J-A04034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

GRAHAM B. SPANIER

                          Appellant                  No. 1093 MDA 2017


         Appeal from the Judgment of Sentence Entered June 2, 2017
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No.: CP-22-CR-0003615-2013

                               MEMORANDUM
Stabile, J.                                            Filed: August 10, 2018

      Pending before this Court is the July 10, 2018 application of Appellant

Graham B. Spanier (“Appellant”), requesting my recusal in this appeal and a

vacatur of our panel decision issued June, 26, 2018 (“application”), affirming

Appellant’s misdemeanor conviction for endangering the welfare of children

(“EWOC”). The basis for this request lies in Appellant’s assertion that I, no

later than a dozen years ago, in a completely unrelated matter to Appellant’s

current criminal appeal, was part of an alumni association that opposed a

proposal by the Pennsylvania State University (“PSU”) to relocate the then

Dickinson School of Law (“DSL”) from Carlisle, Pennsylvania, to PSU’s main

campus in State College. Appellant asserts that my conduct constitutes prior,

personal involvement with Appellant that establishes bias or lack of

impartiality on my part requiring that I recuse myself from this appeal. I write

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both to address the application and to provide the transparency to which the

citizens of this Commonwealth are entitled.

     By way of background, more than 20 years ago in 1997, PSU announced

that it would affiliate and then merge with DSL located in Carlisle. I recall

attending a celebratory reception at DSL around that time attended by several

hundred people. I briefly met Appellant, then the PSU President, simply to

introduce myself as a member of the DSL community. To my knowledge, that

brief introduction over 20 years ago and to the present, was the first, only,

and last time I had any interaction, conversation, or communication

whatsoever with Appellant.

     In late 2003, despite earlier assurances to the contrary, PSU announced

a proposal to close the DSL Carlisle campus and relocate the law school to

PSU’s main campus in State College. Carlisle, as of 2003, had been the home

of DSL for more than 170 years. This announcement surprised many and set

off a course of events wherein people for and against the proposal sought to

voice their concerns to the governing bodies that would be voting on the

proposal including, on behalf of DSL, its then Board of Governors (“Board of

Governors”). Almost immediate opposition to the announced plan was heard

from, inter alia, numerous state house representatives, senators, regional

chambers of commerce, economic development councils, newspapers, a large

cross-section of the Central Pennsylvania community, numerous members of

the Board of Governors, and the DSL General Alumni Association (“GAA”) of


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which I was a member, but never an officer. I held membership on the GAA

board due to my position as the president of the Capital Area alumni chapter

of DSL.

      After the DSL Board of Governors rejected PSU’s relocation proposal,

PSU submitted a second proposal to establish two law schools under a single

accreditation. PSU, inter alia, would build a new law school on its State College

campus and appropriate monies to upgrade and maintain the DSL Carlisle

campus. In early 2005, the DSL Board of Governors accepted this proposal.

During the years 2003-2005, when these proposals were considered, I made

my views known to the DSL community through the GAA and within the

Carlisle community. At no time did I attempt to communicate my views to

Appellant, or to the Penn State Board of Trustees. Moreover, I did not hold a

position individually, or within an organization entitled to vote on any

proposal.   In summary, I was one person within the GAA who joined a

cacophony of people, representatives, and organizations that expressed an

interest in the future of DSL and opposition to its closure and relocation to

State College. The central purpose of an alumni association is to promote the

general welfare of its alma mater, which in this case was DSL. In brief, my

participation through the GAA was precisely to foster that objective.

      After receipt of this Court’s panel decision (which I authored) upholding

Appellant’s conviction for misdemeanor EWOP, Appellant filed his application

seeking my retroactive recusal from his appeal based upon his claim that I


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harbored a personal bias against him, or that there was an appearance of bias

suggesting impropriety by my participation in his appeal. The fundamental

flaw in Appellant’s application is that it conflates opposition to PSU’s relocation

plan and two-campus proposal as one directed at him personally. In effect,

Appellant attempts to supplant himself as the alter ego for PSU as the party

to the DSL dispute to argue bias as a basis for my recusal. The matter, and

my participation as a member of the GAA did not involve Appellant personally.

