J-A20039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellant                :
                                           :
            v.                             :
                                           :
ANDREW GESSLEIN,                           :
                                           :
                  Appellee                 :          No. 3222 EDA 2013

            Appeal from the Order entered on November 8, 2013
              in the Court of Common Pleas of Lehigh County,
               Criminal Division, No. CP-39-CR-0003003-2012

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 08, 2014

      The Commonwealth of Pennsylvania appeals from the trial court’s

denial of its Motion to recuse the Honorable Robert L. Steinberg (“Judge

Steinberg”), and Judge Steinberg’s Order denying in part and granting in

part the post-sentence Motions filed by Andrew Gesslein (“Gesslein”), which

resulted in a new trial for Gesslein.   We affirm the denial of the Motion to

recuse Judge Steinberg, reverse the Order granting a new trial, vacate

Gesslien’s judgment of sentence and remand for resentencing.

      On April 29, 2012, at approximately 2:15 a.m., Michael Randolph

(“Randolph”) and a group of friends attempted to enter the North End

Republican Club (“the Club”), located in Allentown, Pennsylvania. Gesslein,

an armed guard employed by a private security firm hired by the Club,

denied Randolph entry. After several arguments and unsuccessful attempts
J-A20039-14


to enter the Club, Randolph and his friends pushed past Gesslein.

Immediately thereafter, Gesslein shot Randolph three times. Randolph died

as a result of his injuries.

      A jury found Gesslein guilty of voluntary manslaughter, 18 Pa.C.S.A.

§ 2503(b), implicitly rejecting Gesslein’s claim of self-defense.          The

Commonwealth sought the imposition of the mandatory minimum sentence

of five years in prison, pursuant to 42 Pa.C.S.A. § 9712. Applying section

9712(a), the trial court sentenced Gesslein to five to ten years in prison,

after which Gesslein filed post-sentence Motions. While those Motions were

pending, the Commonwealth filed a Motion to Recuse Judge Steinberg. After

a hearing, Judge Steinberg denied the Commonwealth’s Motion.

      The trial court conducted a hearing on Gesslein’s post-sentence

Motions. On November 8, 2012, the court granted Gesslein’s Motion for a

New Trial, concluding as a matter of law that the verdict was against the

weight of the evidence.        Thereafter, the Commonwealth filed the instant

timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.

      The Commonwealth now presents the following claims for our review:

      [1.] Did the [trial] court abuse its discretion when it determined
      that the verdict was against the weight of the evidence where
      the court misapplied the standard of review by placing itself as
      the thirteenth juror and substituting its judgment for the jury’s
      credibility findings and resolution of evidence?

      [2.] Did the [trial] court abuse its discretion in denying the
      Commonwealth’s [M]otion for recusal prior to considering


                                    -2-
J-A20039-14


      [Gesslein’s] post-sentence [M]otions based on the court’s bias
      both against the Commonwealth and victim and, at a minimum,
      the appearance of bias as manifested by the court’s statements
      and extraordinary conduct from the verdict through post-
      sentence [M]otions?

Brief for the Commonwealth at 4 (issues renumbered).

      First, the Commonwealth argues that the trial court abused its

discretion by granting Gesslein a new trial.     Id. at 43.   Specifically, the

Commonwealth challenges the trial court’s conclusion that the verdict was

against the weight of the evidence. Id. According to the Commonwealth,

      the [trial] court improperly placed itself in the position of the
      thirteenth juror and substituted its credibility findings for the
      jury’s.   The court ignored large swathes of testimony and
      evidence, and engaged in conjecture to support its conclusions….

Id. Therefore, the Commonwealth argues, the trial court’s Order must be

reversed. Id. at 65.

      Appellate review of a weight of the evidence determination by the trial

court “is a review of the exercise of discretion, not of the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

“Where the record adequately supports the trial court, the trial court has

acted within the limits of its discretion.” Commonwealth v. Brown, 648

A.2d 1177, 1190 (Pa. 1994) (citation omitted).

      In its Opinion, the trial court set forth its reasons for concluding that

the verdict is against the weight of the evidence:




                                  -3-
J-A20039-14


     No reasonable person could argue that [] Randolph was not
     aggressive in both manner and deed toward [] Gesslein. He
     forced his way into the Club after he directed threats at []
     Gesslein because he was not permitted admission into the Club.
     It is similarly evident that [] Gesslein’s use of deadly
     force was dependent on whether [] Randolph had a
     firearm, and reached for it during their confrontation.
     However, to paraphrase Justice Oliver Wendall Holmes, Jr.,
     “Detached reflection cannot be demanded in the presence of an
     uplifted [gun].” Brown v. United States, 256 U.S. 335, 343
     (1921); Commonwealth v. Soto, 657 A.2d 40, 41 (Pa. Super.
     1995) (A court must be careful not to examine the
     reasonableness of a defendant’s belief with 20/20 clarity of
     hindsight).

