J-S12019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DOMENIC TRICOME,

                         Appellant                    No. 2131 EDA 2015


         Appeal from the Judgment of Sentence of June 11, 2015
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0002821-2013


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 08, 2016

     Appellant, Domenic Tricome, appeals from the judgment of sentence

entered on June 11, 2015. We affirm.

     The trial court ably explained the underlying facts of this case:

        At the June 11, 2015 bench trial, Appellant stipulated to the
        following facts as set forth in the affidavit of probable cause,
        which were read into the record.           On July 24, 2012,
        Appellant was arrested for terroristic threats and[,] during
        the course of that arrest, Appellant had contact with
        Detective William Mitchell of the Montgomery County
        Detective Bureau. On August 2, 2012, Magisterial Judge
        Maruszczak ordered Appellant to undergo a psychiatric
        evaluation by the Montgomery County Emergency Services
        (“MCES”) and to follow their recommendations for
        treatment as a requirement of bail. Appellant agreed to the
        bail conditions. MCES staff contacted Appellant and visited
        him to evaluate his mental status.

        On August 16, 2012, Detective Mitchell received a letter via
        fax to the Montgomery County Detective Bureau from
        Appellant. Therein, Appellant claimed that he recorded the


*Retired Senior Judge assigned to the Superior Court.
J-S12019-16


       telephone conversations he had with MCES staff because he
       could not trust MCES or Detective Mitchell. He specifically
       wrote, “I have the calls on tape.”

       On August 17, 2012, Detective Mitchell received a
       subsequent letter from Appellant via fax. In this letter,
       Appellant [made] the same accusations against MCES. He
       claim[ed] that he [could] prove [that lies] were told about
       him [and that he could do so] with audiotapes of the
       telephone conversations between MCES staff and himself.
       Appellant also related that he did not trust the District
       Attorney’s Office or MCES, so he made duplicates of his
       tapes of the telephone conversations.

       After receiving the second letter, Detective Mitchell
       contacted MCES and spoke with Tyler Ludwig, the MCES
       member who had telephone conversations with Appellant
       pursuant to his bail conditions. Mr. Ludwig stated that he
       had several telephone conversations with Appellant to
       schedule a home visit as well as an evaluation for him with
       one of the doctors at MCES.

       During one of the conversations, Mr. Ludwig stated that
       Appellant told him that he was recording their conversation.
       This statement was in the middle of their conversation. Mr.
       Ludwig did not consent to the recording of the conversation,
       nor did Appellant provide the appropriate warnings at the
       beginning of the conversation. Mr. Ludwig stated he never
       gave Appellant consent to record any conversation.

       On August 21, 2012, members of the Montgomery County
       Detective Bureau and the Upper Marion Police Department
       executed a search warrant at Appellant’s apartment. As a
       result of the search, 120 audiotapes were seized, along with
       computer hard drives and an audio recording device. A
       review of the audiotapes reveal hundreds of illegal,
       surreptitiously recorded conversations using Appellant’s
       home telephone line.

       Detective Mitchell reviewed tapes one through 28, which
       date from January 2011 through August [] 2012. During
       the months of January 2011 through March [] 2011, a total
       of 153 calls were recorded. During the months of April
       2011 through June 2011, a total of 38 calls were recorded.

                                  -2-
J-S12019-16


       During the months of July 2011 through September 2011, a
       total of 37 calls were recorded. During the months of
       October 2011 through December 2011, a total a total of 31
       calls were recorded. During the months of January 2012
       through March 2012, a total of 41 calls were recorded.
       During the months of April 2012 through June 2012, a total
       of 41 calls were recorded. During the months of July 2012
       through the execution of the search warrant on August 21,
       2012, a total of 38 calls were recorded. These recorded
       calls were made to various people, including Appellant’s
       friends, apartment complex employees, law offices, various
       court personnel, pharmacy workers[,] and various other
       individuals.

       On August 24, 2012, a hearing was held in the Montgomery
       County Court of Common Pleas at Appellant’s request.
       During the hearing[,] Appellant made an unsolicited
       statement that he “recorded all of his calls.” Appellant also
       admitted in briefs to [the trial c]ourt that he records all of
       his phone calls.

