J-M08001-19

                                  2019 PA Super 307

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    SITA DIP,

                             Appellee                   No. 1054 EDA 2019


                    Appeal from the Order Entered April 12, 2019
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0006971-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

OPINION BY BENDER, P.J.E.:                            FILED OCTOBER 16, 2019

        In this interlocutory appeal, the Commonwealth contends that the trial

court abused its discretion by denying its “Motion to Disqualify Judge Scott

DiClaudio.”1 The Commonwealth alleges that Judge DiClaudio’s relationship

to his domestic partner (“DP”), a former employee of the Office of the District

Attorney of Philadelphia, presents an appearance of impropriety due to DP’s

filing of a charge of racial discrimination against the district attorney’s office

following her dismissal. After careful review, we affirm.

        The facts concerning the criminal case against Sita Dip, Appellee, are

not germane to the disposition of this appeal. Indeed, “Appellee takes no

position in this matter.” Appellee’s Brief at 5. Instead, the unique facts and

allegations before us concern only the dispute that has arisen between the

district attorney’s office and Judge DiClaudio.

____________________________________________


1   See Motion to Disqualify Judge Scott DiClaudio, 4/11/19 (“Recusal Motion”).
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       In 2015, Judge DiClaudio was elected to the First Judicial District of

Pennsylvania, otherwise known as the Court of Common Pleas of Philadelphia

County. From January of 2016 until the present day, he has served in the

Criminal Division of the First Judicial District in various capacities. Trial Court

Opinion (TCO), 8/12/19, at 2. “At the time he began his term, he had already

been in a long[-]term relationship with [DP], who had been employed as an

Assistant District Attorney in Philadelphia County since 2013.” Id.

       “Mr. Larry Krasner began his term as the Philadelphia District Attorney

in January [of] 2018.        [DP] worked … for approximately fourteen months

under [District Attorney] Krasner.”            Id.   DP never appeared before Judge

DiClaudio before or during Mr. Krasner’s tenure as District Attorney, and prior

to the instant matter, no party had ever sought Judge DiClaudio’s recusal due

to his relationship with DP. Id. at 6.

       On February 9, 2019, DP left the district attorney’s office. Id. at 2.

Soon thereafter, she “filed a confidential [charge] with the Equal Employment

Opportunity Commission …, alleging that she had been forced to leave on the

basis of racial discrimination.” Id.2 Two months later, on April 11, 2019, the
____________________________________________


2 In the Recusal Motion, the district attorney alleged that DP filed the charge
with the Pennsylvania Human Relations Commission. Recusal Motion at 2 ¶
4. The Commonwealth never attempted to enter the charge into the record—
a common theme in this case—and, thus, we cannot resolve this factual
discrepancy; however, this inconsistency is not pertinent to our disposition of
this matter. It is enough that we know that DP has filed a charge of racial
discrimination with a government agency.




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district attorney filed the Recusal Motion in the above-captioned case. Until

then, “[t]he [charge of racial discrimination] had remained confidential and

unknown to the public at large[.]” Id. at 2.

       Judge DiClaudio addressed the issues raised in the Recusal Motion

during hearings held on April 9, 10, and 12 of 2019.3 At the April 9th hearing,

the Commonwealth initially “explained that its [recusal] motion[s] w[ere]

based on the appearance of partiality caused by [DP]’s [charge of racial

discrimination], and not any specific partial or biased act.” Commonwealth’s

Brief at 7.4        Nevertheless, in support of the recusal motions, the

Commonwealth alleged that Judge DiClaudio had engaged in several improper

ex parte communications with employees of the district attorney’s office

before and after DP’s allegation.5             See N.T., 4/9/19, at 6-7.   The
____________________________________________


3 Although the at-issue Recusal Motion was not filed until April 11, 2019, that
was not the Commonwealth’s first attempt to seek Judge DiClaudio’s
disqualification based on the charge of racial discrimination; the
Commonwealth began seeking Judge DiClaudio’s recusal a few days earlier in
all “cases in which [the district attorney’s office] represented the
Commonwealth.” Commonwealth’s Brief at 6.

4 As the trial court’s opinion does not provide a detailed accounting of what
transpired during these hearings, we rely on the Commonwealth’s summary
of the facts where they appear to be uncontested for ease of disposition.

5 The Commonwealth alleged that during DP’s employment at the district
attorney’s office, “Judge DiClaudio personally communicated with multiple
supervisors at [the district attorney’s office].” Recusal Motion at 2 n.1. “In
some of those communications, he urged that [DP] be promoted to a
supervisory position in the [o]ffice’s Juvenile Unit.” Id. Futhermore, the
Commonwealth claimed that after receiving the Commonwealth’s initial
recusal motions, “Judge DiClaudio engaged (or attempted to engage) in ex



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Commonwealth asked Judge DiClaudio to order an evidentiary hearing before

a different judge to address the factual allegations it had made concerning

those communications. Id. at 7, 9, 12, 14-15. “By the end of the hearing,

Judge DiClaudio had acknowledged the existence of [DP]’s race discrimination

[charge] against the [district attorney’s office], and appeared to admit the

existence of his conversations with members of [the district attorney’s office]

about her employment months earlier, as well as his ex parte communications

about the [recusal] motions the day before.         He continued, however, to

challenge the content of [those] conversations.” Commonwealth’s Brief at 7.