            The focal point of the Commonwealth’s evidence is that no
     firearm was recovered from the body of [] Randolph by the
     police. Sergeant Alicia Conjour [“Sergeant Conjour”] was one of
     the initial officers who responded to the Club after the shooting.
     She observed [] Randolph on the ground at the foot of the stairs
     to the door of the Club. A large crowd had gathered in the
     parking lot behind the Club, which she described as “generally
     hostile to the police.” Police personnel were needed to “get the
     crowd back” so EMS could provide assistance to [] Randolph.
     Her entire shift responded[,] which included fourteen (14) other
     officers. She encountered no cooperative witnesses, and her
     inquiries were met with “expletives.”

            Two equally reasonable and mutually inconsistent
     inferences can be drawn from these set of circumstances.
     [] Randolph either did not possess a firearm, or in the
     morass of hostility, the firearm was spirited away. “When
     two equally reasonable and mutually inconsistent inferences can
     be drawn from the same set of circumstances, a jury must not
     be permitted to guess which inference it will adopt, especially
     when one of the two guesses result in depriving a defendant of
     his life or his liberty. Commonwealth v. Gruff, 822 A.2d 773,
     788 n.12 (Pa. Super. 2003); Commonwealth v. Johnson, 818
     A.2d 514, 521 (Pa. Super. 2003) (“When a party on whom the
     burden of proof rests in either a criminal or a civil case, offers
     evidence consistent with opposing propositions, he proves
     neither.”).

     …


                                -4-
J-A20039-14



           None of [] Randolph’s “friends” who bolted inside the Club
     were presented as witnesses. Furthermore, the testimony of
     [Miguel] Gomes [“Gomes”] can only be characterized as a
     fabrication. The shell casings from [] Gesslein’s firearm were
     found on the opposite side of the room from where [] Gomes
     placed [] Gesslein.        Additionally, almost all of the
     Commonwealth’s other witnesses depicted some type of
     confrontation between [] Gesslein and [] Randolph inside the
     Club, except [] Gomes. [] Gomes would only say, when asked
     on cross-examination, that outside the Club, [] Randolph was
     heard exclaiming, “[w]e should fuck him up.”

           [] Gesslein provided the most detailed testimony
     concerning the confrontation inside the Club, but corroborating
     testimony was also provided by [Anthony Eric] Jones [“Jones”]
     and [Robert] Smith, [Jr. (“Smith”),] although Smith’s testimony
     regarding his location at the time of the shooting was
     contradicted by other witnesses. [Lakera] Kelley [“Kelley”], who
     knew [] Randolph, heard the threats outside the Club, and the
     gunshots in the Club. Her testimony neither supported nor
     refuted the Commonwealth’s theory. [] Gomes is the only
     witness who denied that a physical altercation preceded the
     shooting. He is also the only witness who testified that after []
     Randolph entered the Club, he raised his hands and said[,] “I
     told you I was going to get the ‘f’ in,” and moments later from a
     distance of ten (10) feet away, [] Gesslein shot him.

Trial Court Opinion, 12/20/13, at 11-14 (emphasis added, citations omitted).

     As set forth above, the trial court concluded that the Commonwealth

had failed to disprove, beyond a reasonable doubt, Gesslein’s claim of self-

defense. In so holding, however, it appears that the trial court improperly

undertook the function of the jury, assigning its own weight to the

Commonwealth’s evidence and its own credibility determinations as to the

witnesses’ testimony.   Further, our review of the record discloses that the




                                 -5-
J-A20039-14


trial court’s reasons for granting a new trial are not supported by the

evidence.

      In its Opinion, the trial court rejected Gomes’s eyewitness testimony

because Gomes purportedly had failed to testify about any type of physical

altercation between Randolph and Gesslein. Id. at 13. According to the trial

court, “Gomes would only say, when asked on cross-examination, that

outside the Club, [] Randolph was heard exclaiming, ‘[w]e should fuck him

up.’” Id. Our review of the record, however, discloses that Gomes, in fact,

testified about an altercation at the door of the Club:

      Q. [The Commonwealth]: … And when you arrived[,] were there
      other people already in the parking lot?

      A. [Gomes]: Yes.

      Q.: Could you tell the ladies and gentlemen of the jury when
      you got there and you saw the people in the parking lot, did you
      immediately go in or what was the process that you went
      through to gain access to the Club?