       [On December 5, 2012, the Commonwealth charged
       Appellant with violating the Wiretap Act at 18 Pa.C.S.A.
       § 5703(1). This section provides that “a person is guilty of
       a felony of the third degree if he:       (1) intentionally
       intercepts, endeavors to intercept, or procures any other
       person to intercept or endeavor to intercept any wire,
       electronic or oral communication.” 18 Pa.C.S.A. § 5703(1).]

                                    ...

       On April 30, 2014, Appellant filed a pro se motion [for the
       trial court judge to] recuse. Therein, Appellant alleged that
       [the trial court judge could not] be impartial due to
       [Appellant’s] filing of a pro se motion in a separate matter
       in which Appellant was a defendant. . . . On July 9, 2014,
       [the trial court judge] issued an order denying Appellant’s
       motion to recuse. . . .

                                    ...

       On June 9, 2015, [Appellant] filed [two pre-trial motions: a
       “Motion to Dismiss as De Minimis Pursuant to 18 Pa.C.S.A.
       § 312(a)” and a “Motion to Dismiss for Vindictive

                                   -3-
J-S12019-16


       Prosecution.” Within Appellant’s “Motion to Dismiss as De
       Minimis Pursuant to 18 Pa.C.S.A. § 312(a),” Appellant
       claimed] that the charges filed against him should be
       dismissed because there [was] no evidence to suggest that
       [he] disclosed the contents of any of the recorded telephone
       conversations or that he threatened or intended to disclose
       the contents of the telephone conversations.          Finally,
       [Appellant claimed] that the recorded phone conversations
       relate[d] only to trivial and clerical matters and [did] not
       involve any personal details about the other party to the
       conversation. . . .

       [Within Appellant’s “Motion to Dismiss for Vindictive
       Prosecution,” Appellant noted that, despite the fact that]
       the search warrant of Appellant’s residence was executed on
       August 21, 2012[, the Commonwealth did not file charges
       against Appellant until December 5, 2012. Appellant also
       noted that,] on August 29, 2012, [he] filed a civil action in
       [the] Montgomery County Court of Common Pleas against
       several employees of the Montgomery County District
       Attorney’s Office and other defendants relating to this
       matter. [Appellant claimed] that it was not until December
       5, 2012, the day after counsel entered his appearance for
       the employees of the [District Attorney’s] Office named as
       defendants in the civil action, that the Commonwealth filed
       the present charges against Appellant.            Moreover,
       [Appellant claimed] that the Commonwealth’s decision to
       file criminal charges against Appellant on December 5, 2012
       was more likely than not motivated by vindictiveness in
       retaliation for his initiation of a civil action against
       employees of the [District Attorney’s] Office.

       [A hearing on] Appellant’s motion to dismiss for vindictive
       prosecution was [held] prior to the start of the stipulated
       bench trial. . . . [During the hearing, the] Commonwealth
       presented the credible testimony of Detective Mitchell, the
       affiant in this case. Detective Mitchell testified that he first
       got involved in this case in August 2012 when he received
       several faxes in his office, addressed to him. The detective
       [testified] that in those faxes[,] Appellant made several
       complaints about issues with another case, and [Appellant]
       stated that he records his phone calls, has the phone calls
       on tape[,] and made duplicates of those phone recordings.
       Detective Mitchell explained that based upon this

                                    -4-
J-S12019-16


       information he next applied for a search warrant for
       [Appellant’s] residence to recover recordings of illegally
       recorded phone conversations. . . .

       The search warrant was executed on [August 21, 2012.
       Detective Mitchell testified] that the search uncovered
       several boxes of 120 cassette tapes that contained
       hundreds and hundreds of illegally recorded phone calls, as
       well as a phone recording [device] that was plugged into
       [Appellant’s] phone line with a tape ready to record.
       Detective Mitchell explained that while the search warrant
       was executed in August [] 2012, an arrest warrant was not
       issued and a complaint was not filed for a period of three
       months thereafter because he had to examine the evidence.
       This entailed hours and hours of listening to the audiotapes,
       and determining who were on the audiotapes. Detective
       Mitchell also executed two other search warrants in that
       three month period for phone records for [Appellant’s]
       residence for Comcast and Verizon. . . .