Judge DiClaudio held the recusal motion(s) under advisement at the end of

the April 9, 2019 hearing.

       Meanwhile, the Commonwealth filed recusal motions in all of its cases

before Judge DiClaudio. On April 10, 2019, the Commonwealth continued to

argue for Judge DiClaudio’s recusal in the cases scheduled for that day. During

those arguments, Judge DiClaudio noted several unrelated situations where

he believed the district attorney’s office had demonstrated an appearance of

impropriety.     “These examples were somehow meant to show why Judge

DiClaudio should not” recuse himself from cases involving the district attorney.

Id. at 9. “Ultimately, Judge DiClaudio denied the Commonwealth’s” recusal

motions. Id.
____________________________________________


parte communications with a number of lawyers from the Office, including
with a supervisor to whom Judge DiClaudio stated, inter alia, that if the
[district attorney’s o]ffice continued to seek the [c]ourt’s recusal, things would
get ‘ugly’ and District Attorney Krasner could end up in jail.” Id. at 3 n.2.

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     “The Commonwealth also filed [recusal] motions [before] Judge

DiClaudio in four cases scheduled before him on April 12, 2019. [Appellee]’s

case was one of them….” Id. “Judge DiClaudio asked [Appellee] whether he

thought he could be fair, and [Appellee] responded that he did.” Id. at 10.

Ultimately, Judge DiClaudio denied the Recusal Motion in Appellee’s case.

Thereafter,

     [t]he Commonwealth immediately asked Judge DiClaudio to
     certify his ruling for interlocutory appeal, and presented him with
     a motion. When Judge DiClaudio refused even to consider it, the
     Commonwealth promptly filed a notice of appeal and asked the
     court not to proceed in the case. Judge DiClaudio denied the
     Commonwealth’s request and prepared to proceed to trial.

     But the case could not be tried that day because the police witness
     was unavailable in the afternoon, and it had to be continued until
     the next week. Despite the Commonwealth’s appeal, Judge
     DiClaudio continued to list the case for trial. The Commonwealth
     filed its motion to certify the court’s ruling for interlocutory appeal
     that same day, and the court denied it the following week. The
     Commonwealth also moved to stay the trial, but the court took no
     action on that motion. The Commonwealth was finally able to stay
     [Appellee]’s trial by filing an emergency motion with this Court,
     which this Court granted.

     The trial court issued a Pa.R.A.P. 1925(b) order, and the
     Commonwealth filed a statement of matters complained of on
     appeal.

Id. at 10-11.

     The trial court issued its Rule 1925(a) opinion on August 12, 2019. The

Commonwealth now presents the following questions for our review:

       I.     After she was not promoted to a supervisory position and
              her employment with the Philadelphia District Attorney’s
              Office ended, the trial court’s domestic partner filed a
              complaint against the [o]ffice, which alleged that [it]
              discriminated against her because she is white. The [district

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J-M08001-19


            attorney’s office] represents the Commonwealth of
            Pennsylvania in this case. Did the trial court abuse its
            discretion and err as a matter of law by refusing to disqualify
            itself where the Commonwealth is a party in this case?

      II.   To the extent the trial court disputes the Commonwealth’s
            factual claims, and those facts are necessary to the
            resolution of this case, did the trial court abuse its discretion
            by refusing to refer issues of disputed fact to another judge
            when the court had personal knowledge of those facts?

Commonwealth’s Brief at 4.

      “The standards for recusal are well established. 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.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998).

      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.

Id. (internal citations omitted).

      The Code of Judicial Conduct dictates that a “judge shall uphold and

apply the law, and shall perform all duties of judicial office fairly and

impartially.” Pa. Code of Judicial Conduct, Canon 2.2 (emphasis added).

‘Impartiality’ is a concept more often invoked in principle than defined with

particularity. John Stuart Mill described the term “as an obligation of justice”


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that requires the state of “being exclusively influenced by the considerations

which it is supposed ought to influence the particular case in hand; and

resisting the solicitation of any motives which prompt to conduct different from

what those considerations would dictate.” JOHN STUART MILL, UTILITARIANISM

45 (Batoche Books 2011) (1863).6 Thus, impartiality is not the absence of

influences external to the matter at hand; judges exist in the real world, not

behind a veil of ideals. Instead, as Mill suggests, a jurist achieves impartiality

by successfully resisting the unavoidable presence of external influences that

might affect him or her. As our Judicial Code dictates, “[a] judge shall not

permit family, social, political, financial, or other interests or relationships to

influence the judge’s judicial conduct or judgment.”         Pa. Code of Judicial

Conduct, Cannon 2.4(A) (emphasis added). Thus, we assume that a jurist will

possess interests and relationships that might conceivably influence their

judgment but, in the normal course of events, the mere presence of an

interest or relationship that could theoretically affect a judicial decision does

not create a presumption of partiality.

        Rather, “[r]ecusal is required wherever there is substantial doubt as

to the jurist’s ability to preside impartially.”   In the Interest of McFall, 617

A.2d 707, 713 (Pa. 1992) (emphasis added). “A jurist’s impartiality is called

into question whenever there are factors or circumstances that may

reasonably question the jurist’s impartiality in the matter.” Id. Thus, “[i]n

____________________________________________


6   https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/utilitarianism.pdf.

