J-S37038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

GREGORY BROWN, JR.

                        Appellee                    No. 1817 WDA 2015


            Appeal from the Order Entered November 18, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0006028-1996,
                         CP-02-CR-0008170-1996


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 09, 2016

      The Commonwealth of Pennsylvania appeals the denial of a motion

seeking the recusal of the Honorable Joseph K. Williams, III, from the retrial

of Gregory Brown, Jr. Upon careful review, we affirm.

      On February 11, 1998, Brown was convicted of three counts of second-

degree murder and one count each of arson-endangering persons, arson-

endangering property, and insurance fraud. The charges stemmed from a

1995 house fire at 8355 Bricelyn Street, Pittsburgh, where Brown resided

with his mother and family.         The fire resulted in the deaths of three

firefighters. Brown received three consecutive life sentences for the murder

convictions, and concurrent sentences of 5 to 10 years and 2 ½ to 5 years

for the arson counts.     On direct appeal, this Court affirmed Brown’s

convictions, but vacated his sentence for arson-endangerment of persons.

After this Court declined to grant reargument, our Supreme Court denied
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allowance of appeal. Thereafter Brown unsuccessfully sought habeas corpus

relief in federal court.

         On May 5, 2010, Brown filed a pro se petition under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, which was

subsequently amended in a              series    of filings by appointed   counsel.

Ultimately, the PCRA court granted relief to Brown in the form of a new trial

by order dated February 19, 2014.                 The PCRA court found that the

Commonwealth had withheld impeachment evidence from the defense at the

time of Brown’s first trial.      On appeal, a panel of this Court affirmed the

ruling    of   the   PCRA     court,    and     our   Supreme   Court   denied   the

Commonwealth’s petition for allowance of appeal.

         Upon remand to the trial court, the Commonwealth filed a motion to

recuse, which Judge Williams denied by order dated November 18, 2015.

The Commonwealth filed this timely appeal, contending that Judge Williams

erred in denying recusal, arguing that the evidence and trial record

demonstrate personal bias, and/or the appearance of bias, which should

have led Judge Williams to conclude he could not preside impartially at the

retrial.1 In the alternative, the Commonwealth argues that Judge Williams
____________________________________________


1
  We note that on January 21, 2016, Brown filed a counseled motion to
quash the instant appeal, in which he asserted that the appeal is frivolous on
procedural and substantive grounds and was initiated by the Commonwealth
for delay purposes. The motion to quash was denied in an order entered
March 14, 2016, and the parties agreed that the appeal would be scheduled
for the next available submission panel of this Court. Additionally, the March
14, 2016 order was entered without prejudice to Brown’s right to raise the
issues included in the motion to quash again before the merits panel. We
note that Brown’s motion to quash in essence requested a ruling on the
substantive merits of this appeal; we have addressed this matter on the
(Footnote Continued Next Page)


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abused his discretion by failing to sua sponte transfer the recusal motion to

another judge for disposition, as he was unable to maintain his objectivity.

      A trial judge must recuse him or herself if there is any doubt as to his

ability to “preside impartially in a criminal case or . . . impartiality can

reasonably be questioned.” Commonwealth v. Goodman, 311 A.2d 652,

654 (Pa. 1985). The standards for recusal are well-established. Generally,

a motion for recusal is directed to and heard by the jurist whose impartiality

is questioned.     Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa.

1998). The judge must make a conscientious determination of his ability to

assess the case in an impartial manner, free of interest in the outcome or

personal bias in considering a recusal request.    Id.   The jurist then must

consider whether his continued involvement undermines public confidence in

the judiciary and/or would create an appearance of impropriety. Id. This is

a personal and unreviewable decision that only the jurist can make.    Id.

      In reviewing a denial of a disqualification motion, we recognize that

our judges are honorable, fair and competent. Id. As the trial court is in

the best position to gauge its ability to preside impartially, we defer to its

decision in denying the motion to recuse. Commonwealth v. Harris, 979

A.2d 387, 391-92 (Pa. Super. 1990). If the trial judge determines that he or

she can hear and dispose of the case fairly and without prejudice, that

decision will be final unless there is an abuse of discretion.        Reilly v.

                       _______________________
(Footnote Continued)

merits herein and have determined that the trial court did not err in denying
the Commonwealth’s motion to recuse, as discussed below.



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Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1300 (Pa.

1985).

