J-S26007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    CAREY BILLUPS,

                             Appellee                 No. 2524 EDA 2017


                  Appeal from the Order Entered July 31, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014851-2013


BEFORE: BENDER, P.J.E., BOWES, J. and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 19, 2018

        The Commonwealth appeals from the trial court’s order granting

Appellee’s, Carey Billups, motion to suppress out-of-court identification

evidence. The Commonwealth also contends that the trial court judge erred

when he refused to recuse himself in light of his determination that the

complaining witness did not testify credibly at the suppression hearing. After

careful review, we affirm.

        This Court previously summarized the pertinent history of this case as

follows:

              Yvette Briggs alleges that, on August 14, 2014, at
        approximately 10:00 p.m., she was stopped at a traffic light at
        41st and Girard Street in Philadelphia when Appellee reached
        through the partially open passenger side window of her Chevrolet
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S26007-18


     Uplander and stole her pocketbook from the passenger seat. N.T.
     Motion, 3/13/15, at 6-8, 19. One of Mrs. Briggs’ credit cards was
     later used at a gas station at 39th and Girard. Id. at 9. Mrs.
     Briggs stated the perpetrator looked directly into her face, and she
     had three or four seconds to look at him. Id. at 11, 19. Mrs.
     Briggs pursued Appellee but he escaped. Id. at 8, 11, 30. Mrs.
     Briggs then contacted police. Id. at 8.

            At 3:45 a.m. on August 15, 2014, Lieutenant John Barker
     responded to a report of three armed men standing near a white
     Infinity in the vicinity of 39th and Girard. N.T. Motion, 12/31/15,
     at 5, 11. He observed three men meeting the description in the
     radio report and called for backup. Id. at 6-7. Police conducted
     pat down searches of all three men and recovered no weapons.
     Id. at 7. Lieutenant Barker observed a fourth man near the scene,
     and surmised correctly that he was the source of the radio report.
     Id. at 7-8. Lieutenant Barker spoke to the fourth man, who
     turned out to be Mrs. Briggs’ husband. Id. Mr. Briggs told
     Lieutenant Barker about the robbery of Mrs. Briggs. Id. at 8.
     Lieutenant Barker told Mr. Briggs that Mrs. Briggs would be
     needed to make an identification. Id. Mr. Briggs called Mrs.
     Briggs, who arrived shortly thereafter. Id.

            None of the three men were in handcuffs when Mrs. Briggs
     observed them. Id. at 9. Mrs. Briggs identified Appellee, claiming
     she was 100% sure he was the perpetrator. N.T. Motion, 3/31/15,
     at 14. Mrs. Briggs stated that Appellee had changed shirts, but
     was wearing the same sneakers and pants. Id. The record
     reveals, however, that Mrs. Briggs claimed the perpetrator was
     wearing cargo pants but Appellee was wearing sweatpants when
     Mrs. Briggs identified him. Id. at 37. Mrs. Briggs also recognized
     Appellee by his facial features and beard. Id. at 20. In her initial
     statement to the police, Mrs. Briggs did not mention a beard. Id.
     at 23.

            Appellee appeared for trial in Philadelphia Municipal Court
     on December 2, 2013. He did not move to suppress any evidence
     prior to the Municipal Court trial. The judge found Appellee guilty
     of theft by unlawful taking.2 Appellee appealed for a trial de novo
     before the Philadelphia Court of Common Pleas. After several
     defense continuances, the de novo trial was scheduled to take
     place on March 31, 2015. On that date, however, Appellee
     appeared and moved to suppress Mrs. Briggs’ identification
     testimony. … After the March 31 and December 31, 2015
     hearings, the trial court granted Appellee’s motion. December 31,

                                    -2-
J-S26007-18


       2015, was the trial judge’s last day on the bench. He therefore
       did not file an opinion explaining his rationale.

          2   18 Pa.C.S.[] § 3921.