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J-M08001-19



order for the integrity of the judiciary to be compromised, we have held that

a judge’s behavior is not required to rise to a level of actual prejudice, but the

appearance of impropriety is sufficient.”     Id. at 712.    In this regard, the

appearance of impropriety sufficient to disqualify a judge exists when “a

significant minority of the lay community could reasonably question the court’s

impartiality.” Commonwealth v. Bryant, 476 A.2d 422, 426 (Pa. Super.

1984) (quoting Commonwealth v. Darush, 459 A.2d 727, 732 (Pa. 1983)).

      Here, Judge DiClaudio expressed his confidence in his ability to

impartially judge cases involving the district attorney’s office. TCO at 3 (“[DP]

did not communicate anything to this [c]ourt about the substance of her claim

and this court would refuse to hear any such information, precisely because it

takes its impartiality so seriously.”). He also ruled that his relationship to DP

does not create an appearance of impropriety because:

      In this case, the mere fact [that DP] filed [the charge of racial
      discrimination] would not create a perception in a reasonable
      person’s mind that this [c]ourt violated the Rules of Judicial
      Conduct or engaged in conduct that reflects adversely on the
      Judge’s honesty, impartiality, temperament[,] or fitness to serve
      as Judge. This [c]ourt has never made any comments regarding
      the potential success or failure of [DP]’s claim and a reasonable
      person observing this [c]ourt[] would see that all litigants are
      treated fairly and respectfully. The [d]istrict [a]ttorney’s [o]ffice
      simply has no basis to conclude that the reasonable person would
      have any view other than seeing this [c]ourt for what it is, an
      impartial and fair jurist.

Id. at 4.

      For ease of disposition, we first address the Commonwealth’s second

claim. The Commonwealth argues that we should consider the Recusal Motion


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filed in response to DP’s charge of racial discrimination in light of further

allegations it makes regarding Judge DiClaudio’s conduct. However, in the

three hearings held by Judge DiClaudio concerning the Commonwealth’s

recusal motions in this and other cases, the Commonwealth refused to present

any    witnesses     before    the    court    concerning   the   alleged   ex   parte

communications the judge had with members of the district attorney’s office,

despite Judge DiClaudio’s repeated attempts to hear such evidence. See N.T.,

4/9/19, at 9; N.T., 4/10/19, at 6, 10-11; N.T., 4/12/19, at 10.7 Nevertheless,

the Commonwealth maintains that “[h]ad he held an evidentiary hearing,

Judge DiClaudio would have been required to evaluate his own credibility

against that of any potential witness. Under such circumstances, a different

judge must conduct the evidentiary hearing.” Commonwealth’s Brief at 24.




____________________________________________


7 For example, during the April 12, 2019 hearing, the following exchange
between Judge DiClaudio and Assistant District Attorney Paul George
occurred:

       THE COURT: Do you have any evidence to present today, at all?
       MR. GEORGE: No. For the –-
       THE COURT: Any witnesses you wish to call at all?
       MR. GEORGE: For the reasons previously stated –-
       THE COURT: Yes or no?
       MR. GEORGE: -- I do not.
       THE COURT: Do you have anybody who will go under oath and
       make these allegations?
       MR. GEORGE: Not before this [c]ourt as fact-finder because of the
       unique situation.

N.T., 4/12/19, at 10.

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      It is true that “no man can be a judge in his own case and no man is

permitted to try cases where he has an interest in the outcome.”            In Re

Murchison, 349 U.S. 133, 136 (1955).             However, recusal motions are

routinely addressed in the first instance by the judge whose recusal is sought.

Abu-Jamal, 720 A.2d at 89 (“As a general rule, a motion for recusal is initially

directed to and decided by the jurist whose impartiality is being challenged.”).

Therefore, it cannot be the case that any question of fact even remotely

involving a judge’s impartiality requires a separate hearing before a separate

judge. Instead, the general rule is that a party seeking the recusal of a judge,

at a minimum, must satisfy a burden of production and persuasion to show

that the recusal claim is not frivolous. This may require the presentation of

witnesses or evidence before the judge whose recusal is sought.

      There are times when a judge must refer a recusal motion to another

judge. For instance, in Mun. Publications, Inc. v. Ct. of Com. Pleas of

Philadelphia     County,    489    A.2d       1286,   1287     (Pa.   1985),   the

appellees/defendants filed a motion seeking recusal of the trial court judge,

the Honorable Bernard Snyder, based on the allegation that Judge Snyder was

biased in favor of the appellant’s/plaintiff’s counsel.      Judge Snyder initially

referred the recusal matter to another judge, but then vacated that order and

scheduled a recusal hearing before himself. Id. Judge Snyder held recusal

hearings over the course of several weeks. During those hearings, he “gave

testimony during the proceedings over which he presided.” Id. Ultimately,

he denied the recusal motion.