      A.: Well, when I went there[,] there was [sic] people all over
      the steps. And then the – the guy sitting there he was at the
      door and it was a commotion. When I got there[,] there
      was already a commotion, like argument, you know,
      because they won’t let somebody in. And it was going
      back and forth for a while.

            And then I crept to the side of the steps and I went to the
      door and I told them I was here with a party. It was a birthday
      party that I was invited to go there. And [Gesslein] said, well,
      that person is not a member here, so you can’t get in. So I was,
      you know, like I had the same problem they did, you know.

            And they kept going on I would say for … ten or
      fifteen minutes arguing.



                                  -6-
J-A20039-14


               Somehow [Gesslein] closed the door and then another
         person came in and knocked. And when he opened [the door] I
         happened to peek in and I seen [sic] the owner sitting by the
         table, and he told [Gesslein] to let me in.

              And that’s how the kid [Randolph] went in behind me.

N.T., 4/2/13, at 130-31 (emphasis added). Thus, the trial court’s rejection

of Gomes’s testimony, based upon Gomes’s failure to testify about an

altercation at the Club’s entrance, finds no support in the record.

         The trial court also rejected Gomes’s testimony because it was

contradicted by incontrovertible physical facts.        Trial Court Opinion,

12/20/13, at 14.       According to the trial court, the shell casings from

Gesslein’s firearm “were found on the opposite side of the room from where

Gomes placed [] Gesslein.”       Id. at 13.    Applying the “incontrovertible

physical facts rule,” the trial court opined that, “[b]ased on the recovery of

shell casings, the events as retold by [] Gomes were a work of fiction.” Id.

at 14.

         The “incontrovertible physical facts rule” provides that “where the

testimony of a witness is contradicted by incontrovertible physical facts, the

testimony of such witness cannot be accepted ….”          Commonwealth v.

Newman, 470 A.2d 976, 979 (Pa. Super. 1984).           In Newman, however,

this Court also recognized that “[t]he rule is inapplicable when the facts

depend upon estimates of distances.” Id.

         The record reflects that Gomes testified as follows regarding the

shooting:


                                  -7-
J-A20039-14


     As soon as you walk in[,] you gotta go to the left and there’s a
     table there. And you gotta turn around and sign.

           And as soon as I walked in and signed the … gentleman,
     the kid [Randolph], he walked in and he stood in front of the
     pool table. He took his hat off and put his hands up and said, “I
     told you I was going to get in.”

           You know, it happened so quick, because [Randolph]
     glanced to the right, he seen [Gesslein] like in form to shoot,
     and he tried to run out the door. That’s when he shot.

N.T., 4/2/13, at 131. Gomes further testified that,

     when [Randolph] burst in[,] the security guard took like I’d say
     about six to ten steps back. I mean he was like more towards
     the bathroom, you can’t even see the bathroom there, but he
     was more towards the bathroom, closer to the bathroom.

     …

           … [Gesslein] drew the gun and he got into a shooting
     form. Like it wasn’t like he was standing up, like his knees were
     bent and everything ….

     …

     [Randolph] glanced – well, he glanced at the security guard and
     he seen the gun and his friend probably, I believe his friend seen
     it before him, because his friend ran out the door first, you
     know. And as soon as he seen it he turned to the left to run out
     the door, and that’s when he shot.

          The last shot, I believe the last shot that caught the kid
     was when the kid hit the door. It has a metal—metal bar in the
     middle, so he hit the door and turned around and that’s – that’s
     how you found him, when they found him he was on his back.

     Q. [The Commonwealth]: How many shots did you hear?

     A. [Gomes]: I believe it was three, maybe four. You know, … it
     was pretty fast ….




                                 -8-
J-A20039-14


Id. at 134-35. Gomes expressly testified that he never saw Randolph with a

gun or weapon. Id.

      Regarding the placement of the spent shell casings, Commonwealth

expert witness Sergeant Kurt Joseph Tempinski (“Sergeant Tempinski”)

testified as follows:

      Q. [The Commonwealth]: … [I]s there any way to determine[,]
      does a casing just immediately fall to the ground or does it shoot
      a mile away, or is it just a random event?

      A. [Sergeant Tempinski]: It’s fairly random, depending on the
      firearm and the type of cartridge, the height of the shooter, the
      altitude of the firearm, whether it’s held sideways, upright, it
      just depends. The ejection port, usually in most firearms, in this
      particular case, the ejection port is on the right-hand side. The
      cartridge casings would, if held in the traditional manner, would
      go to the right and usually slightly to the rear—usually.

      Q.: All right. So they are ejected to the right and slightly to the
      rear, and then they just go wherever gravity and their force
      takes them?

