J-S76027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    CALEB GREGORY BARNES

                             Appellant                No. 3722 EDA 2016


      Appeal from the Judgment of Sentence imposed September 19, 2016
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0002140-2015


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 12, 2018

        Appellant, Caleb Gregory Barnes, appeals from the judgment of

sentence imposed on September 19, 2016, in the Court of Common Pleas of

Lehigh County following his conviction of first-degree murder, criminal

conspiracy to commit first-degree murder, tampering with evidence, and

abuse of corpse.1 Following review, we affirm.

        The facts of this case and a summary of testimony and evidence

presented at Appellant’s trial are set forth in great detail in the trial court’s

November 7, 2016 opinion issued in conjunction with its order denying


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2501; 2501 and 903; 4910(a); and 5510, respectively.
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Appellant’s post-sentence motions.             Trial Court Opinion, 11/7/16, at 6-27,

which we incorporate herein by reference as if fully set forth. While some of

those facts will be reviewed in our discussion of the issues raised by Appellant,

at this juncture it is sufficient to note that Appellant and his co-defendant

Jamie Silvonek (“Jamie”) were arrested on March 15, 2015 and were charged,

inter alia, with the murder of Jamie’s mother and conspiracy to commit

murder.2 Following a four-day trial in August 2016, a jury found Appellant

guilty of the crimes listed above.         On September 19, 2016, the trial court

sentenced Appellant to an aggregate sentence of life in prison plus 22 to 44

years.   This timely appeal followed.           Appellant filed a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).              On February 13,

2017, the trial court issued an opinion in accordance with Pa.R.A.P. 1925(a).

       Appellant presents seven issues for our consideration:

       A. Did the trial court err when it denied [Appellant’s] pre-trial
          motion to suppress statements made by [Appellant] to the
          police while under interrogation and allowed them to be
          entered as evidence?

       B. Did the trial court err in permitting the Commonwealth to “role-
          play” and read aloud to the jury text messages, selectively
          taken out of context by the Commonwealth, of [Appellant],
          codefendant and others, using the prosecuting district

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2 At the time of the murder, Appellant was a 20-year-old soldier stationed at
Fort Meade, Maryland, and was involved in a relationship with then-14-year-
old Jamie. Jamie’s decertification request was denied and she entered into a
guilty plea that carried a sentence of 35 years to life in prison. As part of her
plea arrangement, Jamie agreed to testify truthfully at Appellant’s trial.


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         attorneys, a police prosecutor and a Commonwealth witness to
         play the different roles?

      C. Did the trial court err in allowing the Commonwealth to use a
         “PowerPoint” presentation in its opening statement which
         would allow the jury to view items that may or may not be
         admitted into evidence or to otherwise highlight certain
         evidence which may or may not be presented?

      D. Did the trial court err in allowing Detective Heffelfinger to
         testify to a third party having overheard [Appellant] and
         codefendant discussing the plan to commit the homicide when
         that third-party witness was available to testify?

      E. Did the trial court err in limiting the defense[’]s use of the taped
         statements of the codefendant during examination of the
         codefendant by the defense during the trial?

      F. Did the trial court err in allowing the Commonwealth to present
         ex-parte various applications, affidavits, or summaries of
         motions and supporting materials without giving defense
         counsel or [Appellant] notice or the ability to be heard?

      G. Did the trial court err in denying [Appellant’s] motion for
         recusal based upon the ex-parte communications between the
         district attorney and the trial court?

Appellant’s Brief at 7-9 (some capitalization omitted).

      In his first issue, Appellant contends the trial court erred by denying his

motion to suppress statements Appellant made to the police during his

interrogation and by permitting them to be entered as evidence.                 In

Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013), this Court

reiterated the applicable standard of review as follows:

      In reviewing the denial of a motion to suppress, our responsibility
      is to determine whether the record supports the suppression
      court’s factual findings and the legitimacy of the inferences and

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      legal conclusions drawn from those findings. If the suppression
      court held for the prosecution, we consider only the evidence of
      the prosecution’s witnesses and so much of the evidence for the
      defense as, fairly read in the context of the record as a whole,
      remains uncontradicted.      When the factual findings of the
      suppression court are supported by the evidence, the appellate
      court may reverse if there is an error in the legal conclusions
      drawn from those factual findings.

