J-A17002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                   Appellant                 :
                                             :
              v.                             :
                                             :
KHALIL MASON                                 :
                                             :
                   Appellee                  :           No. 3127 EDA 2016

            Appeal from the Judgment of Sentence August 29, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000427-2015


BEFORE:     GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED OCTOBER 24, 2017

     Appellant, the Commonwealth of Pennsylvania, appeals from the

reinstated judgment of sentence entered in the Delaware County Court of

Common Pleas, following the denial of the Commonwealth’s post-sentence

motion for recusal. We affirm.

     The relevant facts and procedural history of this case are as follows.

Appellee and two accomplices forcibly entered a home occupied by several

college students and robbed them at gunpoint on October 9, 2014. Police

arrested Appellee a few hours later, in possession of several stolen items.

Appellee    made   a   full confession    to     the   police.    As a result,    the

Commonwealth       charged     Appellee   with     robbery,      aggravated   assault,

burglary,    conspiracy,     and   related       offenses.       Subsequently,    the

Commonwealth offered Appellee a plea deal of 48 to 120 months’
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A17002-17


imprisonment, plus five years’ probation, which he rejected.         Appellee

unsuccessfully litigated a motion to suppress on December 2, 2015, and the

Commonwealth withdrew its plea deal.

      On March 23, 2016, Appellee decided against his scheduled bench trial

and entered an open guilty plea to two counts of robbery, one count each of

aggravated assault, burglary, and resisting arrest, and to three counts of

conspiracy.   During his plea colloquy, Appellee confirmed that no one had

promised him anything in return for his plea and that he had made the

decision to plead guilty after he spoke with his grandmother and defense

counsel.   The court accepted Appellee’s plea, denied the Commonwealth’s

request to proceed immediately to sentencing, and ordered a presentence

investigation (“PSI”) report, a psychiatric and psychological report, a drug

and alcohol evaluation, sentencing memorandums, and a transcript of victim

impact statements for sentencing purposes.

      The court initially sentenced Appellee on May 17, 2016, to an

aggregate term of forty (40) to one hundred twenty (120) months’

imprisonment, followed by a consecutive term of ten (10) years’ probation.

After sentencing, the assigned ADA requested Appellee’s prison phone calls

and listened to a phone call between Appellee and his grandmother that

occurred on May 18, 2016. During this phone call, Appellee allegedly told

his grandmother that on the day of his scheduled bench trial, he spoke with

and negotiated a sentence with the court’s law clerk prior to Appellee’s plea.


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As a result, members of the Criminal Investigation Division (“CID”)

questioned defense counsel on May 26, 2016, about the law clerk’s possible

influence on Appellee’s decision to plead guilty.   Defense counsel told CID

that on the morning of March 23, 2016, he informed the court and the ADA

that Appellee wanted to proceed with the scheduled bench trial against

counsel’s advice. The court offered to arrange for Appellee to meet with his

grandmother and defense counsel to discuss whether to enter a plea.

Defense counsel said he then met with Appellee and his grandmother in a

jury room later that morning, where defense counsel and Appellee’s

grandmother advised him to plead guilty.     Defense counsel acknowledged

the law clerk was present during this meeting but emphasized that the law

clerk did not ever speak to Appellee or mention any type of sentence to

defense counsel and/or Appellee.

      Defense counsel said he also visited Appellee in the courthouse

cellblock that same morning and again advised Appellee to plead guilty. The

law clerk appeared at the cellblock at some point after defense counsel had

arrived. Defense counsel said, “It was an insignificant…event that [the law

clerk] was there [because] he wasn’t participating in the plea negotiations,”

and explained that the law clerk merely asked defense counsel if Appellee

was going to enter a plea. (See Interview of Defense Counsel, 5/26/16, at

7).   Further, defense counsel clarified that the law clerk could not have

negotiated a plea deal with Appellee in the cellblock without counsel’s


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knowledge because the law clerk arrived after defense counsel, and defense

counsel observed Appellee during the entire time the law clerk was present

in the cellblock.

