Commonwealth v. White

ELLIOTT, Before FORD JOYCE and BECK, JJ. BECK,

OPINION BY J.: ¶ 1 In this case we consider whether the may appeal, right, as of pretrial denying order recusal. We also ap- consider the Commonwealth’s ruling request peal adverse its requested generally murder guilty trial. We hold Common- jury degree guilt may not the denial recu- court schedule a wealth inquired to an right, hearing. prosecutor but is entitled then sal as in the event the trial court refuses believed that whether the jury in a hearing could result verdict guilt e., murder, i. volun- less than third FACTS responded The tary manslaughter. court ¶2 This case a homicide com- involves later, the week in the affirmative. One girl, by eleven-year-old appellee mitted Judge Hughes before prosecutor appeared alleg- The Miriam White. and she recuse herself and asked that to appears and Ms. White concede es Judge judge. assign matter to another the 20, 1999, August the afternoon of she on prosecu- The Hughes request. the denied fifty-five Rose year old Marie stabbed the Common- requested tor then chest, causing in the death. Knight jury trial. right wealth afforded its to a law, By operation of Ms. White was request. Final- Judge Hughes denied the charged as an adult for the crime of mur- to certi- ly, the asked the court prosecutor 6355(e). § Legal pro- der. Pa.C.S.A. for the issue and fy appeal both recusal ceedings concerning proper the manner Judge jury the for a request treat, punish, which to restrain and reha- the The Com- Hughes request. denied Ms. have been ongoing bilitate White filed this appeal.1 monwealth then nearly years. three ¶ 3 In a series of be- pretrial hearings APPEALABILITY OF THE RECUSAL Renee fore Honorable Cardwell ISSUE Hughes, defense and the Common- counsel question in threshold attempted plea agree-