      A confession obtained during a custodial interrogation is
      admissible where the accused's right to remain silent and right to
      counsel have been explained and the accused has knowingly and
      voluntarily waived those rights. The test for determining the
      voluntariness of a confession and whether an accused knowingly
      waived his or her rights looks to the totality of the circumstances
      surrounding the giving of the confession.

       The Commonwealth bears the burden of establishing whether a
      defendant knowingly and voluntarily waived his Miranda rights.

Id. at 433-34 (internal quotations, citations, and footnote omitted). Further,

as this Court recognized in Harrell, our Supreme Court has explained that the

“touchstone inquiry” when deciding a motion to suppress a confession is

“whether the confession was voluntary. Voluntariness is determined from the

totality of the circumstances surrounding the confession.” Id. at 434 (quoting

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998)).                      “The

Commonwealth has the burden of proving by a preponderance of the evidence

that the defendant confessed voluntarily.” Id.

      When assessing voluntariness pursuant to the totality of the
      circumstances, a court should look at the following factors: the
      duration and means of the interrogation; the physical and
      psychological state of the accused; the conditions attendant to the
      detention; the attitude of the interrogator; and any and all other
      factors that could drain a person's ability to withstand suggestion
      and coercion.


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Id. (citations omitted).    “The determination of whether a confession is

voluntary is a conclusion of law and, as such, is subject to plenary review.”

Id. (quoting Commonwealth v. Templin, 795 A.2d 959, 961 (Pa. 2002)

(citing Nester, 709 A.2d at 882)).

      Appellant complains he was awakened by police at 6:30 a.m., was

detained and taken to the police station, but remained segregated and was

not questioned until approximately 2:30 p.m. He complains he was clothed

in nothing but gym shorts and a blanket and was not offered clothing until

nearly three hours of interrogation had elapsed. He contends the detectives

used Appellant’s relationship with Jamie by playing off the detectives’

description of her statements against him. He claims he was under physical

and emotional pressures that affected his ability to give statements

voluntarily. Appellant’s Brief at 22-23.

      A review of the November 4, 2015 hearing transcript reveals that

Appellant was awakened when police arrived at the home of Jamie’s parents

at approximately 6:30 a.m. on March 15, 2016.        The officers discovered

Appellant in bed with Jamie in her bedroom after Jamie’s father gave

detectives permission to search the home for other persons, believing that no

one else was in the residence.

      Appellant, Jamie, and Jamie’s father were transported to the police

station at approximately 8:15 a.m. The detectives first interviewed Jamie’s

father, who was unaware of Appellant’s existence until that morning,


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beginning around 9 a.m.             They next questioned Jamie, but not until

approximately 11:30 a.m., after Jamie’s grandmother arrived from Jim Thorpe

and had an opportunity to talk with Jamie privately.           Detectives then

questioned a friend of Jamie’s, whom Jamie identified during her interview.

Jamie’s friend related that she was with Jamie a week earlier while Jamie

talked on a speaker phone with Appellant about killing Jamie’s parents.

        Appellant’s interview began between 2 p.m. and 2:30 p.m. He was read

his Miranda rights and signed the form.3 Any delay in initiating Appellant’s

interview was justified under the circumstances in light of the other interviews

that took place and the delay while awaiting the arrival of Jamie’s

grandmother.

        Detective Heffelfinger, who was involved in the interviews and testified

for the Commonwealth at the November 4, 2015 hearing and at trial, testified

that Appellant was angry but seemed fine. He explained that there was no

yelling or arguing and the interview was cordial, despite disagreements.

        It is true that Appellant was dressed in gym shorts when he arrived at

the police station. He was also wearing a jacket that was taken as evidence.

