J-A20031-18


                                2018 PA Super 339

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 GABINO BERNAL                             :
                                           :
                    Appellant              :   No. 1034 WDA 2017

            Appeal from the Judgment of Sentence June 8, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0002976-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

OPINION BY LAZARUS, J.:                          FILED DECEMBER 11, 2018

      Gabino Bernal appeals from his judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, after a jury convicted him of one

count each of unlawful contact with a minor, indecent assault of a person less

than 13, and corruption of minors. Bernal is before this Court for the third

time after we twice remanded his case for resentencing. Bernal challenges

the discretionary aspects of his sentence, as well as the trial court’s denial of

his motion to recuse.      Upon careful review, we vacate the judgment of

sentence and remand for further proceedings.

      The trial judge, the Honorable Donna Jo McDaniel, summarized the facts

of this case as follows:

      [T]he evidence presented established that in the fall of 2003,
      [Bernal] lived with his girlfriend [E.C.], her eight (8)[-]year[-]old
      daughter, [(“the Victim”)] and her 11[-]year[-]old son, [J.], who
      has cerebral palsy and is confined to a wheelchair. It was
      customary for [Bernal] to pick up [the Victim] from school and
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       walk her home when her mother was not able to do so. Sometime
       that [F]all, [the Victim] got in trouble at school, and her teacher
       told [Bernal] when he arrived to pick her up. [Bernal] became
       angry and pulled [the Victim’s] hair during the walk home. Upon
       arriving at their house, [Bernal] took [the Victim] to the bedroom
       he shared with her mother, forcibly undressed her and raped her.
       [The Victim] testified that the rapes occurred numerous times
       over the course of the next several months. [Bernal] threatened
       to hurt [the Victim’s brother], with whom [the Victim] was very
       close, if she told anyone.

Trial Court Opinion, 4/3/14, at 1-2.

       Bernal was charged with rape of a child, as well as the above-named

crimes.    A jury acquitted him of rape of a child and convicted him of the

remaining charges. On November 19, 2013, Judge McDaniel sentenced Bernal

to nine to 18 years’ imprisonment on the charge of unlawful contact with a

minor, with no further penalty on the remaining convictions. Bernal appealed,

raising evidentiary claims as well as a challenge to the legality of his sentence.

This Court affirmed his conviction, but vacated his judgment of sentence and

remanded for resentencing, concluding that the trial court misgraded Bernal’s

conviction of unlawful contact with a minor as a felony of the first degree,

rather than third degree and, resultantly, sentenced him beyond the lawful

maximum. See Commonwealth v. Bernal, 1922 WDA 2013 (Pa. Super.

filed 12/8/14) (unpublished memorandum decision) (“Bernal I”).

       On remand, the trial court held a resentencing hearing and imposed a

statutory-maximum aggregate sentence of 6 to 17 years’ incarceration.1
____________________________________________


1The trial court imposed a sentence of 2 to 7 years’ imprisonment for unlawful
contact with a minor; two to five years’ imprisonment for indecent assault of



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Bernal again appealed, this time asserting that his sentence was manifestly

excessive where the trial court failed to consider his rehabilitative needs, did

not consider the applicable sentencing guidelines, and imposed a sentence

that was not individually tailored to him. Bernal also raised a claim of bias

against the trial court, citing several pending appeals in which Judge McDaniel

imposed consecutive, statutory maximum sentences on sex offenders. Once

again, we vacated Bernal’s judgment of sentence. See Commonwealth v.

Bernal, 138 WDA 2016 (Pa. Super. filed 12/19/16) (“Bernal II”)

(unpublished memorandum decision). In particular, we noted that our review

of the record indicated that Judge McDaniel had been “determined to impose

the maximum sentences permitted by statute, regardless of the guidelines.”

Id. at 10. In addition, we expressed

       our concern regarding the sentencing judge’s failure to
       acknowledge the guidelines, and the imposed sentences’ deviation
       from the guidelines. We further are concerned that before
       imposing consecutive, statutory maximum sentences, the
       sentencing judge failed to request an updated PSI report, and
       failed to acknowledge or consider the rehabilitative needs of
       Bernal, as well as mitigating evidence.

Id. at 16-17.      We concluded that “Bernal’s apparent claim of bias by the

sentencing judge, based upon his lack of individualized sentencing, indicates




____________________________________________


a person less than 13 years of age; and two to five years’ imprisonment for
corruption of minors, all to be served consecutively.