      CID interviewed the law clerk as well on May 26, 2016; he explained

that one of his duties as a law clerk is to move along the process in the

courtroom. The law clerk recalled going to the cellblock on March 23, 2016,

but he denied making any suggestions about a possible sentence to Appellee

if he pled guilty. The law clerk did not remember specifically what he said

that day, but he claimed that he would have directed all comments to

defense counsel.     Next, CID interviewed the court on May 26, 2016; the

judge confirmed that he had instructed the law clerk to go to the cellblock

and learn from defense counsel if Appellee intended to plead guilty.

      On May 27, 2016, the Commonwealth filed a post-sentence motion to

“Vacate Sentence and Plea,” and asked the court to vacate Appellee’s plea

and   sentence,     and   to   reassign   the   case   to   another   judge.   The

Commonwealth improperly filed the motion with the President Judge of the

Delaware County Court of Common Pleas. By order dated June 15, 2016,

the court denied the Commonwealth’s May 27th motion, without prejudice,

and vacated Appellee’s sentence to preserve the parties’ rights. Meanwhile,

defense counsel filed a petition to withdraw representation, which the court

granted on June 7, 2016, after a hearing.              That same date, the court

appointed new counsel for Appellee.


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     Based primarily upon the prison phone call, the Commonwealth filed a

motion for recusal with the court on June 23, 2016, alleging that, on the

morning of Appellee’s scheduled bench trial, the court’s law clerk spoke to

Appellee in the courthouse cellblock, asked Appellee if he thought he could

win at trial when the victims were college students, told Appellee he could

enter an open guilty plea, and told Appellee that the sentence would be

“about like three years.” (See Motion for Recusal, filed 6/23/16, at 2). In

its motion, the    Commonwealth concluded the court’s impartiality in

resentencing Appellee:

        might reasonably be questioned because: (a) the law clerk
        communicated ex parte with Appellee before his plea; (b)
        the law clerk told [Appellee] the approximate minimum
        sentence [the court] would impose; (c) [the court]
        imposed a minimum sentence just four months greater
        than the law clerk’s approximation to [Appellee]; [and] (d)
        neither [the court] nor the law clerk disclosed the
        communications to the Commonwealth.

Id. at 3-4. The Commonwealth supplemented its motion with, inter alia, a

recording of a May 18, 2016 prison phone call between Appellee and his

grandmother, a transcript of their conversation, a transcript of defense

counsel’s May 26, 2016 interview with CID, and a summary of the court’s

and the law clerk’s statements to CID during those respective interviews.

Appellee filed an answer to the recusal motion on July 7, 2016.

     The court held a hearing on the recusal motion on July 20, 2016. At

the hearing, defense counsel said that, on the morning of March 23, 2016,

he had a meeting in a jury room with Appellee and Appellee’s grandmother

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to discuss whether Appellee should plead guilty. Defense counsel believed

Appellee had decided to plead guilty after the meeting. Regarding the law

clerk’s role in the plea discussions that day, defense counsel explained how

the law clerk had helped to arrange the meeting in the jury room and his

presence during the meeting; but the law clerk did not ever speak to

Appellee and/or participate in any of the plea considerations. When asked

about the law clerk’s appearance at the cell block, defense counsel said he

recalled the law clerk came to the cell block merely to inform defense

counsel that the jury room was ready for the meeting. Significantly, defense

counsel emphasized he would not allow anyone to communicate with

Appellee, and the law clerk did not speak with Appellee at the cell block

and/or at any other point before Appellee entered his plea.

      The assigned ADA testified at the hearing that he was upset with

Appellee’s sentence and wanted to do what he could as a prosecutor to get a

tougher sentence imposed.        So, the assigned ADA requested Appellee’s

prison phone calls to see if Appellee “had lied to the Judge or was laughing

about the sentence in any way.”        (N.T. Hearing, 7/20/16, at 45).           The

assigned ADA said he listened to the phone calls and heard Appellee tell his

grandmother that Appellee had negotiated his sentence with the court’s law

clerk. Specifically, the relevant part of the transcript of the call provides:

         [Appellee]:          Yeah, but, ah, this it’s crazy grandma
         I haven’t told you about the one guy that was…talking with
         my lawyers the day of the trial. Like, I guess he work in
         the courtroom; you ain’t never seen him on the side?