      While an appearance of impropriety may itself be enough to warrant

judicial recusal, In re McFall, 617 A.2d 707 (Pa. 1992), ‘‘[a] party seeking

recusal bears the burden of producing evidence to establish bias, prejudice,

or unfairness which raises a substantial doubt as to [a] . . . jurist’s ability to

preside impartially.’’ Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa.

2014) (citation omitted). In addition, when a motion for recusal is filed after

a decision has been rendered, the burden of proof is more exacting. In Reilly

by Reilly v. SEPTA, 489 A2d. 1291 (Pa. 1985), our Supreme Court explained

the rationale for this more exacting standard. While stated in the context of

addressing a post-verdict claim for recusal of a trial judge, the logic and

rationale apply equally here.


      Charges of prejudice or unfairness made after trial expose the trial
      bench to ridicule and litigants to the uncertain collateral attack of
      adjudications upon which they have placed their reliance. One of
      the strengths of our system of justice is that once decisions are
      made by our tribunals, they are left undisturbed. Litigants are
      given their opportunity to present their cause and once that
      opportunity has passed, we are loathe to reopen the controversy


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       for another airing, save for the greatest of need. This must be so
       for the security of the bench and the successful administration of
       justice. Accordingly, rules have developed for the overturning of
       verdicts and judgments for after-acquired evidence. In our view,
       recusal motions raised after verdict should be treated no
       differently than other after-acquired evidence situations which
       compel the proponent to show that: 1) the evidence could not
       have been brought to the attention of the trial court in the exercise
       of due diligence, and 2) the existence of the evidence would have
       compelled a different result in the case.

Id. at 1301.

       Litigants also are counseled that a request for disqualification of a judge

should not be made lightly. See Lomas v. Kravitz, 170 A.3d 380, 390 (Pa.

2017) (Chief Justice Saylor, dissenting, citing cases).           A request for

disqualification is a most serious undertaking not to be pursued absent

thorough factual investigation and legal research.      Id.   Here, inexplicably,

despite having the burden of proof in this matter, Appellant chose not to

provide this Court with the documentary evidence relied upon in his

application. Instead, Appellant principally relies upon his selection of passages

from documents apparently sent to him by DSL former Dean Philip

McConnaughay (2002-2013).1 Application at 9. Nevertheless, for purposes

of deciding Appellant’s application, I will assume Appellant’s document




____________________________________________


1 Appellant and former Dean Philip McConnaughay, resident at DSL during
2003-2005, now residing in Beijing, China, verified the application to the
extent the facts were within their respective personal knowledge. It is unclear
what alleged facts remain unverified.


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selections represent his best attempt at demonstrating the necessary bias to

justify my recusal.

      The standard under which a judge presented with a recusal motion must

conduct his or her inquiry is as follows.

      A motion for disqualification or recusal is properly directed to and
      decided by the jurist whose participation is challenged.
      Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). In
      disposing of a recusal request, a jurist must first make a
      conscientious determination of his or her ability to assess the case
      before the court in an impartial manner, free of personal bias or
      interest in the outcome. “This is a personal and unreviewable
      decision that only the jurist can make.” Id. at 201, 565 A.2d at
      764. Once satisfied with that self-examination, the jurist must
      then consider whether or not continued involvement in the case
      would tend to undermine public confidence in the judiciary. Id.
      at 201-202, 565 A.2d at 764.

Commonwealth v. Travaglia, 661 A.2d 352, 370 (Pa. 1995). Consideration

of a recusal motion also must be tempered by a jurist’s obligation to hear and

decide cases assigned to the judge. See Pa. Code of Judicial Conduct Rule

2.7. Although there are times when disqualification or recusal is necessary to

protect the rights of litigants and to preserve the public’s confidence in the

judiciary, unwarranted recusal or disqualification may bring public disfavor

upon the court and judge.        Id. cmt.   Judges may not use recusal or

disqualification to avoid cases that are difficult, controversial, or present

unpopular issues. Id. Against the above background and standards, I now

address, seriatim, the bases upon which Appellant claims my recusal is

required in this matter.




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      Based upon emails and documents provided Appellant by former Dean

McConnaughay (application at 9), Appellant first generally identifies a writing

from November 2003 that he avers I wrote to a “DSL administrator”

expressing concern about exclusion of the GAA from discussions about the

move to State College. Appellant does not identify the “DSL administrator.”

Nonetheless, Appellant is not the subject of the communication and the

communication is not represented as containing any disparaging comments

about the Appellant.

