwealth is
            sufficient to convict him beyond a reasonable doubt

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           or is not sufficient to convict him beyond a
           reasonable doubt. I just want to explain because it’s
           been obvious to you that he is not here, but you may
           not in any fashion hold it against him that he is not
           here in the courtroom.      Your decision and your
           determination is the same as I told you at the outset
           of these proceedings.

            Following this instruction, defense counsel advised th[e
     trial] court that he was not requesting any further instructions.
     The Commonwealth then renewed its request that [Appellant’s]
     misstatement that DNA had been suppressed be corrected and
     further requested that the jury be instructed that [Appellant’s]
     statements in open court are not testimony. Pursuant to these
     requests, the jury was instructed as follows:

           As you know, the defendant made various
           statements during the course of the trial immediately
           before leaving the courtroom. You may have heard
           him make various statements. I am instructing you
           now, and you must follow all of my legal instructions,
           that you are to disregard everything that he said.
           What he said in this courtroom is not testimony and
           may not be considered by you as testimony.

           There was a reference that this court suppressed the
           DNA evidence in this case. That is not accurate.
           The DNA evidence is admissible evidence and may
           be considered by you in determining whether or not
           the Commonwealth has met its burden of proof on
           one or both of these burglary cases, one attempted
           burglary and one burglary. At the same time the
           mere fact that the defendant made that statement,
           again, you cannot hold that against him. And I know
           comments about the DNA evidence is not evidence in
           this case, so you cannot - - the evidence is relevant
           and admissible, but the fact the defendant said
           something contrary to that is not evidence against
           him and you may not consider that statement as - -
           in any fashion in determining whether or not the
           defendant is guilty or innocent of the crimes
           charged.

Trial Court Opinion, 6/26/17, at 13-15 (footnotes omitted).

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       The record reflects that the trial court sought input from both parties

on how to instruct the jury regarding Appellant’s outburst and subsequent

absence, and spent substantial time contemplating the issue.          N.T. Trial,

3/15/16, at 17, 24, 33-34. The first instruction was given at the request of

Appellant’s counsel, and no objection was made to the second instruction

that was requested by the Commonwealth.            Accordingly, because the trial

court was denied the opportunity to consider the objections Appellant now

raises concerning the instructions, the issues are waived on appeal.1 See

Commonwealth v. Rosser, 135 A.3d 1077, 1086 (Pa.Super. 2016) (en

banc) (“Trial judges must be given an opportunity to correct errors at the

time they are made.”) (internal quotation marks omitted); Commonwealth

v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super. 2017) (“It is axiomatic that

issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.      The absence of a contemporaneous objection below

constitutes a waiver of the claim on appeal.”) (internal quotation marks and

citations omitted).



____________________________________________


1 To the extent that Appellant argues that his trial counsel improperly
requested that the trial court inform the jury that Appellant chose to remove
himself from the courtroom, see Appellant’s brief at 29, we note that claims
of ineffective assistance of counsel may be raised in a petition filed pursuant
to the Post Conviction Relief Act, not on direct appeal. Commonwealth v.
Woeber, 174 A.3d 1096, 1109 n.16 (Pa.Super. 2017) (citing
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)).



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      Appellant’s remaining issues concern his sentence.       First, he argues

that the trial judge should have recused herself, and that he is entitled to a

new sentencing hearing with a different judge. Appellant’s brief at 22. The

following principles guide our review.

      [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. . . . This is a personal and unreviewable decision
      that only the jurist can make.

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

citations and quotation marks omitted).

      If the judge concludes that he or she can be impartial, “[t]he 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.” Commonwealth v. Abu-Jamal, 720 A.2d 79,

89 (Pa. 1998). “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.” Kearney, supra at 60.


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      Here the trial judge made the unreviewable determination that she

could be impartial. Appellant, however, maintains that the present case

contains an appearance of impropriety because he “is entitled to sentencing

by a judge whose impartiality cannot be reasonably questioned.” Appellant’s

brief at 22.   Appellant argues as follows.