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     Addressing the matter on appeal, our Supreme Court stated:

     At this stage we emphasize that we are not deciding whether [the
     judge] should be disqualified from presiding over the underlying
     libel action. We are concerned only with whether he may properly
     take evidence and rule on the motion for his recusal under the
     unique circumstances presented by this matter. The allegations
     on which the recusal motion was based focused upon a purported
     personal relationship between Judge Snyder and counsel for
     plaintiff Edgehill in the libel suit, and specifically upon alleged ex
     parte discussions between them in chambers concerning the case,
     including the recusal motion. Taken as a whole those allegations,
     if true, would require Judge Snyder’s disqualification from the libel
     action and necessitate a new trial.

                                       …
     The crucial aspect of the disqualification proceedings is the fact
     that Judge Snyder actually permitted himself to be called as a
     witness and decided to give testimony concerning his own
     conduct. Thus he not only had personal knowledge of disputed
     facts but was in a position to rule on objections to his own
     testimony and to assess his own credibility in light of conflicting
     evidence. Under such extraordinary circumstances, it was clearly
     inappropriate for Judge Snyder to preside over the recusal
     hearing.

Id. at 1289. Thus, our Supreme Court concluded that Judge Snyder “must be

disqualified from deciding the recusal motion.” Id. at 1290.

     However, our Supreme Court warned:

     This does not mean that we will permit a party who is dissatisfied
     with the progress of the trial mid-stream to arbitrarily attempt to
     cause the disqualification of the presiding judge. Judge shopping
     has been universally condemned, and will not be tolerated at any
     stage of the proceedings. Thus, where fabricated, frivolous or
     scurrilous charges are raised against the presiding judge during
     the course of the proceeding, the court may summarily dismiss
     those objections without hearing where the judge is satisfied that
     the complaint is wholly without foundation. In such case the
     complaining party may assign the accusation as a basis for post-
     trial relief and, if necessary, a record can be developed at that


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      stage and in that context. Where, as here, a judge concludes that
      the allegations justify an evidentiary hearing in which he will
      testify, it then becomes incumbent upon that judge to step aside
      for the appointment of another judge to hear and rule upon the
      issue of disqualification.

Id. at 1289–90 (citations omitted; emphasis added).

      The instant matter is easily distinguishable from Mun. Publications,

Inc. Although the Commonwealth is correct in stating that Judge DiClaudio

expressed disagreement with the Commonwealth regarding the nature of his

conversations with members of the district attorney’s office, he did not do so

in his capacity as a witness at an evidentiary hearing, nor was he making a

credibility determination. Had Judge DiClaudio held a hearing during which

he testified before himself, or had he assessed the credibility of other

witnesses based on his own recollection of events, this matter would fall

squarely within the rule set forth in Mun. Publications, Inc. However, no

such events occurred below. Instead, the Commonwealth flatly refused to

present any witnesses before the trial court, ostensibly based on the theory

that Judge DiClaudio would have acted in a similar manner to Judge Snyder

in Mun. Publications, Inc. However, this Court cannot entertain any such

conjecture, as we are instead compelled to assume “that our judges are

honorable, fair and competent” until they demonstrate otherwise.          Abu-

Jamal, 720 A.2d at 89.

      We must assume, therefore, that Judge DiClaudio could have received

the potential witnesses’ testimony to make a threshold determination of

whether the allegations made in the Commonwealth’s motions and arguments


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were “wholly without foundation.”       Mun. Publications, Inc., 489 A.2d at

1290.    A judge may then dismiss a recusal motion based on “fabricated,

frivolous or scurrilous charges” Id.

        Instantly, if the Commonwealth’s witnesses had failed to testify in

accordance with the Commonwealth’s allegations, then Judge DiClaudio could

have     disregarded   those   allegations      without   making   any   credibility

determinations at all.    Indeed, because the Commonwealth continues to

maintain that any actual bias on the part of Judge DiClaudio is not at issue,

the actual truthfulness of those allegations are less relevant than the

appearance of the allegations, assuming the accusations are not patently

frivolous and/or without foundation.

        However, the Commonwealth failed to place on the record any evidence

for the claims regarding Judge DiClaudio’s ex parte communications with

employees from the district attorney’s office, depriving Judge DiClaudio of the

ability to make a threshold determination whether those allegations were

frivolous. While Judge DiClaudio was not entitled to evaluate the credibility of

those potential witnesses against his own memory or his own testimony, he

was entitled to determine if the allegations had some testimonial or

evidentiary foundation, or whether they had been fabricated or embellished

by the arguments of counsel.       If given the opportunity to make such a

threshold determination, Judge DiClaudio could have decided whether to

recuse, or, alternatively, whether to refer the matter to another judge for a

credibility assessment.   Accordingly, because the Commonwealth failed to

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present evidence supporting the troubling claims it made regarding Judge

DiClaudio’s ex parte communications with the members of the district

attorney’s office, we conclude that the trial court did not err when it refused

to order an evidentiary hearing before another judge.

        Consequently, as we turn to assess the Commonwealth’s first claim, we

consider only the existence of the charge of racial discrimination itself, and

the admissions of Judge DiClaudio on the record. That claim asserts that the

charge of racial discrimination, alone—which is not contained in the record but

whose existence was acknowledged by Judge DiClaudio—is a sufficient basis

for this Court to conclude that the court abused its discretion by failing to

recuse based on an appearance of impropriety. The relevant legal standard

before Judge DiClaudio was whether a significant minority of the lay

community could reasonably question the judge’s impartiality in Appellee’s

case given his relationship to DP.8 Bryant, 476 A.2d at 426.