                                      -6-
J-A17002-17



       [Grandmother]:       No.

       [Appellee]:        Listen, that─that guy he exactly told
       me what I’m gonna get, ‘cause he like the Judge assistant
       or whatever. The day of trial.

       [Grandmother]:       Mm.

       [Appellee]:            Um, ah, like my lawyer feels all shaky
       about it and he came down he was like, “Yeah, well the
       Judge will be seeing you in a little bit.” And then, um, I
       started talking to him he, like, “Yeah, well listen you think
       you will still win I know you─you side this story is true but
       you think you will win with college students and they side
       the story and all that.”

       [Grandmother]:       Yeah.

       [Appellee]:          So, I asked him about an open plea.
       He’s like, “Yeah you can still do it.” And which I said, “You
       think they gonna give me, like, a two to four one and
       two?” He like nah, …he said, “I say about like three years
       and say you get your time credit.” And he─he was exactly
       right. Like, when the, ah, DA.

       [Grandmother]:       Well.

       [Appellee]:          Said something.

       [Grandmother]:       Yeah─yeah.

       [Appellee]:         The DA said what you want me to do
       he was like you didn’t see him in the corner, he’s like,
       “Nah, you’re not gonna do that just be cool.” You would
       have had to watch him.”

       [Grandmother]:       No, I didn’t, where was he─where was
       he at?

       [Appellee]:          He was on the side, like, in a, sitting
       on a chair.

       [Grandmother]:       Oh, you talking about, like, he was,

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         like, in the jury chair?

         [Appellee]:           Like, over there─over there, yeah.

         [Grandmother]:        Yeah─yeah,─in the jury chair, like.

         [Appellee]:           Yeah─yeah. Sitting like over there.

         [Grandmother]:      Yeah, you know, where when they
         have a jury where they sit at.

         [Appellee]:           Yeah, I know they (unintelligible).

         [Grandmother]:     Because he was in that, he was─he
         was in that room when we was in that room that time.

         [Appellee]:           Yeah, him─him─him that guy.

         [Grandmother]:        Yeah, he seemed like a nice guy
         there.

         [Appellee]:           Yeah,   I    guess   he   be   controlling
         everything.

(See Transcript of Appellee’s Jail Call, 5/18/16, at 5-6; R.R. at 107-108).

The parties stipulated to the authenticity and admissibility of the recording of

the May 18, 2016 jail call and its transcript, which the court allowed into

evidence. (See N.T. at 21; R.R. at 34).

      The trial court stated at the hearing that the assigned ADA appeared

to be picking and choosing parts of this transcript to believe and not believe,

while ignoring that Appellee and his grandmother also said the court did not

quickly decide Appellee’s sentence.        (See id. at 70-72; R.R. at 83-85).

Moreover, the trial court noted Appellee had made numerous inaccurate

statements to his grandmother during their phone call. The assigned ADA


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J-A17002-17


conceded Appellee had made several inaccurate comments and said, “it is

always hard to accept everything that a Defendant is saying.             Now

[Appellee] already admitted in this phone call he lied to [the court] at

sentencing about his drug usage.” (See id. at 70; R.R. at 83). Further, the

assigned ADA acknowledged Appellee had also lied to his grandmother

during the phone call about striking one victim with a bottle. (See id. at 72;

R.R. at 85).

      The trial court denied the Commonwealth’s recusal motion on August

29, 2016, and re-imposed the original judgment of sentence.               The

Commonwealth timely filed a notice of appeal on September 27, 2016. On

October 4, 2016, the court ordered the Commonwealth to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the

Commonwealth timely complied on October 24, 2016.

