J-S16028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CHRISTY L. SMITH,

                         Appellant                   No. 1012 MDA 2014


           Appeal from the Judgment of Sentence of May 20, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005216-2010

BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 28, 2015

      Appellant, Christy L. Smith, appeals from the judgment of sentence

entered on May 20, 2014 as made final by the denial of her post-sentence

motion on June 5, 2014. We affirm.

      This Court previously outlined the factual background of this case as

follows:

      In 2008, J.J., a 15-year-old sophomore at a public school in
      Lancaster, was a student in Appellant’s English class.          J.J.
      confided in Appellant, first spending a significant amount of time
      with her at school during and after normal school hours. Later,
      J.J. began to see Appellant outside of school as well. Eventually,
      their relationship took on a sexual dimension. J.J. testified that
      he engaged in three sexual encounters with Appellant. During
      the first occasion, in November of 2008, the two engaged in oral
      and vaginal intercourse.       Later that same month, the two
      showered together, engaged in oral and vaginal intercourse and,
      at one point, Appellant used a vibrating sex toy on J.J. On the
      third occasion, during Christmas break the following month,
      Appellant and J.J. showered together and then engaged in oral
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        and vaginal intercourse. The sexual contact between the two
        ended in January of 2009 as a result of an investigation by the
        school district into their relationship. However, Appellant and
        J.J. continued to communicate by phone. J.J. testified that he
        had fallen in love with Appellant and was devastated when their
        physical relationship ended.

Commonwealth v. Smith, 87 A.3d 890 (Pa. Super. 2013) (unpublished

memorandum), at 2 (internal citations omitted).

        On July 6, 2012, Appellant was charged via an amended criminal

information with three counts of statutory sexual assault,1 six counts of

involuntary deviate sexual intercourse,2 three counts of unlawful contact

with a minor,3 and one count of corruption of minors.4 Appellant was also

charged, in separate criminal informations, with offenses related to her

relationship with another student. The cases were consolidated for trial and

the trial court denied Appellant’s motion to sever the charges involving J.J.

from the charges involving the other student. Appellant was found guilty;

however, this Court vacated Appellant’s judgment of sentence after

concluding that the trial court erred by denying Appellant’s motion to sever.

See id. at 8-18.




1
    18 Pa.C.S.A. § 3121.1.
2
    18 Pa.C.S.A. § 3123(a)(7).
3
    18 Pa.C.S.A. § 318(a)(1).
4
    18 Pa.C.S.A. § 301(a)(1).



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       On remand, Appellant proceeded to trial on the instant criminal

information. Prior to trial, Appellant moved for the trial court’s recusal. The

trial court denied that motion.      During trial, Appellant sought to cross-

examine J.J. regarding details of burglary convictions entered after J.J.

reached 18 years of age but before the trial on remand in the instant case.

The Commonwealth objected to that line of questioning and the trial court

sustained the objection. On March 26, 2014, Appellant was found guilty of

one count of statutory sexual assault, two counts of involuntary deviate

sexual intercourse, one count of unlawful contact with a minor, and one

count of corruption of minors. On May 20, 2014, Appellant was sentenced to

an aggregate term of 14 to 30 years’ imprisonment.          On May 30, 2014,

Appellant filed a post-sentence motion.      On June 5, 2014, the trial court

denied her post-sentence motion. This timely appeal followed.5

       Appellant presents two issues for our review:

    1. Was it error for the trial court to deny the Appellant’s [m]otion
       [f]or [r]ecusal where there was evidence of the trial court’s fixed
       and substantial bias against the Appellant?

    2. Did the trial court abuse its discretion in limiting the use of the
       testifying victim’s prior burglary convictions, thus denying
       Appellant her right to a fair trial?

Appellant’s Brief at 4.

5
  On June 17, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 7, 2014, Appellant filed her concise statement.
On September 19, 2014, the trial court issued its Rule 1925(a) opinion.
Both issues raised by Appellant were included in her concise statement.



