J-S44039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 Appellant             :
                                       :
          v.                           :
                                       :
CARLA V. RISOLDI                       :           No. 2673 EDA 2016

                    Appeal from the Order August 1, 2016
               in the Court of Common Pleas of Bucks County,
               Criminal Division, No(s): CP-09-0002485-2015


COMMONWEALTH OF PENNSYLVANIA,          :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 Appellant             :
                                       :
          v.                           :
                                       :
CARL ANTHONY RISOLDI                   :           No. 2675 EDA 2016

                    Appeal from the Order August 1, 2016
               in the Court of Common Pleas of Bucks County,
               Criminal Division, No(s): CP-09-0002474-2015


COMMONWEALTH OF PENNSYLVANIA,          :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                 Appellant             :
                                       :
          v.                           :
                                       :
CLAIRE A. RISOLDI                      :           No. 2677 EDA 2016

                    Appeal from the Order August 1, 2016
               in the Court of Common Pleas of Bucks County,
               Criminal Division, No(s): CP-09-0002487-2015
J-S44039-17


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellant                :
                                            :
            v.                              :
                                            :
SHEILA MARIE RISOLDI                        :           No. 2679 EDA 2016

                      Appeal from the Order August 1, 2016
                 in the Court of Common Pleas of Bucks County,
                 Criminal Division, No(s): CP-09-0002475-2015

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

MEMORANDUM BY MUSMANNO, JJ.:                         FILED AUGUST 15, 2017

      In these consolidated appeals, the Commonwealth of Pennsylvania

appeals from the Order denying its Motion seeking recusal of the trial judge in

this case, the Honorable Thomas G. Gavin (“Judge Gavin”). We affirm.

      By means of background, the Commonwealth alleges that Claire A.

Risoldi (“Claire”), Sheila Marie Risoldi (“Sheila”), Carl Anthony Risoldi (“Carl”),

Carla V. Risoldi (“Carla”), Mark Goldman (“Goldman”), Richard Holston

(“Holston”), and Tom French (collectively, “Defendants”), engaged in a course

of criminal conduct, over several years, to defraud various homeowner’s

insurance companies in a multi-million dollar insurance fraud scheme.1 Some

of the insurance claims involved three separate fires, in a span of less than

five years, at a multi-million dollar home in Bucks County owned by some of

the Defendants, known as “Clairemont.”          The third fire at Clairemont in



1
  The trial court provided a thorough factual background in its Opinion
entered on September 15, 2015. See Trial Court Opinion, 9/15/15, at 2-9.


                                   -2-
J-S44039-17

October 2013 resulted in the total loss of the residence. Following this fire,

Defendants    made   a   claim   with   their   homeowners’   insurer,   American

International Group, Inc. (“AIG”).      Defendants also claimed that more than

$10 million in jewelry was stolen during the firefighting efforts.

      After a Grand Jury investigation, the Pennsylvania Attorney General’s

Office (the “AG”)2 filed Criminal Complaints against Defendants in January

2015, charging them with, inter alia, insurance fraud, intimidation of

witnesses and corrupt organizations.3      Due to the purported prominence of

Claire and her family in the Bucks County political community, the entire

Bucks County bench recused itself from the matter, and Judge Gavin, a

Chester County judge, was specially appointed to preside over Defendants’

cases.

      In February 2015, the Commonwealth filed a Petition seeking to bypass

the preliminary hearings for Defendants, pursuant to Pa.R.Crim.P. 565. The

trial court denied this Petition following a hearing.         At the preliminary




2
  The Bucks County District Attorney’s Office requested that the AG handle
these cases.
3
   During the Grand Jury investigation, Defendants instituted a civil suit
against AIG in federal court for refusing to pay damages pursuant to the
insurance policies in place at the time of the 2013 fire.