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that on remand, a motion for recusal may be appropriate so that a complete

record may be developed.” Id. at 17 (footnote omitted).2

       Upon remand, Bernal filed a motion for recusal, citing the concerns

noted by this Court in Bernal II with respect to Judge McDaniels’ sentencing

practices as they relate to sexual offenders. The court denied Bernal’s motion

without a hearing by order dated March 8, 2017. A resentencing hearing was

held on June 8, 2017, at which time the court reimposed the same statutory-

maximum sentence.

       On June 15, 2017, Bernal filed a motion to modify sentence, which the

trial court denied, without a hearing, on June 23, 2017. Bernal filed a timely

notice of appeal to this court, followed by a court-ordered concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Bernal

raises the following issues for our review:

       1. Did the trial court err in denying the motion to recuse after the
       Superior Court noted that it had concerns regarding the
       sentencing proceeding in the earlier appeal at [Bernal II]?
       Because of these concerns, was there a real possibility of an
       appearance of bias or prejudice in the June 8 hearing, which
____________________________________________


2The panel acknowledged our Supreme Court’s admonition against this Court,
sua sponte, ordering a judge to recuse herself. See Commonwealth v.
Whitmore, 912 A.2d 827 (Pa. 2006). However, we concluded that:

       [w]e nonetheless would be remiss if we did not express our
       concern for a sex offender’s ability to receive individualized
       sentencing before a sentencing judge, who consistently imposes
       consecutive and/or statutory maximum sentences upon a
       particular class of offenders.

Bernal II, supra at 17 n.9.


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      concerns were justified after the actions taken at the hearing?
      Based upon the remarks made during the sentencing hearing,
      would not a reasonable person question the court’s impartiality
      under the circumstances as there was at least an appearance of
      personal bias or prejudice against [Bernal] and his attorney?

      2. Did the [trial] court abuse its discretion in imposing a
      manifestly excessive sentence which did not comport with the
      dictates of the [S]entencing [C]ode[?] More specifically, is the
      sentence imposed erroneous because it is the maximum
      permissible under the law, on all three counts, running
      consecutively, for a total of 6 to 17 years of imprisonment, despite
      this being far above the aggravated range in the sentencing
      guidelines and [Bernal] having a prior record score of zero?
      Further, the sentencing court sentenced [Bernal] outside of the
      guidelines and the sentence is unreasonable, as the court focused
      upon the seriousness of the offense, damage done to the victim,
      and [Bernal’s] failure to express remorse. Is not a sole focus upon
      retribution improper in sentencing? And finally, was the procedure
      followed at the resentencing hearing wholly improper in that the
      court came to the bench with a previously prepared sentencing
      memorandum, [Bernal] was sentenced before counsel had any
      opportunity to present argument on his behalf, and [Bernal] was
      not given an opportunity to allocute until after the sentencing
      court read its prepared remarks and imposed sentence?

Brief of Appellant, at 7.

      Bernal first asserts that the trial court abused its discretion in denying

his motion for recusal.     He argues that the conduct of the trial judge in this

matter was such that it created “[a]t the very least . . . an appearance of bias

or prejudice[.]”   Brief of Appellant, at 13.     Upon careful review, we are

constrained to agree.

      Our Supreme Court has stated that it presumes that judges of this

Commonwealth are “honorable, fair and competent,” and vests in each jurist

the duty to determine, in the first instance, whether he or she can preside

impartially. Commonwealth v. White, 734 A.2d 374, 384 (Pa. 1999). In


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the context of criminal sentencing, this standard requires that a judge recuse

herself not only when she doubts her own ability to preside impartially, but

whenever she believes her impartiality can be reasonably questioned.

Commonwealth v. Lemanski, 529 A.2d 1085, 1088–89 (Pa. Super. 1987).

Consequently, “a party arguing for recusal need not prove that the judge’s

rulings actually prejudiced him; it is enough to prove that the reasonable

observer might question the judge’s impartiality.”        Reilly by Reilly v.

Southeastern Pennsylvania Transp. Auth., 479 A.2d 973, 991–93 (Pa.

Super. 1984).      “[A] party’s call for recusal need not be based only upon

discreet incidents, but may also assert the cumulative effect of a judge’s

remarks and conduct even though no single act creates an appearance of bias

or impropriety.”    Commonwealth v. Rhodes, 990 A.2d 732, 748-49 (Pa.

Super. 2009).