      Appellant next generally identifies a second writing from me the

following day (date unspecified) to GAA board members (again unspecified)

complaining about the response received from the “administrator” (again

unidentified) informing him that DSL alumni were adequately represented on

the Penn State Board of Trustees and, therefore, the GAA’s input was not

necessary. Appellant opines that I directed ire at “Penn State administrators

(which included Dr. Spanier),” complaining, “I still do not understand why

Penn State bothered to merge Dickinson if it seems intent on changing

everything about the school. They could’ve built their own damn school in

State College and accomplished the same thing without eradicating an

institution.” Application at 4. Once again, Appellant is not the subject of the

communication, nor is it personally critical of him.              In a somewhat

disingenuous manner, Appellant attempts to paint broadly by recasting my

generic   reference    to   “Penn   State”   as   a   reference   to   “Penn   State


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administrators,” which in turn must include—and therefore be personally

critical of—Appellant, “Dr. Spanier.” Id. Appellant repeats this unwarranted

overreaching several times in his application to give the false impression that

I made derogatory comments about him. This is an impermissible attempt to

bolster a claim of personal bias where none exists.

      Continuing,   Appellant   again    generally   references   another   email

(undated) by me to GAA board members claiming that with regard to Penn

State’s proposal to relocate DSL “there is a certain arrogance here that is

unacceptable.” Id. Again, the statement is not directed toward any particular

person, and in particular Appellant, but once again only generically references

“Penn State.” I had no reason to reference Appellant, as I never interacted

with him in regard to any law school proposal. Appellant admits as much

when he states in his application, “[He did not deal directly with the GAA board

or regularly interact with opponents of the proposals.” Id. at 8.

      Appellant next references a five-member ad-hoc committee of the GAA

on which I served. That committee issued a report urging the GAA board to

recommend that the Board of Governors not approve the two-campus

proposal. Id. at 5. Although I was a member of an ad-hoc committee that

produced a report, my recollection is that the GAA formed somewhere

between four to six different ad-hoc committees that produced reports. The

GAA decided it would form committees to research and report on each of the

rationales advanced in support of PSU’s proposals. I was assigned to one of


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those committees chaired by another former Dean and professor of DSL, John

A. Maher (now deceased), whose knowledge of the proposals and of the inside

relationships between DSL and PSU and any administrators far surpassed that

of any other committee member. In point of fact, I possessed no personal

knowledge of any facts or comments referenced in the report authored by

Dean Maher regarding any PSU administrator.

      Without producing the report, Appellant relates that the committee, of

which I was a member, issued a report extremely critical of Penn State and

describing its administration as “incompetent,” and states that the report

specifically mentioned and criticized Dr. Spanier several times.    Appellant

however, accurately states that when I later testified in a lawsuit filed by

members of the DSL Board of Governors against PSU, I disassociated myself

from the language of the report, explaining that my endorsement was only as

to its “conclusions” and “substantive comments.” Any knowledge of inside

facts about Appellant contained within the report, and in particular those

critical of him, were exclusively within the personal knowledge of Dean Maher,

who authored the report. My testimony demonstrated that I was concerned

with substance as opposed to launching any personal attacks against persons

whose views on the topic differed from my own.

      In an attempt to impute bias on my part toward Appellant through guilt

by association, Appellant highlights portions of another email, sent in June

2004 by an unidentified member of the GAA, commenting that Appellant was


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a “chief hustler” pushing for approval of the PSU proposal.          Id. at 4-5.

Notably, Appellant does not even feign to attribute this statement to me. Plain

and simple, this statement reflects the views of a third party entirely irrelevant

to Appellant’s burden to produce proof of bias against him by me. Appellant’s

attempt to attribute this statement by a third party to me is simply unfair and

does not do justice to fair advocacy. See Commonwealth v. Shannon, 184

A.3d 1010 (Pa. Super. 2018) (mere receipt of offensive emails does not

establish bias on the part of the person receiving the emails).

      In early 2005, the DSL Board of Governors met to vote on the two-

campus proposal. Appellant points to an email I wrote to the GAA board the

day before the vote commenting, “I can’t imagine why many think this is a

great proposal. The emperor certainly has new clothes.” Application at p. 6.

