J-S43025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SHERDINA WILLIAMS

                            Appellant              No. 2728 EDA 2014


            Appeal from the Judgment of Sentence August 27, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0910111-2002


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 15, 2015

       Appellant, Sherdina Williams, appeals from the judgment of sentence

entered August 27, 2014, by the Honorable Christopher R. Wogan, Court of

Common Pleas of Philadelphia County. At issue in this appeal is whether a

sentencing judge is required to recuse himself after this Court vacated a

sentence due to apparent bias and remanded for re-sentencing. After careful

review, we conclude the trial court did not abuse its discretion when it

refused recusal.

       The genesis of this appeal is a judgment of sentence imposed when

Williams’s probation was revoked, after she repeatedly violated the

probationary terms by committing new crimes.1 This term of probation was
____________________________________________


1
 The certified record on appeal does not contain any document whereby this
panel can confirm the procedural history of this matter prior to September
(Footnote Continued Next Page)
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imposed after Williams pled guilty, on October 15, 2001, to various charges

stemming from her actions in burglarizing several Catholic institutions. On

that same day, Williams was given an aggregate sentence of 11½ to 23

months’ imprisonment with immediate parole to an inpatient program,

followed by ten years’ probation.

      On January 16, 2002, Williams was arrested after attacking a police

officer with a pair of scissors. On April 18, 2002, Williams pled guilty to

aggravated assault before the Honorable Sheila Woods-Skipper. The precise

nature of this sentence is unknown.

      The incident relevant to this appeal took place on September 7, 2002,

when Williams broke into an employee’s office at Friends Hospital. The victim

caught Williams sitting behind her desk, rummaging through her belongings.

Once confronted, Williams attempted to escape by shoving the victim and a

security guard out of her way. A bench trial was held on January 3, 2003,

before the Honorable Christopher R. Wogan. Williams was found guilty of

burglary and simple assault.

      On February 12, 2003 Williams was sentenced to an aggregate term of

40-80 months’ imprisonment, followed by 24 months’ probation. On March


                       _______________________
(Footnote Continued)

2002. However, a review of the parties’ brief and trial court’s opinion reveals
no objections to the history set forth by this Court in Commonwealth v.
Williams, 69 A.3d 735 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa.
2014). We therefore take judicial notice of the history as set forth in that
case.



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6, 2003, the sentencing court granted a motion for reconsideration and

reduced Williams’s sentence to 36-72 months’ imprisonment, followed by 24

months’ probation.

      Due to the new convictions, the Honorable James J. Fitzgerald, III,

(who is now a senior judge on this Court) revoked Williams’s parole and

ordered her to serve the balance of her original sentence of imprisonment

for the 2001 charges.

      Williams served six years of imprisonment and was released in 2009.

On January 24, 2010, while on probation, Williams was arrested in relation

to a traffic accident. On September 3, 2010, the Honorable Joseph J. O’Neill

sentenced Williams to three days to six months of imprisonment and six

months’ probation for driving under the influence of a controlled substance

and to two years’ probation for causing an accident that led to personal

injury or death.

      On April 3 and 4, 2010, Williams and an accomplice were involved in

three separate burglaries, each inside of a Catholic Church or convent. On

March 4, 2011, Williams appeared before the Honorable Joseph A. Smyth

and pled guilty to three counts of burglary. Following the guilty plea,

Williams was sentenced to an aggregate term of seven to 20 years of

imprisonment.

      On June 1, 2011, Williams appeared before Judge Wogan for a

probation violation hearing on the multiple outstanding sentences stemming

from the 2001-2002 criminal charges, including the instant case. At the

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conclusion of this hearing, Williams’s probation was revoked. On July 20,

2011, Williams filed a motion for recusal, which the court denied after a

hearing. On September 30, 2011, Williams was sentenced to an aggregate

term of 24 to 48 months of imprisonment, followed by one year of probation.

During sentencing, the trial court made a series of inappropriate statements.