        It is undisputed that the charge of racial discrimination does not directly

involve Judge DiClaudio.        Judge DiClaudio is not a party to any litigation

against the district attorney’s office, nor has the Commonwealth alleged that

he would be a potential witness in any such action.                  Rather, the

Commonwealth alleges that “[w]hen a close family member, such as a

domestic partner, files a [charge of racial discrimination] against counsel for

a party appearing before a judge, that judge should grant a disqualification

____________________________________________


8   Hereinafter, the “Significant Minority” standard.

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motion because a significant minority of the lay community could reasonably

question the judge’s impartiality.” Commonwealth’s Brief at 12.

      When assessing the trial court’s application of the Significant Minority

standard, we cannot poll the lay community, nor is it clear, even if we could

conduct such a poll, how we would quantify what percentage of the lay public

constitutes a significant minority thereof.   By invoking the lay community

rather than the public at large, we assume that the standard dictates that the

lower court exclude professional legal opinions on the matter, opinions which

might theoretically place more faith in the impartiality of the judiciary than

the average layperson.     Thus, granting that assumption, the Significant

Minority standard sets the bar for establishing an appearance of impropriety

quite low.

      Regardless of the uncertainties involved in applying the Significant

Minority standard, this Court’s standard of review of that decision—whether

the trial court abused its discretion in applying the Significant Minority

standard—is highly deferential to the trial court’s reasoning.       As is now

axiomatic:

      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.


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Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (quoting Coker

v. S.M. Flickinger Co., Inc., 625 A.2d 1181, 1185 (Pa. 1993)).

      In support of its     recusal claim, the Commonwealth cites few

Pennsylvania cases, and gives scant analysis of the cases it does mention.

Instead, the Commonwealth substantially relies on its own interpretation of

the Significant Minority standard, suggesting that it is simply obvious that

Judge DiClaudio’s relationship to DP creates an appearance of impropriety due

to DP’s charge of racial discrimination against the district attorney’s office.

For the reasons that follow, we do not agree that it is so obvious that the

charge of racial discrimination, alone, creates an appearance of impropriety.

      The Commonwealth first asserts that the trial court applied the wrong

standard—that it focused exclusively on the presence or absence of actual

bias, rather than on the appearance of impropriety. Commonwealth’s Brief at

15.   We disagree.    While the trial court did engage in banter with the

Commonwealth over the appearance of actual bias during the April 2019

hearings, the court’s Rule 1925(a) opinion clearly indicates that it also

considered “whether this [c]ourt[’]s continued involvement creates an

appearance of impropriety….” TCO at 3. The trial court attempts to parse out

a difference between the Significant Minority standard and the standard set

forth in the Judicial Code of Conduct. See id. at 3-4. In this regard, the trial

court suggests that the at-issue standard is whether the judge’s “conduct

would create in reasonable minds a perception that the judge violated” the

Judicial Code or engaged in conduct “that reflects adversely on the judge’s

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honesty, impartiality, temperament, or fitness to serve as judge.” Id. (citing

Judicial Conduct Rule 1.2, Comment (5)).        This is a distinction without a

difference.   In essence, both tests assert a reasonable person standard—

whether a reasonable person would question the impartiality of the judge in

light of the circumstances that gave rise to the recusal motion. Even if there

is a significant distinction between these standards, the Commonwealth has

not raised, and therefore has waived, any argument in that regard. However,

as to the Commonwealth’s preserved argument that the trial court

exclusively considered the presence or absence of actual bias, the record

belies that claim. The trial court did not merely consider whether it harbored

actual bias toward the district attorney’s office.

      Next, the Commonwealth contends that “[o]ther courts to consider the

question have all concluded that a judge who is engaged in litigation against

one of the parties’ legal representative must disqualify himself or herself[,]”

and that “[t]he same is true when a member of the judge’s family is the legal

adversary of a lawyer appearing before that judge.” Commonwealth’s Brief

at 16. However, the second proposition does not necessarily follow from the

first. There is no strict formula for recusal. Instead, the governing question

is whether a reasonable person (layperson or otherwise) would question Judge

DiClaudio’s impartiality in Appellee’s case because of the unrelated matter of

his domestic partner’s initiation of a charge of racial discrimination against the

district attorney’s office.




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       Notably, the Commonwealth fails to cite any precedent that even

approaches controlling authority in support of its abuse of discretion/recusal

claim. Some of the cases cited by the Commonwealth are not even controlling

in this jurisdiction.    Nevertheless, out of an abundance of caution, we will

discuss each in turn and then distinguish them from the instant matter.9

       In McFall, former Judge Mary Rose Fante Cunningham “became an

undercover agent for federal law enforcement authorities in exchange for a

promise that those authorities would make her cooperation known to any

agency that chose to prosecute her for accepting a gift from a potential

litigant.” McFall, 617 A.2d at 711. “The Defender Association of Philadelphia,

on behalf of twenty-nine appellees, filed motions seeking the nullification of

all judicial actions taken in their respective cases by Cunningham while she

was simultaneously acting as an undercover agent. Anthony McFall was one

of the appellees represented by the Defender Association.”           Id. (footnote