       The detective also testified that at the time he filed the
       affidavit and obtained an arrest warrant [against Appellant,]
       he had no knowledge that he had been sued in civil court by
       Appellant. He had not received any notice in the mail about
       being sued by him. Also, no one else [that was] a member
       of either the Montgomery County Detective Bureau or the
       [District Attorney’s] Office informed or indicated to him that
       he had been sued. Detective Mitchell unequivocally stated
       to [the trial c]ourt that he did not file the criminal complaint
       in this case against Appellant because he had been sued in
       civil court by [Appellant], nor did he file the complaint at
       anyone else’s direction.

       [The trial court denied both of Appellant’s pre-trial motions
       to dismiss. Trial Court Order, 6/11/15, at 1.]

                                     ...

       At the [] bench trial [on June 11, 2015,] Appellant testified
       on his own behalf. He admitted on direct examination that
       he did record his telephone conversations. However, he
       stated that he never disclosed the contents of any of these
       conversations to anyone and that he never threatened
       anyone or blackmailed anyone to disclose the contents of

                                    -5-
J-S12019-16


        the conversations. Further, upon questioning by his counsel
        as to why he recorded his conversations, Appellant
        [testified] as follows:

            I had an oral agreement, an employment contract after I
            sold the company in 2008, and the oral agreement was
            between somebody in the supplement industry that was
            president of the company, and I was president of the
            company. We were well known in the industry and I
            was told I could trust the man, and it made sense that
            we didn’t have an employment agreement. I should
            have had an employment agreement, because he
            reneged on it and I lost about a quarter of a million
            dollars.

            From that and other things I contacted the [District
            Attorney’s] Office for help.   Actually, I think 129
            contacts to everybody that matters, from the President
            of the United States to the local police force, a 1004
            pages, and nobody replied.     The District Attorney’s
            Office, six times I asked them.        And these are
            documents that would catch anybody’s attention, and
            they didn’t even reply.

            So I felt that I was on an island, so I had to keep my
            phone recorded. And it helped, it helped.

                                       ...

            That was the only way I could protect myself. I went as
            far as threatening the [District Attorney’s] Office to sue
            them if they don’t help me, and they didn’t reply to
            anything. It was beyond ludicrous. I contacted them on
            one matter six times, but in general about 200 times.

        [N.T. Trial, 6/11/15, at 30-32.]

        At the conclusion of the [June 11, 2015] trial, [the trial
        c]ourt found Appellant guilty [of violating the Wiretap Act at
        18 Pa.C.S.A. § 5703(1). That same day, the trial court
        sentenced Appellant to serve] a one-year term of probation.

Trial Court Opinion, 8/14/15, at 1-5 (internal citations omitted).



                                     -6-
J-S12019-16



      Appellant filed a timely notice of appeal. Appellant raises three claims

to this Court:

        [1.] Whether the trial court erred in denying Appellant’s
        motion to dismiss for vindictive prosecution?

        [2.] Whether the trial court abused its discretion in denying
        Appellant’s motion to dismiss as de minimis [Appellant’s]
        violation of the Wiretap Act?

        [3.] Whether the trial court abused its discretion in denying
        Appellant’s motion for recusal without a hearing and without
        sufficient consideration and response to Appellant’s
        allegations of bias?

Appellant’s Brief at 4 (some internal capitalization omitted).

      We have reviewed the briefs of the parties, the relevant law, the

certified record, the notes of testimony, and the opinion of the able trial

court judge, the Honorable William R. Carpenter.       We conclude that there

has been no error in this case and that Judge Carpenter’s opinion, entered

on August 14, 2015, meticulously and accurately disposes of Appellant’s

issues on appeal.   Therefore, we affirm on the basis of Judge Carpenter’s

opinion and adopt it as our own. In any future filings with this or any other

court addressing this ruling, the filing party shall attach a copy of the trial

court’s opinion.

      Judgment of sentence affirmed.




