J-A11015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

MARTEKE BURGESS

                         Appellant                     No. 45 EDA 2014


       Appeal from the Judgment of Sentence of December 13, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos.: CP-51-CR-0003078-2012,
            CP-51-CR-0003214 2011, CP-51-CR-0003215-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

CONCURRING AND DISSENTING MEMORANDUM BY WECHT, J.:

FILED AUGUST 26, 2015

      I concur in the analyses and results reached by the learned Majority

with respect to Appellant’s first two issues.     However, I disagree with the

ultimate result reached by the Majority regarding Appellant’s challenge to

the discretionary aspects of his sentence.

      Respectfully, I believe it is incumbent upon us to discuss in more detail

the trial court’s inflammatory remarks at sentencing.      At a minimum, the

issues deserve a thorough analysis, and certainly more attention than they

have received from the learned Majority. In my judgment, the trial court’s

language at sentencing warrants criticism, and is sufficiently filled with

invective as to compel a new sentencing hearing. Accordingly, I respectfully

dissent with regard to Appellant’s third issue.
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      Perhaps in a spirit of forbearance and generosity to the trial court, the

Majority describes that court’s “characterizations” of Appellant as merely

“colorful.” See Maj. Mem. at 17. In so doing, the Majority cites only one of

the trial court’s aspersions. Id. (quoting the trial court referring to Appellant

as “sociopathic”). There were many more such comments by the trial judge

here. Those comments were not simply “colorful.” They were unnecessary,

caustic, and unbecoming of a judicial officer. Each of them deserves to be

reproduced by this Court in the light of day.

      In the course of the sentencing proceedings, the trial court made the

following remarks regarding Appellant:

            “He’s never done anything right.”

            “He’s a complete loser at life.”

            “See, here’s the thing, I mean, yes, his family has
             destroyed him; yes, he’s been in placement after
             placement after placement to finally when he goes AWOL.
             He’s damaged goods. We can’t fix him.”

            “I disagree with you. I think he’s so damaged, he can’t be
             fixed. He doesn’t even care about the situation. He
             laughed through the whole trial and then he goes to
             presentence, which is going to determine what sentence
             may be given to him, and he doesn’t care. They call it
             nonchalant through the whole thing.”

            “See, I don’t have those goggles that I can see into his
             soul. I’m sorry. I don’t have it. All I can judge him on is
             what he is and what he is, is a juvenile delinquent who’s
             now become a major felon and he’s never been anything
             else. That is the story of his life. And you know what?
             We’re fortunate that we had the parents we did, he’s
             unfortunate, but that is what created the monster that he
             is.”



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            “This is as bold as the Old West. You know, we can’t have
             these urban Visigoths who are tearing our cities apart. He
             belongs in jail, and he belongs in jail for a very long time.
             He is innocent looking. He is young looking. The jurors
             actually hold out some of the charges against him, which I
             believe I would have found him guilty of because of what
             he looks like. But, he’s a demon. This is a bad human
             being sitting next to you.”

            “How can they give him a conscience?         That’s what he
             doesn’t have.”

            “He’s antisocial. He lacks conscience.”

            “[He] is sociopathic no matter what was said.”

Notes of Testimony, 12/13/2013, at 18-32.         To call any person (even a

convicted defendant) standing before the court a “sociopath,” a “monster,” a

“demon,” a “complete loser,” “an urban Visigoth,” and irreparably “damaged

goods” is to demonstrate bias.      It is unnecessary.   It is unseemly.     It is

hectoring. It is unbecoming of a judge or a court. It does little but diminish

the judiciary. Indeed, while doubtless intended to ridicule the defendant, it

has the effect ultimately of holding the court up to ridicule.

      I do not dismiss such language as merely “colorful.” The statements

were hostile and inflammatory, and exhibited a clear bias on the part of the

trial court. We recently have written:

      The sentencing decision is of paramount importance in our
      criminal justice system, and must be adjudicated by a fair and
      unbiased judge. This means, a jurist who assess[es] the case in
      an impartial manner, free of personal bias or interest in the
      outcome. Because of the tremendous discretion a judge has
      when sentencing, a defendant is entitled to sentencing by a
      judge whose impartiality cannot reasonably be questioned. A
      tribunal is either fair or unfair. There is no need to find actual



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      prejudice, but rather, the appearance of prejudice is sufficient to
      warrant the grant of new proceedings.