      The sentencing decision is of paramount importance in our
      criminal justice system, and must be adjudicated by a fair and
      unbiased judge. Commonwealth v. Knighton, [] 415 A.2d 9
      ([Pa.] 1980). This means[] a jurist who “assesses the case in an
      impartial manner, free of personal bias or interest in the
      outcome.” Commonwealth v. Abu-Jamal, [] 720 A.2d 79, 89
      ([Pa.] 1998). 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.”
      Commonwealth v. Darush, [] 459 A.2d 727, 732 ([Pa.] 1983).
      “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.” In Interest of McFall,
      [] 617 A.2d 707, 714 ([Pa.] 1992).

Rhodes, 990 A.2d at 748, quoting Commonwealth v. Druce, 848 A.2d 104,

108 (Pa. 2004) (some quotation marks and brackets omitted).

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      In order to properly address Bernal’s challenge to the trial court’s denial

of his recusal motion, we find it necessary and helpful to begin by summarizing

the relevant facts and circumstances surrounding Bernal’s sentence. At the

time of sentencing, Bernal had a prior record score of zero. He was convicted

of unlawful contact with a minor, carrying an offense gravity score (“OGS”) of

6. As such, the standard-range sentence for that offense was 3 to 12 months,

+/- 6 months. The trial court sentenced Bernal to a term of 2 to 7 years’

imprisonment for this charge, a sentence falling well outside the aggravated

range of the guidelines. Bernal was also convicted of indecent assault of a

person under 13, which has an OGS of 5. Accordingly, the standard-range

sentence for that offense is RS to 9 months, +/- 3 months.           Bernal was

sentenced to 2 to 5 years’ incarceration, which also greatly exceeds the

aggravated range.    Finally, Bernal was convicted of corruption of minors,

carrying an OGS of 4. Thus, a standard-range sentence would have been RS

to 3 months, +/- 3 months. Bernal received a sentence of 2 to 5 years, again

well outside the aggravated range of the guidelines.

      In remanding Bernal’s case for resentencing in Bernal II, we did not

reach the question of whether Bernal’s sentence was actually excessive.

Rather, we concluded that the trial court had had deviated from the norms of

sentencing by failing to:   (1) acknowledge or mention the guidelines; (2)

provide a contemporaneous statement of reasons in support of its sentence

pursuant to 42 Pa.C.S.A. § 9721(b); (3) weigh all relevant information

regarding Bernal’s character, along with mitigating statutory factors; and (4)

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impose an individualized sentence. See Bernal II, supra at 8-17. In light

of these omissions, we suggested that a motion for recusal may be an

appropriate course for Bernal upon remand, “so that a record may be

developed regarding his claim of bias and lack of individualized sentencing.”

Id. at 17. As noted above, Bernal filed such a motion and it was summarily

denied, thus depriving this Court of the opportunity to review a fully-

developed record.

       Having declined to recuse itself, the court proceeded to resentencing on

June 8, 2017. At that hearing, Bernal presented the testimony of his wife, his

cousin-in-law, and a family friend.            The Commonwealth presented the

testimony of the victim’s stepmother. Following that testimony, and without

providing an opportunity for Bernal to allocute or for defense counsel to

present argument on Bernal’s behalf, Judge McDaniel turned to a prepared

written statement.      The statement began with a detailed defense of Judge

McDaniel’s own sentencing practices concerning sexual offenders, noting that

she had “conducted a complete statistical analysis of [her] sentences from

2012 to the present,” and concluded that her statistics with regard to sex

offense cases “are comparable to the sentencing statistics of other judges in

this division.”3    N.T. Resentencing, 6/8/17, at 19.     The court then briefly

____________________________________________


3 Judge McDaniel did not indicate that she had also undertaken a complete
statistical analysis of the sentences imposed by the “other judges in this
division.” Accordingly, it is unclear how she was able to reach the conclusion
that her sentencing statistics were “comparable” to theirs.



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addressed the statutory factors and, thereafter, proceeded to reimpose the

sentence vacated by this Court in Bernal II.

        Subsequently, in her Rule 1925(a) opinion, Judge McDaniel took direct

aim at defense counsel,4 criticizing her for her zealous advocacy on behalf of

her client in pursuing what have now become three meritorious appeals to this

Court:

        It is apparent, from a review of the [c]oncise [s]tatement and her
        demeanor at the resentencing hearing, that defense counsel is
        completely unwilling to accept any decision made by this [c]ourt,
        whether a legal sentence or a discretionary ruling on a recusal
        motion. Much as she accuses this [c]ourt of pre-judging [Bernal],
        counsel herself is pre-judging this [c]ourt. This [c]ourt is certain
        that no matter what sentence had been imposed, counsel would
        have claimed error and accused this [c]ourt of bias and prejudice.