             In the case sub[ ]judice, the trial court was previously
      involved as a district attorney in some aspect of the prosecution
      of the Appellant in an unrelated matter. She requested that a
      bench warrant remain outstanding at the Appellant’s prior
      arraignment.     She argued on behalf of the Commonwealth
      directly against the rights of the Appellant. She was an active
      participant in that prior proceeding. In addition to a showing of
      actual bias, the concern is a situation where impartiality might
      be reasonably questioned regardless of the record.

Id.

      Our Supreme Court has held that there is no “per se rule that a judge

who had participated in the prosecution of a defendant may never preside as

judge in future unrelated cases involving that defendant.” Commonwealth

v. Darush, 459 A.2d 727, 731 (Pa. 1983).         “Absent some showing of

prejudgment or bias we will not assume a trial court would not be able to

provide a defendant a fair trial based solely on prior prosecutorial

participation.” Id. Rather, the question is whether the judge “earlier had

significant, personal involvement as a prosecutor in a critical decision

regarding the defendant’s case.”     Williams v. Pennsylvania, 136 S. Ct.

1899, 1905 (2016).




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      The trial court offered the following discussion of her involvement in

Appellant’s prior case.

            The undersigned was a prosecutor in Bucks County at the
      time [Appellant] was prosecuted for burglary in case number
      5486-1994. The docket in that matter reflects that [Appellant]
      entered a guilty plea to burglary and related charges on June 19,
      1995. The docket further reflects that the only involvement the
      undersigned had with that matter was an appearance on
      February 13, 1995 as representative of the Bucks County District
      Attorney’s Office before the Honorable Isaac S. Garb, then
      Administrative Judge of the Criminal Division, requesting that
      the bench warrant previously issued at arraignment remain
      outstanding due to [Appellant’s] failure to appear for trial. The
      undersigned was not the assigned trial attorney.              The
      undersigned has no recollection of having any prior contact with
      [Appellant]. There is, therefore, no basis to conclude that the
      undersigned would have been unable to preside over [Appellant]
      jury trial fairly and impartially. The fact that the undersigned
      was employed by the District Attorney’s Office when [Appellant]
      was prosecuted does not warrant recusal.

Trial Court Opinion, 6/23/17, at 7 (citation omitted).

      Appellant points to no evidence to suggest that the trial judge ever

interacted with, met, or even saw him while she was a prosecutor. Nor does

he cite authority to support the contention that the trial court’s single

instance of pinch-hitting for the prosecutor assigned to Appellant’s case on a

routine motion was indicative of bias or an appearance of impropriety that

would cause the public to lose confidence in the judiciary.       Accordingly,

Appellant has not met his burden of showing that recusal was warranted,

and the trial court did not abuse its discretion in denying the recusal motion.

Compare Commonwealth v. Jones, 663 A.2d 142, 144 (Pa. 1995)

(denying motion for Justice’s recusal because his name had appeared on

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brief seeking affirmance of the petitioner’s death sentence filed five years

earlier, when the Justice was District Attorney of Philadelphia, where the

justice had no personal involvement in the case, there was no indication of

prejudgment or bias, and the case law did not suggest that recusal was

warranted by any appearance of impropriety), with Williams, supra at

1907 (holding Justice’s decision when district attorney to authorize seeking

the   death    penalty   against   the     defendant   was   significant   personal

involvement requiring recusal).

      Finally, Appellant seeks our review of the discretionary aspects of his

sentence.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

              (1) whether appellant has filed a timely notice of
              appeal, see Pa.R.A.P. 902 and 903; (2) whether the
              issue was properly preserved at sentencing or in a
              motion to reconsider and modify sentence, see
              Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
              fatal defect, Pa.R.A.P. 2119(f); and (4) whether
              there is a substantial question that the sentence
              appealed from is not appropriate under the
              Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

      While Appellant filed a timely notice of appeal and sought modification

of his sentence in his post-sentence motion, he failed to include a statement


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of reasons for allowance of appeal in his brief as required by Pa.R.A.P.

2119(f). The Commonwealth has objected to its absence. Commonwealth’s

brief at 34. “Because the Appellant failed to comply with Pa.R.A.P. 2119(f)

and the Commonwealth objected to the omission, this Court may not review

the   merits   of   the   claim,   and   we   deny   allowance   of   appeal.”

Commonwwalth v. Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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