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J-S44039-17

hearings held in March 2015, the Magisterial District Judge bound over for

court the majority of the charges against Defendants.4

      On June 15, 2015, Defendants respectively filed Petitions for habeas

corpus relief (collectively, “the Habeas Petitions”), seeking dismissal of the

charges.5 The Commonwealth thereafter filed a Reply to the Petitions. At the

close of a hearing on July 17, 2015, Judge Gavin (1) denied the Petitions filed

by Carl, Carla and Sheila; (2) granted the Petition filed by Claire as to one

count of corrupt organizations, but in all other regards denied Claire’s

Petition; and (3) granted the Petition filed by Goldman and dismissed all

charges against him.6

      In October 2015, the Commonwealth filed a Motion to revoke and/or

raise Claire’s bail, pointing out that it had filed new charges against her

concerning witness intimidation. Judge Gavin denied this Motion.

      In January 2016, Carla filed a Motion (“the Severance Motion”), which

was joined by Carl and Sheila, seeking severance of their respective criminal


4
  In the interim, the Commonwealth filed a Motion seeking disqualification of
Claire’s counsel, Jack McMahon, Esquire (“Attorney McMahon”), which Judge
Gavin denied.
5
  Holston filed his Petition for writ of habeas corpus later, on October 2, 2015.
In December 2015, Judge Gavin granted Holston’s Petition and dismissed all
of the charges against him. The Commonwealth filed an appeal from the
dismissal, docketed at 223 EDA 2016, which is pending before this Court.
6
  The Commonwealth thereafter refiled the charges against Goldman, along
with some new charges. Following a preliminary hearing, Judge Gavin again
dismissed all charges against Goldman in December 2015.              The
Commonwealth filed an appeal from the dismissal, docketed at 3822 EDA
2015, which is pending before this Court.


                                  -4-
J-S44039-17

cases from that of Claire.    The Commonwealth thereafter filed a Response

opposing severance. After a hearing (“the severance hearing”), Judge Gavin

granted the Severance Motion.

         On April 18, 2016, the Commonwealth filed a Motion to recuse Judge

Gavin.     Three days later, it filed a Supplemental Motion to recuse.   Carla

thereafter filed an Answer to the Motion to recuse, which was joined by the

remaining Defendants.     Judge Gavin conducted a hearing on the Motion to

recuse on April 29, 2016.7

         On June 10, 2016, the Commonwealth filed a Motion seeking to hold

Claire in contempt of a prior Order prohibiting her from contacting witnesses

and to revoke her bail. Following a hearing on the same date, Judge Gavin

found Claire in indirect criminal contempt and sentenced her to thirty days in

jail.8

         By an Order entered on August 1, 2016, Judge Gavin denied the

Commonwealth’s Motion to recuse, and filed therewith an Opinion setting

forth his reasons for the denial (“Recusal Opinion”).       In response, the




7
  On May 12, 2016, the Commonwealth filed a Post-Hearing Memorandum in
support of the Motion to Recuse.
8
  This Court affirmed Claire’s judgment of sentence on July 17, 2017. See
Commonwealth v. Risoldi, 1864 EDA 2016 (Pa. Super. filed July 17, 2017)
(unpublished memorandum).


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J-S44039-17

Commonwealth timely filed a Notice of Appeal.9           Judge Gavin ordered the

Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.            The Commonwealth timely filed a Concise

Statement, which included numerous issues and spanned sixteen pages.

Judge Gavin then issued a Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion”).

     The Commonwealth now presents the following issue for our review:

“Whether      the   lower   court    abused   its   discretion   by   denying   the

Commonwealth’s Motion to Recuse where objective scrutiny of the record

casts doubt on the court’s impartiality and/or where the court’s behavior

appears to be biased?”       Brief for the Commonwealth at 4 (capitalization

omitted).10

     Initially, we voice our disapproval of the Commonwealth’s Concise

Statement, which is anything but concise.11 Although Rule 1925(b) dictates



9
   In filing this interlocutory appeal, the Commonwealth complied with
Pennsylvania Rule of Appellate Procedure 311(d), which provides that “[i]n a
criminal case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the entire
case where the Commonwealth certifies in the notice of appeal that the order
will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d);
see also Pa.R.A.P. 904(e).
10
  Though the Commonwealth purports to raise only one issue, it sets forth a
multitude of discrete sub-issues in its eighty-four page Argument section,
which largely mirror those presented in its voluminous Rule 1925(b) Concise
Statement.
11
   Judge Gavin, in his 1925(a) Opinion, also chastised the Commonwealth’s
Concise Statement, which the court stated “is in large measure a generalized
restatement of [the Commonwealth’s] position[,] which [Judge Gavin’s prior]
Recusal Opinion addressed.” 1925(a) Opinion, 10/17/16, at 1.