Commonwealth v. Billups, No. 242 EDA 2016, unpublished memorandum

at 1-3 (Pa. Super. filed May 23, 2017).

       The Commonwealth appealed from the trial court’s suppression ruling.

This Court reversed that decision, holding that the “trial court’s rationale for

granting Appellee’s suppression motion … contain[ed] a critical finding that

the record does not support.” Id. at 8. Essentially, we reasoned that the trial

court’s ruling1 had impermissibly relied on speculation that Yvette Briggs had

been told by her husband that the perpetrator was present before she arrived

to identify Appellee, an “unsupported finding [that] clearly played a significant

role in the court’s rejection of Mrs. Briggs’ credibility and its decision to

suppress her identification of Appellee.” Id. at 8-9. We then remanded for

further proceedings.

       On remand, the trial court sua sponte reconsidered, and again granted,

Appellee’s suppression motion,2 and the Commonwealth filed a timely



____________________________________________


1 Notably, the trial court did not file a Pa.R.A.P. 1925(a) opinion, as the trial
judge’s appointment had expired immediately after his suppression ruling.
Thus, the prior panel’s decision was based on statements made by the trial
judge during the suppression hearing.

2The trial judge had been reappointed to his seat while the Commonwealth’s
appeal at No. 242 EDA 2016 was pending.




                                           -3-
J-S26007-18



interlocutory appeal from that decision pursuant to Pa.R.A.P. 311(d).3 In its

Pa.R.A.P. 1925(a) opinion, the trial court explains that its rationale for

granting suppression in the first instance had been misunderstood by this

Court in our prior memorandum. Specifically, the trial court states that it had

not relied solely or predominantly on speculation—regarding what Mr. Briggs

had told his wife over the phone just prior to her out-of-court identification of

Appellant—when it granted suppression, contrary to the assumption made by

this Court in our May 23, 2017 memorandum. See Trial Court Opinion (TCO),

10/19/17, at 9 (“This court respectfully disagrees with the assumption that

my ruling was based upon evidence not in the record”). Instead, the trial

court indicates that it granted suppression “based on the [Mrs. Briggs’] lack

of credibility.”    Id. at 9.       Specifically, the court based this credibility

determination on its findings that Mrs. Briggs’ lied on four occasions about

whether police had called her to the scene of the investigation (whereas the

record unequivocally demonstrates that Mr. Briggs had called her), and

because of her expectation that she would find the thief when she arrived to

provide an identification.        Id. at 9-10.    The court also found that the

“circumstances surrounding Mrs. Briggs’ identification of Appellee is highly

____________________________________________


3 Rule 311(d) provides that: “In 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.” In its notice of appeal, the Commonwealth certified that the
prosecution of Appellee is substantially handicapped by the trial court’s order
granting suppression.

                                           -4-
J-S26007-18



suggestive when reviewed in tandem.” Id. at 11. On that basis, the trial

court again granted Appellee’s suppression motion. After filing its notice of

appeal, the Commonwealth preemptively filed a timely Rule 1925(b)

statement before being ordered by the trial court to do so. The court issued

its Rule 1925(a) opinion on October 19, 2017.       The Commonwealth now

presents the following questions for our review:

      I. Did the lower court err - after this Court reversed its prior
      suppression order - by again suppressing an identification in the
      absence of suggestive police conduct?

      II. Did the lower court err by denying a request to recuse itself
      from presiding at defendant's upcoming trial after asserting that
      the complaining witness had told a blatant lie?

Commonwealth’s Brief at 3.

      Before we reach the merits of the Commonwealth’s claims, we must

address Appellee’s assertion that the Commonwealth waived them.            First,

Appellee claims that the Commonwealth waived its suppression claim by

failing to present it with adequate specificity in its Rule 1925(b) statement.

We agree.