      A.: That’s correct. They can strike objects, they can hit things,
      they can be kicked or stepped on, whatever. But usually, in this
      particular case, to the right and maybe slightly to the rear of the
      firearm.

Id. at 161-62.

      Contrary to the trial court’s finding, the location of the spent shells did

not render Gomes’s testimony a physical impossibility.          While Sergeant

Tempinski testified as to a general direction that spent shells could be

ejected from a firearm, he also stated that the location of the shells could be

“fairly random.” See id. The trial court’s rejection of Gomes’s testimony,

based upon its application of the “incontrovertible physical facts rule,” is


                                  -9-
J-A20039-14


simply not supported in the record. As such, the trial court erred in relying

upon this rule to reject Gomes’s testimony.

      In its Opinion, the trial court also found that the Commonwealth’s

evidence did not disprove Gesslein’s claim of self-defense beyond a

reasonable doubt.   Trial Court Opinion, 12/20/13, at 14-15.     According to

the trial court,

      [t]he most compelling evidence is that no one saw [] Randolph
      with a gun with the exception of [] Gesslein, and a gun was not
      recovered. However, even that evidence is diluted by the
      crowd that surrounded his body and the ease to which the
      gun could have been removed. Moreover, if he possessed
      a gun, it was secreted and literally only visible for
      seconds.

            [] Gesslein’s version of events is substantially
      corroborated by the Commonwealth’s evidence, and is
      more compelling. The video outside the Club demonstrates []
      Randolph’s aggressive actions up to and including his blitz into
      the Club. Commonwealth witnesses also support [] Gesslein’s
      testimony that [] Randolph was hurling invectives. Moreover,
      the gunshot to [] Randolph’s “right lower abdominal quadrant” is
      consistent with where [] Gesslein testified that [] Randolph
      reached for the “black handle of a gun.”

Id. at 16 (emphasis added, footnote omitted).

      In order to create mutually inconsistent inferences, the trial court

relied upon the testimony of Sergeant Conjuor. The trial court opined,

      Sergeant [] Conjuor was one of the initial officers who responded
      to the Club after the shooting. She observed [] Randolph on the
      ground at the foot of the stairs to the door of the Club. A large
      crowd had gathered in the parking lot behind the Club, which
      she described as “generally hostile to the police.”         Police
      personnel were needed to “get the crowd back” so EMS could
      provide assistance to [] Randolph. Her entire shift responded[,]
      which included fourteen (14) other officers. She encountered no


                                 - 10 -
J-A20039-14


      cooperative witnesses,    and      her   inquiries   were   met   by
      “expletives.”

             Two equally reasonable and mutually inconsistent
      inferences can be drawn from these set of circumstances. []
      Randolph either did not possess a firearm, or in the morass of
      hostility, the firearm was spirited away….

Id. at 12 (footnote omitted).

      Upon reviewing the record, we conclude that the trial court’s above-

stated finding is speculative, at best, and not supported by the evidence.

The record reflects that, other than Gesslein, no witness observed Randolph

with a firearm before, during or after the shooting. Further, no witness

testified about observing a firearm near Randolph’s body, or about secretive

or suspicious activity engaged in by members of the gathered crowd.

      Sergeant Conjour testified that she was dispatched to the scene of the

shooting, and was the second or third officer to arrive at the scene. N.T.,

4/1/13, at 73, 75. According to Sergeant Conjour, she stayed to secure the

scene, and seek witnesses.      Id. at 80.       Sergeant Conjour offered no

testimony that would support a finding that members of the crowd engaged

in any suspicious or secretive activity, or in any way interfered with the

integrity of the crime scene.

      Allentown Police Detective Keven Mriss (“Detective Mriss”) testified

that he was called to the scene of the shooting to take charge of the scene

and to collect evidence. N.T., 4/2/13, at 9. At the time of his arrival, the

crime scene area had been established and there was an officer at every



                                - 11 -
J-A20039-14


entrance.   Id.   Detective Mriss testified that other than Gesslein’s firearm

and holster, no other firearm or holster was collected by the police from the

Club or the crime scene. Id. at 44.

     Jones testified that he entered the Club at about 2:00 or 2:30 A.m. on

the night of the shooting. Id. at 64-65. Jones testified that those entering

the Club are searched for weapons.        Id. at 67.   Jones testified as follows

regarding the shooting:

     [Jones]: … [A]s I was sitting there talking to my friends, I was
     looking facing forward, and I was sitting there talking to one of
     my friends that was standing next to me. And at some point you
     heard [Smith] yell—start yelling, and then the scuffle took place.
     And at that point[,] you see the security guard; he backed up
     from that location to almost like the edge of the pool table right
     here in this area.

