J-A14043-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ASHLEY PEDRICK

                        Appellant                  No. 1574 EDA 2016


           Appeal from the Judgment of Sentence April 14, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-MD-0000122-2016


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2017

     I concur with my distinguished colleagues that Appellant’s appeal from

the denial of her recusal motion alleging bias on the part of the judge lacks

merit. However, I write separately to point out that Appellant also asserted

on appeal that the appearance of partiality warranted recusal, an argument

that was not addressed by the majority. Appellant maintained that because

the judge made a “prior adverse credibility determination,” “her impartiality

might reasonably be questioned.” Appellant’s brief, at 20. Thus, Appellant

contended, “[the judge] had an obligation to recuse herself regardless of

whether she was angry or bitter at the defendant.”          Reply Brief for

Appellant, at 16. I would characterize this as a claim of an appearance of
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partiality,   which    falls   under   the     larger   umbrella   of   appearance   of

impropriety.

       Under Pennsylvania law, "[a] judge shall act at all times in a manner

that promotes public confidence in the independence, integrity, and

impartiality of the judiciary, and shall avoid impropriety and the appearance

of impropriety." Pa. Code Jud. Conduct Rule 1.2. The comment to the rule

provides that, “[t]he test for appearance of impropriety is whether the

conduct would create in reasonable minds a perception that the judge

violated this Code or engaged in other conduct that reflects adversely on the

judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”

Comment [5].

       It is well-settled that the appearance of partiality may require a

judge’s recusal. See Goodheart v. Casey, 565 A.2d 757 (Pa. 2007); see

also Lomas v. Kravitz, 2017 Pa. LEXIS 2275 (Pa. 2017) (acknowledging

that appearance of partiality may warrant recusal but finding issue waived as

it was not presented at the earliest possible time). However, Appellant did

not seek recusal below based on the appearance of partiality, nor did she

identify the court’s refusal to recuse itself on this ground as error in her

Pa.R.A.P. 1925(b) concise statement.1 Since Appellant limited her challenge

____________________________________________


1 Appellant assigned as error the trial court’s failure to grant her motion for
recusal where it “had already found Ms. Pedrick guilty of contempt at a trial
(Footnote Continued Next Page)


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to actual bias and partiality on the part of the trial court, her present

contention that the appearance of partiality mandated recusal is waived for

purposes of this appeal.

      Despite waiver, I take this opportunity to reiterate the point made by

my esteemed colleague, Judge Stabile, in his concurring and dissenting

opinion in Lomas v. Kravitz, 130 A.3d 107 (Pa.Super. 2015) (en banc)

(aff’d 2017 Pa. LEXIS 2275 (Pa. 2017)). Judge Stabile noted the confusion

that still persists as to whether a litigant can challenge the judge’s denial of

a recusal motion asserting an appearance of partiality or impropriety.       In

answering that question in the affirmative, Judge Stabile offered a well-

reasoned and thorough analysis of the evolution of the law of recusal for an

appearance of impropriety, which I commend to the reader.

      Briefly, in Lomas, the defendants sought recusal of the entire

Montgomery County bench based on the appearance of impropriety created

by the fact that one sitting judge had an ongoing pecuniary interest in the

outcome of the case. The trial court denied the recusal motion.      An equally

divided en banc Superior Court affirmed, concluding that the defendants’




(Footnote Continued) _______________________

that was vacated on post-sentence motion, which evidenced the Court’s bias
and lack of [im]partiality to judge the matter.” Concise Statement of Errors
Complained of on Appeal, at 2 ¶3(c).




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recusal motion was “patently untimely, and, therefore, waived.” Id. at 111.2

The majority went on to find further that, although the appearance of

impropriety alone could mandate recusal, “the circumstances here do not

provide a legal or ethical reason to impugn the impartiality of the entire

bench of the Montgomery Court of Common Pleas” or the presiding judge.

All parties agreed that the judge “was fair and impartial at all times” and

found no evidence of “bias, unfairness, or prejudice.” Id. at 125. Thus, the

majority found no abuse of discretion in the denial of the recusal motion.

       In his concurring and dissenting opinion, Judge Stabile opined that the

majority ignored whether an appearance of impropriety warranted recusal.

It was his belief, also subscribed to by this author, that the appearance of

impropriety requires recusal even though no bias, unfairness, or prejudice

on the part of the trial judge was demonstrated. Judge Stabile analyzed the

appearance      of   impropriety     standard    in   judicial   decision-making   and

concluded that a litigant had a substantive right to seek recusal on this basis

and rejected appellee’s contention in Lomas that the judge’s denial of such

a recusal motion was not reviewable.