      As is now axiomatic, any “issues not raised in a 1925(b) statement will

be deemed waived.”     Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998). Additionally,

      [a]n appellant's concise statement must properly specify the error
      to be addressed on appeal. Commonwealth v. Dowling, 778
      A.2d 683 (Pa. Super. 2001). In other words, the Rule 1925(b)
      statement must be “specific enough for the trial court to identify
      and address the issue [an appellant] wishe[s] to raise on appeal.”
      Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006),
      appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “[A] [c]oncise

                                    -5-
J-S26007-18


        [s]tatement which is too vague to allow the court to identify the
        issues raised on appeal is the functional equivalent of no [c]oncise
        [s]tatement at all.” Id. The court's review and legal analysis can
        be fatally impaired when the court has to guess at the issues
        raised. Id. Thus, if a concise statement is too vague, the court
        may find waiver. Id.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).

        Here, the Commonwealth’s Rule 1925(b) statement differs from the

suppression issue presented in its brief.      In its brief, the Commonwealth

complains of the suppression of Mrs. Briggs’ out-of-court identification “in the

absence of suggestive police conduct[.]” Commonwealth’s Brief at 3. In its

Rule 1925(b) statement, the Commonwealth presented a far more generic

claim, asking “[w]hether the lower court erred in re-imposing its order

suppressing identification evidence that was reversed by the Superior Court

in the previous appeal[?]” Commonwealth’s Rule 1925(b) Statement, 8/8/17,

at 1.   On its face, it appears that the Commonwealth seeks to raise an issue

regarding suggestive police conduct in its brief that it had omitted or

abandoned in its Rule 1925(b) statement.         Notably, the trial court’s Rule

1925(a) opinion did not address suggestive police conduct. Instead, it only

addressed why it had ruled to suppress again despite this Court’s May 23,

2017 memorandum, and the trial court’s analysis in that regard was directed

toward its credibility findings regarding Mrs. Briggs’ testimony, not toward the

presence or absence of suggestive police conduct.

        The Commonwealth argues that its Rule 1925(b) statement was

adequate for purposes of review because the “basis for that previous appeal

… was that ‘the identification procedure involved no police misconduct and

                                       -6-
J-S26007-18



was not suggestive.’” Commonwealth’s Reply Brief at 2 (citing the

Commonwealth’s 1925(b) statement filed in its previous appeal at No. 242

EDA 2016).    However, while that may have been the issue argued by the

Commonwealth in its previous appeal, it was not the basis for this Court’s prior

decision. As noted above, we reversed the original suppression order based

solely on the trial court’s use of facts not contained in the record, which we

determined had played a significant part in the trial court’s credibility

determination. See Billups, unpublished memorandum at 8-9.           This Court

never addressed whether there were sufficient facts to demonstrate that the

police conducted an unduly suggestive identification procedure. Accordingly,

the Commonwealth’s reference to the prior decision of this Court did not

adequately convey to the trial court that the issue it was ostensibly attempting

to raise concerned police misconduct in the context of an unduly suggestive

identification. Based on the content of our May 23, 2017 memorandum and

the Commonwealth’s August 8, 2017 Rule 1925(b) statement, it was

reasonable for the trial court to assume that the Commonwealth sought to

challenge its new suppression order based on the reasoning set forth in that

memorandum.      It was not at all obvious from the Commonwealth’s Rule

1925(b) statement that it intended to raise a claim that this Court had not

addressed in that memorandum.

      The Commonwealth also argues that waiver is not appropriate based on

Commonwealth v. Holder, 805 A.2d 499 (Pa. 2002), Commonwealth v.




                                     -7-
J-S26007-18



Goldman, 70 A.3d 874 (Pa. Super. 2013), and Commonwealth v. Smith,

955 A.3d 391 (Pa. Super. 2008) (en banc). We disagree.

      In Holder, our Supreme Court declined to find Lord-based waiver

where the claim raised in the appellant’s brief was a “logical extension” of the

claim raised in the Rule 1925(b) statement. Holder, 805 A.2d at 505 n.11.