                                     -6-
J-S44039-17

that, without more, the number of issues raised in a concise statement will

not be grounds for finding waiver, this principle applies only “[w]here non-

redundant, non-frivolous issues are set forth in an appropriately concise

manner[.]” Pa.R.A.P. 1925(b)(4)(iv) (emphasis added); see also Kanter v.

Epstein, 866 A.2d 394, 401 (Pa. Super. 2004) (holding that “[b]y raising an

outrageous number of issues” in a Rule 1925(b) statement, an appellant

impedes the trial court’s ability to prepare an opinion addressing the issues on

appeal, thereby effectively precluding appellate review). In the instant case,

we, like the trial court, will address the merits of the sub-issues that the

Commonwealth sets forth in its voluminous Argument section, 12 as its brief

otherwise complies with our Appellate Rules. See, e.g., Mahonski v. Engel,

145 A.3d 175, 181 (Pa. Super. 2016) (stating that “the number of issues

raised in a Rule 1925(b) statement does not, without more, provide a basis

upon which to deny appellate review where an appeal otherwise complies with

the mandates of appellate practice,” and recognizing that the complexity of

the matter under review is a consideration for courts to make prior to finding




12
   We note that although the Commonwealth’s brief is ninety-nine pages long
(and, according to the Commonwealth, is 23,255 words in length), it sought,
and was granted, permission by this Court to exceed the brief’s maximum
word count, prescribed by Pa.R.A.P. 2135(a)(1) (providing that “the principal
brief shall not exceed 14,000 words”). See Commonwealth v. Roane, 142
A.3d 79, 86 n.3 (Pa. Super. 2016) (where the appellant’s principal brief was
122 pages in length, stating that the Court would consider the issues on their
merits because counsel had filed a petition requesting permission to exceed
the brief’s maximum word count and page limit).


                                  -7-
J-S44039-17

waiver based on the sheer volume of the concise statement) (quotation marks

and citation omitted).

      Our standard of review for a denial of recusal is well settled.

      Our [Pennsylvania] 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 ….

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

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

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

(citations, quotation marks, and brackets omitted); see also Pa. Code Jud.

Conduct Canon 1.2 (providing that “[a] judge shall act at all times in a

manner that promotes public confidence in the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety and the appearance



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J-S44039-17

of impropriety.”).     “Adverse rulings alone do not, however, establish the

requisite bias warranting recusal, especially where the rulings are legally

proper.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998).

     In its first sub-issue, the Commonwealth contends that Judge Gavin

revealed his bias and an appearance of impropriety in his denial of the

Commonwealth’s Motion to disqualify Attorney McMahon as Claire’s counsel.

See Brief for the Commonwealth at 15-28. The Commonwealth asserts that

Judge Gavin improperly overlooked the fact that Attorney McMahon had a

conflict of interest in representing Claire, as the Commonwealth could call him

as a necessary fact witness in this case, and had considered filing criminal

charges against him. See id. at 18-23. The Commonwealth further claims

that “shockingly, the [trial] court did not consider significant Attorney

McMahon’s statement to Commonwealth witness James O’Keefe[, an AIG

insurance   adjustor    who   performed an inspection of jewelry      in 2014

concerning Defendants’ jewelry loss insurance claim from the 2013 fire,] that

‘snitches get stitches’” (hereinafter “the snitches comment”). Id. at 23; see

also id. (explaining the context of the snitches comment). According to the

Commonwealth, the snitches comment constituted intimidation of a witness

“in a verbally threatening manner[.]” Id. at 24. Finally, the Commonwealth

argues that several components of Judge Gavin’s reasoning regarding this

matter in the 1925(a) Opinion and Recusal Opinion exhibit an appearance of

impropriety, including, inter alia, the court’s (1) ignoring Attorney McMahon’s




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conflict of interest; (2) minimizing the significance of the snitches comment;

and (3) failing to address several of the Commonwealth’s arguments

regarding this matter raised in the Motion to recuse. See id. at 26-28.