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     We briefly review J.J.’s criminal case, as both of Appellant’s issues are

related to that proceeding.    This Court previously outlined the factual

background and procedural history of those charges as follows:

     [J.J.] and his cohorts burglarized several residential properties.
     Police apprehended [J.J.] in November 2011, and the
     Commonwealth charged him with multiple crimes at six []
     separate docket numbers. On September 20, 2012, the parties
     appeared for a guilty plea hearing.          At that time, the
     Commonwealth learned of the court’s intent to proceed with
     sentencing immediately following the entry of the pleas. The
     Commonwealth, however, had not notified the victims about the
     proceedings. Consequently, the court continued the matter to
     provide the victims with an opportunity to prepare impact
     statements.

     At the conclusion of the hearing, the court released [J.J.] on
     unsecured bail. The court informed J.J., “My sense is that you’ve
     been at the Lancaster Country Prison long enough, and I’m not
     going to punish you because of this snafu in terms of
     notification.”

                                   ***

     Prior to the next listing, the Commonwealth filed a recusal
     motion. In it, the Commonwealth criticized the court’s decision
     to reduce [J.J.’s] bail to an unsecured amount.               The
     Commonwealth also complained that the court’s comments
     indicated it had already decided [J.J.’s] sentence would not
     involve further incarceration. In support of this assertion, the
     Commonwealth noted the court did not order a pre-sentence
     investigation (“PSI”) report, which is atypical in cases involving
     dozens of serious criminal offenses.          The Commonwealth
     concluded the court had demonstrated partiality in favor of [J.J.]
     The Commonwealth requested that the trial judge recuse himself
     from presiding over [J.J.’s case] in order to ensure the public
     trust of the tribunal being fair to all parties. The court denied
     the Commonwealth’s recusal motion on October 2, 2012.

     That same day, [J.J.] entered open guilty pleas to [25] counts of
     burglary and related counts of criminal attempt, criminal
     conspiracy, and theft by unlawful taking. The court accepted


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      [J.J.]’s pleas and immediately proceeded to sentencing. After
      receiving evidence and argument from both parties, the court
      sentenced [J.J.] to an aggregate term of time served (319 days)
      to [23] months’ imprisonment, followed by eight [] years’
      probation. The court also granted parole and placed [J.J.] on
      house arrest with electronic monitoring for nine [] months.

Commonwealth v. J.J., 87 A.3d 389 (Pa. Super. 2013) (unpublished

memorandum), at 1-3 (certain internal quotation marks, internal alteration,

and citations omitted).

      When giving its rationale for J.J.’s sentence, the trial court explained:

      Just over two months ago in this courtroom the same police
      department and the same prosecutor’s office had a very different
      label for [J.J.] On that occasion it was victim. They effectively
      and persuasively portrayed him as the victim of a manipulative
      and immoral teacher and an uncaring and inattentive school
      district. No doubt they’ll do so again in two weeks when that
      matter will be before me for sentencing.

Id. at 11. (internal alteration, footnote, and citation omitted).

      In her first issue on appeal, Appellant contends that the trial court

erred by denying her motion for recusal.

      Our Supreme Court presumes judges of this Commonwealth are
      honorable, fair and competent, and, when confronted with a
      recusal demand, have the ability to determine whether they can
      rule impartially and without prejudice. The party who asserts a
      trial judge must be disqualified bears the burden of producing
      evidence establishing bias, prejudice, or unfairness necessitating
      recusal, and the decision by a judge against whom a plea of
      prejudice is made will not be disturbed except for an abuse of
      discretion.

Commonwealth v. Kearney, 92 A.3d 51, 60–61 (Pa. Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2013) (internal quotation marks, alteration, and

citations omitted).


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      Appellant argues that the trial court’s comments at J.J.’s sentencing

indicate that it had already decided that Appellant was guilty, and therefore

had a fixed and substantial bias. Appellant does not rely on the procedural

posture of this case to bolster her claims on appeal. Instead, as Appellant

concedes, when this Court or our Supreme Court reverses and remands for

further proceedings, there is no presumption that recusal of the original trial

court is necessary. E.g., Basile v. H & R Block, Inc., 894 A.2d 786, 791

(Pa. Super. 2006) (en banc), vacated on other grounds, 909 A.2d 298 (Pa.

2006) (per curiam); Commonwealth v. Fisher, 681 A.2d 130, 135 (Pa.

1996), superseded on other grounds, 42 Pa.C.S.A. § 9711(a); Koleski v.