wealth to reach the Com- whether the orders which ment, but effort was unsuccessful. appealable. monwealth seeks review Thereafter, defense counsel moved to de- the denial of recusal. The begin We with juvenile the case certify to and the pre- Appellate permit Rules of Procedure matter came before the Honorable Le- in the event appeals trial Commonwealth gróme Again, attempts plea D. Davis. at or substan- prosecution terminated commenced, again they but negotiations tially handicapped: After proved unsuccessful. extensive anal- ysis thorough assessment of case, circum- under the criminal case, Judge Davis denied decertification law, the Common- provided stances matter November and the returned right take an as appeal wealth Hughes’s Judge to courtroom. not end the from an order does case where the Commonwealth Judge 4 Defense informed entire counsel appeal in the notice that Ms. intended certifies Hughes plead White to right permitted certify as of 1. When the court refused interlocutory appeal, right prejudice appellee’s matter for the Common- without continue filed a Petition for Review under Pa. panel. wealth quashal before the merits 1511, docketed at 108 EDM R.A.P. which was result, we have before us the Common- As right well as as of under 311(d) right appeal as of under Rule wealth's 311(d) (the action), which Pa.R.A.P. instant quash DefendanVAppellee once more seeks was docketed at EDA 2000. This court arguing that appeal, it is not January denied the Petition for Review (d). under Rule However, panel quash refused order will terminate or substantially inquire into the upon reasons which it handicap prosecution. relies to assert a substantial handicap un 311(d). der Rule It is true that in cases 311(d). Pa.R.A.P. regarding the admission or exclusion of ¶ 6 There body exists a sizeable of case evidence, inquired we have not into the discussing law Commonwealth’s appropriateness of the Commonwealth’s 311(d) pretrial appeals. Rule" to file claim of substantial handicap and explicitly The most familiar cases are those address have held that the Commonwealth’s certifi ing the admission or exclusion of evidence. cation is determinative its right to ap 311(d) applicable has been held to an See, peal. Allburn, e.g., Dugger, supra; order of suppression, Commonwealth v. Pitts, supra; Commonwealth v. 740 A.2d Dugger, (1985); 486 A.2d 382 (Pa.Super.1999).2 726 This treatment of an order granting a defendant’s motion in evidentiary logical; issues is judiciary the evidence, limine to exclude certain Com does not upon evidentiary intrude assess 72, King, monwealth v. 456 Pa.Super. 689 by attorney ments made the district in the (1997); A.2d 918 and an order granting a cases she to bring chooses to court. But defendant’s motion in limine to admit cer the fact that we probe decline to evidentia- evidence, Allburn, tain Commonwealth v. ry issues this context does not mean 721 A.2d (Pa.Super.1998), 363 appeal de attorney the district alone decides nied, (1999). 662, 559 Pa. 739 A.2d 163 what appealable what is not under decade, 7 But in the past we have 311(d). Rule deemed several non-evidentiary pretrial orders to right as of by the ¶ 9 Prior case law establishes that the instance, Commonwealth. For the Com- courts have placed place and continue to may appeal monwealth preclud- order limits on the Commonwealth when it in- ing it from seeking penalty, the death vokes the Rule. Commonwealth v. Commonwealth v. Buonopane, 410 Pa.Su- Smith, 524, (1988) 518 Pa. 544 A.2d 943 per. (1991), 599 A.2d appeal 681 de- (plurality), Supreme our Court held that nied, (1992); 530 Pa. 608 A.2d 27 an an order severance did not constitute transferring order from criminal case substantially one that the handicapped juvenile court, Johnson, Commonwealth v. prosecution because the Commonwealth 542 (1995); Pa. A.2d 315 and an permitted still was to seek convictions order denying a Commonwealth filed, the charges albeit in two separate for a continuance in order to secure a one, 527-28, rather than proceedings Id. at witness, Matis, Commonwealth v. 544 A.2d at year, panel 945. Just this (1998). 220, 710 A.2d 12 In each these qf this court did not accept blindly the Com- cases, the appellate court determined that monwealth’s certification of substantial appeal nature of the order made an Shearer, handicap. In Commonwealth v. right proper. (Pa.Super.2002), pan- WL ¶ The argues majority pretrial its el’s held that a order certification alone establishes directing that a child witness be examined appellate may by and an psychologist not could not be appealed court) non-evidentiary juvenile In the analogized cases that we have we or the order on appeals right, treated as as of we either did addressing evidentiary to one issues. 311(d), application not address the of Rule Matis, (continuance supra See in order to se- see, e.g., Buonopane, supra (imposition of the witness). cure a (transfer penalty) supra death and Johnson certification, 311(d) we are au- did because the order Commonwealth’s order consider de- ability to whether not affect the Commonwealth’s thorized Further, our appealable. the accused. recusal is pursue charges against nying leads us con- majority of the issue consideration The Shearer observed: of estab- such order falls short clude that [Djespite the Commonwealth’s certifica- handicap. lishing a substantial tion, in and of [will ... the order not] terminate, hamper, much less itself ability of the Commonwealth 12 The Only if the prosecution of by affected not been present its has ultimately incompetent child is ruled recusal. Not denying court’s order court, with assis- or without the evidentiary rul- are there no adverse only expert a psychologist’s prior tance of but, Commonwealth, unlike facing the ings be ob- opinion, will the Commonwealth Johnson, intact. charges remain structed its actions. punish- Buonopane, possible Unlike unlike in not been And ment has altered. Id. at *2. Matis, availability of witnesses ¶ Although been Shearer has since Further, expand compromised. that the Superior withdrawn so Court orderly pro- be to Rule would disturb banc,3 consider the case en its rationale is of the litigation. application cess of Strict conclusion, its compelling along with that forward go assures trials will as Rule Smith, plurality suggests that of the in expand We Rule scheduled. decline other that when issues than those eviden- 311(d) from an order appeal to include an raised, in tiary may pause nature we find that such an denying recusal.5 We the propriety consider of the Common- 311(d) beyond of Rule scope order is certification.4 this is wealth’s No doubt therefore, and, as not of in to a concern part due that invocation right. 311(d) norm, Rule not but become rather remain an exception to be utilized THE ISSUE MERITS OF RECUSAL necessary. only where ¶ Although find that the court’s we