     …

     And at that point I stood up, when I heard all that commotion
     going on, to see what was going on. And at that point is when
     [Gesslein] drew his gun and fired three shots.

     Q. [The Commonwealth]: When the security guard backed up
     …, what were the people doing that were closer to the door?

     A.: Well, at that point at the door I seen [sic] … the three
     people, one of them being the deceased and two of his friends,
     they were running to—running out of the door.

     …

     Q.: … So, where were [Randolph] and his friends, you said they
     were near the door, what were they doing when the shots went
     off?

     A.: When the shots went off they were running out of the door,
     which one the—one of his friends was in the front, [Randolph]



                                 - 12 -
J-A20039-14


     was in the middle, and another—the last friend was behind
     [Randolph].

     Q.: Now, you said you heard three shots?

     A.: Yes.

     Q.: And all three shots occurred as you described [Randolph]
     and his friends running out [of] the door?

     A.: Correct.

     Q.: At any point prior to the scuffle, or even during the scuffle,
     did you see [Randolph] or his friends—did you see them with a
     gun?

     A.: No, I didn’t.

     Q.: At any point prior to or during the scuffle[,] did you see
     them reaching for or trying to reach for something, or trying to
     reach for a gun?

     A.: No, I didn’t.

Id. at 70-72.

     Kelly testified that while in the parking lot at the Club, she heard

“verbal arguing back and forth.” Id. at 104. Kelly testified that after she

entered the Club, the arguing continued. Id. at 105. Immediately after the

shooting, Kelly stated that she exited the side door of the Club and returned

from around the building to the parking lot. Id. at 106. At that time, Kelly

observed Randolph lying on the parking lot, about five feet from the steps.

Id. at 107. Kelly performed CPR on Randolph. Id. at 108.        Kelly did not

testify that she saw a weapon on or near Randolph, or that the crowd

removed evidence from the scene.



                                - 13 -
J-A20039-14


      Allentown Police Officer Michael Becker, Jr. (“Officer Becker”), testified

that he was the first officer to arrive at the scene of the shooting.     N.T.,

4/1/13, at 86-87. Upon his arrival at the scene, Officer Becker observed a

crowd in the area, and a female holding a rag or t-shirt to Randolph’s

stomach. Id. at 87. At that time, Officer Becker testified, about twenty to

twenty-five people were outside the Club. Id. at 104. Upon the arrival of

more police officers at the scene, Officer Becker proceeded inside the

building. Id. at 88. Officer Becker offered no testimony that would support

a finding of suspicious activity by any member of the crowd, or interference

with the integrity of the crime scene.

      By contrast, Gesslein’s testimony contradicts the testimony of the

other witnesses. Gesslein testified that the evening before the shooting, at

about 3:40 a.m., he saw Randolph sitting on the pool table at the Club,

“swinging his legs, with … two women, one on each side of him, with a beer

bottle in his hands[,] swinging his legs [and] spilling beer on top of the

table.”   N.T., 4/3/13, at 95. According to Gesslein, the owner of the Club

directed him to get Randolph off of the pool table. Id. Gesslein stated that

as he directed people to leave the Club at closing time, Randolph

      started screaming obscenities and profanity at me that he was
      going to do what he wanted when he wanted, and that’s when
      he started swinging his beer bottle in his hand, in a clubbing
      motion.

Id. at 96. However, Gesslein testified that Randolph did not strike him. Id.




                                 - 14 -
J-A20039-14


      Smith, the President of the Club, contradicted Gesslein’s testimony.

Smith testified that Randolph was not at the Club the prior evening. N.T.,

4/2/13, at 95. On the night of the shooting, Smith testified, Randolph “got

pushy a little bit, like physically at [Gesslein and the other security guard],

though no fighting or anything.”      Id. at 95.    When asked to describe

Randolph’s actions, Smith testified as follows:

      Well, [Randolph] pushed his way through the guard to get
      between the door and the table. He shouldn’t been [sic] in the
      Club at all, but he was like in the entrance.

Id. at 97-98. Smith stated that at his request, Gesslein told Randolph that

he could not enter the Club.         Id. at 98.     According to Smith, the

conversation between Smith and Randolph was “medium” in volume, and he

heard no threats. Id. Smith testified that Randolph “did point his finger at

me and said, ‘I pay my ten dollars every night, and you’re going to let me in

or else.’” Id. at 99. Concerned, Smith walked away from the door in order

to lock up the cash receipts. Id. Smith did not see the shooting, but heard

shots being fired.   Id. at 92.

      Our review of the record also discloses testimony that, on April 29,

2012, police officers conducted and recorded two interviews of Gesslein. Id.

at 190. The first recorded interview was played for the jury. Id. at 190-91.