Park, 525 A.2d 405, 410 (Pa. Super. 1987). In such cases, the law is clear

that the party seeking recusal still bears the burden of showing that the trial

court is biased or prejudiced.

      The trial court’s statements at J.J.’s sentencing hearing were not of the

trial court’s personal beliefs.   Instead, the trial court was merely reciting

what the police department and the Commonwealth argued at Appellant’s

first trial. The trial court correctly noted that this portrayal was persuasive

as the jury found J.J.’s testimony credible and found Appellant guilty of the

charged offenses. The trial court’s mere recitation of the police department

and the Commonwealth’s portrayal of J.J. and Appellant, and the jury’s

determination thereon, does not indicate that the trial court was biased in

any manner.



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      Furthermore, Appellant fails to recognize the context in which the trial

court’s statement was made. J.J. appeared for sentencing after Appellant’s

original trial and prior to her first sentencing proceeding. Thus, at the time

of J.J.’s sentencing, a jury of Appellant’s peers determined that J.J. was a

victim of sexual offenses committed by Appellant.        Although this Court

ultimately overturned that conviction, the fact remains that, at the time of

J.J.’s sentencing, Appellant was convicted of victimizing J.J. The trial court

could not ignore Appellant’s conviction when sentencing J.J.        Appellant’s

victimization of J.J. was a proper mitigating factor that the trial court was

required to consider when pronouncing J.J.’s sentence.        The trial court’s

performance of its duty when sentencing J.J. did not evidence bias or

partiality.   As the trial court noted when denying Appellant’s motion for

recusal, “as far as I recall . . . at the time [J.J.’s] case was resolved,

[Appellant] had had her trial and was convicted by a jury.        So it isn’t a

question of what I believe[d] or d[idn’t] believe.” N.T., 3/19/14, at 3.

      We find instructive decisions by this Court, the Commonwealth Court,

and our Supreme Court. In Commonwealth v. Druce, 848 A.2d 104 (Pa.

2004), the trial court made statements to the media regarding a pending

criminal case.    The defendant thereafter sought the trial court’s recusal

based upon those comments, arguing that they showed bias or prejudice

against him. Our Supreme Court disagreed, noting that the comments made

by the trial court “were directly related to information [the defendant]



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admitted in court at his guilty plea[.]” Id. at 110. Thus, our Supreme Court

held that the trial court’s comments did not evidence bias or partiality

against the defendant.   Id.   Although in this case Appellant did not plead

guilty, the jury, as arbiter of the facts, made factual findings that bound the

trial court. Thus, just like facts admitted at a guilty plea hearing, comments

relating to facts found by a jury do not show bias or prejudice against

Appellant.

      In Feingold v. Hill, 521 A.2d 33 (Pa. Super. 1987), appeal denied,

529 A.2d 1081 (Pa. 1987), the plaintiff sought recusal of the trial court

because it previously found him in contempt of court. This Court held that

“these allegations are mere recitations of unfavorable rulings against [the

plaintiff], and clearly fail to satisfy the necessary burden [to require

recusal].” Id. at 40. Similarly, in Ware v. U.S. Fid. & Guar. Co., 577 A.2d

902 (Pa. Super. 1990), this Court stated that “a mere recitation of

unfavorable rulings against an attorney does not satisfy the burden of

proving judicial bias, prejudice or unfairness.” Id. at 904.

      In Subaru of Am., Inc. v. State Bd. of Vehicle Mfrs., Dealers &

Salespersons, 842 A.2d 1003 (Pa. Cmwlth. 2004), the Commonwealth

Court noted that when a judge learns of certain facts while acting in his or

her judicial capacity, forming views on those facts is not bias which requires

recusal. Id. at 1009, citing Kenneth Culp Davis, Administrative Law Text,

Bias § 12.06, at 253 (3d Ed. 1972). In this case, the trial court sat through



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a lengthy jury trial at which J.J. testified regarding his sexual relationship

with Appellant.    It would be unreasonable to infer impermissible bias or

prejudice from the trial court’s recitation of the jury’s findings and recitation

of the positions advocated by the Commonwealth and the police department.

Thus, these circumstances do not lead us to conclude that the trial court

abused its discretion.