      The Commonwealth raises the following issue for our review:

         ON THE DAY OF TRIAL, WITHOUT INFORMING THE
         PROSECUTOR, THE TRIAL COURT’S LAW CLERK TOLD
         [APPELLEE] THAT IF HE ENTERED AN OPEN GUILTY PLEA
         THAT DAY THE COURT WOULD IMPOSE A SENTENCE OF
         “ABOUT” THREE YEARS. [APPELLEE] ENTERED THE PLEA
         AND THE COURT IMPOSED THAT SENTENCE. DID THIS
         EVIDENCE    DEMONSTRATE     AN   APPEARANCE    OF
         IMPROPRIETY THAT WARRANTED THE COURT’S RECUSAL?

(Commonwealth’s Brief at 3).

      The Commonwealth argues Appellee’s recorded statements created the

appearance that the trial court had pre-decided Appellee’s sentence, the

judge’s law clerk encouraged a guilty plea to move the case along, and the

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law clerk and the court concealed their intentions and actions from the

Commonwealth. The Commonwealth asserts its evidence demonstrated that

the court instructed his law clerk to go to Appellee’s cell block, where the law

clerk suggested a possible sentence if Appellee would plead guilty.          The

Commonwealth          contends       these     events   occurred   without   the

Commonwealth’s knowledge and fed this appearance of impropriety.             The

Commonwealth also complains the court refused to confront the obvious

appearance of impropriety, which damages the public confidence in the

administration of justice.        The Commonwealth claims the court instead

disregarded the recording of Appellee’s jail call, exonerated itself and the law

clerk, and disparaged the Commonwealth’s motives for challenging the

court’s impartiality.     The Commonwealth further declares the law clerk’s

alleged statements to Appellee violated Rule 590 of the Pennsylvania Rules

of Criminal Procedure.1        For these reasons, the Commonwealth concludes

the trial court abused its discretion, when it declined to remove itself from

resentencing Appellee, and insists this Court should reverse the order

denying the Commonwealth’s motion for recusal, vacate the judgment of

sentence, and remand the case for resentencing.            We disagree with the

____________________________________________


1 The Commonwealth waived its complaint on appeal that the law clerk’s
actions violated Rule 590, because the Commonwealth failed to raise it in its
court-ordered Rule 1925(b) statement. See Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (stating as general rule, issues not raised
in Rule 1925(b) statement will be deemed waived for appellate review).



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Commonwealth’s contentions.

     “Where a jurist rules that he…can hear and dispose of a case fairly and

without prejudice, that decision will not be overturned on appeal but for an

abuse of discretion.”       Commonwealth v. White, 557 Pa. 408, 426, 734

A.2d 374, 384 (1999).

           In reviewing the denial of a recusal motion to determine
           whether the judge abused his discretion, we recognize that
           our judges are honorable, fair and competent. Based on
           this premise, where a judge has refused to recuse himself,
           on appeal, we place the burden on the party requesting
           recusal to establish that the judge abused his discretion.

                                      *     *      *

           The term “discretion” imports the exercise of judgment,
           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 judgment, but
           where the judgment 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. King, 576 Pa. 318, 322-23, 839 A.2d 237, 239-40

(2003) (internal citations and quotation marks omitted).                Our Supreme

Court explained:     “In general, a motion for recusal is properly directed to

and decided by the jurist whose participation the moving party is

challenging.” Id. at 322, 839 A.2d at 239 (internal citations and quotation

marks omitted). “It is the burden of the party requesting recusal to produce

evidence     establishing    bias,   prejudice     or   unfairness,   which   raises   a

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substantial doubt as to the jurist’s ability to preside impartially.”   White,

supra at 426, 734 A.2d at 383-84 (1999).

         The inquiry is not whether a judge was in fact biased
         against the party moving for recusal, but whether, even if
         actual bias or prejudice is lacking, the conduct or
         statement of the court raises an appearance of
         impropriety. The rule is simply that disqualification of a
         judge is mandated whenever a significant minority of the
         lay community could reasonably question the court’s
         impartiality.

Commonwealth v. Druce, 796 A.2d 321, 327 (Pa.Super. 2002), affirmed,

577 Pa. 581, 848 A.2d 104 (2004).

         Further, disqualification motions are not limited to judges
         who preside over trials, but extend to other proceedings,
         including sentencing. Our Supreme Court has explained:

            [T]he largely unfettered sentencing discretion
            afforded a judge is better exercised by one without
            hint of animosity toward appellant…. [A] defendant
            is entitled to sentencing by a judge whose
            impartiality cannot reasonably be questioned.