     In his Recusal Opinion, Judge Gavin thoroughly addressed and

expounded upon the Commonwealth’s claims, and determined that he

exhibited   no     bias   or   appearance   of     impropriety   in    denying      the

Commonwealth’s Motion to disqualify Attorney McMahon.                  See Recusal

Opinion, 8/1/16, at 22-29; see also 1925(a) Opinion, 10/17/16, at 5.                As

Judge Gavin’s analysis is supported by the record, and we agree with his

determination, we affirm on this basis as to the Commonwealth’s first sub-

issue. See id.

     In its second sub-issue, the Commonwealth urges that Judge Gavin

abused his discretion by declining to recuse himself where he had engaged in

improper    ex    parte   communications    with   Claire.   See      Brief   for   the

Commonwealth at 29-39; see also id. at 29-30 (explaining the context of the

ex parte communication, wherein Claire directly contacted Judge Gavin via

telephone and stated that she was without a lawyer and could not afford to

retain one).     According to the Commonwealth, this ex parte communication

made Judge Gavin a potential fact witness. See id. at 32-33 (asserting that

Claire’s statement to Judge Gavin that she was destitute was relevant to the

criminal charges against Claire, as she previously had made representations

to AIG that she is a multi-millionaire and, thus, lacked a financial motive to




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commit insurance fraud); see also Pa.R.E. 605 (providing that “[t]he

presiding judge may not testify as a witness at the trial or other

proceeding.”). According to the Commonwealth,

        the ex parte communication between the court and Claire[,]
        including the court’s failure to disclose the communication[,]
        coupled with the factual discrepancies and the court’s reaction to
        the request to place the matter on the record[,] demonstrate
        clear bias and raise the appearance of impropriety. The court
        was required to disclose the communication pursuant to [Canon]
        2.9 of the Code of Judicial Conduct[,13] as [Claire’s] claims to the
        court directly contradicted statements to [AIG] and, therefore,
        constitute proof of the elements of the crimes which she is
        charged with.

Brief   for   the   Commonwealth     at   29   (footnote   added).     Finally,   the

Commonwealth asserts that Judge Gavin further exhibited his bias concerning

the ex parte communications in addressing this matter in his Recusal Opinion

and 1925(a) Opinion. See id. at 35-39.

        Judge    Gavin    adeptly   addressed     and      expounded    upon      the

Commonwealth’s above claims in his Recusal Opinion and 1925(a) Opinion,

and determined that (1) no improper ex parte communication had occurred;

and (2) there was no reason for Judge Gavin to recuse himself in this regard.

See Recusal Opinion, 8/1/16, at 7-9, 29-32; see also 1925(a) Opinion,


13
   Canon 2.9 provides, in relevant part, that, generally, “[a] judge shall not
initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or
their lawyers, concerning a pending or impending matter[.]” Pa. Code Jud.
Conduct Canon 2.9(A); see also id. Canon 2.9(B) (stating that “[i]f a judge
inadvertently receives an unauthorized ex parte communication bearing upon
the substance of a matter, the judge shall promptly notify the parties of the
substance of the communication and provide the parties with an opportunity
to respond.”).


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J-S44039-17

10/17/16, at 1-3.     We agree with Judge Gavin’s sound rationale and

determination, which, contrary to the Commonwealth’s claim, does not exhibit

bias or an appearance of impropriety. Accordingly, we affirm on this basis as

to the Commonwealth’s second sub-issue. See id.