He was given a blanket when the jacket was taken.         The testifying officer

explained that he asked Appellant—before leaving Jamie’s house—if he had

any clothes. Appellant said he had some clothes in his car but refused the



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3   Miranda v. Arizona, 386 U.S. 436 (1966).

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detective’s offer to retrieve clothing for him. (He also had clothes that were

in the washing machine at Jamie’s home.)

       As the trial court explained in its November 17, 2015 and November 7,

2016 opinions,4 Appellant was given his Miranda warnings, he spoke English

and appeared to understand the questions presented to him, although he

appeared angry. The detectives did not attempt to intimidate, threaten or

coerce Appellant.       They explained to Appellant that the purpose of the

interview was to discuss the circumstances of the prior evening.       He was

provided the opportunity to drink, eat and use the restroom, although a

bathroom request was delayed so that State Police could perform a physical

exam before Appellant washed his hands. During the course of his interview,

Appellant never indicated a desire to end the interview and did not ask to

speak with an attorney.

       We find the record supports the trial court’s factual findings and the

legal conclusions drawn from those findings, specifically, that the totality of

the circumstances confirm Appellant knowingly and voluntarily gave the

statements he now claims were involuntary.       Appellant’s challenge to the

voluntariness of his statements fails.




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4 See Trial Court Opinion, 11/17/15, at 21-25, and Trial Court Opinion,
11/7/16, at 31-36.

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      In his second through sixth issues, Appellant challenges various

evidentiary rulings made by the trial court. Our standard of review regarding

evidentiary issues is well-settled.

      The admissibility of evidence is at the discretion of the trial court
      and only a showing of an abuse of that discretion, and resulting
      prejudice, constitutes reversible error. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record. If in reaching a
      conclusion the trial court overrides or misapplies the law,
      discretion is then abused and it is the duty of the appellate court
      to correct the error.

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012) (internal

quotations and citations omitted).

      In his second issue, Appellant argues the trial court erred by allowing

the Commonwealth to “role-play” by having attorneys from the district

attorney’s office and other individuals read into the record text messages

between Appellant and Jamie. With the exception of two cases cited generally

for propositions related to admissibility, Appellant’s argument does not include

any citation to legal authority, despite the recognized duty of an appellant to

support claims with citations to legal authorities. See In re R.D., 44 A.3d

657, 674 (Pa. Super. 2012).

      Appellant acknowledges the common practice of individuals reading

evidence, such as deposition testimony. However, he argues that the situation

before us is different because it was not certain whether either Appellant or

Jamie would testify at trial. Appellant’s Brief at 25. Appellant does not dispute

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the admissibility of the text messages but rather is concerned that the “role-

players had an active interest in the results of this case” and questioned “their

ability to put those interests aside so as to present [] unbiased and untainted

verbal testimony[.]”    Id. at 26.    “The effect on the jury in seeing the

prosecutors playing these roles would go beyond the benefit received through

the simple admission of the text messages.” Id.

      The trial court dismissed Appellant’s concerns and objections to the

reading of the text messages, explaining:

      This court notes that reading the text messages was a proper way
      to get them before the jury, and did not violate the law, including
      the best evidence rule. It should be noted that prior to the reading
      of the texts to the jury, this court admonished all of the
      participants that they were not allowed to use any inflection when
      reading the texts. They were specifically told by this court to
      simply read the words of the texts without any expression, stress
      intonation, or emphasis so as not to express a mood or feeling.
      Furthermore, this court instructed the jury that the written texts
      were the evidence that they were to consider.             This court
      explained that the reading of the texts was solely a means to get
      the information to them. As all of the texts were properly
      authenticated prior to being shown and read to the jury,
      [Appellant’s] argument is baseless.

Trial Court Opinion, 11/7/16, at 45 (capitalization omitted).        We agree.

Recognizing a trial judge’s broad powers in conducting a trial, see, e.g.,

Commonwealth v. Parker, 919 A.2d 943, 949 (Pa. 2007), and further

recognizing the trial court’s admonition to the participants and to the jury, we

find no abuse of discretion on the part of the trial court. Appellant’s second

issue fails.