Id.

         The sentencing decision is of paramount importance in our
         criminal justice system, and must be adjudicated by a fair
         and unbiased judge. This means, a jurist who assess[es]
         the case in an impartial manner, free of personal bias or
         interest in the outcome.      Because of the tremendous
         discretion a judge has when sentencing, a defendant is
         entitled to sentencing by a judge whose impartiality cannot
         reasonably be questioned. A tribunal is either fair or
         unfair. There is no need to find actual prejudice, but
         rather, the appearance of prejudice is sufficient to warrant
         the grant of new proceedings.

Commonwealth v. Rhodes, 990 A.2d 732, 748 (Pa.Super. 2009), appeal

denied, 609 Pa. 688, 14 A.3d 827 (2010) (quoting Druce, supra at 588,

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848 A.2d at 108). “In turn, once the judge decides whether to preside over

the case, that decision is final and the cause must proceed.” King, supra at

322, 839 A.2d at 239.

     Instantly, the Commonwealth had the burden to show the trial court

abused its discretion when it denied the Commonwealth’s motion for recusal.

On October 3, 2016, the court issued findings of fact and conclusions of law

to support its decision. In general, the court rejected the Commonwealth’s

cause of action, finding the only credible evidence came from defense

counsel, “who plainly and unequivocally and without contradiction testified

there was not direct communication as alleged by the Commonwealth.”

(See Findings of Fact/Conclusions of Law, filed 10/3/16, at 9-10).

     Specifically in response to the Commonwealth’s contentions, the trial

court stated:

                                   *     *      *

        I.      Findings of Fact

        4.    The Commonwealth alleged the Trial Judge’s law
        clerk when instructed on the morning of trial to obtain a
        case status report (i.e. plea or trial) from the defendant’s
        lawyer then in the prisoner lock-up area of the court house
        where defense counsel, …, was meeting with his client,
        instead negotiated a plea and sentence directly with the
        inmate defendant, despite the immediate presence of
        defense counsel, a 40 year practitioner and a former
        prosecutor with an unblemished professional record, who
        subsequently flatly, repeatedly and emphatically denied
        any such occurrence whatsoever, including but not limited
        to while so testifying under oath.

        5.      The Commonwealth’s call for the Trial Court’s recusal

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       is premised only upon the assigned [ADA]’s subjective
       interpretation of essentially three (3) lines (of six hundred
       and thirty six (636) lines) in an eavesdropped jail call
       between the 20-year-old defendant and his grandmother
       who raised him, on the day AFTER the defendant was
       sentenced to 40 months to 120 months incarceration with
       an additional ten (10) consecutive years of post-
       incarceration supervision for his role in a home invasion
       burglary victimizing college students in Chester, Delaware
       County, Pennsylvania.

       6.    The record reveals that the [ADA] on his coming to
       the conclusory interpretation of the alleged impropriety did
       not account for the proper context of the recorded
       exchange between the grandmother and the son-like
       grandchild while [the ADA] listened to the jailhouse
       telephone     call  and    was    moreover     extrapolating
       unsupported inference(s) when driven by some vague and
       personal dissatisfaction with the case’s outcome and
       inexperience. [The ADA] assigned his own yet tortured
       interpretation of what he overheard in the transcript which
       this [c]ourt finds completely incredible in light of the
       Commonwealth’s subsequent investigation and record.

       7.    The instant Motion for Recusal is what grew out of
       that which the assigned [ADA] acknowledges is his
       dissatisfaction with the sentence handed down by this
       Judge.