Allentown Police Detective Timothy Salgado (“Detective Salgado”) testified

that after the first interview, he viewed the recording of the incident, taken

from the parking lot security camera. Id. at 192. After viewing that video,



                                  - 15 -
J-A20039-14


Detective Salgado decided to re-interview Gesslein. Id. Detective Salgado

testified that

      I had concerns with [what] the video depicted and what his
      account of the story of what happened was.

      …

      [Gesslein’s] statement that [] Randolph’s friends ran out the
      door, that [Randolph] stopped on the outside cement step
      outside the door and then turned to face him and went to draw a
      gun. I did not see that on that video.

      …

      [Gesslein’s] statement was that the friends, which I believe are
      these two folks [indicating], two gentlemen right here, are
      outside—actually, he said three of them ran out, three of the
      friends ran out. And that [] Randolph, who is here in the white
      hat, was the last person out and stopped on the stoop.

            But the video shows the two friends in front of []
      Randolph, and as the video will progress[,] there will be another
      friend that comes out behind him. At no time in this video did I
      see [] Randolph stop on that stoop and turn back in towards the
      Club.

Id. at 193-95.     Detective Salgado testified that in the first interview,

Gesslein stated that Randolph stopped, turned to face Gesslein, then

“reached deep.” Id. at 195.

      By contrast, at trial, Gesslein testified that he recognized Randolph as

“the gentleman who was sitting and causing a scene on the pool table the

night before.”   N.T., 4/3/13, at 24.     Gesslein then testified as follows

regarding the shooting of Randolph:

      [Gesslein]: A gentleman, I can’t tell you who … knocked on the
      door approximately 3:00 [], a minute before—a minute after,


                                 - 16 -
J-A20039-14


     and like I said, there is no way of seeing through the door, there
     is no glass, there’s no cameras. We had to open the door and
     tell him that’s it, 3:00[], place is closed. He said he knew
     [Smith], knew him, Jackie, [Smith’s] daughter. It turned out to
     be [] Gomes.

            He stuck his head around the door, [Smith] knew him,
     Jackie, [Smith’s] daughter. I turned around and told [Smith],
     “I’m going to sign him in, if he gets here a couple of minutes
     late, let him in.”

          When that had happened, [] Randolph flung the door out
     of my hand, him and his three friends that he was with, bum
     rushed through the door.

     …

     Q. [Defense counsel]: No, you said they bum rushed their way
     in, what do you mean by that?

     A. [Gesslein]: A quick blitz. I’m sure many people on the jury
     watch football, a pile on. They just—the four of them just ran
     right into the doorway, flung the door open and ran in.

     Q.: Okay. Where were you when that happened?

     A.: I was inside the Club.

     Q.: Right at the door?

     A.: Well, not at the door, about four or five feet back from the
     doorway.

     Q.: Well, when … [] Gomes came in, did the door not shut?

     A.: It pretty much was on its way to closing, it was pulled out of
     my hand.

     Q.: Now, you saw the video that the Commonwealth showed
     earlier?

     A.: Yes, I did.




                                  - 17 -
J-A20039-14


     Q.: Okay. And the gentleman who you were referring to as []
     Randolph, is he the one that’s banging on the door?

     A.: Yes, he is.

     Q.: And is that just before he entered?

     A.: Yes.

     Q.: And you say you’re about four or five feet inside the Club
     when he enters, is that right?

     A.: Yes.

     Q.: What do they do?

     A.: They come into the Club, I put my arms out in a T-motion
     and tell them, “Guys, you gotta get out.”

            I absolutely tried to put my hands across their chest just
     to try to coax them out. And that was the end of that.

     Q.: Okay. What happened then?

     A.: [] Randolph grabbed my right arm; he started on my
     forearm, locked down on my wrist.        The other gentleman
     grabbed my left arm, grabbed me by my fleece, tried doing what
     I call the hockey maneuver, which is pulling it over my head,
     punched me on the left side of my head and now I’m fighting.

     Q.: Okay.

     A.: It was a physical fistfight.

     Q.: And there’s two people that have a hold of you?

     A.: Yes.

     ...

     Q.: Were you able to extricate yourself?

     A.: Eventually, yes.



                                 - 18 -
J-A20039-14


     Q.: Okay. How long did it take?

     A.: It could have been a minute, it could have been twenty
     seconds. I can’t tell you.

     Q.: All right.   And you were able to get away from these two
     individuals?

     A.: Yes.

     Q.: When you did that, what were they doing?

     A.: They were still coming at me.

     Q.: Okay. Where did you go?

     A.: I backed up.

     …

     Q.: After you were able to get away from these two individuals
     who were holding you, where did you go?