                                     -7-
J-S12019-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2016




                          -8-
                                                                         Circulated 01/20/2016 03:23 PM




                IN THE COURT OF COMMONPLEAS OF MONTGOMERYCOUNTY
                                   PENNSYLVANJA
                                  CRIMINALDIVISION


       COMMONWEALTHOF PENNSYLVANIA                           CP-46-CR-0002821-2013
                                                                                         t- )
                                                                                         ,--
                    v.
       DOMENICTRICOME                                        2131 EDA 2015
1)11


                                            OPINION                                      c__.


       CARPENTER         J.                                  AUGUST 13, 2015


                              FACTUALAND PROCEDURALHISTORY

                    Appellant, Domenic Tricome, appeals from the judgment of

       sentence imposed on June 11, 2015, after he was convicted of violating the

       Wiretap Act at 18 Pa.CS.A. §5703(1), the intentional interception, disclosure or

       use of wire, electronic or oral communications, at a stipulated bench trial.

                   At the June 11, 2015 bench trial, Appellant stipulated to the

       following facts as set forth in the affidavit of probable cause, which were read

       into the record. On July 24, 2012, Appellant was arrested for terroristic threats

       and during the course of that arrest, Appellant had contact with Detective

       William Mitchell of the Montgomery County Detective Bureau. (Stipulated Bench

       Trial 6/11/15 pp. 23 - 24). On August 2, 2012, Magisterial Judge Maruszczak

       ordered Appellant to undergo a psychiatric evaluation by the Montgomery

       County Emergency Services (uMCES") and to follow their recommendations for

       treatment as a requirement of bail. Id. at 24. Appellant agreed to the bail
 conditions. Id. MCES staff contacted Appellant and visited him to evaluate his

 mental status. Id. at 25.

              On August 16, 2012, Detective Mitchell received a letter via fax to

 the Montgomery County Detective Bureau from Appellant. Id. Therein,

 Appellant claimed that he recorded the telephone conversations he had with

 MCES staff because he could not trust MCES or Detective Mitchell. Id. He

 specifically wrote, "I have the calls on tape". Id.

              On August 17, 2012, Detective Mitchell received a subsequent letter

from Appellant via fax. In this letter, Appellant makes the same accusations

against MCES. Id. He claims that he can prove lies that were told about him with

audiotapes of the telephone conversations between MCES staff and himself. Id.

Appellant also related that he did not trust the District Attorney's Office or

MCES, so he made duplicates of his tapes of the telephone conversations. Id. at

25 - 26.

             After receiving the second letter, Detective Mitchell contacted MCES

and spoke with Tyler Ludwig, the :MCES member who had telephone

conversations with Appellant pursuant to his bail conditions. Mr. Ludwig stated

that he had several telephone conversations with Appellant to schedule a home

visit as well as an evaluation for him with one of the doctors at MCES. Id. at 26.

             During one of the conversations, Mr. Ludwig stated that Appellant

told him that he was recording their conversation. Id. at 26. This statement was

in the middle of their conversation. Mr. Ludwig did not consent to the recording

of the conversation, nor did Appellant provide the appropriate warnings at the

                                          2
         beginning of the conversation. Id. Mr. Ludwig stated he never gave Appellant

         consent to record any conversation. Id.

                      On August 21, 2012, members of the Montgomery County

.(:,,
         Detective Bureau and the Upper Merion Police Department executed a search
''\.
t',,11   warrant at Appellant's apartment. Id. As a result of the search. 120 audiotapes

         were seized, along with computer hard drives and an audio recording device. A

         review of the audiotapes reveal hundreds of illegal, surreptitiously   recorded

         conversations using Appellant's home telephone line. Id. at 26 - 27.

                     Detective Mitchell reviewed tapes one through 28, which date from

         January 2011 through August of 2012. During the months of January 2011

         through March of 2011, a total of 153 calls were recorded. During the months

         of April 2011 through June 2011, a total of 38 calls were recorded. During the

         months of July 2011 through September 2011, a total of 37 calls were recorded.

         During the months of October 2011 through December 2011, a total of 31 calls

         were recorded. During the months of January 2012 through March 2012, a total

         of 41 calls were recorded. During the months of April 2012 through June 2012,

         a total of 41 calls were recorded. During the months of July 2012 through the

         execution of the search warrant on August 21, 2012 a total of 38 calls were
                                                              1




         recorded. Id. at 27 - 28. These recorded calls were made to various people,

         including Appellant's friends, apartment complex employees, law offices,

         various court personnel, pharmacy workers and various other individuals. Id. at

         28.