       8.    The result of the exhaustive review of this record has
       yielded the repeated consistent statement from the
       defendant’s attorney, …, then present in lockup on the
       morning of trial when the law clerk was dispatched by the
       Trial Judge to ascertain plea/trial status and whether a
       face to face conference room meeting between the
       defendant and his grandmother arranged by the court
       would be helpful to the defendant in finally deciding to
       plead or proceed to trial, is that there were no such ex
       parte communications between the law clerk and the
       defendant of the kind, nature or substance as averred and
       alleged by the Commonwealth.         The court specifically
       credits [defense counsel’s] testimony and accepts it as
       grounded in firsthand knowledge of the truth and reality.


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       9.    Further, [defense counsel] relatedly testified he
       would neither permit nor tolerate any such conversation
       between a law clerk and his client. Again, this testimony is
       specifically credited and consistent with the realities one
       would expect from a respected, seasoned and experienced
       member of the bar.

                                *     *      *

       11. First, [the assigned ADA] testified in conclusory
       fashion that he listened to a phone call between the
       defendant and his grandmother wherein he characterized
       the defendant as “indicating he negotiated his sentence
       with the Judge’s law clerk.” No such statement, phrase
       and/or conversation exists and such is [the assigned
       ADA]’s interpretive conclusion and not the words of the
       participants in the call and the substance of the actual call.
       Further, the substance of the actual call is so equivocal as
       to meaning and the persons referred to therein that this
       court finds [the assigned ADA]’s extrapolated misshaped
       interpretation to be overreaching, overly strained, too
       tenuous and lacking any reasonable and/or sufficient
       factual predicate foundation to make his interpretation
       probable. Therefore, this [c]ourt expressly rejects his
       testimony regarding the proper interpretation of the jail
       call between the defendant and his grandmother.

       12. On the day of sentencing all counsel met with the
       presiding Judge in the robing room where a sentencing
       conference was conducted and sentencing concerns were
       reviewed prior to going on the record. At that conference,
       the presentence investigation report, psychological,
       psychiatric and drug & alcohol evaluations, memorandums,
       guidelines and victim testimony were all discussed and
       reviewed.    The presiding Judge reiterated the general
       ranges he was considering.

       13. The     record    of   the  defendant’s  sentencing
       proceedings was opened by [the assigned ADA] who
       commenced with a recitation of the charges to which the
       defendant pled guilty to on March 23, 2016. The issue of
       restitution was noted to be addressed in the
       Commonwealth’s sentencing memorandum and the various
       witnesses that would be called in furtherance of the

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       presiding    Judge’s     pronouncement      of  sentence.
       [Defendant’s grandmother] was called to testify on behalf
       of the defendant. … She apologized to the victims. Next,
       the [defendant’s mother] was called who explained that
       financial hardship resulted in the defendant encountering
       different types of pills and explaining that her son had
       made poor choices on the night in question.         Also,
       [defendant’s stepmom] testified. She testified that the
       defendant has a child who needs its father present.
       [Defendant] then testified thanking his family for
       supporting him and apologizing to his victims.

       14. The Commonwealth’s position in this matter is
       untenable where it asks this court to engage in the parsing
       and self-serving cherry picking of statements contained in
       the purported jail call transcript (which remains unsigned
       unverified and uncertified) and would literally have this
       court in certain other salient respects engage in flip-
       flopping and summarily discredit this jail call evidence and
       concomitantly at the same time credit certain portions only
       to    the   extent    such    purportedly     supports     [the
       Commonwealth’s] recusal application while just ignoring
       the uncontradicted and credible testimony of [defense
       counsel] to the contrary.        Stated another way, the
       Commonwealth came to court essentially waving an
       unsigned and unverified jail call transcript and said, Your
       Honor believe what we say this transcript says because WE
       say it, BUT don’t believe the rest of the transcript, as it is a
       lie because WE say so. This court points out that such an
       analytical method or mechanism of analysis for truth is
       neither reasoned nor well grounded.          This method is
       plainly too subjective, pushes logic and is a patently
       uncertain methodology for fair truth determination beyond
       reason and assessing veracity. This Jurist flatly rejects
       and discredits the Commonwealth on this basis.