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       In his third issue, Appellant contends the trial court erred by permitting

the Commonwealth to use a “PowerPoint” presentation in its opening

statement, allowing the jury to view items that “may or may not be admitted

into evidence or to otherwise highlight certain evidence [that] may or may not

be presented.”      Appellant’s Brief at 7-8.      In Parker, our Supreme Court

considered whether the trial court abused its discretion in permitting a

prosecutor to display a handgun during his opening statement. 5 The Court

noted:

       Because it is axiomatic that a trial judge has broad powers
       concerning the conduct of a trial, we review the trial court’s
       decision to allow the prosecutor to display a gun during opening
       statements for an abuse of discretion. An abuse of discretion may
       not be found merely because an appellate court might have
       reached a different conclusion, but requires a result of manifest
       unreasonableness, or partiality, prejudice, bias, or ill-will, or such
       lack of support so as to be clearly erroneous.

Id. at 949-50 (internal quotations, citations, and footnote omitted).                 In

assessing    whether     the    trial   court   abused   its   discretion,   the   Court

acknowledged that “[t]he purpose of an opening statement is to apprise the

jury how the case will develop, its background and what will be attempted to

be proved; but it is not evidence.” Id. at 950 (quoting Commonwealth v.


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5 On appeal, this Court concluded the trial court abused its discretion but
determined the error was harmless. Commonwealth v. Parker, 882 A.2d
488, 490 (Pa. Super. 2005). Both parties sought an appeal to our Supreme
Court, which affirmed this Court’s decision, albeit on different grounds, after
determining the trial court was within its discretion to permit the prosecutor
to display the handgun.


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Montgomery, 626 A.2d 109, 113 (Pa. 1993) (additional citation omitted)).

“A prosecutor’s statements must be based on evidence that he plans to

introduce at trial, and must not include mere assertions designed to inflame

the jury’s emotions.” Id. (citing Commonwealth v. Begley, 780 A.2d 605,

626 (Pa. 2001) (additional citation omitted)).          “A prosecutor’s opening

statements may refer to facts that he reasonably believes will be established

at trial.” Id. (citing Begley, 780 A.2d at 626).

         The trial court rejected Appellant’s claim of error, noting the

Commonwealth presented a motion in limine prior to trial, asking the trial

court to rule on certain admissibility issues. The trial court determined “the

attorney for the Commonwealth did not present anything within the power

point presentation that he knew was not going to ultimately be shown to the

jury.”     Trial Court Opinion, 2/13/17, at 8.      The trial court “considered

[Appellant’s] argument and appropriately ruled that the power point

presentation would not leave the jury with the false impression that it was

evidence.” Id. at 8-9. We agree. We find no abuse of discretion in permitting

the PowerPoint presentation. Appellant’s third issue fails.

         In his fourth issue, Appellant contends the trial court erred by allowing

Detective Heffelfinger to testify that Jamie’s friend, C.E., overheard Appellant

and Jamie planning the homicide, in light of the fact C.E. was available to

testify, and in fact did testify.     Essentially, Appellant contends that the

detective’s testimony “emphasized a critical piece of testimony” creating


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prejudice that “could not be diluted or eliminated simply by the [c]ourt’s jury

instruction.” Appellant’s Brief at 31-32.

      The trial court explained:

