J-A13034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
DUWAYNE DIXON,                            :
                                          :
                  Appellant               :           No. 1052 WDA 2015

            Appeal from the Judgment of Sentence June 3, 2015
            in the Court of Common Pleas of Allegheny County,
             Criminal Division, No(s): CP-02-CR-0016492-2008

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 16, 2016

      Duwayne Dixon (“Dixon”) appeals the judgment of sentence imposed

following his conviction of aggravated assault, conspiracy, criminal attempt

(homicide), intimidation of a witness and retaliation against a witness.1 We

vacate Dixon’s judgment of sentence and remand for resentencing.

      In 2008, Dixon shot Andre Ripley (“Ripley”), who was scheduled to

testify against the leader of Dixon’s gang in an unrelated criminal matter.

Following the shooting, Ripley was hospitalized for two months due to vision

loss. Ripley thereafter attended a rehabilitation clinic for four months.2 In

January 2013, a jury convicted Dixon of the above-referenced crimes.        In

March 2013, the Honorable Joseph Williams (“Judge Williams”) imposed an



1
  See 18 Pa.C.S.A. §§ 2702(a)(1), 903(a)(1), 901(a), 4952(a)(1) and
4953(a).

2
 There is some indication in the record that Ripley is now blind as a result of
Dixon’s actions.
aggregate sentence of 28-56 years in prison, followed by 40 years of

probation.3

     Dixon appealed his judgment of sentence. Thereafter, a panel of this

Court vacated Dixon’s judgment of sentence and remanded for resentencing

based on the trial court’s failure to merge the sentences for Dixon’s

convictions of aggravated assault and criminal attempt (homicide), and

other sentencing irregularities.4 See Commonwealth v. Dixon, 120 A.3d

379 (Pa. Super. 2015) (unpublished memorandum at 5-9).

     On June 3, 2015, upon remand, Judge Williams resentenced Dixon,

imposing the following consecutive sentences: aggravated assault (no

sentence imposed), conspiracy (no sentence imposed), criminal attempt

(homicide) (10 to 20 years in prison), intimidation of a witness (7 to 14

years in prison, followed by six years of probation) and retaliation against a

3
  Judge Williams sentenced Dixon as follows: aggravated assault (3 to 6
years in prison, to be followed by 10 years of probation); conspiracy (10
years of consecutive probation); criminal attempt (homicide) (15 to 30 years
in prison, to be followed by 20 years of consecutive probation); intimidation
of a witness (5 to 10 years of consecutive imprisonment); retaliation against
a witness (5 to 10 years of consecutive imprisonment).
4
  The panel also concluded that: (1) the sentences imposed for conspiracy
and criminal attempt (homicide) were improper under 18 Pa.C.S.A. § 906
(providing that a defendant may not be convicted of more than one inchoate
offense in the commission of the same crime); (2) the sentence imposed for
retaliation against a witness, a felony of the third degree, exceeded the
maximum sentence for that offense (7 years); and (3) because the jury did
not determine whether Ripley suffered serious bodily injury in relation to the
criminal attempt (homicide) charge, the sentence imposed exceeded the
statutory maximum sentence permitted under 18 Pa.C.S.A. § 1102(c). See
Dixon, 120 A.3d 379 (unpublished memorandum at 5-9).



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witness (three to six years in prison, followed by one year of probation). As

all of Dixon’s sentences were to run consecutively, his new aggregate

sentence totaled 20 to 40 years in prison, followed by seven years of

probation.5    Dixon filed a post-sentence Motion and a Motion for recusal,

both of which the trial court denied. Thereafter, Dixon filed a timely Notice

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

Errors Complained of on Appeal.

     On appeal, Dixon raises the following questions for our review:

     I.       Was the sentence imposed upon [] Dixon after remand,
              which was the maximum permissible under the law,
              unreasonable, manifestly excessive, and an abuse of the
              sentencing court’s discretion for the following reasons:

              a. The court used a racial epithet in reference to [Dixon?]

              b. The court improperly focused upon retribution and
                 refused to consider how [Dixon] had attempted to
                 rehabilitate himself since the initial sentencing six years
                 previously[?]

              c. The court assumed facts not in evidence and erroneous
                 inferences about [Dixon?]

              d. The court focused extensively upon the seriousness of
                 the offense, in effect “double counting” a factor already
                 considered in the Sentencing Guidelines[?]

              e. The court failed to mention the Sentencing Guidelines
                 during sentencing[?]

              f. The court failed to explain on the record, as it must,
                 why it imposed the maximum sentence permissible
                 under the law. In fact, the court’s actions revealed an

5
  Dixon was also given time credit for 2,434 days already served on his
sentence.

                                    -3-
                  intent to keep [Dixon] under the court’s observation for
                  as long as legally possible, regardless of the
                  circumstances[?]