       The notion that a denial of a recusal motion on this basis is final and

non-reviewable appears to have originated in Reilly v. Southeastern

____________________________________________


2The Supreme Court affirmed on the basis of waiver, finding that the recusal
motion was not filed at the earliest possible time.



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Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa. 1985) (overruled

on other grounds as recognized by Gallagher v. Harleysville Mut. Ins.

Co., 617 A.2d 790, 794 (Pa.Super. 1992)), where the Court stated that a

trial judge’s assessment of his ability to rule impartially “is personal,

unreviewable,      and   final.”     As    recently   as   this   Court’s   decision   in

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

language was relied upon in support of the proposition that the appearance

of impropriety involves enforcement of the Code of Judicial Conduct, which is

beyond our jurisdiction. The panel reasoned that the canons of the Code

merely set norms of conduct and did not confer standing on others, including

this Court, to enforce the Code.3

       Judge Stabile traced the evolution of the appearance of impropriety

standard from a canon to a mandatory rule of judicial conduct.                He relied

upon In re McFall, 617 A.2d 707 (Pa. 1992), and several other decisions in

reaching his conclusion that a litigant has a substantive right to enforce and

seek review of the denial of a recusal motion based on the appearance of

impropriety.     In McFall, twenty-nine appellees sought and were granted

new criminal proceedings where the judge who presided over their original

____________________________________________


3I cannot reconcile this view with language in Commonwealth v. Kearney,
92 A.3d 51, 61 (Pa.Super. 2014), to the effect that a jurist’s ruling that “he
or she can hear and dispose of a case fairly and without prejudice, will not
be overruled on appeal but for an abuse of discretion.”



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proceedings failed to disclose that she had worked as an undercover agent

for the FBI.   The issue was framed in terms of whether the court’s conduct

denied defendants their right to a fair and impartial tribunal. Our High Court

answered that question in the affirmative, finding that “the air of

impropriety” alone, without proof of actual prejudice, was sufficient. McFall,

supra at 610. Impartiality of the trial court was viewed as a fundamental

prerequisite of a fair trial.   Each appellee was granted a new proceeding

because the Court concluded that the trial judge’s impartiality was deemed

compromised by appearance alone.

      Our Supreme Court relied upon McFall in Joseph v. Scranton Times

L.P., 987 A.2d 633 (Pa. 2009).        The Court assumed plenary jurisdiction

over the case under Pa. Const. art. V, § 19(a), granting an application for

relief and exercising King’s Bench authority, and appointed Judge Platt, now

a senior judge of this Court, to preside over a remand of the matter.       He

was charged with determining whether there was judicial impropriety or the

appearance of such impropriety in the assignment and trial of the underlying

defamation case so as to entitle petitioners to a new trial.

      The issue of impropriety arose after it came to light that two judges,

one of whom assigned the case to the other, were co-conspirators in a

scheme involving two private juvenile facilities in which they held a financial

interest.   Judge Platt recommended a new trial, and the Supreme Court

agreed. Our High Court found the earlier trial to have been “infected with

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the appearance of judicial impropriety.”   It relied upon Pa. Const. art. I, §

11 (“right and justice are to be administered without sale, denial or delay”)

and art. V, which grants the Supreme Court supervisory and administrative

authority over all courts, in granting a new trial “to remedy the pervasive

appearance of impropriety . . . and to give justice, and the appearance of

justice, an opportunity to prevail.” Id. at 635. The Court stated that even

the appearance of impropriety was sufficient justification for the grant of

new proceedings, and applied McFall’s test: “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." McFall, supra at

712-13. The Court rejected the notion that a showing of prejudice was

necessary where the appearance of impropriety was established, citing

McFall and In re Cunningham, 538 A.2d 473, 480 (Pa.                    1988)

(superseded by statute on other grounds as noted in In re Jaffe, 814 A.2d

308 (Pa. Ct. Jud. Discipline 2003). In accord Commonwealth v. Darush,

459 A.2d 727, 732 (Pa. 1983) (appellant entitled to resentencing by another

judge where trial judge’s derogatory remarks about him raised a reasonable

issue as to his impartiality).