      Appellant also argues that the trial court’s ruling on the admission of

J.J.’s prior burglary convictions evidenced its bias and prejudice.             As

discussed below, however, we conclude that the trial court properly

sustained the Commonwealth’s objection to Appellant’s line of questioning.

Correct evidentiary rulings cannot serve as the basis for finding bias or

prejudice.    Thus, we find no support in the record for Appellant’s claim of

bias or prejudice.    Finally, there is no appearance of impropriety or bias.

Instead, an impartial observer would view the trial court’s statements at

J.J.’s sentencing as fulfilling its obligation to consider the relevant factors for

sentencing.     The impartial observer would not construe the trial court’s

statements to indicate it was biased against Appellant.            Therefore, we

conclude that the trial court did not abuse its discretion in denying

Appellant’s motion to recuse.

      Appellant next contends that the trial court erred in limiting her cross-

examination of J.J. regarding his burglary convictions.         As our Supreme

Court explained, “[i]t is well-established that the admissibility of evidence is



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within the discretion of the trial court, and such rulings will not form the

basis for appellate relief absent an abuse of discretion. Thus, th[is] Court

may reverse an evidentiary ruling only upon a showing that the trial court

abused that discretion.”   Commonwealth v. Hoover, 107 A.3d 723, 729

(Pa. 2014) (internal quotation marks and citation omitted).

     Pennsylvania Rule of Evidence 404 provides, in relevant part:

     (a) Character Evidence.

     (1) Prohibited Uses. Evidence of a person’s character or
     character trait is not admissible to prove that on a particular
     occasion the person acted in accordance with the character or
     trait.

     (2) Exceptions for a Defendant or Victim in a Criminal Case. The
     following exceptions apply in a criminal case:

                                   ***

     (B) subject to limitations imposed by statute a defendant may
     offer evidence of an alleged victim’s pertinent trait

                                   ***

     (3) Exceptions for a Witness. Evidence of a witness’s character
     may be admitted under Rules 607, 608, and 609.

                                   ***

     (b) Crimes, Wrongs or Other Acts.

     (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
     not admissible to prove a person’s character in order to show
     that on a particular occasion the person acted in accordance with
     the character.

     (2) Permitted Uses. This evidence may be admissible for another
     purpose, such as proving motive, opportunity, intent,
     preparation, plan, knowledge, identity, absence of mistake, or


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      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the
      general nature of any such evidence the prosecutor intends to
      introduce at trial.

Pa.R.Evid. 404.   Pennsylvania Rule of Evidence 405 provides, in relevant

part, that, “[s]pecific instances of conduct are not admissible to prove

character or a trait of character, except . . .    [i]n a criminal case, when

character or a character trait of an alleged victim is admissible under [Rule]

404(a)(2)(B) [such that] the defendant may prove the character or

character trait by specific instances of conduct.” Pa.R.Evid. 405(b)(2).

      Appellant’s counsel asked J.J. whether he was convicted of burglarizing

residences. N.T., 3/21/14, at 395.6 The Commonwealth objected, and the

trial court sustained the objection.7 The trial court ruled that the convictions

and the dates of the convictions could be entered into evidence; however,

the details of the burglaries could not be entered into evidence. Id. at 395.


6
  The notes of testimony for trial are continuously numbered in separate
volumes. We cite to the correct date and the page number as indicated in
the notes of testimony.
7
  The exact objection was not made on the record. Instead, the objection
was made in chambers without a court reporter present. After counsel and
the trial court resumed proceedings on the record, the trial court
summarized the Commonwealth’s objection on the record and its ruling
thereon. See N.T., 3/20/14, at 188.




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The trial court sustained the Commonwealth’s objection because the trial

court ruled the burglary convictions came “in for one reason and one reason

only and that’s impeachment to [] test whether [J.J.’s] credible on the stand

today.”     Id. at 294.    Appellant argues that she was prevented from

presenting her theory of the case - that J.J. knew the details of her

apartment because he had unlawfully entered it in the past.8

     We first review the interaction of Rule 404(a), 404(b) and 405(b)(2).

Rule 404 discusses two types of character evidence.      Rule 404(a) covers

general character evidence.   For example, the propensity for violence is a

general character trait.    Rule 405 provides that an individual’s general

character can be proven in two ways, by reputation or by specific acts.