      Williams appealed the sentence, arguing it was excessive and that the

trial court erred in refusing to recuse. In Commonwealth v. Williams, 69

A.3d 735 (Pa. Super. 2013), appeal denied, 83 A.3d 415 (Pa. 2014), a panel

of this Court vacated the sentence and remanded for resentencing. The

panel (the Honorable Christine L. Donohue filed a concurring statement in

which she concurred in the result) held that “[t]he sentence imposed was

unreasonable in its application of the principle of proportionality and,

therefore, it was manifestly excessive.” Id., at 744.

      The panel further held that “[the] accumulation of inappropriate

remarks [by the court during sentencing] leads us to conclude that

Appellant’s sentence cannot be divorced from the appearance of bias.” Id.

More specifically, finding that “[t]he trial court’s bias or partiality was

demonstrated by its focus on repairing or correcting the perceived mistakes

of prior judges … ” Id., at 749. The panel also noted that the excessive focus

on Williams’s motive towards the specific “victimization of the Catholic

Church … [was] unsupported by the record.” Id. Again unsupported by the

record and further demonstration of bias was the sentencing court’s “use or

misuse of pseudo-medical terminology to describe Appellant's mental

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health.” Id. The panel also highlighted the “improper consideration of

Appellant’s gender and the court's subjective comparison of Appellant to

other members of Appellant's gender that were sentenced in his courtroom.”

Id.

      However, the panel concluded that Williams had “not met her burden

of demonstrating bias during the preceding VOP hearing.” Id., at 750. Their

review of the record revealed that while there was evidence of bias during

the VOP hearing, “[i]t was not until that pattern of inquiry continued

throughout the course of the subsequent proceedings that the appearance of

bias rose to a critical level.” Id. Thus, they concluded that Judge Wogan did

not abuse his discretion in refusing to recuse since it was prior to the

sentencing hearing, and remanded for a new sentencing hearing. See id.

      On remand for re-sentencing, Williams again moved for recusal. On

August 27, 2014, after the recusal hearing, the trial court requested the

cases originally before Judge Fitzgerald be reassigned. This left only the

burglary case, the one originally heard by Judge Wogan, in which he denied

the motion to recuse himself. Judge Wogan proceeded to sentence Williams

to 2-4 years of imprisonment for violating her probation in the 2002 burglary

case. This timely appeal follows.

      Williams’s lone argument on appeal is that the trial court erred and

abused its discretion in denying the motion for recusal. When addressing a

recusal motion we presume that judges of this Commonwealth are

honorable, fair and competent, and, when confronted with a recusal

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demand, have the ability to determine whether they can rule impartially and

without prejudice. See Commonwealth v. White, 734 A.2d 374, 384 (Pa.

1999). Our standard of review for denying a recusal motion is well settled.

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

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (internal

citations omitted).

      Williams makes no reference to any action—nearly three years after

the original indiscretion—that would point to the trial court’s inability to

conduct an impartial sentencing hearing. Rather, Williams seems to contend

that the trial court is biased against her. The question of whether a

particular judge has “a personal bias or interest which would preclude” the

ability to be impartial “is a personal and unreviewable decision that only the

jurist can make.” Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989)

(emphasis in original). Furthermore, the trial court’s self-assessment of

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whether its continued involvement creates an appearance of impropriety

remains unreviewable, absent an abuse of discretion. See Abu-Jamal, 720

A.2d at 89.

      The trial court’s decision to deny the recusal motion was not an abuse

of discretion. After acknowledging the comments made during the 2011

hearing were inappropriate, the trial court transferred the probation

violations in which Judge Fitzgerald originally presided over, an obvious

attempt to diminish any appearance of bias, as it left only the case that the

trial court had originally heard.

      In the alternative, Williams contends that “the lower court deliberately

misapprehended the Superior Court[‘s] holding[,] by which it is bound.”

Appellant’s brief, at 10. Although recusal on remand was not explicitly ruled

out, the panel concluded in Williams that “Judge Wogan did not abuse his

discretion at the time he refused to recuse himself.”       69 A.3d at 750.

Williams simply has not met her burden of showing that the order required

recusal on remand.

      Judgement of sentence affirmed.

      President Judge Gantman joins the memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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