     The term “discretion” imports the exercise of judgement, wisdom
     and skill so as to reach a dispassionate conclusion, within the
     framework of the law, and is not exercised for the purpose of
     giving effect to the will of the judge.         Discretion must be
     exercised on the foundation of reason, as opposed to prejudice,
     personal motivations, caprice or arbitrary actions. Discretion is
     abused when the course pursued represents not merely an error
     of judgement, but where the judgement is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000), quoting Coker

v. S.M. Flickinger Company, Inc., 625 A.2d 1181, 1186 (Pa. 1993).

     The burden lies on the party seeking recusal to produce evidence

establishing bias, prejudice, or unfairness which raises substantial doubt as

to the ability of the jurist to preside impartially. Abu-Jamal, 720 A.2d at

89, citing Rizzo v. Haines, 555 A.2d 58, 72 (Pa. 1989).

     Here, the Commonwealth’s claim is based largely upon an allegation

that Judge Williams harbors bias toward the various agencies that

investigated the fire in question, particularly ATF Special Agent Matthew

Regentin, who investigated the Bricelyn Street fire and is a “necessary

witness” at Brown’s retrial. Brief of Appellant, at 21. The Commonwealth

asserts that Judge Williams’ alleged bias stems from an incident that

occurred prior to his ascension to the bench, in which a store with which the

judge had done business burned in an arson. During the investigation, law

enforcement officials discovered that Judge Williams had previously been

engaged in a dispute with the store’s owner and possessed a key to the

store. Despite this prior dispute, the store’s owner retained Judge Williams

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to represent him during questioning by Special Agent Regentin and other law

enforcement officers.    During the course of the interview, investigators

asked Judge Williams if he had any involvement with the fire, which Judge

Williams denied.

      Following the interview, Judge Williams wrote a letter to Pittsburgh

Fire Department Captain Francis Deleonibus expressing his displeasure with

the manner in which the interview had been conducted. In particular, Judge

Williams conveyed his dismay at having, himself, been interrogated in front

of his client.   The Commonwealth asserts that Judge Williams “took the

incident   personally   and   harbored   a   deep   resentment   toward   [the]

investigators.” Corrected Motion to Recuse, 10/27/15, at 8.

      Subsequently, during 2012 PCRA proceedings in this matter, Judge

Williams noticed ATF agents sitting in the courtroom. Among the agents was

Special Agent Regentin, who was taking notes. At a sidebar with counsel,

the court expressed concern that, if they left the courtroom, the agents

might violate the sequestration order the court had put in place by sharing

their notes or other information from the proceedings with potential

witnesses located outside the room. Accordingly, the court indicated that he

would prefer if the agents did not leave the courtroom. Prior to this incident,

Judge Williams had asked another observer – a defense witness – to leave

the courtroom because of the sequestration order.         The Commonwealth

argues that Judge Williams’ decision requiring the observing defense witness

to leave the courtroom, while expressing concern over allowing the ATF

agents to leave, demonstrated a mistrust of the agents, which the




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Commonwealth posits is further evidence of the court’s bias against the

prosecution.

      The Commonwealth also argues that the language used by Judge

Williams in his written opinions establishes bias against the prosecution.

Judge Williams described the behavior of Agent Jason Wick, whom the court

concluded withheld exculpatory information from the defense, as “ratcheted

up”   and   “aggressive.”   The   court   further   found   that   Agent   Wick

“purposefully” chose not to share the exculpatory information which formed

the basis for Brown being granted a new trial.

      The trial court held a hearing on the recusal motion on November 18,

2015. The Commonwealth presented no evidence, choosing instead to “rest

on [its] pleadings.” N.T. Recusal Hearing, 11/18/15, at 2. The trial court

announced its decision on the record and subsequently supplemented its in-

court statement with a Pa.R.A.P. 1925(a) opinion.

      In concluding that he need not recuse himself from Brown’s retrial,

Judge Williams noted the general standard by which a recusal motion must

be analyzed:

      THE COURT: When I look at this analysis, there are two big
      parts to it.   First, has there been evidence presented that
      establishes bias, prejudice or unfairness which raises a
      substantial doubt as to my ability to preside over the retrial of
      Mr. Gregory Brown?

      Second, does my continued involvement in the case create the
      appearance of impropriety [that] would tend to undermine public
      confidence in the judiciary?

N.T. Recusal Motion Hearing, 11/18/15, at 37.