Holder is simply not analogous to the instant matter.        In that case, the

Appellant had challenged the trial court’s application of collateral estoppel

based on an evidentiary ruling during a prior probation revocation hearing that

had excluded a statement by the victim based on the “rape shield law and

hearsay rules.” Id. at 477. After the Superior Court determined that collateral

estoppel applied, the appellant argued to the Supreme Court that the Superior

Court had “erred in failing to review the evidentiary ruling on its merits.” Id.

at 505.   The Commonwealth claimed that the appellant had waived that

specific claim by failing to include it in his Rule 1925(b) statement, which had

merely asserted that the “Trial Court erred when it denied the defendant's

motion to present evidence of a similar prior rape allegation leveled by the

alleged victim.”    Id. at 505 n.11.       The Supreme Court rejected the

Commonwealth’s waiver argument, holding that

      As the Superior Court noted, the issue cited above stems from the
      trial court's decision that Judge Carpenter's ruling at [the
      a]ppellant's Gagnon hearing collaterally estopped the trial court
      from determining whether Wright's prior rape allegation was
      admissible at trial. A logical extension of whether collateral
      estoppel applied in this case is how that doctrine should have been
      applied. Thus, the issue of whether the Superior Court erred in
      failing to review the evidentiary ruling on its merits is properly
      before this Court.

                                     -8-
J-S26007-18



Id.

      Instantly, the Commonwealth fails to explain the relevance of the

Holder decision, other than to latch on to the “logical extension” language

applied by the High Court.      We find the Holder decision to be neither

controlling nor suggestive regarding waiver in this matter. In Holder, the

specific issue under consideration—involving an allegation that the Superior

Court erred—could not have been raised within a 1925(b) statement that

predated the Superior Court’s alleged error. Moreover, the waiver dispute at

issue here does not involve a minor distinction between whether collateral

estoppel applied and how it should have applied.       Here, the distinction is

between whether the trial court’s second suppression order defied this Court’s

prior holding regarding a credibility determination concerning the victim’s

testimony, as suggested by the Commonwealth’s Rule 1925(b) statement, or

whether the trial court had erred by failing to address whether the absence of

police misconduct precluded suppression, as argued in the Commonwealth’s

Brief. These claims are only tenuously related. Accordingly, we conclude that

Holder does not support the Commonwealth’s assertion that it adequately

preserved the absence-of-police-misconduct claim in its Rule 1925(b)

statement.

      In Goldman, we held that “[a]lthough the Commonwealth's choice of

the word ‘unavailable’ is arguably misleading, the Rule 1925(b) statements

provided sufficient detail to identify all pertinent issues for the trial court,

including all subsidiary issues.” Goldman, 70 A.3d at 878 n.2. Notably, the

                                     -9-
J-S26007-18



Goldman Court did not elaborate on the waiver matter with any detail, quote

the language at issue from the Rule 1925(b) statement, or explicitly identify

whether the claim at issue had been addressed by the trial court.

Nevertheless, the Court did state the trial court had been provided with

“sufficient detail to identify all pertinent issues[,]” which implies that those

issues were actually addressed by the trial court in its opinion. In the instant

matter, the issue of suggestive police conduct was not addressed in the trial

court’s opinion, nor was it remotely obvious from the Commonwealth’s Rule

1925(b) statement that it should have been.

      Finally, in Smith, this Court held that, despite the Commonwealth’s

vague statement of the relevant issue in its 1925(b) statement, we declined

to deem that claim waived in the circumstances of that case because “our

review ha[d] not been hindered,” as “the trial court filed an opinion which

meaningfully addressed the Commonwealth's arguments.” Smith, 955 A.2d

at 393.    Instantly, meaningful review is hindered, as the trial court’s sole

opinion in this case does not address the first claim presented in the

Commonwealth’s brief, which is a direct consequence of the lack of specificity

in   the   Commonwealth’s     Rule   1925(b)    statement.       Moreover,    the

Commonwealth has made no attempt in its brief to direct this Court’s attention

to where in the certified record the trial court meaningfully addressed its claim.