        Neither [sic] have [Bernal] or counsel presented any actual
        evidence that this [c]ourt is biased or prejudiced. Counsel’s
        feeling that this [c]ourt imposes harsher sentences in sex cases,
        made after a review of her caseload and discussions with
        colleagues, is not evidence of anything except counsel’s
        inadequate research. As this [c]ourt stated at sentencing, it
        conducted a complete statistical analysis of its sentences from
        2012 to when the recusal motion was filed . . . and found that
        . . . [90%] were within or below the sentencing guideline ranges.
        With particular regard to sex offense cases, . . . [77%] of this
        [c]ourt’s sex offense sentences were within or below the
        sentencing guideline ranges. These statistics are comparable to
        the sentencing statistics of other judges in this division and
        certainly not reflective of the “blanket policy” counsel now claims.

        This [c]ourt also finds defense counsel’s [c]oncise [s]tatement
        criticism of this [c]ourt’s citation to the above statistics as both
        laughably ironic and more than slightly hypocritical. Counsel
        apparently has no problem representing to the Superior Court in
        her appellate brief that this [c]ourt is biased and prejudiced based
        on a review of her own caseload and her conversations with
____________________________________________


4   Bernal is represented by the Allegheny County Public Defender’s Office.

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       colleagues, yet has the temerity to challenge this [c]ourt’s
       methodology when it cites statistics to disprove her claims.

Trial Court Opinion, 12/6/17, at 9-10.

       Our review of the full record in this matter leads us to the conclusion

that Judge McDaniel’s recusal from this matter is warranted, as a reasonable

observer might question her impartiality and, consequently, her ability to

impose an individualized sentence upon Bernal. See Reilly, supra. We note

with particular concern the fact that Judge McDaniel went into Bernal’s

resentencing hearing with a prepared written statement. Doing so had the

unavoidable effect of signaling that she had made up her mind prior to the

hearing and without the benefit of witness testimony, allocution by Bernal, or

argument from counsel.          A reasonable observer could conclude that this

statement was prepared not with the purpose of aiding in the imposition of a

fair and appropriate sentence upon Bernal, but rather in an effort to defend

the court’s own sentencing record and to create the appearance of compliance

with the fundamental norms of sentencing, as well as the directives of this

Court in Bernal II.          That the court commenced reading its prepared

statement, and indeed imposed sentence, without first providing an

opportunity for either Bernal or his counsel to speak as required under the

Rules of Criminal Procedure, raises further questions regarding potential bias

and lack of impartiality.5        See Pa.R.Crim.P. 708(D)(1) (“At the time of

____________________________________________


5  In her Rule 1925(b) opinion, Judge McDaniel devotes two pages to
attempting to justify her failure to allow Bernal an opportunity to allocute prior



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sentencing, the judge shall afford the defendant the opportunity to make a

statement in his or her behalf and shall afford counsel for both parties the

opportunity to present information and argument relative to sentencing.”)

(emphasis added). The fact that the court subsequently, after defense counsel

objected, provided Bernal and his counsel an opportunity to address the court

does little to alter the appearance of bias created by her prior haste to impose

sentence.

       We by no means seek to diminish the significance of Bernal’s offenses

or their impact upon his victim, to whom he stood in a position of trust.

Nevertheless, like all criminal defendants, Bernal is entitled to the due process

protections afforded by the constitution, including the right to a fair and

impartial tribunal.      A defendant’s due process rights are violated when

circumstances “g[i]ve rise to an unacceptable risk of actual bias.” Williams

v. Pennsylvania, 136 S. Ct. 1899, 1908 (2016). Here, when viewed through

the prism of the court’s conduct over the pendency of this matter, the

repeated imposition of above-guidelines, statutory-maximum, consecutive

sentences upon Bernal, a first-time offender with a prior record score of zero,

casts ample doubt on Judge McDaniel’s ability to remain impartial and to

impose upon Bernal an individualized sentence tailored to him and the facts

of his case.

____________________________________________


to the imposition of sentence, blaming defense counsel for indicating she had
“no additional witnesses.” We find the court’s explanation to be disingenuous,
self-serving, and unpersuasive.

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      Indeed, this is not the first time Judge McDaniel’s impartiality has been

called into question under similar circumstances.    Recently, this Court had

occasion to review another sentence imposed upon a sex offender—also

represented by the Public Defender’s Office—by this same jurist. The facts of

that case, Commonwealth v. McCauley, 613 WDA 2017, __ A.3d __ (Pa.

Super. 2018), are strikingly similar to those in the instant matter. There, the

defendant was convicted of nine sexual offenses against a child victim and

Judge McDaniel imposed an aggregate term of 20 to 40 years’ incarceration.