Appellant further quotes my statement, “We should tell PSU ‘NO’ and insist

they honor their commitment; that is what honorable people do. The crisis

here has been wholly fabricated by PSU.” Appellant characterizes this writing

as accusing “Penn State administrators (which included Dr. Spanier) of

dishonorably breaching their commitments to DSL, fabricating a crisis, and

acting unjustly.” Id.

      The reference to the “emperor certainly has new clothes” harkens back

to a children’s fable written by Hans Christian Anderson meant to describe

situations where people willfully disbelieve something they know to be true.

The subject of the email is the “proposal” to create two law school campuses,


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not an individual. The point was that PSU was trying to convince people that

State College presented better professional opportunities for law students

than Carlisle, whose location, inter alia, is in close proximity to all three

branches of state government and a multitude of law firms.            As for my

statement regarding PSU honoring its commitment, to be clear once again,

my email nowhere refers to “Penn State administrators” or to “Dr. Spanier.”

As before, I generically referenced “PSU” and nowhere criticized any individual

by name.

      The DSL Board of Governors, by a split vote, accepted PSU’s two-

campus proposal. Appellant relates that on February 3, 2005, three members

of the DSL Board of Governors filed suit against PSU, Appellant, and the DSL

Board of Governors to enjoin implementation of the plan. Appellant further

avers that the plaintiffs asked the GAA board to consider intervening in the

suit on behalf of the plaintiffs. As a member of the GAA board at that time, I

recall participating in discussions both for and against the request. The GAA

board declined the invitation to intervene. I respected that decision. At no

time did I become a party to the plaintiffs’ suit. I therefore fail to see how

Appellant claims bias by me based upon a lawsuit filed by third parties. See

Shannon, supra.

      It is true that I testified during the course of the plaintiffs’ prosecution

of their suit. I did so under compulsion of subpoena that obligated me to

appear and be subject to questioning. Appellant avers that during the course


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of my testimony, I stated that “emotions were running high on both sides”

and that the GAA viewed the “proposal’s supporters” as personally attacking

the GAA members, by casting them as being angry or malcontents, and that

we were further disappointed our research on substantive issues was not

addressed. Without doubt, the threatened closing or relocation of DSL was an

issue that riveted many different interests. People who considered themselves

stakeholders in the continued preservation of DSL felt anxiety. More to the

point, Appellant does not identify the “proposal’s supporters” that engaged in

personal attacks. Appellant certainly has not included himself in this category

and nowhere does Appellant indicate that I charged him with hurling personal

attacks against any member of the GAA, including me.

      Appellant has the burden of producing evidence establishing bias,

prejudice, or unfairness that raises a substantial doubt as to my ability as a

judge to participate in his criminal appeal. Watkins, supra. He has failed to

do so. All Appellant has established is that I, as a member of the GAA, in an

unrelated matter concluded more than a dozen years ago, expressed

opposition to proposals by PSU to fundamentally change DSL. Appellant has

produced no proof that I was personally critical of him in that matter, or that

I ever viewed the PSU/DSL dispute as anything other than a matter that had

to be decided between the governing bodies of those institutions. Recusal is

not warranted under these circumstances.




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      In Commonwealth v. Whitmore, 860 A.2d 1032 (Pa. Super. 2004),

this Court, sua sponte, directed that a new trial judge be assigned to preside

over resentencing to ensure that any appearance of bias was dispelled, since,

inter alia, the trial court during sentencing commented that the defendant

“should go to jail for about 50 years.” The trial court was entitled to sentence

the defendant to a maximum of 20 years, which it did. Our Supreme Court

granted allowance of appeal to decide whether this Court exceeded its

authority by sua sponte removing the sentencing judge. It concluded that

error was committed.    Commonwealth v. Whitmore, 912 A.2d 827 (Pa.

2006).   The Court acknowledged that comments made by the trial judge

considered factors beyond the defendant’s prior conviction. However, during

sentencing, the trial court also referenced the defendant’s neighborhood,

inability of inhabitants to leave, other charges pending against defendant, his

history of trouble with the legal system, the nature of the area, and the like.

It concluded that the single comment made by the trial court that the

defendant should go to jail for 50 years was taken out of context and did not

warrant a per se recusal.     A trial judge who has made some ill-advised

comments does not necessarily abuse discretion in denying a motion for

disqualification. Id.