____________________________________________


9 The Commonwealth’s citation of Czuprynski v. Bay Cir. J., 420 N.W.2d 141
(Mich. App. 1988), is particularly unhelpful, as the underlying facts of that
case are not discussed in any detail in the court’s opinion, and because
Michigan’s standard for review of the denial of a recusal motion require a
showing of actual bias for reversal. Id. at 143 (“Review of an order granting
or denying recusal of a trial judge for bias or prejudice is for abuse of discretion
and the record must show actual bias or prejudice.”). Moreover, the
Commonwealth’s analysis of that case, indicating that it affirmed “the removal
of a judge from all cases in which a lawyer who filed a grievance against the
judge represented a party before that judge” is not accurate.
Commonwealth’s Brief at 16 n.6. Indeed, the Czuprynski court appears to
have rejected that form of requested relief, and instead indicated that recusal
motions should always be granted on a case-by-case basis. See Czuprynski,
420 N.W.2d at 144-45.

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omitted). Those motions were assigned to a different judge, who found for

the appellees. The Commonwealth appealed that decision, arguing that the

judge had no “direct, personal, substantial, pecuniary interest in the cases in

which she presided.” Id. at 712.

        Our Supreme Court ultimately affirmed this Court’s decision to affirm,

reasoning as follows:

        In the instant case, we again find that the appearance of
        impropriety is sufficient justification for the grant of new
        proceedings before another judge. We find that Cunningham’s
        course of conduct created the appearance of impropriety. First,
        she accepted a gift from a potential litigant. Second, she became
        aware of the fact that the F.B.I. had discovered her misconduct.
        Finally, Cunningham decided to assist the F.B.I. in their
        investigation of other judges suspected of accepting gifts.
        Cunningham’s assistance was in exchange for the F.B.I.’s promise
        to disclose her cooperation to any other authorities who chose to
        prosecute her. One could reasonably conclude that, under the
        circumstances, Cunningham’s cooperation with the United States
        Attorney’s office cast her in the role of a confederate of the
        prosecutors in the appellees’ cases.

Id. at 712–13.

        In Abu-Jamal, a PCRA10 petitioner had sought the recusal of the PCRA

court judge based on “several newspaper and magazine articles which

criticized [the PCRA court judge’s] behavior during the PCRA proceedings.”

Abu-Jamal, 720 A.2d at 89. He appealed, inter alia, from the judge’s denial

of his recusal motion. After reviewing the record of those proceedings, our

Supreme Court rejected Abu-Jamal’s claim, reasoning:

____________________________________________


10   Post Conviction Relief Act, 42 Pa.C.S § 9541 et seq.


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      While there are certainly instances in the record where the judge
      displays displeasure and/or impatience, those instances were, in
      large part, a direct result of obstreperous conduct on the part of
      [the a]ppellant’s counsel. The record reveals instances where
      defense counsel refused to accept a particular ruling offered by
      the court, relentlessly urging the court to reconsider. Although
      we certainly do not condone unjustified or indiscriminate rhetoric
      on the part of a presiding judge, we are nevertheless mindful of
      the fact that judges, too, are subject to human emotion. It simply
      cannot be denied that this particular case was one that was not
      only highly publicized but also highly emotionally charged. As a
      result, the judge’s duty to maintain the judicial decorum of the
      proceedings was, at times, met with great resistance. Upon
      review of the entire record, we cannot conclude that any of Judge
      Sabo’s intemperate remarks were unjustified or indiscriminate nor
      did they evidence a settled bias against [the a]ppellant.

Id. at 89–90.

      In Commonwealth v. Rhodes, 990 A.2d 732 (Pa. Super. 2009), this

Court found that a sentencing court judge had abused his discretion in denying

the defendant’s recusal motion where the judge refused to reflect on the

recusal standard, “sought to justify its decision not to recuse by denying any

external affiliation or relationship that would demonstrate bias and then

castigated defense counsel for seeking the court’s recusal[,]” and where

      the record, which we have examined in exhaustive detail, raises
      significant concerns that the trial court may have prejudged this
      case or reached its decision at sentencing on the basis of improper
      considerations. Although a judge is never constrained to accept a
      plea, Judge Cunningham accepted Rhodes’s plea to Voluntary
      Manslaughter and, correctly, directed compilation of a
      presentence report. Having received the report, he then declined
      to use it and relied instead on police reports he ordered from the
      Commonwealth, ex parte. His use of those reports remained
      undisclosed to Rhodes’s counsel until the sentencing hearing was
      in progress and the court had already completed and distributed
      its Statement of Sentencing Rationale to all present in the
      courtroom, except counsel. Accordingly, Rhodes was deprived of
      any meaningful opportunity to challenge the layered hearsay of

                                    - 20 -
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      the reports, which examination of the Statement of Sentencing
      Rationale verifies served as the primary source of information on
      which the court made its determination to impose a sentence close
      to the statutory maximum. In that Statement, as well as its
      remarks at sentencing, the court stated, repeatedly and
      unequivocally, that it reached its determination based on Rhodes’s
      commission of a premeditated killing, notwithstanding the fact
      that premeditation is not an element of the crime to which Rhodes
      offered her plea. Consistent with its determination concerning
      premeditation, the court’s Statement then repudiated the
      Commonwealth’s sentencing recommendation on the basis of an
      unrelated case … before it offered the District Attorney any
      opportunity to respond or explain. To all appearances, the court
      then made de facto findings of fact, seemingly ascribing conduct
      to Rhodes, e.g., inducing her own labor, that appears nowhere in
      the charges against her.