       15. The Commonwealth cannot meet its burden of
       producing sufficient, credible evidence for this Jurist’s
       recusal by printing a jail call transcript and inventing a
       meaning, and confusingly compound the matter by further
       stating in that in the very same transcript there are
       material portions [the Commonwealth contends] are
       untrue. The record of how the Commonwealth argues to
       substantiate its claim underscores the remoteness of the

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       basis of their claim and the palpable lack of substance and
       tenuousness and meritless nature of its proposition.

       16. Specifically, the Commonwealth without reasoned
       explanation contends the defendant is lying and not being
       truthful and honest in the jail call with his grandmother
       with respect to taking drugs and striking the victim with a
       bottle, but then does a reversal and yet argues the
       defendant is actually not being dishonest and untruthful in
       some parsed statement [the Commonwealth contorts] to
       mean the Judge should recuse himself because his law
       clerk allegedly negotiated the defendant’s plea and
       sentence and/or engaged in some impermissible ex parte
       communication. Mindful of the fact that none of these
       words or phrases utilized by the Commonwealth are
       actually uttered by the defendant in the jail house call or
       even anything closely resembling the same, but are
       instead the contrivances of [the assigned ADA]…. …

       17. This court cannot credit all these inconsistencies in
       the Commonwealth’s case.            [The assigned ADA]’s
       testimony flatly contradicts itself and this Jurist shall not
       assign it any weight or credibility.         If the proper
       interpretation of his “explanation” for his “upsetness” and
       dissatisfaction with the defendant’s sentence was his
       desire to vindicate the victims in some way as is the best
       interpretation of his rambling incohesive explanation, if
       any, such directly contradicts his testimony he knew the
       very day of sentencing where he stood silent and said
       nothing about any “upsetness” or dissatisfaction on
       multiple occasions where he had a clear opportunity to
       place it on the record.

       18. There is, of course, yet another explanation for the
       Commonwealth’s dissatisfaction and [the assigned ADA]’s
       “upsetness” with this Jurist’s sentence contained in the
       record which this [c]ourt finds persuasive. Reference is
       made to the line (N.T. 07/20/16, 37, 14-23) of testimony
       elicited at the July 20, 2016 hearing wherein the
       Commonwealth advocates a “practice” of sorts or
       “expectation” that a defendant should expect to receive a
       harsher (“longer”) sentence upon conviction if the
       defendant rejects the Commonwealth's pre-trial negotiated
       guilty plea offer and/or proceeds to file and go forward

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       with litigating pre-trial issues.          Essentially, the
       Commonwealth acknowledged that it has an expectation
       that if a defendant doesn’t accept and rejects [the
       Commonwealth’s] guilty plea offer, [the defendant] will
       face a more severe sentence from the Judge simply for
       exercising constitutional rights and actively engaging in a
       defense strategy such as filing a pre-trial suppression
       motion as was done in the instant case. This documented
       exchange     clearly   betrays    the   reasons    for  the
       Commonwealth’s dissatisfaction and “upsetness” in this
       matter.

       19. The only credible evidence provided at the recusal
       hearing was from the Commonwealth’s first witness,
       defense counsel, …, who plainly and unequivocally and
       without contradiction testified there was no direct
       communication as alleged by the Commonwealth.

       II.    Conclusions of Law

                                *     *      *

       5.     Against the foregoing facts and precedent, this Jurist
       believes unequivocally no reasonable observer would
       question his impartiality in re-sentencing the defendant in
       this matter. It is noted at the outset that in the immediate
       aftermath of the original sentencing in conference with the
       victims who expressed appreciation and satisfaction with
       sentence imposed. The assistant district attorney who was
       also present and involved in the discussion expressed no
       dissatisfaction with the sentence imposed, as he so
       testified in the instant hearing.

       6.    Further, this is not a situation where the allegation of
       bias or prejudice or partiality against the presiding Judge is
       premised upon a relationship with the defendant or the
       other parties in the case. … The bias, prejudice or
       partiality that is alleged is not of fixed mind to impose a
       maximum sentence. …

       7.    Also, the events immediately after the law clerk went
       to lock up as instructed also demonstrate no appearance of
       impropriety, that is, arrangements were immediately
       undertaken to have the defendant’s grandmother meet

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       with him in a conference room, to which the [assigned]
       ADA admits he was aware.