      In Travaglia, supra, a jury convicted co-defendants of first-degree

murder of a police officer. Both received death sentences. After the first post-




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conviction2 review proceedings for one of the defendants, the trial judge was

quoted in newspapers commenting about the case.              The trial judge

commented that the defendant’s case was an example of how cumbersome

and protracted the appeals process can be when there has been a sentence

of death.    He further stated that something is drastically wrong with our

system. In another press interview, he was quoted as saying, “If it takes 10

years to determine if I gave them a fair trial, there’s something wrong with

the judicial system. . . .” He later was quoted as saying he was “shocked that

it takes 11 years in our judicial system to find an excuse to avoid the death

penalty. If anyone deserves to die, these two individuals . . . do for killing

four people for fun.” After one defendant filed his second PCRA petition, the

trial judge was quoted as saying he was not biased, he gave defendant a fair

trial, and he could give him a fair hearing on the present petition.    In his

second PCRA petition, the defendant asserted that the trial judge should have

recused himself. In response, the trial judge detailed the examination of his

conscience and admitted that while he was highly dissatisfied with the present

system of perpetual appellant activity, that was not to say the court would

vent its frustration by arbitrarily giving the defendant less than full and

complete attention required by law. He candidly admitted that the crime that

defendant committed was heinous, but observed courts are often required to



____________________________________________


2   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

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preside over cases where the subject matter is disturbing.        However, due

process required he be unaffected by such circumstances. Our Supreme Court

found no abuse of discretion in the trial court’s denial of the recusal request.

      In Commonwealth v. Druce, 848 A.2d 104 (Pa. 2004), our Supreme

Court affirmed a trial court’s denial of a recusal motion when the trial judge

gave a press interview prior to imposing sentence and called some of the

defendant’s claims “strange,” but then also indicated that public sentiment

would not sway his handling of the case. Immediately before sentencing, the

trial judge told the defendant he held no bias, prejudice or ill will against him.

Our Supreme Court held that the trial court did not abuse its discretion in

denying recusal where the trial judge asserted his impartiality, both in the

public interview and from the bench, in response to the petition to recuse.

      In contrast, in McFall, supra, the trial judge had been working for

several months as an undercover FBI agent regarding illegal payments by

union officials to common pleas court judges in Philadelphia. The trial judge

wore a recording device and recorded conversations with other judges. This

continued during the period the trial judge continued to preside over criminal

matters. While the trial judge’s agreement with federal authorities did not

provide for immunity from prosecution, it did promise that the federal

authorities would make known to any other court or investigating or

prosecuting body the extent of the judge’s cooperation. On these facts, this

Court held that the trial judge had a real and tangible bias in the criminal


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cases heard by her, since she was subject to prosecution for her actions by

the District Attorney of Philadelphia, the prosecuting authority in each of the

cases before her.    See also cases cited in McFall; Commonwealth v.

Bryant, 476 A.2d 422 (Pa. Super. 1984) (recusal necessary where the trial

judge had commented that, in order to generate pre-election publicity for

himself, the date for a defendant’s sentencing would be moved up to the day

proceeding an election in which the judge was a candidate and he would

impose the maximum possible sentence); Armor v. Armor, 398 A.2d 173

(Pa. Super. 1978) (full bench recusal required where woman remarried to a

common pleas judge of that county’s bench would have to appear before one

of her husband’s judicial colleagues on support matters).

      Where the appearance of bias is less attenuated, but arises in an

instance where great deference is given to a trial judge’s discretion, recusal

may be required. In Commonwealth v. Darush, 459 A.2d 727 (Pa. 1983),

the trial judge made derogatory comments about a defendant while the judge

was a district attorney. The judge could not admit or deny that he had made

the statements, claiming he had no recollection. He nonetheless indicated

that the defendant would receive a fair trial. In concluding that recusal was

required, our Supreme Court held that while it could discern no evidence of

bias and was convinced the judge acted with complete integrity, the largely




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unfettered sentencing discretion afforded a judge required that sentencing be

exercised by a judge without a hint of animosity towards the defendant.3

       In Commonwealth v. Berrigan, 535 A.2d 91 (Pa. Super. 1987), this

Court, following our Supreme Court’s lead in Darush, held that while a judge’s

denial of a request that he recuse at trial was not reversible error, the judge’s

refusal to recuse at sentencing was improper. The trial judge made comments

both during and after trial indicating that he became emotionally involved in

an acrimonious series of confrontations with the defendants. Although the

defendants claimed on appeal that the judge’s rulings during trial were

motivated by bias, we did not find that to be prejudicial error, as we found the

allegations of error to be without merit. Nonetheless, that did not settle the

question of whether it was proper for the trial judge to preside at sentencing.