     In its third sub-issue, the Commonwealth argues that “[t]he trial court

abdicated its responsibility to protect witnesses from repeated efforts by

Claire [] to intimidate and improperly influence [them,] which demonstrates

clear bias and advances the appearance of impropriety.”         Brief for the

Commonwealth at 39; see also id. at 39-52. The Commonwealth maintains

that Claire engaged in multiple instances of intimidation of Commonwealth

witnesses, all of which the trial court “made light of … and exhibited a clear

misunderstanding of the charges.” Id. at 41; see also id. at 39-43, 45-46

(detailing the alleged instances of witness intimidation).   According to the

Commonwealth,

     [t]he court failed to hold [Claire] accountable for [her] continued
     efforts to intimidate and influence witnesses[,] by giving her at
     least a fourth “bite” at intimidation[,] which clearly raised an
     appearance of impropriety.         The court itself appeared to
     acknowledge that it had “bent over backwards” for Claire []. As
     such, a significant minority of the lay community could reasonably
     question the court’s impartiality.

Id. at 47 (citation omitted); see also id. at 42 (asserting that “[t]he trial

court was [] aware that, despite being held for court on two charges of

intimidation, Claire [] continued that conduct following her preliminary

hearing and subsequent habeas proceedings.”).




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J-S44039-17

     In his Recusal Opinion and 1925(a) Opinion, Judge Gavin exhaustively

addressed the Commonwealth’s claim, set forth the applicable law, explained

the complained-of instances of Claire’s purported intimidation of witnesses,

and determined that the court did not exhibit any bias or appearance of

impropriety in this regard to merit recusal. See Recusal Opinion, 8/1/16, at

9-22; see also 1925(a) Opinion, 10/17/16, at 4-5.                   We agree with Judge

Gavin’s   sound   rationale    and     determination,      which,      contrary   to   the

Commonwealth’s     claim,     does    not     exhibit   bias   or    an   appearance    of

impropriety. Accordingly, we affirm on this basis as to the Commonwealth’s

third sub-issue. See id.

     In its fourth sub-issue, the Commonwealth argues that Judge Gavin’s

resolution of the Habeas Petitions demonstrated his bias against the

Commonwealth and evidenced an appearance of impropriety.                   See Brief for

the Commonwealth at 52-86. The Commonwealth complains that “[d]uring

the oral argument on the [H]abeas [P]etitions, [] it appeared that the court

had not reviewed either” “the 199 exhibits that were admitted during the

preliminary hearing … [or] the transcript from the lengthy preliminary hearing

….” Id. at 53. According to the Commonwealth,

     [d]espite not having read the transcript or reviewed the evidence,
     during the oral argument on the [H]abeas [P]etitions, the court
     repeatedly challenged the Commonwealth’s version of facts and
     accepted the defense version[,] in contravention of the well-
     established standards for evaluating whether or not a prima facie
     case had been established. While under normal circumstances
     this would be troubling, in the present case it is even more
     alarming because the court did so without having read the



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J-S44039-17

        transcript. And, because the court had not read the transcript, it
        relied on averments in the defense filings which were not part of
        the record.

Id. at 53-54. The Commonwealth further avers that, “the court repeatedly

refused    to   give   effect   to   reasonable   inferences    drawn   from   the

Commonwealth’s evidence as required[,] as well as failed to view the

evidence in the light most favorable to the Commonwealth.” Id.; see also

id. at 54-57 (detailing the alleged occurrences).              The Commonwealth

contends that Judge Gavin also “made improper credibility determinations, []

exhibited a misunderstanding of or refusal to acknowledge the elements of

the offenses charged[,] as well as mischaracterized the Commonwealth’s

theory of the case.” Id. at 52. Finally, the Commonwealth asserts that Judge

Gavin’s granting the Habeas Petitions filed by Goldman and Holston, and

dismissing all charges against them, reveals the court’s bias against the

Commonwealth and “demonstrate glaring examples of the court’s failure to

view the evidence in the light most favorable to the Commonwealth[.]” Id. at

59.14

        In his Recusal Opinion and 1925(a) Opinion, Judge Gavin thoroughly

addressed and expounded upon the Commonwealth’s claims, and determined

that he did not abuse his discretion in declining to recuse in this regard. See


14
   In the interest of brevity, we will not set forth herein the Commonwealth’s
voluminous argument in support of the claim that Judge Gavin erred in
granting the Habeas Petitions filed by Goldman and Holston, but instead refer
to its brief. See Brief for the Commonwealth at 59-86. Further, as noted
above, the Commonwealth’s appeals from the Orders granting these Petitions
are pending before this Court.