       8.    The Commonwealth grossly misconstrues, misshapes
       and skews any impact and import and significance of any
       holding cell statements by a law clerk in the obvious
       calculus of this defendant’s decision to enter an open guilty
       plea where the record is clear the defendant labored for
       over a year through three attorneys and numerous listings
       struggling to decide whether to plead or proceed with trial.
       This [c]ourt, experienced practitioners and attorneys who
       have applied any material professional time within our
       criminal justice system and certainly any practitioner who
       has applied their professional time representing criminal
       defendants in these situations knows or has the experience
       to know such fanciful dramatic plot twists, such as an 11th
       hour passing comment by a law clerk in the aisle of the
       holding cell on the morning of trial that supposedly
       completely sways and precipitates the instantaneous
       negotiation of a plea and sentence and total reversal of a
       defendant such as this who resisted pleading for over a
       year as his case languished in the system is nonsensical,
       unrealistic and flatly not grounded in any reality.

       9.     Even if one focuses on the assertion that there was
       some reference to the minimum portion of the defendant’s
       sentence in any even adds no additional merit, legal
       substance or utility whatsoever to the Commonwealth’s
       position in light of the fact that even [the assigned ADA]
       testified that he believed the defendant shall likely serve at
       least seven (7) years in prison in light of the actual
       sentence imposed, of course, with an additional ten (10)
       years of state supervision.

       10. Under all of these circumstances of this case, it is
       clear that the trial court’s impartiality cannot reasonably be
       questioned in re-sentencing and reinstating the original
       sentence of the defendant.

       11. This      Jurist has    thoroughly,    rigorously   and
       exhaustively examined the entire record of this case with
       respect to his own impartiality, bias and/or prejudice. The
       self-assessment has ranged from reviewing this case from
       its inception through the entry and withdrawal of counsel

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J-A17002-17


        for both the Commonwealth and the defendant to pre-trial
        litigation, trial, the open plea and sentencing as well as the
        post-sentence activities in this case. This Jurist’s conduct
        and the conduct of his staff and those for whom he is
        responsible has adhered to strict rules of professionalism
        and has been squarely consistent with this Jurist's conduct
        in presiding over hundreds of cases.              The [c]ourt
        consistently exhibited restraint, patience and collegial
        accommodation of both the Commonwealth and the
        defendant throughout numerous listings and re-listings and
        conferences designed to frame the pertinent case issues
        for the efficient, fair and just disposition of the case under
        consideration of all the material circumstances.

        12. Also, this Jurist concludes under the circumstances of
        this case that there is also no reasonable concern that his
        continued involvement in this case created an appearance
        of impropriety and/or would tend to undermine public
        confidence in the judiciary. In fact, the opposite is true.
        Under this record, which is plainly driven by the
        disappointment of the [assigned ADA], who believed the
        defendant should have received a harsher sentence
        because he litigated a suppression motion, then
        subjectively embellished a tortured interpretation of a jail
        call as a means to remove this Jurist from the case for the
        chance at the desired sentence through another Judge.
        Necessary public confidence in the judiciary demands that
        courts do not succumb to efforts to supplant their inherent
        decision making authority, whether such influences are
        exerted by the Defense or Commonwealth. This Judge
        believes unequivocally that public confidence in the
        Judiciary is best served by a Judge who will not cede his
        sentencing authority to an ingrained or unspoken
        systematic policy where defendants are ipso facto
        expected to receive a harsher sentence merely because
        they exercise their constitutional rights or do so on threat
        of a more severe sentence.

        13. In this case, the Commonwealth failed to meet their
        burden of producing evidence to corroborate their
        allegation that an appearance of impropriety or partiality
        or prejudice occurred in this matter as the record is clear.

(Id. at 1-14) (internal footnotes, citations to record, and testimony chart

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J-A17002-17


omitted).   We agree.     The record contains no evidence to support the

Commonwealth’s allegations of an appearance of impropriety or establish

that the court erred in refusing to recuse itself at Appellee’s re-sentencing.

See King, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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