Consequently, we conclude that the Commonwealth has waived its first claim.

      Appellee also asserts that the Commonwealth waived its recusal claim,

arguing that “the Commonwealth never stated its grounds for recusal at the

                                     - 10 -
J-S26007-18



time it made the request for recusal.”       Appellee’s Brief at 17.   Generally,

“[i]ssues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a). While we agree with Appellee that

the Commonwealth did not state specific reasons for its motion for recusal at

the time it made that motion, see N.T., 7/31/17, at 5-6, we also agree with

the Commonwealth that the nature of the recusal request was apparent on

the face of the record. See Commonwealth’s Reply Brief at 6 (arguing that

the trial prosecutor “was not obliged to append to his timely recusal request

the words because of what you said a second ago”) (emphasis in original).

The Commonwealth’s recusal request was a direct reaction to the trial court’s

preceding statement regarding the complaining witness’s, Mrs. Briggs,

credibility. See N.T., 7/31/17, at 5-6. Moreover, in its Rule 1925(a) opinion,

the trial court addressed the issue as stated with specificity in the

Commonwealth’s Rule 1925(b) statement, and without mentioning any

explicit concerns about the basis for the recusal motion.        TCO at 11-13.

Accordingly, we will address the merit of that claim.

         Our standard of review of a trial court's determination not
         to recuse from hearing a case is exceptionally deferential.
         We recognize that our trial judges are “honorable, fair and
         competent,” and although we employ an abuse of discretion
         standard, we do so recognizing that the judge himself is best
         qualified to gauge his ability to preside impartially.

      [Commonwealth v.] Bonds, 890 A.2d [414,] 418 [(Pa. Super.
      2005)] (citing Commonwealth v. Abu–Jamal, 553 Pa. 485, 720
      A.2d 79, 89 (1998)).

         The party who asserts that a trial judge should recuse bears
         the burden of setting forth specific evidence of bias,

                                    - 11 -
J-S26007-18


        prejudice, or unfairness. See Commonwealth v. Perry,
        468 Pa. 515, 364 A.2d 312, 318 (1976). “Furthermore, a
        decision by the trial court against whom the plea of
        prejudice is made will not be disturbed absent an abuse of
        discretion.” Commonwealth v. Buehl, 540 Pa. 493, 658
        A.2d 771, 782 (1995).

     Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super.
     2000). See also Commonwealth v. Tedford, 598 Pa. 639, 731,
     960 A.2d 1, 55–56 (2008) (“[I]t is the burden of the party
     requesting recusal ‘to produce evidence establishing bias,
     prejudice or unfairness which raises a substantial doubt as to the
     jurist's ability to preside impartially.’”).

     Once a decision to deny a recusal request has been made, that
     decision is final and the cause must proceed. Commonwealth v.
     Urrutia, 439 Pa. Super. 227, 653 A.2d 706, 711 (1995).

        The propriety of this decision is grounded in abuse of
        discretion and is preserved as any other assignment of
        error, should the objecting party find it necessary to appeal
        following the conclusion of the cause. If the cause is
        appealed, the record is before the appellate court which can
        determine whether a fair and impartial trial were had. If so
        the alleged disqualifying factors of the trial judge become
        moot.

     Id. (italics in original) (citation omitted). See also
     Commonwealth v. Simmons, 388 Pa. Super. 271, 565 A.2d
     481, 482 (1989).

Commonwealth v. Harris, 979 A.2d 387, 391–92 (Pa. Super. 2009).