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Recusal Opinion, 8/1/16, at 32-40; see also 1925(a) Opinion, 10/17/16, at

6-7. Judge Gavin’s analysis is supported by the record, and we agree with his

determination; accordingly, we affirm on this basis as to the Commonwealth’s

fourth sub-issue. See id.

      In its fifth sub-issue, the Commonwealth contends that Judge Gavin’s

resolution of the Severance Motion demonstrates his bias against the

Commonwealth      and   misunderstanding     of   the   case.   Brief   for   the

Commonwealth at 86; see also id. at 87 (asserting that “[t]he court’s

resolution also demonstrated … an effort to prevent the Commonwealth from

presenting relevant evidence.”). According to the Commonwealth, “[t]he fact

that the court sua sponte fashioned a severance that significantly damaged

the prosecution as to all [D]efendants[,] and provided a potentially viable

appellate issue for the lead defendant[, i.e., Claire,] provides substantial

evidence that the court has lost objectivity.” Id. at 87.

      In his Recusal Opinion and 1925(a) Opinion, Judge Gavin addressed the

Commonwealth’s claim and determined that recusal was not warranted in this

regard. See Recusal Opinion, 8/1/16, at 40-42; see also 1925(a) Opinion,

10/17/16, at 7-8. Judge Gavin’s cogent reasoning is supported by the record,

and we discern no abuse of his discretion in declining to recuse. Accordingly,

we affirm on this basis concerning the Commonwealth’s fifth sub-issue. See

id.




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J-S44039-17

       In its sixth sub-issue, the Commonwealth argues that “because []

[D]efendants have never claimed that they would be prejudiced from the

recusal, [Judge Gavin’s] response to the recusal [M]otion added to the

appearance of impropriety.” Brief for the Commonwealth at 91; see also id.

at 88-91.

       Judge Gavin concisely addressed and rejected this claim in his 1925(a)

Opinion. See 1925(a) Opinion, 10/17/16, at 8. We affirm on this basis as to

the Commonwealth’s sixth sub-issue. See id.

       In    its      seventh       sub-issue,       which   the     Commonwealth          titles

“Miscellaneous,” it avers that Judge Gavin exhibited an appearance of

impropriety in his (1) mischaracterization of the testimony of Commonwealth

witness Ashley Rodrigues (“Rodrigues”);15 and (2) “continued unfamiliarity

with   the    record”       as    concerns     Rodrigues’s    testimony.     Brief   for     the

Commonwealth at 91-93.                The Commonwealth asserts that “[t]he court’s

characterization of Rodrigues as ‘a cleaning lady’ rather than an individual

specially trained to evaluate and painstakingly catalog the contents of

properties exhibits a continued unfamiliarity with the record[,] as well as an

ongoing      effort    to        minimize    evidence[,]     to    the   detriment   of      the

Commonwealth[.]”            Id. at 92; see also id. at 92-93 (asserting that the



15
   The Commonwealth asserts that Rodrigues is an employee of a company
that “evaluates building contents alleged to be damaged or lost in connection
with an insurance claim[,]” who “led a team of individuals trained to evaluate
and catalog the contents of [Clairemont, after the 2013 fire,] including
window treatments.” Brief for the Commonwealth at 92.


                                            - 16 -
J-S44039-17

court’s Recusal Opinion is factually incorrect to the extent it states that

Rodrigues was involved in the investigation of the 2010 fire at Clairemont,

which exhibits the court’s unfamiliarity with the record).    Additionally, the

Commonwealth argues that Judge Gavin improperly considered credibility

issues in resolving the Habeas Petitions.   Id. at 93 (citing Recusal Opinion,

8/1/16, at 44-45 (wherein Judge Gavin stated that his Opinions “are written

to demonstrate [his] compliance with the controlling legal principles applied to

the credible facts.”)) (emphasis supplied by the Commonwealth).