Under Rule 405(b)(2), general character evidence regarding a witness in a

criminal case, proven by a specific act, is only admissible under Rule

404(a)(2)(B).    On the other hand, Rule 404(b) discusses prior bad acts

evidence.    Such evidence is admissible if the requirements of Rule 404(b)

are satisfied. Thus, in order to gain admission of specific bad acts such as




8
  Specifically, the Commonwealth offered evidence in support of Appellant’s
conviction that J.J. knew about the contents and layout of Appellant’s
apartment because Appellant invited him into her apartment to engage in
sexual acts. Appellant wanted to cross examine J.J. about the details of his
burglary convictions as support for her position that J.J. knew about the
details of her apartment since he “may have entered the premises uninvited
at a time when [Appellant] was not present and without her knowledge.”
Appellant’s Brief at 7.



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J.J.’s    prior    burglary    convictions,    Appellant    needed    to   satisfy    the

requirements of either Rule 404(a)(2)(B) or Rule 404(b).

         J.J.’s prior burglary convictions were not admissible under Rule 404(b)

as the convictions were being offered “to show that, on a particular occasion,

[J.J.] acted in accordance with [his] character.”              Pa.R.Evid. 404(b)(1).9

Specifically, Appellant was attempting to prove that on a particular occasion

J.J. acted in conformance with his character by unlawfully entering

Appellant’s apartment and learning the layout of the apartment and her

personal possessions.

         J.J.’s   burglary    convictions     were   also   inadmissible   under     Rule

404(a)(2)(B).        As noted above, in order to be admissible under Rule

404(a)(2)(B), the character trait must be “pertinent.”               As this Court has

explained, “a ‘pertinent’ character trait for purposes of [Rule] 404(a)(2)[(B)]

is limited to a character trait of the victim that is relevant to the crime or

defense at issue in the case.”         Commonwealth v. Minich, 4 A.3d 1063,

1072 (Pa. Super. 2010). In this case, Appellant argues that the pertinent

character trait was that J.J. is “stealth.” Appellant’s Brief at 17.

         Stealth is clearly not related to the crimes at issue in the case.

Whether or not J.J. was stealthy is of no moment in determining whether

9
   Appellant argues at some length that Rule 404(b) applies only to
defendants or accused individuals. This reading is contrary to the plain
language or Rule 404(b). Furthermore, our Supreme Court recently held
that Rule 404(b) applies to the Commonwealth’s witnesses in a criminal
case. Commonwealth v. Patterson, 91 A.3d 55, 68–70 (Pa. 2014).



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Appellant and J.J. had sexual relations. It is also not relevant to Appellant’s

defense that she and J.J. never had sexual relations. As used in Minich, the

word defense refers to defenses such as sexual intercourse being voluntary

in a rape case or self-defense in a murder case. It does not refer to creative

theories developed by intelligent defense counsel.           Therefore, J.J.’s prior

burglary convictions were not admissible under Rule 404(a)(2)(B).

      Furthermore,      the   details    of   J.J.’s   burglary   convictions   were

inadmissible under Pennsylvania Rule of Evidence 403, which provides that

“[t]he court may exclude relevant evidence if its probative value is

outweighed by a danger of . . . unfair prejudice[.]”                Pa.R.Evid. 403.

Appellant was attempting to prove that J.J. was stealthy and that he acted in

conformity with this character trait to infiltrate her residence to learn both its

layout and the nature of her personal possessions.         J.J.’s aptitude for stealth

was established, however, when Appellant brought out the mere fact of his

burglary convictions.    Any burglary conviction has an element of stealth.

See 18 Pa.C.S.A. § 3502(a).             The details pertaining to J.J.’s burglary

convictions were largely immaterial to J.J.’s character trait of being stealthy.

Thus, the probative value of where the burglaries occurred was very low.10

On the other hand, the risk of unfair prejudice, i.e., diverting the jury’s




10
  It is for this reason that, even if the trial court did err by limiting
Appellant’s cross-examination of J.J., such error was harmless.



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attention from the issues in the case, was high. Accordingly, the trial court

did not abuse its discretion by sustaining the Commonwealth’s objection.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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