Commonwealth v. Williams, 69 A.3d 735, 744 (Pa. Super. 2013)

(citations and internal quotation marks omitted).     In Williams, this Court

concluded that a sentencing court’s motives and remarks exhibited bias

because the court focused upon the defendant’s burglarizing Catholic

institutions, assailed prior adjudications as “mistakes” for being too lenient,

attempted to “sanitize” its inquiries by goading the defendant into

contradicting herself, and imposed a revocation sentence that was “severe

on its face” because the defendant would not be eligible for parole for thirty-

one years. Id. at 742. We observed:

      If the invocation of such rhetoric is relied upon to serve as the
      foundation of subsequent conclusions, as it clearly was in this
      instance, the bias necessarily affects the conclusion. The trial
      court’s description of Appellant as being a “pathological liar” and
      a “classic sociopath” lacks any support in the record, and that
      error is not trivial in this instance. The bias it signals cannot be
      ignored when the trial court premises the imposition of such a
      severe sentence on the balance between Appellant’s “extremely
      low potential for rehabilitation against the duty to protect the
      public.”

Id. at 748. “Viewed collectively, the trial court’s [statements] strike a tone

of advocacy rather than dispassionate reflection.        This accumulation of

inappropriate remarks leads us to conclude that Appellant’s sentence cannot

be divorced from the appearance of bias.” Id. at 744.




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       There is little difference between the instant case’s references to

Appellant as a demon and a monster and our other cases that condemn

references to a convicted defendant as an animal.

       In regarding appellant, and in addressing him, as an animal, the
       sentencing judge violated the most fundamental premise of our
       law—that all persons are to be treated equally. That does not
       mean that some persons will not be punished for having violated
       the law. . . . But no one is punished as an animal is punished.

Commonwealth v. Spencer, 496 A.2d 1156, 1165 (Pa. Super. 1985).1

       Of course, I could simply cast my lot with the Majority and conclude

that the trial court’s statements were “colorful” but not sufficiently egregious

to merit relief, or that the rest of the trial court’s rationale minimizes the

seriousness of these remarks. But I would then be faithless to the traditions

of our law. Appellant is not a monster, nor a demon. He is a man. Perhaps

he is a very bad man. Perhaps he deserved a sentence every bit as severe

as this trial judge imposed upon him.             But Pennsylvania law does not

confuse    the   sentencing      of   human    beings   with   the   confinement    or

chastisement of animals, or the crushing of monsters or demons.                    See

Spencer, 496 A.2d 1165. Once we start confusing the human with the non-


____________________________________________


1
      While our Supreme Court “has declined to proscribe animal imagery in
penalty-phase closing arguments,” Commonwealth v. Paddy, 800 A.2d
294, 325 (Pa. 2002), it is not for the court to practice “vigorous
prosecutorial advocacy,” Commonwealth v. Miles, 681 A.2d 1295, 1302
(Pa. 1996), but to render a sentence with “dispassionate reflection.”
Williams, 69 A.3d at 744.



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human, we have begun our descent down a worrisome path.               The court’s

statements do more than give me pause. They undermine—quite fatally—

my faith in the sentencing court’s impartiality and my customary willingness

to afford that court the benefit of the doubt in all other particulars.

      The trial court was no doubt frustrated and appalled by Appellant’s

criminal acts, as well as Appellant’s refusal to take the proceeding seriously.

But that does not permit the trial court to act with animosity and disgust. As

Judge Shoyer wrote in his concurring opinion in Spencer, “[t]he sentencing

judge should appear as the fountainhead of justice, not the spirit of

revenge.”   Id. at 1166 (Shoyer, J., concurring).        This matter should be

returned to the trial court for a sober and dignified proceeding governed by

law, not passion.

      I express no view on the appropriate length of sentence here; I

express only a view on the appropriate conduct of sentencing.

      Because the Majority functionally ignores the trial court’s statements

and declines to afford Appellant relief, I must respectfully dissent.




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