      The   court began by observing that the         Commonwealth, while

acknowledging that it bore the burden of proof on the issue of recusal, had

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nevertheless failed to present any evidence in support of its motion. Citing

accusations of bias against Special Agent Regentin, the court noted the

Commonwealth’s failure to present the agent’s testimony to establish “some

animus, if there was a feud in a meeting, if there was any manifestations,

[of] this ire or resentment that I’ve had over the course of the last 13

years[.]”    Id. at 38.     The court stated that, when he saw Special Agent

Regentin in court during PCRA proceedings, he did not know who he was,

and “[i]f that gentleman was in court today, I couldn’t pick him out.” Id. at

39. The court characterized the Commonwealth’s allegations as “conjecture,

where the government just throws up these ideas, throws them on the wall,

presents no evidence[.]” Id. at 40.

       Judge Williams cited Code of Judicial Conduct Rule 2.2 2 and concluded

that he had been impartial and fair, and had applied the law appropriately.

Addressing the Commonwealth’s arguments regarding the “tone and tenor”
____________________________________________


2
  The Code of Judicial conduct Rule 2.11 regarding the disqualification of a
jurist states:

       (A)    A judge shall disqualify himself or herself in any
              proceeding in which the judge’s impartiality might
              reasonably be questioned, including but not limited to
              the following circumstances:

              (1)    The judge has a personal bias or prejudice
                     concerning a party or a party’s lawyer, or
                     personal knowledge of the facts that are in
                     dispute in the proceeding.

Pa. Code Judicial Conduct 2.11.



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of his opinions, the court noted that “honesty does not equal fixed bias.” Id.

at 41.

         As to the perception of impropriety, Judge Williams posited that, rather

than casting doubt in the mind of the public as to the impartiality of the

judiciary, his recusal at the behest of the Commonwealth would lead the

public to believe that “[w]hen one party doesn’t like the judge assigned to

their matter and can get it changed, . . . justice can be manipulated.” Id. at

42. The court also cited to Rule 2.7 of the Judicial Code of Conduct, which

states that “[u]nwarranted disqualification or recusal may bring public

disfavor to the court and to the judge personally.” Code of Judicial Conduct,

Rule 2.7. Judge Williams concluded that “a reasonable man would believe

that I’ve been reasonable,” and that his further participation in these

proceedings would not create an appearance of impropriety.          N.T. Recusal

Motion Hearing, 11/18/15, at 45.        Rather, the court concluded, “I believe

that a reasonable man looking at this case would probably wonder why the

government [would] withhold the fact that two principal witnesses in the

case were paid and not disclose that to anyone.” Id.

         At the outset, we concur with the trial court that the Commonwealth

plainly failed to sustain its burden of proof to raise a “substantial doubt”

regarding Judge Williams’ ability to preside fairly over Brown’s retrial. Abu-

Jamal, 720 A.2d at 89.        Rather than create an evidentiary record at the

recusal hearing, the Commonwealth “rest[ed] on [its] pleadings,” which

incorporated copies of correspondence relating to the arson fire for which

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then-attorney Williams’ client was questioned in 2004 and two affidavits

relating to Judge Williams’ alleged bias against Special Agent Regentin.

These documents, without additional testimony or other evidence to

contextualize or explain them, fell far short of demonstrating that Judge

Williams harbored bias against either the Commonwealth or any of the

agencies that assisted in the investigation. Indeed, to conclude that Judge

Williams was biased based on such meager evidence would require leaps of

imagination, assumptions, and rank speculation that is simply not supported

in the record, much less by actual evidence adduced in court.            For this

reason   alone,   the   court   was   within   its   discretion   to   deny   the

Commonwealth’s request.

     Even reaching the merits of the claim, our review of the record reveals

no evidence that any of Judge Williams’ challenged behavior evidences an

inability to preside impartially.     While the court certainly expressed

frustration with the Commonwealth’s failure to disclose reward payments

promised – and ultimately paid – to witnesses Wright and Abdullah, such a

reaction was justified in light of the fact that the Commonwealth for years

continued to deny the existence of reward money, in both state and federal

court proceedings. Indeed, this Court previously found that there was “no

dispute that the Commonwealth did not turn over” information relating the

offer of a reward and that, over the course of PCRA proceedings, Brown was

“thwarted by the Commonwealth’s repeated denials[.]” Commonwealth v.




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Brown, 289 WDA 2014, at 26, 30 (Pa. Super. filed 3/20/15) (unpublished

memorandum).

     Moreover, the Commonwealth’s reliance on the language used by

Judge Williams in his February 19, 2014 opinion is misplaced. It is the trial

court’s duty to make credibility determinations and apply them accordingly.