Id. at 750. We concluded that the sentencing court abused its discretion by

denying the various recusal motions “given the cumulative effect of [the

judge’s] conduct and remarks[,]” based upon which the “court’s impartiality

could be reasonably questioned.” Id. at 751.

      Similarly, in Commonwealth v. White, 910 A.2d 648 (Pa. 2006), our

Supreme Court determined that the trial court judge abused her discretion in

failing to recuse where she had repeatedly denounced “the short-comings of

the legal system” in the type of case before her, a matter involving an 11-

year-old defendant accused of murder. Id. at 659. The judge had also overtly

offered the defendant favorable treatment, “[t]elling the accused that she was

going to work hard to do things for her.” Id. at 658.

      In State v. McCabe, 987 A.2d 567 (N.J. 2010), the defendant filed a

recusal motion because his attorney and the municipal court judge hearing

the defendant’s case were opposing counsel in an open and unresolved



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probate case. The Supreme Court of New Jersey held that the appearance of

impropriety clearly existed because the judge and the defendant’s attorney

“were still adversaries in an open matter.” Id. at 573.

       In Brewton v. Kelly, 166 So.2d 834 (Fla. 2d Dist. App. 1964), the

defendants filed a recusal motion alleging actual bias because the judge was

the target of a Bill of Impeachment signed by the partners of the defendants’

attorney.11 The recusal motion was supported by affidavits from the partners

indicating that one had “testified at the impeachment trial before the Senate

and assisted the House Manager in the preparation and prosecution of the

charges.” Id. at 836.

       In In re Braswell, 600 S.E.2d 849, 850 (N.C. 2004), a disciplinary

action, the Supreme Court of North Carolina censured a judge for failing to

grant recusal in a case where “the plaintiff in that case had an unrelated

lawsuit pending against” that judge. Id.

       Finally, in State v. Hahn, 660 N.E.2d 606, 607 (Ind. App. 1996), a

judge denied a recusal motion in a criminal case where the judge had been

previously prosecuted by the district attorney, a prosecution that had led to

the suspension of the judge’s license to practice law, which had only recently

been reinstated prior to his appointment as judge.         The alleged facts

supporting the motion for recusal were set forth in an affidavit filed by the

____________________________________________


11The defendants’ counsel and his two partners were the only three named
partners in their law firm.


                                          - 22 -
J-M08001-19



deputy prosecutor. The Indiana appeals court reversed the trial court’s order

denying the motion for recusal.

       All of these cases are distinguishable from the instant matter. Here,

Judge DiClaudio is not a party to any current litigation against the district

attorney’s office (or its ‘client,’ the Commonwealth), unlike the conflicts that

arose in McCabe and Braswell.                  Judge DiClaudio was not previously

prosecuted by the district attorney’s office, unlike the issue that arose in

Hahn.

       Judge DiClaudio cohabitates and is in a romantic relationship with DP,

and that relationship does give rise to the potential for conflicts of interest.

However, DP has not yet filed a lawsuit against the district attorney’s office.

Rather, DP      has    initiated   a   charge    of racial   discrimination   with   an

administrative agency against the district attorney’s office that may,

eventually, lead to actual litigation. Furthermore, there is no indication in the

record that Judge DiClaudio would personally be involved in such potential

litigation in any capacity, whatsoever.            The Commonwealth suggests that

Judge DiClaudio could one day stand to benefit from DP’s allegations

financially; however, the Commonwealth has produced no evidence to that

effect.12 There is no evidence of record indicating that Judge DiClaudio’s and

____________________________________________


12 The Commonwealth alleges that “Judge DiClaudio’s personal investment in
his domestic partner’s career gave him an individualized stake in her
promotion.” Commonwealth’s Brief at 19. We reiterate that the record before
us does not contain evidence of Judge DiClaudio’s text messages in support



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DP’s finances are substantially intermingled so as to permit such an

assumption.

       The Commonwealth also contends that Judge DiClaudio’s response to

the various recusal motions, including the one at issue here, further

demonstrates his alleged partiality or bias. In this regard, the Commonwealth

first directs our attention to Judge DiClaudio’s alleged communication with a

prosecutor in the district attorney’s office where it is alleged the judge

suggested that Mr. Krasner could end up in jail as a result of his pursuit of

Judge DiClaudio’s recusal. Commonwealth’s Brief at 20. However, as noted

above, the content of that ex parte communication was disputed, and the

Commonwealth failed to present the prosecutor as a witness or even provide

that prosecutor’s version of events in an affidavit. Accordingly, we will not

consider those allegations as they are not contained within the record before

us.