                                                   3
                    On August 24, 2012, a hearing was held in the Montgomery County

       Court of Common Pleas at Appellant's request. During the hearing Appellant

       made an unsolicited statement that he "records all of his calls." Id. Appellant

       also admitted in briefs to the Court that he records all of his phone calls. Id.

                   At the stipulated bench trial, Appellant testified on his own behalf.

(111
       He admitted on direct examination that he did record his telephone

       conversations. Id. at 30. However, he stated that he never disclosed the

       contents of any of these conversations to anyone and that he never threatened

       anyone or blackmailed anyone to disclose the contents of the conversations. Id.

       Further, upon questioning by his counsel as to why he recorded his

       conversations, Appellant stated as follows:

                   I had an oral agreement, an employment contract after
                   I sold the company in 2008, and the oral agreement
                   was between somebody in the supplement industry
                   that was president of the company, and I was
                   president of the company. We were well known in the
                   industry and I was told I could trust the man, and it
                   made sense that we didn't have an employment
                   agreement. I should have had an employment
                   agreement, because he reneged on it and I lost about a
                   quarter of a million dollars.

                   From that and other things I contacted the DA's Office
                   for help. Actually, I think 12 9 contacts to everybody
                   that matters, from the President of the United States to
                   the local police force, a 1004 pages, and nobody
                   replied. The District Attorney's Office, six times I asked
                   them. And these are documents that would catch
                   anyone's attention, and they didn't even reply.

                   So I felt I was on an island, so I had to keep my phone
                   recorded. And it helped, it helped.



                                                4
                     That was the only way I could protect myself. I went as
                     far as threatening the DA's Office to sue them if they
()(I;                don't help me, and they didn't reply to anything. It was
                     beyond ludicrous. I contacted them on one matter six
                     times, but in general about 200 times.

        Id. at 30 - 32.

                     At the conclusion of the trial, this Court found Appellant guilty,

        and sentenced him the same day to a one-year term of probation. Id. at 44.

                                              ISSUES

        I.     Whether this Court properly denied Appellanf s motion to dismiss for
               vindictive prosecution.

        II.    Whether this Court properly denied Appellant's motion to dismiss as de
               minim is.

        III.   Whether this Court properly denied Appellant motion for recusal without
               a hearing.

                                           DISCUSSION

        I.     This Court properly denied Appellant's motion to dismiss for vindictive
               prosecution,

                     First on appeal, Appellant argues that this Court erred in denying

        his motion to dismiss for vindictive prosecution.

                     On June 9, 2015, defense counsel filed the motion to dismiss for

        vindictive prosecution. Therein, it was alleged that despite that the search

        warrant of Appellant's residence was executed on August 21, 2012, no charges

        were filed in August, September, October or November of 2012. See, Motion for

        Vindictive Prosecution 6/9/15 ,i~ 1, 3. It was also alleged that on August 29,

        2012, Appellant filed a civil action in Montgomery County Court of Common

        Pleas against several employees of the Montgomery County District Attorney's

                                                5
        Office and other defendants relating this this matter. Id. at ~4. It is further
(i(11   alleged that it was not until December 5, 2012, the day after counsel entered his

        appearance for the employees of the D.A's Office named as defendants in the

        civil action, that the Commonwealth filed the present charges against

h'li    Appellant. Id. at ~,i 5 -8. Moreover, it is alleged that the Commonwealth's

(111
        decision to file criminal charges against Appellant on December 5, 2012 was

        more likely than not motivated by vindictiveness in retaliation for his initiation

        of a civil action against employees of the D.A.'s Office. Id. at~ 12.