Our Supreme Court has stated that “alleged bias stemming from facts

gleaned from the judicial proceeding will rarely be grounds for recusal.”

Commonwealth v. Druce, 848 A.2d 104, 110 n.3 (Pa. 2004). The Druce

Court quoted with approval a statement by the U.S. Supreme Court in

Liteky v. United States, 510 U.S. 540, 555 (1994), in which the Court

observed:

     [O]pinions formed by the judge on the basis of facts introduced
     or events occurring in the course of the current proceedings, or
     of prior proceedings, do not constitute a basis for a bias or
     partiality motion unless they display a deep-seated favoritism or
     antagonism that would make fair judgment impossible. Thus,
     judicial remarks during the course of a trial that are critical or
     disapproving of, or even hostile to, counsel, the parties, or their
     cases, ordinarily do not support a bias or partiality challenge.
     They may do so if they reveal an opinion that derives from an
     extrajudicial source; and they will do so if they reveal such a
     high degree of favoritism or antagonism as to make fair
     judgment impossible.

Druce, 848 A.2d at 110 n.3, quoting Liteky, supra (emphasis in Liteky).

     Here, Judge Williams’ credibility determinations were rendered as a

necessary part of his judicial duties.   His findings were affirmed by this

Court, which found them to be supported by the record, and our Supreme

Court declined further review.     Based on the record before us, we are


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unable to conclude that Judge Williams abused his discretion in declining to

recuse himself from further proceedings in this matter.

      Lastly, the Commonwealth claims that Judge Williams abused his

discretion by failing to sua sponte transfer its recusal motion to another

judge for adjudication.

      For the first time in its Rule 1925(b) statement, the Commonwealth

asserted that Judge Williams should have sua sponte referred the recusal

motion to another judge because his “comments proved he could not

maintain an objective posture over the Commonwealth’s allegations of bias,

prejudice, and unfairness.” Brief of Appellant, at 42. The Commonwealth

acknowledges that it did not request that another judge decide its motion,

but, citing Municipal Publications, Inc. v. Court of Common Pleas of

Philadelphia County, 489 A.2d 1286 (Pa. 1985), argues that the trial court

was required to refer the matter to another judge sua sponte, because Judge

Williams allegedly made his own credibility an issue.

      In Municipal Publications, the defendant moved for the recusal of

the trial judge on the basis that the judge was biased in favor of plaintiff’s

counsel, citing a purported personal relationship as well as alleged ex parte

conversations between the two concerning the underlying case, as well as

the recusal motion itself.   At the hearing on the recusal motion, the trial

judge both presided and gave testimony. Thereafter, the defendant filed in

this Court a writ of prohibition, seeking to bar the trial court from proceeding

on the recusal motion. This Court granted the writ and directed that a new

judge be appointed to conclude the matter. The plaintiff, who had opposed

the writ of prohibition, filed a petition for allowance of appeal and/or the


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assumption of plenary jurisdiction with our Supreme Court, which accepted

plenary jurisdiction.

      The Supreme Court held that, where a judge concludes that the

allegations of a recusal motion justify an evidentiary hearing in which he will

testify, it becomes incumbent upon him to step aside for the appointment of

another judge to hear and rule upon the issue of disqualification. The Court

reasoned that, in such a circumstance, the disqualification hearing brings in

question the credibility of the judge, such that the judge is not in the

position to maintain the objective posture required to preside over and

assume the role of the trier of fact in that proceeding.

      Here, unlike in Municipal Publications, the trial court did not testify

during the recusal hearing. Indeed, no testimony whatsoever was presented

at the hearing.   Rather, in announcing its ruling, the court made passing

reference to the fact that he had not recognized Special Agent Regentin.

This certainly does not rise to the level of sworn testimony such as occurred

in Municipal Publications. Accordingly, and in light of our above findings

regarding the merits of the Commonwealth’s recusal motion, we can discern

no merit in the Commonwealth’s claim that the trial court was required to

sua sponte refer the motion to another judge.

      Additionally, because the Commonwealth failed to request in the first

instance that Judge Williams transfer the recusal motion to another judge,

any claim that the motion should have been transferred is waived on appeal.

Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.

Super. 2003), citing Pa.R.A.P. 302(a).    Moreover, “[a] party cannot rectify



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the failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.” Id. If the Commonwealth wished for the recusal motion to be heard

by another judge, it had every opportunity to request this relief before Judge

Williams; it failed to do so. Accordingly, this claim is waived.

      Order affirmed.


      President Judge Gantman joins this Memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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