      I believe Judge Stabile correctly stated Pennsylvania law when he

concluded that litigants have a substantive right to a fair and impartial

tribunal, and that denial of a recusal motion premised on the appearance of

partiality or impropriety is reviewable by this Court for an abuse of

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discretion. Furthermore, I find the objective test articulated by the Court of

Appeals for the Seventh Circuit in Pepsico v. McMillen, 764 F.2d 458, 460

(7th Cir. 1985), and cited with approval in the Pennsylvania Code, to be

more than adequate: “whether an objective, disinterested observer fully

informed of the facts underlying the grounds on which recusal was sought

would entertain a significant doubt that justice would be done in the case.”

207 Pa. Code § 15-4.        Moreover, the appearance of impropriety may

warrant the grant of a new proceeding before a different judge.

      Herein, even if the issue had been preserved, the prior adverse

credibility determination by the judge did not warrant recusal for an

appearance of partiality.     It was not a circumstance even remotely

comparable to the illustrative examples in the Code of Judicial Conduct

where a judge “shall” recuse because his or her impartiality might

reasonably be questioned:

      (1)   The judge has a personal bias or prejudice concerning a
            party or a party's lawyer, or personal knowledge of facts
            that are in dispute in the proceeding.

      (2)   The judge knows that the judge, the judge's spouse or
            domestic partner, or a person within the third degree of
            relationship to either of them, or the spouse or domestic
            partner of such a person is:

            a. a party to the proceeding, or an officer, director,
               general partner, managing member, or trustee of
               a party;

            b. acting as a lawyer in the proceeding;



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           c. a person who has more than a de minimis
              interest that could be substantially affected by
              the proceeding; or

           d. likely to be a material witness in the proceeding.

     (3) The judge knows that he or she, individually or as a
     fiduciary, or the judge's spouse, domestic partner, parent, or
     child, or any other member of the judge's family residing in the
     judge's household, has an economic interest in the subject
     matter in controversy or is a party to the proceeding.

     (4) The judge knows or learns that a party, a party's lawyer, or
     the law firm of a party's lawyer has made a direct or indirect
     contribution(s) to the judge's campaign in an amount that would
     raise a reasonable concern about the fairness or impartiality of
     the judge's consideration of a case involving the party, the
     party's lawyer, or the law firm of the party's lawyer. In doing so,
     the judge should consider the public perception regarding such
     contributions and their effect on the judge's ability to be fair and
     impartial. There shall be a rebuttable presumption that recusal
     or disqualification is not warranted when a contribution or
     reimbursement for transportation, lodging, hospitality or other
     expenses is equal to or less than the amount required to be
     reported as a gift on a judge's Statement of Financial Interest.

     (5) The judge, while a judge or a judicial candidate, has made a
     public statement, other than in a court proceeding, judicial
     decision, or opinion, that commits the judge to reach a particular
     result or rule in a particular way in the proceeding or
     controversy.

     (6) The judge:

           a. served as a lawyer in the matter in controversy,
           or was associated with a lawyer who participated
           substantially as a lawyer in the matter during such
           association;

           b. served in governmental employment, and in such
           capacity participated personally and substantially as
           a lawyer or public official concerning the proceeding,
           or has publicly expressed in such capacity an opinion

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              concerning the merits of the particular matter in
              controversy; or

              c. was a material witness concerning the matter.

Code of Judicial Conduct, Rule 2.11(A) (as discussed in 207 Pa. Code § 15-

4) (Formal Advisory Opinion of the Ethics Committee of the Pennsylvania

Conference of State Trial Judges)).

      Absent herein is any evidence of judicial bias or partiality against

Appellant or her lawyer or personal knowledge of the facts.      The present

situation does not implicate personal or economic interests of the judge, her

family, or other members of the Bench.          It does not involve political

contributions.    The judge did not make a public statement that would have

suggested that she was committed to reaching a particular result. Nor was

the judge at one time a lawyer involved or associated with the matter, or a

material witness to the events.

      While the list is not exhaustive, an adverse credibility determination,

without more, is not the type of circumstance that creates an appearance of

partiality.   I submit that if every judge who made an adverse credibility

determination against a party was disqualified from presiding in any

subsequent proceeding involving that party on the theory that it created the

appearance of partiality, recusal would be the norm. See Commonwealth

v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998) ("Adverse rulings alone do not,

however, establish the requisite bias warranting recusal, especially where



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the rulings are legally proper.").    In short, even if the issue had been

preserved, the circumstances herein did not raise an appearance of partiality

that would have warranted recusal and a new proceeding.




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