                      Appellant's motion to dismiss for vindictive prosecution was heard

        prior to the start of the stipulated bench trial. This Court heard testimony on

        the matter.
                      The Commonwealth presented the credible testimonv of Detective

        Mitchell, the affiant in this case. Detective Mitchell testified that he first got

        involved in this case in August 2012 when he received several faxes in his

        office, addressed to him. (Stipulated Bench Trial 6/11/15 p. 8). The detective

        stated that in those faxes Appellant made several complaints about issues with

        another case, and he stated that he records his phone calls, has the phone calls

        on tape and made duplicates of those phone recordings. Id. Detective Mitchell

        explained that based upon this information he next applied for a search

        warrant for his residence to recover recordings of illegally recorded phone

        conversations. Id. at 9. The search warrant was executed on August 2!51• Id. The

        detective testified that the search uncovered several boxes of 120 cassette

        tapes that contained hundreds and hundreds of illegally recorded phone calls,

                                                  6
         as well as a phone recording devise that was plugged into his phone line with a

         tape ready to record. Id. Detective Mitchell explained that while the search

         warrant was executed in August of 2012, an arrest warrant was not issued and

         a complaint was not filed for a period of three months thereafter because he

~,.:11   had to examine the evidence. Id. This entailed hours and hours of listening to

(Ill
         the audiotapes, and determining who were on the audiotapes. Id. Detective

         Mitchell also executed two other search warrants in that three month period for

         phone records for his residence for Comcast and Verizon. Id. at 9 - 10. The

         detective also testified that at the time he filed the affidavit and obtained an

         arrest warrant he had no knowledge that he had been sued in civil court by

         Appellant. Id. at 10. He had not received any notice in the mail about being

         sued by him. Id. Also, no one else that's a member of either the Montgomery

         County Detective Bureau or the D.A.'s Office informed or indicated to him that

         he had been sued. Id. Detective Mitchell unequivocally stated to this Court that

         he did not file the criminal complaint in this case against Appellant because he

         had been sued in civil court by him, nor did he file the complaint at anyone

         else's direction Id. at 10 - 11.

                      After the detectives testimony, this Court heard argument from

         both defense counsel and the Commonwealth. Id. at 15. At the conclusion of

         this Court denied the motion.

                      There are two distinct situations in which the appearance of

         vindictiveness may require inquiry and judicial intervention. The first is where

         a prosecutive decision is based on discriminatory grounds of race, religion,

                                                 7
 national origin or other impermissible classification. The other situation is

 where the accused is treated more harshly because he has successfully

 exercised a lawful right. Commonwealth v. Rocco, 544 A.2d 496, 498 (Pa.Super.

 1988).

                Presumption of prosecutorial vindictiveness arises, which

 Commonwealth must rebut with evidence of legitimate explanation for

 challenged conduct, if defendant establishes facts which demonstrate

probability that adverse action by prosecution      or court has been motivated by

vindictiveness in retaliation for successful exercise of defendant's legal rights

rather than forsome other legitimate cause; key to whether presumption arises

in given case would be factual circumstances in which challenged action

occurred. Id.

                Here, Appellant alleged in his motion that a criminal complaint was

filed in this case in retaliation of his filing of a civil action against certain

employees of the D.A.'s Office. This allegation falls into the category that

Appellant, as the accused, was treated more harshly because he has

successfully exercised a lawful right. Based upon this allegation, this Court

conducted a hearing in which the Commonwealth presented the testimony of

Detective Mitchell, who this Court deemed to be credible. Based upon the facts

adduced at this hearing and the credibility determination, this Court properly

concluded that the criminal charges that were filed were not related in any way

to the civil action and that Appellant was not treated more harshly because of

the civil action. The criminal charges flowed from Appellant's own spontaneous

                                           8
 admissions, a valid search warrant and the recovered tapes and recording

 device found pursuant to the search. Additionally, the facts established that the

 detective was unaware of the civil action at the time the criminal complaint was

 filed, and the issue of the civil action was never raised in the discussions about

 the criminal charges that occurred prior to the filing of the criminal complaint.

 (Stipulated Bench Trial 6/11/15 p. 14 - 15). Therefore, despite the timing of the

 filing of the criminal complaint, the two were unrelated.

 II.   This Court properly denied Appellant's motion to dismiss as de minimis.

             Next, Appellant contends that this Court abused its discretion in

. denying his motion to dismiss as de minimis the violation of 18 Pa.CS.A.

 §5 703(1), relating to interception of wire communications.