On direct appeal, we affirmed the conviction, but vacated the judgment of

sentence because the record was unclear as to whether the trial court had

imposed a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9718. If

such a sentence had, in fact, been imposed, vacatur was required under

Alleyne v. United States, 570 U.S. 99 (2013).         Thus, we remanded for

further proceedings, instructing the court to resentence if section 9718 had

been applied or, if not, to reimpose the original sentence. On remand, the

court clarified that it had not applied section 9718. Nevertheless, the court

did not, as specifically directed, reimpose the original sentence. Rather, the

court imposed the original sentence, less two days.      McCauley filed post-

sentence motions, as well as a motion for recusal, challenging Judge

McDaniel’s impartiality in sentencing sex offenders. As in this case, the court

denied both motions without a hearing.

      On appeal, McCauley challenged the trial court’s denial of his recusal

motion, asserting that the totality of the circumstances demonstrated an

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appearance of prejudice on the part of Judge McDaniel against sex offenders,

and arguing that her impartiality could reasonably be called into question. In

support of his claim, McCauley cited to two unpublished memorandum

decisions of this Court, Commonwealth v. A.S., 1366 WDA 2015 (Pa. Super.

filed Jan. 9, 2017), and Bernal II, both of which included language critical of

Judge McDaniel’s sentencing practices.        McCauley also asserted that Judge

McDaniel’s Rule 1925(a) opinion demonstrated “personal animus” toward

defense counsel.

      After reviewing the record, this Court agreed that there was substantial

evidence that Judge McDaniel demonstrated bias and personal animus against

McCauley’s counsel and the Public Defender’s Office “to such an extent that it

‘raises a substantial doubt as to the jurist’s ability to preside impartially.’”

McCauley, supra at 6. The Court also expressed concern regarding: (1) the

abbreviated nature of McCauley’s sentencing hearing; (2) the court’s failure

to order an updated PSI or provide a reason for dispensing with a PSI; (3) the

court’s failure to provide McCauley an opportunity to allocute or allow counsel

to present argument; (4) the court’s failure to place reasons for the sentence

on the record; and (5) the court’s failure to recognize or cite the guidelines or

consider McCauley’s rehabilitative needs or mitigating evidence.             We

concluded that,

      [b]ecause [Judge McDaniel] continually refuses to follow
      mandates from [the] Superior Court that require a sentencing
      hearing that meets statutory and constitutional requirements,
      [the] Superior Court has had to remand several cases multiple
      times. This has resulted in an extensive deployment of judicial

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       resources to review, analyze, and rectify the court’s deficient
       sentencing hearings. We must now provide a substantial remedy.

Id. at 12.

       Similarly, in the matter sub judice, Judge McDaniel chastised defense

counsel, both on the record at resentencing and in her Rule 1925(a) opinion,

for simply doing her job and vigorously representing her client.       See N.T.

Resentencing, 6/8/17, at 18-21; Trial Court Opinion, 12/6/17, at 9-11.6 Such

criticism by a jurist is untenable in our adversarial system of justice, in which

defense counsel has an obligation to represent her client zealously within the

bounds of the law.

       In light of the court’s conduct during the pendency of the instant matter,

and in view of what, in fact, appears to be a pattern of conduct involving both

the sentencing of sexual offenders and animus directed towards defense

counsel and the Public Defender’s Office, we are compelled to conclude, as the

Court did in McCauley, that a “substantial remedy” is necessary to ensure

that Bernal is sentenced in accordance with both the constitution and the

sentencing practices required under Pennsylvania law. Accordingly, we find

that Judge McDaniel abused her discretion in denying Bernal’s motion for

recusal. Thus, we vacate Bernal’s judgment of sentence and remand to the


____________________________________________


6 Judge McDaniel also accused defense counsel of making “efforts to involve
the local media” to “air . . . grievances” with the court. See Trial Court
Opinion, 12/6/17, at 10-11. Counsel denies having informed the media or
spoken on the record about Bernal’s case. See Brief of Appellant, at 23 n.4.




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President Judge of the Court of Common Pleas of Allegheny County for the

reassignment of this case to a new judge for purposes of resentencing in

accordance with the dictates of our memorandum in Bernal II.7

       Judgment of sentence vacated.               Case remanded.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2018




____________________________________________


7 Because we determine that Judge McDaniel should have recused herself prior
to imposing sentence and vacate the judgment of sentence for that reason,
we need not address the merits of Bernal’s claim regarding the discretionary
aspects of his sentence, as they are moot.

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