     A.: I backed up.

     Q.: How did you do that?

     A.: I fought—I fought with everything I had, it was a two on one
     fight. I was—I thought I was going to die.

     Q.: You were afraid?

     A.: I was scared. You know, you got two—two young men that
     are grabbing your arms and they’re whacking you, they’re
     beating on you, what else are you supposed to do? You fight.

     …

     Q.: And how far away from [them] did you go …?

     A.: The altercation happened right around here, about five feet
     in. I backed up to my right and I ended up right around here, to
     the back end of the pool table.



                                - 19 -
J-A20039-14


      …

      Q.: … [S]o, you’re about eight to ten feet away from them at
      this point?

      A.: Yes, from the original spot.

      Q.: Okay. Now, can you tell the members of the jury, please,
      what happened after you got away from them and backed up,
      what did you see?

      A.: I seen [sic] [] Randolph taking his right hand reaching into
      the front of his waistband. Underneath his shirt he wore his
      sweatshirt, tee-shirt mix out, un-tucked from his pants.

              Now, mind you, when they bum rushed the door they
      weren’t patted, they weren’t searched. When he reached into
      his waistband, as his hand was coming up, I seen [sic] the black
      handle of a firearm. I was not going to worry about getting shot
      first, I drew my weapon and – that’s why we’re here.

N.T., 4/3/13, at 30-37.

      After firing his weapon, Gesslein described what next transpired as

follows:

      I worried about the people that were directly around me, as you
      are trained to do. You discharge your weapon, you check your
      left, your right real fast, make sure there are no other threats.

            I went to the door, I did not know if I hit [] Randolph or
      not. I don’t know if my three shots went through the door, I
      don’t know as they ran did they go out of an open door, hit one
      of the vehicles in the parking lot, hit the brick wall.

            I opened the door, peeked outside, seen [sic] him laying
      there, re[-]safetied [sic] my weapon, put it back on my side,
      called the cops.




                                 - 20 -
J-A20039-14


Id. at 39-40.     Gesslein admitted that, in contrast to his above-testimony,

the video showed him running out of the door, and stated that “I should

have known better than to just run out.” Id. at 40.

         On cross-examination, Gesslein clarified that upon breaking free of

Randolph and his friend, Gesslein retreated somewhere between ten and

fifteen feet. Id. at 93. According to Gesslein, he then took “a stance,” with

his gun pointed at the ground and the safety still on. Id. at 94-95. It was

at this point, Gesslein testified, that Randolph reached for what Gesslein

believed was a weapon. Id. at 94.

         Thus, the jury was able to observe Gesslein’s description of the events

during his first two interviews with police officers and Gesslein’s testimony at

trial.    In addition, the jury viewed the surveillance video captured by a

camera outside the rear door to the Club. N.T., 4/2/13, at 48. Finally, the

jury heard the testimony of the witnesses to the events leading up to, during

and after the shooting. The jury, in passing upon the weight and credibility

of each witness’s testimony, is free to believe all, part, or none of the

evidence. Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010). The

trial court erred in substituting its credibility determinations for those of the

jury.

         The trial court also improperly assigned weight to the lack of

testimony by any of Randolph’s friends who had entered the Club with him.

See Trial Court Opinion, 12/20/13, at 13 (stating that “[n]one of []



                                   - 21 -
J-A20039-14


Randolph’s   ‘friends’   who   bolted   inside    the   Club   were   presented   as

witnesses.”).     However,     “even    the   uncorroborated     testimony   of   a

prosecution witness may be sufficient to convict despite contrary evidence

from the defense, if the trier of fact, based on the evidence before it,

chooses to lend credibility to the former.” Commonwealth v. Zankowski,

546 A.2d 1254, 1256 (Pa. Super. 1988).

     Based upon our review of the record, we conclude that the trial court

erred in determining that the verdict was against the weight of the evidence.

Accordingly, we reverse the trial court’s Order granting a new trial to

Gesslein.

     The Commonwealth next claims that Judge Steinberg erred in not

granting its Motion to recuse him from further proceedings involving

Gesslein.    Brief for the Commonwealth at 17.                 The Commonwealth

summarizes      instances   wherein,    the      Commonwealth     asserts,   Judge

Steinberg’s conduct cast doubt upon his impartiality in rendering further

decisions in the case. See id. at 17-42.

     Our standard of review for a denial of recusal is well-settled.

     [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.



                                  - 22 -
J-A20039-14


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

and internal quotation marks omitted).