We held that “[s]ince the judge is the sole finder of fact at that sentencing

proceeding, any possible indication of judicial bias-even bias of which the jury

was wholly unaware--must be carefully considered when a motion to recuse

at sentencing is denied.” Berrigan, 535 A.2d at 104.


____________________________________________


3 When Darush was decided, an appearance of impropriety was to be
measured against what a significant minority of the lay community could
reasonably question regarding a court’s impartiality. The test for appearance
of impropriety now is whether conduct would create in reasonable minds a
perception a judge violated the Code of Judicial Conduct or engaged in other
conduct that reflects adversely on the judge’s honesty, impartiality,
temperament, or fitness to serve. Pa. Code Jud. Conduct, Canon 1, Rule 1.2,
cmt 5. For purposes of deciding the present application, I find no need to
discern whether this difference in standard would affect my decision on this
application.

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      In Commonwealth v. Dougherty, 18 A.3d 1095 (Pa. 2011), in a

concurring statement joined by a majority of the Justices of our Supreme

Court, Justice Baer felt compelled to comment on why he believed recusal of

the trial judge was necessary. During the defendant’s PCRA hearing, the trial

judge called the defendant “vile.” The hearing transcript, however, did not

reflect this comment. At a hearing, the PCRA judge acknowledged that she

privately directed the court reporter to remove that comment, which she

deemed “non-judicial,” from the record. Of interest, while the Court held that

the trial judge calling the defendant “vile” would not require recusal,

recognizing that an utterance can be understood as an emotional outburst

during a difficult proceeding, the trial judge’s alteration of the transcript was

another matter. In the Court’s view, the alteration struck at the very pillars

of meaningful appellate review and concomitantly therewith, the basic tenets

of due process, which should precipitate serious repercussions. Consequently,

the utterance, together with the transcript alteration, was deemed sufficient

to create an appearance of impropriety requiring the judge’s disqualification.

      Upon review, I find that Shannon, Whitmore, Travaglia, Druce, and

Dougherty counsel that Appellant’s application asking for my recusal be

denied. The comments of third parties may not be used to attribute bias to

me.    Shannon.      Comments by a judge that are generally critical of

proceedings, without more, do not suffice to establish bias creating an

appearance of impropriety. Whitmore, Travaglia and Druce. Statements


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that do evidence actual bias create an appearance of impropriety, McFall,

Bryant, although an inappropriate utterance when taken in context may not

suffice to establish bias warranting recusal.        Druce, Whitmore, and

Dougherty. I also add that while an appearance of impropriety may be found

more easily in instances where a trial judge is entitled to great deference on

the exercise of discretion, such as in sentencing where the court must make

findings of fact, Darush, Berrigan, and Dougherty, such is not the case with

the Superior Court of Pennsylvania. This Court is an error-correcting court

whose review of decisions from our trial courts is circumscribed by well-

defined scopes and standards of review. This Court does not sit as a factfinder,

does not make findings of fact, and does not pass upon the demeanor or

credibility of witnesses. In this sense, heightened concerns, such as those

reflected in sentencing cases, are not applicable here.          The issues in

Appellant’s appeal concerned whether his conviction for EWOC was barred by

the applicable statute of limitations, whether he violated a legal duty, and

whether jury instructions on the statute of limitations were sufficient. These

were questions of law.

      Finally, I address the aspect of Appellant’s additional burden of proof as

to whether his application could have been brought to the attention of this

Court in the exercise of due diligence before the issuance of our panel decision.

Reilly, supra.