         II.   Did the lower court err in failing to grant the [M]otion to
               recuse because of the appearance of impropriety and
               unfairness that occurred during this case?

Brief for Appellant at 8 (numbering added for sub-issues, sub-issues

renumbered for ease of disposition).

         In his first issue, Dixon contends that the trial court abused its

discretion by calling him “Uncle Tom” during resentencing. Id. at 32. Dixon

asserts that the trial court’s use of a racial epithet when imposing sentence

“shows a lack of integrity[,] gives an appearance of impropriety to the court

proceedings[, …] is not dignified, nor is it courteous to the defendant.” Id.

at 35.

               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
         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) (internal

quotation marks and citations omitted).

         “In order to establish that the sentencing court abused its discretion,

an appellant must establish, by reference to the record, that the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of


                                     -4-
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Id. at 741 (internal quotation marks and citations omitted); see

also Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (stating that

a trial court’s sentence must be vacated if the sentence imposed is the result

of the trial judge’s “partiality, prejudice, bias or ill-will” towards the

defendant).

      Here, the record on appeal demonstrates that Judge Williams acted

with partiality, prejudice, bias and ill-will towards Dixon personally. At the

resentencing hearing, Judge Williams made the following remarks to Dixon:

      Why were you so brain washed and sick to believe you need to
      kill someone who looks just like you to be a part of a gang.
      There’s no honor in a gang. The only thing your gang did was
      control this area [in] which they sold poison to their neighbors.
      It’s not [as if] you’re a basketball team[,] where you wanted to
      be home with a basketball. You and your crew wanted to control
      Wilkinsburg[,] so you can sell poison to your neighbors. You
      wanted to keep people addicted[,] so you and your goofy friends
      could make money and act like you’re gangsters “we got this on
      lock-down.” There’s no honor or dignity. You’re an Uncle Tom,
      I’ve known you for 300 years. Your name has changed, your
      face has changed[,] but you’re still the same guy that always
      puts yourself above your community. That’s why you’re going
      away for 10 to 20 [years] with seven years [of] probation to
      follow.

N.T., 6/3/15, at 18-19.

      In this case, the cumulative effect of Judge Williams’s statements was

an improper personal attack on Dixon. A sentencing judge’s actions should

not   reflect   mean-spiritedness,    and   should   instead   appear   as   the

fountainhead of justice. This Court has vacated judgments of sentence for



                                     -5-
similar behavior in prior cases.      For example, in Commonwealth v.

Spencer, 496 A.2d 1156 (Pa. Super. 1995), at sentencing the trial judge

called the defendant a “punk” and an “animal,” and stated that “[i]f there

ever was a case where the death penalty should be imposed, I would gladly

pull the switch on you, Chief.” Id. at 1164. This Court concluded that such

statements reflected “the sentencing judge’s personal prejudice, bias, and

ill-will towards appellant,” and vacated the judgment of sentence. Id.

      Although Dixon’s aggregate sentence of 20 to 40 years in prison does

not appear to be excessive in light of the circumstances of this case, the trial

court’s inappropriate remarks leads us to conclude that Dixon’s sentence

cannot be divorced from the appearance of bias. As in Spencer, the trial

judge’s offensive language attacking Dixon personally demonstrated his

partiality, prejudice, bias, and ill-will towards Dixon. Having concluded that

Dixon’s sentence constituted an abuse of discretion because it was the

product of bias, we reluctantly vacate his sentence and remand this matter

for resentencing.6

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Stabile joins the memorandum

      Judge Olson files a concurring memorandum which Judge Stabile and

Judge Musmanno join.

6
  Based on our disposition of Dixon’s first issue, we need not address Dixon’s
remaining issues.

                                  -6-
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2016




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