       The Commonwealth also contends that Judge DiClaudio’s behavior in

the courtroom during the three hearings demonstrates his bias or partiality,

in a similar vein to what occurred in Rhodes and White.          However, we

conclude that Judge DiClaudio’s behavior was more akin to what had occurred

in Abu-Jamal.        The Commonwealth conceded at oral argument that, if

____________________________________________


of DP’s promotion. In any event, it does not immediately follow from Judge
DiClaudio’s support of DP’s career trajectory that he would have financially
benefited from her promotion, or that he will benefit should she receive
compensation as a result of the charge of racial discrimination or a subsequent
lawsuit.

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granted, its recusal motions would essentially evict Judge DiClaudio from the

Criminal Division entirely, because the district attorney’s office is a party to all

but a few criminal cases heard in that division. Thus, this case is unique in

relation to the relevant case law in that the judge was not simply being asked

to recuse from a single case or from cases involving a typical party. Moreover,

the Commonwealth was refusing to offer witnesses to substantiate its

allegations of misconduct against him. As was the case in Abu-Jamal, this

created an emotionally charged environment. Judges are human and cannot

be reasonably expected to act without any emotion in all circumstances.

       However, much of what the Commonwealth refers to as a combative

tone by Judge DiClaudio, such as where Judge DiClaudio recounted “a number

of instances in which he believed” that the district attorney’s office “created

[an] appearance of impropriety[,]” could also be construed as his engaging

counsel with hypotheticals to aid in his understanding of the standard for

recusal. Commonwealth’s Brief at 21. That the Commonwealth believes those

comments to be “irrelevant to the question at hand” is just another way of

saying that it did not believe that Judge DiClaudio’s hypotheticals were

analogous to the matter at issue. These are, essentially, legal arguments, not

clear or obvious instances of Judge DiClaudio’s partiality or bias as observed

in Rhodes or White.13          Instead, Judge DiClaudio’s conduct appears to be

____________________________________________


13We also note that in both Rhodes and White, the respective judges’ biases
were directed not just at a party, but were instead observed to be directly



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more like the conduct observed in Abu-Jamal, which was less than ideal, but

excusable in light of the unique circumstances of this case.

       In sum, we conclude that it belies reason to suggest that Judge

DiClaudio would favor a criminal defendant, or disfavor an individual assistant

district attorney working for the district attorney’s office, based solely on DP’s

filing of the racial discrimination charge. Only the most unreasonable and

cynical layperson could harbor such a suspicion based on the mere

possibility of future litigation by a relative14 of Judge DiClaudio.        Indeed,

there is also no indication in the record that Judge DiClaudio could use his

position to support DP’s charge of racial discrimination, or to hinder the district

attorney’s office’s response thereto. The cases before Judge DiClaudio are not

related in any way to the subject of the potential litigation of DP’s allegations

of discrimination against the district attorney’s office.15

       On the other side of the equation, we also note the uniqueness of the

district attorney’s office in contrast to the typical law firm. A district attorney’s

____________________________________________


affecting the litigation of the critical issues involved in those cases. We do not
say this to suggest that bias or partiality toward a party must dovetail with
the matter at issue in the case to warrant recusal, but it does demonstrate
that the evidence of bias in those cases, or the appearance thereof, was much
stronger than in the instant matter.

14We acknowledge that a domestic partner is functionally the equivalent of a
spouse under the Judicial Code of Conduct. See Pa. Code of Judicial Conduct,
Cannon 2.11(A)(2).

15 By contrast, it is undisputed that Judge DiClaudio would have to disqualify
himself if asked to oversee litigation flowing from or related to the racial
discrimination charge filed by DP.

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J-M08001-19



office does not represent typical clients. It represents the Commonwealth in

virtually all matters in the criminal courts of Philadelphia, with the occasional

exception where the Commonwealth is represented by the Attorney General’s

Office. The Philadelphia’s Office of the District Attorney is a large institution,

containing a multitude of attorneys, making it relatively distinctive in this

Commonwealth even among other district attorney’s offices. Consequently,

the potential for conflicts of interest to arise between the district attorney’s

office and judges in Philadelphia County is therefore greater than the typical

law firm or district attorney’s office, yet the ability to mitigate such conflicts

is also greater due to the size of the institution.    It would appear to be a

relatively minor inconvenience for the district attorney’s office to assign

disinterested assistant district attorneys to Judge DiClaudio’s courtroom who

are not remotely involved with the matters that gave rise to the racial

discrimination charge. This stands in stark contrast to the matter at issue in

Brewton, where the attorneys involved in the impeachment of that judge

were the literal partners of the attorney who sought his recusal. Here, there

are various degrees of separation between Judge DiClaudio and the individuals

concerned with the charge of racial discrimination filed against the district

attorney’s office.

      For the above reasons, we conclude that the Commonwealth has failed

to meet its burden on appeal to establish that the trial court abused its

discretion in denying the Recusal Motion. We are loathe to speculate as to

what additional circumstances would cause a reasonable person (or layperson)

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to doubt Judge DiClaudio’s impartiality in all matters involving the district

attorney’s office.   We merely hold that the filing of the charge of racial

discrimination, and Judge DiClaudio’s in-court response to the recusal motions

based on that allegation, do not alone demonstrate an abuse of discretion in

1) his failure to recuse; or 2) his refusal to order an evidentiary hearing before

another judge. However, we affirm without prejudice to the Commonwealth’s

ability to develop the record further.

      Order affirmed without prejudice. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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