             On June 9, 2015, defense counsel filed a motion to dismiss as de

 minimis pursuant to 18 Pa.CS. §312(a), alleging therein that the charges filed

against him should be dismissed because there is no evidence to suggest that

Appellant disclosed the contents of any of the recorded telephone

conversations or that he threatened or intended to disclose the contents of any

of the telephone conversations. See, Motion to Dismiss as De Minimis 6/9/14

~~5, 6. Finally, it is alleged that the recorded phone conversations relate only to

trivial and clerical matters and do not involve any personal details about the

other party to the conversation. Id. at ~7.

            While a trial court may, in the exercise of its discretion, dismiss
petty or de minimus infractions of criminal law, dismissal of .charges as petty is

limited to situations where no harm was done to a victim or society, and "it is

                                         9
         incumbent upon the trial court not to dismiss criminal conduct that is injurious
(i(I,    to the victim or to society." Commonwealth v. Beck, 810 A2d 736, 746

         (Pa.Super. 2002). Section 312 of the Crimes Code provides in relevant part the
         following:

                      § 312. De minimis infractions


                      (a) General rule.--The court shall dismiss a prosecution
                      if, having regard to the nature of the conduct charged
                      to constitute an offense and the nature of the
                      attendant circumstances, it finds that the conduct of
                      the defendant:

                      (1) was within a customary license or tolerance, neither
                      expressly negatived by the person whose interest was
                      infringed nor inconsistent with the purpose of the law
                      defining the offense;

                      (2) did not actually cause or threaten the harm or evil
                      sought to be prevented by the law defining the offense
                      or did so only to an extent too trivial to warrant the
                      condemnation of conviction; or

                      (3) presents such other extenuations that it cannot
                      reasonably be regarded as envisaged by the General
                      Assembly or other authority in forbidding the offense.

        18 Pa.CS.A. § 312(a).

                      This Court determined based upon Appellant's own testimony that

        he was taping all of his telephone conversations to protect himself in some

        way, his intention was to use the recordings in some manner at some place or

        time. The Wiretap Act is meant to protect privacy, the very thing Appellant

        violated by surreptitiously recording his conversation with Mr. Ludwig. This
        crime is not de minimis.


                                                10
           III.   This Court properly      denied Appellant     motion for recusal without a
                  hearing.

                          Third on appeal, Appellant       asserts that this Court abused its
'   ,,
f1····
           discretion in denying his motion for recusal without a hearing and without

r·.,,:11   sufficient consideration and response to his allegations of bias.

                          OnApril 30, 2014 Appellant filed a prose motion to recuse.
                                               1




           Therein, Appellant alleged that the undersigned cannot be impartial due to his

           filing of a prose motion in a separate matter in which Appellant was a

           defendant at docket CP-46-CR-0005855-20121, entitled "Motion for Judgment of

           Acquittal, Which Also Represents A Motion for Referral from Criminal

           Investigation of Presiding Judge William Carpenter, District Attorney's Office,

           Ethan Barlieb, Douglas Rosenblum and Public Defender's Office", attached to


                   For the purpose of clarity and understanding, the factual and procedural background of
           Common Pleas docket 5855-2012, as set forth by the Pennsylvania Superior Court memorandum
           decision dated January 12, 2015, 1581 EDA 2014, is as follow:

                         On July 21, 2012, Tricome sent Ethan Barlieb, Esq., a threatening
                         voicemail message. At that time, Barlieb was an attorney who
                         represented an opposing party in a civil lawsuit between Tricome
                         and his former business partner. Tricome's July 21, 2012
                         voicemail provided as follows: "Hey you fucking coward. I sued ya.
                         You're lucky I didn't put a bullet in your head. You fucking piece
                         of shit, pussy. You're dead. You're fucking dead. You better hope
                         that you go to jail, pussy." Trial Court Opinion ("T.C.O."),
                         7 /2/2014, at 2. On July 23, 2012, Barlleb contacted Detective Dirk
                         Boughter of the Montgomery County Detective Bureau (the
                         investigative branch of the Montgomery County Dlstrict
                         Attorney's Office), who identified Tricome as the source of the
                         threatening message.