      [A] trial judge should recuse himself whenever he has any doubt
      as to his ability to preside impartially in a criminal case or
      whenever he believes his impartiality can be reasonably
      questioned. It is presumed that the judge has the ability to
      determine whether he will be able to rule impartially and without
      prejudice, and his assessment is personal, unreviewable, and
      final. Where a jurist rules that he or she can hear and dispose of
      a case fairly and without prejudice, that decision will not be
      overturned on appeal but for an abuse of discretion.

Id. (citations and internal quotation marks omitted).

      At the hearing on the recusal Motion, Cynthia A. Quadro (“Ms.

Quadro”), the presentence investigator, testified as follows:

      [F]irst of all, when we were first assigned to do the presentence
      investigation, Judge Steinberg contacted Sharon Shoemaker and
      indicated that he would like to discuss the matter with the
      presentence investigator. He did not know that I was assigned
      to the case at that time.

            I contacted Your Honor [and] indicated that I would like to
      interview [Gesslein] first before I met with you at that time.
      After I interviewed [] Gesslein, then we met in your chambers
      and we had a discussion about the case.

      …

            … And I believe during the course of the conversation[,] it
      was discussed, “Would you like to see the video?” or maybe,
      “Had you seen the video? It was my understanding that it was
      the same exact video that was on The Morning Call website. And
      I was not able to click on that website for whatever reason,
      maybe [restrictive software] or we’re precluded from witnessing
      videos, video streaming via the County.

           So[,] I was not able to see that on The Morning Call
      website. So[,] during the course of the conversation, I believe it



                                 - 23 -
J-A20039-14


      was suggested, “Do you want to see the video?” and I said,
      “Yes, of course.”

N.T., 9/3/13, at 27-28. Ms. Quadro testified that Judge Steinberg did not

“instruct” her to view the videotape. Id. at 32. While in Judge Steinberg’s

chambers, Ms. Quadro and Judge Steinberg viewed a video taken from

outside of the Club, and attempted to view rap videos made by the victim.

Id. at 33.     Ms. Quadro expressly testified that Judge Steinberg issued no

direction to her to refrain from making a sentencing recommendation. Id.

at 29-30.

      Upon our review of the record, we cannot conclude that the trial judge

abused his discretion in denying the Commonwealth’s Motion to recuse. The

trial judge’s conduct throughout the trial reflected no bias or appearance of

impropriety.    Although we have reversed the trial court’s grant of a new

trial, the record does not support overturning the trial court’s denial of the

recusal Motion at this time.

      Accordingly, we affirm the trial court’s denial of the Commonwealth’s

Motion to recuse, and reverse the trial court’s Order granting a new trial.

However, upon reversing the grant of a new trial, we must address whether

the mandatory minimum sentence imposed by the trial court, pursuant to 18

Pa.C.S.A. § 9712, resulted in an illegal sentence. See Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (recognizing that the Court

may review the legality of a sentence sua sponte, and that the application of




                                  - 24 -
J-A20039-14


a mandatory minimum sentence may give rise to illegal sentence concerns,

even where the sentence is within the statutory limits).

        Pursuant to section 9712(a), the possession of a firearm, during the

commission of a voluntary manslaughter, is considered to be a sentencing

factor to be determined by the trial court upon a preponderance of the

evidence, and not an element of the underlying crime to be determined

beyond a reasonable doubt. 18 Pa.C.S.A. §§ 9712(a), (b); 9714(g). This

sort of sentencing scheme was deemed unconstitutional in Alleyne v.

United States, 133 S.Ct. 2151, 186 L. Ed. 2d 314 (2013). See Watley, 81

A.3d at 117 (stating that in Alleyne, the United States Supreme Court

“rendered those Pennsylvania mandatory minimum sentencing statutes that

do not pertain to prior convictions constitutionally infirm insofar as they

permit a judge to automatically increase a defendant's sentence based on a

preponderance of the evidence         standard”); see also id. at 117 n.4

(specifically referencing, inter alia, 18 Pa.C.S.A. § 9712).

        In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), this

Court made it clear that following Alleyne, “it is manifestly the province of

the General Assembly to determine what new procedures must be created in

order    to   impose   mandatory   minimum     sentences       in   Pennsylvania….”

Newman, 99 A.3d at 102. Accordingly, the Newman Court concluded that

the entire mandatory minimum sentencing statute, set forth at section 9712,

is unconstitutional.    Id. at 103; accord Commonwealth v. Valentine,



                                   - 25 -
J-A20039-14


2014 Pa. Super. 220, *23.      We therefore reverse Gesslein’s judgment of

sentence and remand for resentencing without consideration of 18 Pa.C.S.A.

§ 9712.

      Order affirmed in part and reversed in part; judgment of sentence

vacated; case remanded for resentencing consistent with this Memorandum;

Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2014




                                 - 26 -