      Prior to eliciting such statement from Detective Heffelfinger, the
      attorney for the Commonwealth approached the bench to inform
      the court and defense counsel that [Jamie] said that she had a
      conversation about killing her parents with [Appellant] about one
      week prior to the incident, during which her juvenile friend, C.E.,
      was present. The Commonwealth wanted to elicit this statement
      not for the truth of the matter, but to show a course of conduct
      on the part of Detective Heffelfinger. The Commonwealth
      explained that the statement was necessary to have the jury
      understand the reason why C.E. was interviewed in relation to this
      case at the [police department]. This court confirmed that C.E.
      would be testifying at a later point in the trial and that the jury
      would hear the same testimony from her. Consequently, this
      court did not find that the introduction of this one statement was
      prejudicial to [Appellant]. In fact, this Court concluded that it had
      great probative value and was informative. In addition, in an
      abundance of caution, this court agreed to provide a cautionary
      instruction to the jury after the one question was asked by the
      Commonwealth and answered by Detective Heffelfinger. . . . This
      cautionary instruction was provided to the jury and clearly
      explained the reason for its admission. In light of the foregoing,
      this court did not commit an error [of] law or an abuse of
      discretion.

Trial Court Opinion, 2/13/17, at 12-13 (capitalization omitted). We agree.

We find no abuse of discretion in permitting the detective’s hearsay statement

to explain the sequence of events and how C.E. happened to be interviewed

at the police station. Further enforcing our conclusion is the fact C.E. testified

as to the statement and the fact the trial court instructed the jury as to the

limited purpose of detective’s hearsay statement.       Appellant’s fourth issue

lacks merit.


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      In his fifth issue, Appellant asserts error for limiting the defense’s use

of Jamie’s taped statements in the course of conducting its examination of

Jamie at trial. Appellant does not provide citation to any authority for his

assertion other than a citation to Pa.R.E. 613, noting that the rule governs

examination of a witness who has made a prior inconsistent statement.

However, as the trial court explained, Appellant sought at trial to have Jamie’s

entire March 15, 2015 recorded interview played to the jury to demonstrate

that it was different from her trial testimony. Trial Court Opinion, 11/7/16, at

47. The trial court refused the request, noting that the recorded interview

could not be played unless and until Jamie offered trial testimony inconsistent

with the recorded interview. Id. Further, in accordance with Rule 613, in the

event of inconsistent testimony, only those portions of the recorded interview

in conflict with the trial testimony would be played. Id.

      As the trial court explained:

      On the witness stand, [Jamie] candidly admitted that she lied
      during the March 15, 2015[] interview. She admitted, inter alia,
      that she lied about her age to [Appellant] and that she wanted
      him to lie to her mother about his age. She admitted that she lied
      to her lawyers, the police, the expert psychologists hired to render
      opinions in her decertification hearing, friends, family, and even
      strangers. She agreed with defense counsel on all salient points
      and never denied saying something contrary in the interview of
      March 15, 2015. As [Jamie] did not make a prior inconsistent
      statement to that to which she was testifying, [Appellant] was
      properly prohibited from playing the audiotape of [Jamie’s] March
      15, 2015[] interview to the jury.

Id.




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      We find no error or abuse of discretion on the part of the trial court in

denying Appellant’s request to play the interview audiotape to the jury.

Appellant’s fifth issue fails.

      In his sixth issue, Appellant contends he sought sanctions for “the

Commonwealth’s having filed various applications or orders as well as

presenting materials to the [c]ourt and having failed to serve [Appellant’s

counsel] with those materials.” Appellant’s Brief at 35. Appellant contends

the Commonwealth failed in its obligation to serve Appellant various affidavits

and orders and that trial court erred in permitting the Commonwealth’s

actions. Id.

      Appellant makes this argument in conjunction with his seventh issue,

arguing the trial court erred in denying his motion for recusal based upon the

Commonwealth’s       failure     to   serve   documents   on   Appellant   and   the

Commonwealth’s ex parte presentation of a binder of materials to the trial

court, prior to presenting the corresponding binder to Appellant’s counsel. Id.

at 36-37. He contends the Commonwealth presented the offending materials

to the trial court in open court during a break in proceedings unrelated to

Appellant’s case. Appellant argues that the ex parte interaction, “which may

have been harmless in its result, nonetheless gives an appearance of bias

through the interactions between the Commonwealth[] and the [t]rial

[c]ourt.” Appellant’s Brief at 38.