                         On July 24, 2012, Tricome was arrested and charged with
                         terroristic threats and harassmenr.l On January 8, 2014, a jury
                         found Tricome guilty of those offenses. At his sentencing hearing
                         on April 9, 2014, Tricome informed the court that he wanted to
                         represent himself both at sentencing and on appeal, and signed a
                         written waiver-of-counsel colloquy. The trial court then sentenced
                         Tricome to a two-year term of probation.
                                                         11
          the motion to recuse as Exhibit "A. In Exhibit "A", Appellant asserts numerous
                                              11




          allegations against many people and in part against the undersigned that

          occurred in that separate matter for which Appellant was eventually convicted
r·.·•·
.f,,.     of harassment. On June 4, 2014, Appellant filed an Addendum to Motion to

1',,:11   Recuse, alleging bias against him stating, " ... presiding Judge William Carpenter

          is bias against defendant() (sic), and possibly, presiding Judge WUliam

          Carpenter is trying to get the Defendant convicted to protect lawyers, who the

          Defendant sued, and who perjured in Docket No. CP-46-CR-0005855-2012

          (Commonwealth v. Tricome) ... " See, Addendum to Motion to Recuse 6/4/14 p.



                      On July 9, 2014, this Court issued an order denying Appellant's

          Motion to Recuse. In addition, on November 13, 2014, this Court issued an

          order setting forth reasons why the Motion to Recuse was denied on July 9,

          2014 as follows:

                      1. There is no doubt that the Defendant will be given a
                         fair trial by an impartial judge.

                      2. Defendant's Motion was filed in bad faith as an
                         attempt to avoid going to trial (he succeeded in
                         getting the previously assigned judge to recuse.)

                      3. The facts and circumstances here could not
                         engender on reasonable minds the belief that
                         recusal should be required.

                      4. Neither could a significant minority of the
                         community reasonably question the court's
                         impartiality.

                      5. There is no substantial question in reasonable
                         minds that recusal should be required.

                                                   12
                     Our Superior Court has set forth the standard to apply when

        addressing a recusal motion as follows:

                     If a party questions the impartiality of a judge, the
                    proper recourse is a motion for recusal, requesting
                    that the judge make an independent, self-analysis of
                    the ability to be impartial. If content with that inner
                    examination, the judge must then decide whether his
(ill                or her continued involvement in the case creates an
                    appearance of impropriety and/or would tend to
                    undermine public confidence in the judiciary. This
                    assessment is a personal and unreviewable decision
                    that only the jurist can make ....

                    This 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.

       Commonwealth v. Druce, 848 A.2d 104, 108 (2004) (quotations, quotation

       marks, citations omitted).

                   In this case, my independent, self-analysis absolutely and without a

       doubt determined that I have the ability to be impartial regardless of

       Appellant's filings in Common Pleas docket, 5855-2012. Appellant has filed

       many filings against a variety of actors from the Montgomery County D.A.'s

       Office, the undersigned, the Montgomery County Public Defender's Office, the

       victim at Common Pleas docket, 5855-2012, Ethan Barlieb, among others,

       alleging conspiracies and unequal treatment and even perjury. Regardless of


                                              13
 this, Appellant has not been treated any differently than any other defendant

 that appears before me. In addition, my continued involvement in this case

 does not create an appearance of impropriety as there is nothing different in

 how I have handled this case compared to any other I have adjudicated. Based

upon the reasons set forth in the order dated November 13, 2014 and for those

just expressed, the motion to recuse was properly denied. In addition, there

was no need for a hearing in order to conduct my independent analysis, or to

hear evidence on Appellant's subjective allegations of a conspiracy.


                                   CONCLUSION

               Based on the forgoing analysis, the judgment of sentence imposed

on June 11 2015, should be affirmed.
           1




                                             BY THE COURT:




                                             WILLIAM R. CARPENTER   J.
                                             COURT OF COMMON PLEAS
                                             MONTGOMERY COUNTY
                                             PENNSYLVANIA
                                             3grn JUDICIAL DISTRICT


Copies sent on August 13, 2015
By Interoffice Mail to:
Court Administration

By First Class Mail to:
Brooks T. Thompson, Esquire




                                        14