      In his 1925(a) Opinion, Judge Gavin addressed the above claims and

opined that he did not abuse his discretion in refusing to recuse in this

regard. See 1925(a) Opinion, 10/17/16, at 8-9; see also Recusal Opinion,

8/1/16, at 42-44 (addressing the court’s remarks concerning Rodrigues). We

affirm on this basis as to this sub-issue, see id., with the following

addendum.     Contrary to the Commonwealth’s claim, we discern no bias or

appearance of impropriety as to either Judge Gavin’s (1) remark in the

1925(a) Opinion concerning the alleged public perception (and media

reporting) of the court’s bias in favor of Defendants; or (2) purportedly

disparate allocation of peremptory challenges to the parties. See Brief for the

Commonwealth at 93-94.

      In its final sub-issue, the Commonwealth contends that the cumulative

effect of Judge Gavin’s above-mentioned actions “demands” recusal.         See

Brief for the Commonwealth at 95-97 (citing Commonwealth v. Johnson,




                                 - 17 -
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966 A.2d 523, 532 (Pa. 2009) (stating “if multiple instances of deficient

performance are found, the assessment of prejudice properly may be

premised upon cumulation”), and Commonwealth v. Rhodes, 990 A.2d

732, 748-49 (Pa. Super. 2009) (stating that “a party’s call for recusal need

not be based only upon discreet incidents, but may also assert the cumulative

effect of a judge’s remarks and conduct even though no single act creates an

appearance of bias or impropriety.”)).      According to the Commonwealth,

“[w]hen considered as a whole, the totality of [Judge Gavin’s] errors,

misstatements of facts, failure to adhere to well-established legal principles,

ex parte communications, exhibition of hostility towards the Commonwealth’s

attorneys,   deference   to   []   [D]efendants,   and   abdication   of   judicial

responsibilities, the appearance of bias and impropriety is unmistakable” and

“painfully evident”). Brief for the Commonwealth at 95, 97. We disagree.

     Judge Gavin addressed and rejected this claim in his 1925(a) Opinion

and Recusal Opinion. See 1925(a) Opinion, 10/17/16, at 9-10 (distinguishing

Rhodes, supra and Johnson, supra); see also Recusal Opinion, 8/1/16, at

57-58 (citing Commonwealth v. Williams, 615 A.2d 716, 722 (Pa. 1992)

(stating that no number of failed claims may collectively attain merit if they

could not do so individually)).     We agree with Judge Gavin’s analysis and

determination, which is supported by the record and the law. Accordingly, we

affirm on this basis with regard to the Commonwealth’s final sub-issue. See




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1925(a) Opinion, 10/17/16, at 9-10; see also Recusal Opinion, 8/1/16, at

57-58.

     In closing, we discern no bias or appearance of impropriety in Judge

Gavin’s evenhanded handling of these contentious cases.            Judge Gavin

articulated sound, thorough reasoning supporting his determination that he

could preside over these cases impartially, which is supported by the record.

In this regard, we incorporate herein Judge Gavin’s summarization of his

position, as set forth in the Recusal Opinion. See Recusal Opinion, 8/1/16, at

2-3, 4 (wherein Judge Gavin stated, inter alia, as follows: “The main thrust of

the [] [M]otion[] to recuse is that I am favoring the defense at the expense of

the prosecution. I flatly reject this suggestion. The only party favored is the

one with the facts and law on its side, something I have adhered to in my

rulings in this case. … I have no bias for or against any party. I believe that

an objective review of my handling of this case will show an evenhanded

approach[,] guided by the applicable legal principles and the credible

objective evidence pertinent to the decision then being made.”).

     Accordingly, we affirm the Order denying the Commonwealth’s Motion

to recuse.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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