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     As the trial court explained, Appellant’s counsel and counsel for the

Commonwealth met on July 7, 2016 to discuss evidentiary matters in advance

of trial. Trial Court Opinion, 11/7/16, at 36. This meeting took place after

Jamie entered a guilty plea.   With her case resolved, it was severed from

Appellant’s case. Id. The trial court explained:

     At this meeting, [the] Commonwealth mentioned that there were
     orders and affidavits sealed that the defense counsel should view
     just for record purposes. Despite being advised of this, defense
     counsel did not immediately attempt to view the sealed orders.
     In fact, it was not until July 28, 2016, that [Appellant] filed a
     motion for the sealed orders to be made available to him. These
     orders concern issues involving co-defendant Jamie [], whose
     criminal matter was severed from [Appellant’s] case. Therefore,
     it was not necessary to provide [Appellant] with notice of same.
     The one issue that involved [Appellant] concerned monitoring his
     incoming and outgoing mail while he was housed in Lehigh County
     Jail. With regard to these sealed orders, [Appellant] was not
     prejudiced in any way by not being served notice of same.
     Indeed, [Appellant] had access to all of his mail, as none of the
     mail was intercepted but for one piece, of which [Appellant] was
     aware. . . . Nothing improper was done by this court or the
     Commonwealth. . . . At most, the lack of notice could be viewed
     solely as a harmless error.

Trial Court Opinion, 11/7/16, at 36-37 (some capitalization omitted).

     In Commonwealth v. Blakeney, 946 A.2d 645 (Pa. 2008), our

Supreme Court reiterated:

     “[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.” Commonwealth v. Goodman, 454 Pa. 358, 311
     A.2d 652, 654 (1973). 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. Druce, 577 Pa. 581, 848 A.2d 104,
     [109] (2004). “Where a jurist rules that he or she can hear and

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      dispose of a case fairly and without prejudice, that decision will
      not be overturned on appeal but for an abuse of discretion.”
      Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89
      (1998).

Id. at 662.

      Here, the trial court acknowledged receipt of the binder from the

Commonwealth on July 19, 2016 and detailed its contents.            Trial Court

Opinion, 11/7/16, at 39-40. The trial court explained:

      When counsel for the Commonwealth presented this binder to the
      court, he took a few minutes to explain how the binder was laid
      out and the purpose behind it. The prosecutor’s intent was to deal
      with the issues prior to the commencement of the trial in order to
      have the trial flow more smoothly once it began. A copy of this
      same binder was shortly thereafter provided to defense counsel
      to alert him to potential evidentiary issues that could arise during
      trial. There was no nefarious intent behind the presentation of
      this binder to the court prior to providing a copy to [Appellant].
      Additionally, this court did not discuss any substantive matters
      with regard to the within case with the attorney for the
      commonwealth at this time. This court merely summarily perused
      the documents presented and gain[ed] an understanding of their
      arrangement within the binder.

Id. at 40. After citing legal principles regarding recusal similar to those set

forth above in the excerpt from Blakeney, the trial court continued, stating:

      This jurist conscientiously considered the within recusal request.
      However, based on the undersigned’s ability to assess the case in
      an impartial manner, free of personal bias or interest in the
      outcome, as well as the determination that this judge’s continued
      involvement in the case would not create an appearance of
      impropriety nor would tend to undermine public confidence in the
      judiciary, this court found [Appellant’s] recusal request to be
      unwarranted. Accordingly, [Appellant’s] motion for recusal was
      properly denied.

Id. at 41.


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          Based on our review, we cannot say that the trial court erred in failing

to impose sanctions on the Commonwealth for failure to give notice of the

various applications, affidavits, etc., or that the trial court abused its discretion

by denying Appellant’s motion for recusal. Therefore, Appellant’s final two

issues fail.

          Because Appellant is not entitled to relief on any of the issues raised in

this appeal, we affirm his judgment of sentence.           In the event of further

proceedings, the parties shall attach a copy of the trial court’s November 7,

2016 opinion for its summary of the testimony and evidence presented at

trial.6

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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6   See Trial Court Opinion, 11/7/16, at 6-27.

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