     The Commonwealth argues as follows:

     Here, the Commonwealth does not dispute that it was entirely
     appropriate for the lower court to preside at the suppression
     hearing. But the situation changed dramatically when the court
     openly declared that M[r]s. Briggs, the complaining witness,
     lacked credibility because she had repeatedly told "a blatant lie[.”]
     Having made that pronouncement - both from the bench and in
     print … - it is no longer appropriate for the judge to preside at a
     trial where M[r]s. Briggs will be testifying as the Commonwealth's
     chief witness. Neither the parties nor the general public - nor least
     of all M[r]s. Briggs - can be confident that the lower court, no


                                    - 12 -
J-S26007-18


       matter how well intentioned, could hear her testimony without
       prejudgment.

Commonwealth’s Brief at 14 (internal citations omitted).           The trial court

rejected this claim, stating that it “assessed this case in an impartial manner,

free of personal bias or interest in the outcome and[, therefore,] the

Commonwealth’s argument should fail.” TCO at 13.

       We conclude that the Commonwealth’s argument fails to overcome the

presumption of the trial court’s impartiality.       The Commonwealth provides

virtually no case law to support its claim that a party is entitled to recusal of

a trial judge who makes a credibility determination adverse to their interests

during suppression proceedings.            We find any such claim to be facially

untenable to the administration of justice.4       It is common for trial judges to

have presided over pre-trial hearings that require credibility determinations.

Thus, is it also common for trial court judges to have before them witnesses

during trial, whose credibility had been assessed, positively or negatively, by

the same judge at a prior proceeding.               The rule suggested by the

Commonwealth—as no such rule, to our knowledge, currently exists under

Pennsylvania law—would invite judge-shopping by litigants faced with

adverse, pre-trial credibility assessments.

       Nevertheless, we recognize there may be exceptional circumstances

where a judge’s conduct during pre-trial hearings is so extreme that it

____________________________________________


4 Reversing the circumstances, such a rule would also require a judge to
recuse himself or herself after determining that a defendant lied during
suppression proceedings.

                                          - 13 -
J-S26007-18



demonstrates bias or impartiality worthy of recusal. We see no evidence of

such conduct here. It is undisputed that the trial court construed part of Mrs.

Briggs’ testimony as a “blatant lie.” N.T., 7/31/17, at 4 (“The complaining

witness, at least four times, testified that she was called to the scene by the

police when, in fact, that was a blatant lie.”). The Commonwealth fails to

describe how such a conclusion was evidence of the trial court’s bias or

impartiality. There is no function more basic for a fact-finder than determining

the truthfulness of the testimony presented to it.

      The Commonwealth argues—in a completely different section of its

brief—that the trial court’s credibility determination was not supported by the

record.   See Commonwealth’s Brief at 12.        However, the Commonwealth

merely offers a theory why Mrs. Briggs’ statement, that she we “contacted by

police,” was not necessarily untruthful. Id. (arguing that her statement could

have encompassed the possibility that she had been contacted by police

through her husband).       Of course, it is also possible that Mrs. Briggs

intentionally deceived the court so as to minimize the involvement of her

husband, whose false report of a gun precipitated her identification of

Appellee. See TCO at 6. The trial court, sitting as factfinder, was thoroughly

empowered to choose between those two competing theories regarding the

credibility of Mrs. Briggs’ testimony. “As this Court has often reiterated: ‘It is

within the suppression court's sole province as factfinder to pass on the

credibility of witnesses and the weight to be given their testimony.’”

Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006)

                                     - 14 -
J-S26007-18



(quoting Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.

2003)).

     In any event, the trial court did not ground the credibility determination

in question solely on the basis of that individual statement by Mrs. Briggs.

The court also determined that her testimony was not credible due to the

vagueness of her initial description of the perpetrator, in conjunction with

inconsistencies with that description and the appearance of Appellee at the

time she identified him. See TCO at 4-7. Accordingly, we conclude that the

trial court did not abuse its discretion when it denied the Commonwealth’s

motion for recusal.

     Order affirmed.

     President Judge Emeritus Stevens joins this memorandum.

     Judge Bowes files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/18




                                   - 15 -