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        The Superior Court docket in this case reveals that by letter dated

December 21, 2017, Appellant’s counsel was advised by this Court that the

appeal in his case was scheduled for argument on February 7, 2018, before

the A4-2018 argument panel of this Court. The notice further cautioned that

any application for continuance must be filed within two weeks of the notice

date and, thereafter, only in cases of emergency. This Court also identifies

on its website the cases to be heard during an argument session and the

names of the judges who will hear the panel cases. In this particular appeal,

that information indicated that Appellant’s case would be heard on the second

day of argument, February 7, 2018, before a panel consisting of Judge Nichols,

Judge Ransom, and me.4           This Court’s website also provides biographical

information for all judges on the Superior Court. My profile on this Court’s

website clearly identifies me as a 1982 graduate of DSL, and further, as the

President, General Alumni Association, Dickinson School of Law, Capital Area

Chapter 2000-2013.5 To prevent litigants from filing motions to obtain tactical

advantages in proceedings before a Court, a party seeking recusal of a judge

must do so at the earliest possible moment. Lomas, 170 A.3d at 390 (Pa.

2017); Pa. Code of Judicial Conduct Rule Preamble ¶ 7. Simply because a



____________________________________________


4   http://www.pacourts.us/courts/superior-court/calendar

5http://www.pacourts.us/courts/superior-court/superior-court-judges/judge-

victor-p-stabile


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judge does not raise sua sponte the issue of his impartiality, a party is not

entitled to question a judge’s partiality after the case has ended without

substantiation in the record that the complaining party did not receive a full,

fair, and impartial trial.   Reilly, 489 A.2d at 1301. Further, our Supreme

Court has held that, in determining whether due diligence has been satisfied,

in addition to actual knowledge of facts underlying an application, facts that

“should have been known” also are to be considered in determining timeliness.

See Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989); Reilly, supra. The

fact of my association with DSL and the GAA was easily ascertainable and for

the relevant time discussed in Appellant’s application, i.e., 2003-2005. This

publicly available information would have, at a minimum, provided more than

sufficient information for Appellant to conduct due diligence on my background

and, in particular, to inquire with his former colleague Dean McConnaughay.

Under the circumstances, I do not find Appellant’s application timely given its

filing after the rendering of our decision in this case.   See Lomas, supra

(untimeliness of a recusal petition will result in waiver even when there may

be an appearance of impropriety).

      I also note a Google search of my association with DSL and in particular,

with respect to the two-campus proposal, affirms my contention that my

participation in the DSL matter was not personal to Appellant. After the two-

campus proposal was made final in 2005, when asked, I publicly expressed

my support for the success of the proposal and my hope that ranks would


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close to support the decision made.6 There is a time to be heard and a time

to move on. Coincidentally, I also helped to facilitate the two-campus proposal

by voting to accept a much-needed zoning text amendment to the Middlesex

Township, Cumberland County, zoning ordinance to permit the temporary use

of a township building by DSL during reconstruction of the Carlisle campus.7

At the time, I was an elected member of the Middlesex Township Board of

Supervisors and recall declaring the amendment was a “win-win” for all

parties. This publicly available information should have been considered in

Appellant’s formulation of his opinion as to whether I harbored any personal

bias to support a recusal application.

       Upon receipt of Appellant’s recusal application, I engaged in a

conscientious determination of my ability to assess this appeal in an impartial

manner, free of personal bias or interest in its outcome. I can state with clear

conscience that I felt no compulsion of bias, partiality, or interest in the

outcome of this case to prevent me from deciding this matter solely on its

merits, regardless of the fact Appellant was the party to this appeal. As to

whether Appellant proved bias sufficient to establish an appearance of

impropriety, he has not. As already stated, I do not personally know Appellant


____________________________________________


6  http://cumberlink.com/news/local/can-carlisle-compete/article_fcfa0dad-
5ea8-5a17-a527-a13a8ff3beac.html
7https://cumberlink.com/news/trickett-hall-use-to-end-by-this-

fall/article_4dce8ec4-28cf-5aaa-8f60-9b0d59c40eae.html


                                          - 22 -
J-A04034-18


and only once met him more than 20 years ago to exchange a cordial greeting.

My participation in the events surrounding PSU’s plans to either relocate DSL

or create a law school comprised of two campuses was as a member of the

GAA. Portions of statements by me produced by Appellant are more than a

dozen years old, have no relation to this criminal appeal, and are not

personally directed at Appellant.    Moreover, after resolution of the DSL

campus dispute, I publicly made statements and took action supportive of

PSU’s two-campus plan, well before the advent of this appeal or before anyone

could claim it was in my interest to do so. As stated, I also do not find the

Appellant’s post-decision application to be timely.    For all the foregoing

reasons, an order will be entered denying Appellant’s application.




*Judges Ransom and Nichols did not participate in the consideration or
decision of this application.




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