¶ 11 in is not we precise appealable, With concern recusal order address 311(d) mind, response dissent’s con- and based Rule case law its merits to the dissent generally, notwithstanding we find issue. The be- sideration required majority, an assessment bad 3.The Shearer Justice Montemuro date has Musmanno, Judge inquired considering ap- into the valid- when a Commonwealth faith ity 311(d). of the claim that it was decline to peal Commonwealth’s Rule We en- under substantially handicapped by court's gage in one here. Distinguishing evidentiary rul- order. clear judge, distinguished ings plurality explicitly order admit- of a such as an 4. The Smith evidence, ting excluding majori- ruling evidentiary or appeals certain based on from cases, ty that an as concluded such those rendered other 311(d) was the facts. unwarranted under severance order before it. dissent, Shearer, slip op., Judge at *2 2. In n. Olszewski stated the Commonwealth’s holding preclude the Our does not Com- handicap of substantial was suffi- certification appealing a denial of from ever monwealth 311(d) cient to allow under Rule pretrial. Commonwealth itself recusal As the was no that the certifica- since there evidence case, proper recognized in this manner (Olsz- made in bad Id. at *2 tion was faith. a Petition raising such a claim is via ewski, J., dissenting). While such under Pa.R.A.P. 1511. Review here, availability was panel on this Petition unsuccessful What the en banc will decide However, law to the Commonwealth remains. is uncertain. the case issue case, lieves that proper recusal was this comments and others is the fact that the but we do not agree prejudice that bias or disappointed was with the turn of events, established the record nor do we the case in- particularly because believe an appearance prej- bias or tragic volved such novel—and —circum- udice is evident. stances. 17 These comments revealed the 14 The Commonwealth devotes having with frustration deal portion substantial of its brief to comments manner, unique case in a standard Judge Hughes prior made Ms. White exasperation well as her with the fact that proceedings, plea decertification while negotiations the matter ongoing. proceeding smoothly. were Those com was not questions judge candidly ments included The admitted that about Ms. she did diet, preferences White’s food not want to garden- and other treat this case as a factors her concerning variety juvenile condition and treat matter that had been de- ment while awaiting trial. The Common nied decertification. But her disclosure wealth argues that the court’s “fulsome tempered was with statements that praise” of and “solicitous concern” for Ms. placing par- she had no intention of either White combined to appearance “create an ty at disadvantage every and had inten- of improper personal Ap involvement.” upholding tion of After reviewing law. pellant’s Brief at disagree. 32. We all the comments of which the Common- wealth complains, we not find that ¶ 15 exchanges Judge between Judge Hughes pre-judged the ease. Nor Hughes and Ms. proper White were when would we find that her remarks estab- viewed in context. The court had before it lished that she unwilling to follow the twelve-year-old girl, whom all parties or appeared law even so. conceded was severely troubled. It ap- peared at that time that a negotiated reso- ¶ Thus, 18 even if we could address the lution would be Judge Hughes, reached. issue, recusal we would not find for the White, in questioning reassuring and Ms. Commonwealth on merits. attempted ease, to put the child at to APPEALABILITY TRI- OF THE JURY reassure the child and to put a human face AL ISSUE judicial on the system, surely which was mystifying frightening to the twelve- ¶ The 19 Commonwealth also chal year-old. The court’s interaction with the lenges the trial judge’s denying order it a child, uncommon, admittedly while was not jury question trial. find without that We inappropriate considering the uncommon the Commonwealth appeal this order court, facts before the particularly the 311(d). as of under right Rule The Com child’s age and her troubled mental state. asserted right monwealth’s is constitution

¶ al in “[I]n 16 The Commonwealth also its basis: criminal cases the refers us to other by right comments made the court once Commonwealth shall have the same by jury decertification was denied and it became to trial does the accused.” Pa. as Const, (amended 1998). I, negotiated § clear that a resolution would art 6 The Among not be reached. them upheld by is the amendment has been the Penn judge’s statement that she would be sylvania Supreme Court and so is valid. regular 231, “forced to treat this like a Tharp, [case]' Commonwealth v. 754 (2000). [placing case” and believed “the law Ms. A.2d 1251 Precluding Com juvenile White criminal court of instead monwealth from appellate review on this wrong.” permit court] was Obvious from those issue would the trial court to over-

561 case, may plead a defendant non-capital its a provision a constitutional based on ride and in such generally murder guilty Af- interpretation provision. of that own cases, plea trial, judge “the before whom issue the constitutional ter alone the de- shall determine was entered court.6 appellate never reach 590(c). This Pa.R.Crim.P. gree guilt.” of ¶ A trial denial of the 20 court’s Com- defen- affords a criminal procedural rule right jury constitutional a monwealth’s judge, trial having option dant the a trial no doubt constitutes substantial degree jury, rather than a determine 311(d), much the handicap of the Rule guilt. implementation But way decertifying a order a same the Com- in the event that is irrelevant juvenile precluding case or the death pen- to exercise its constitu- monwealth seeks Johnson, v. alty does. See Commonwealth jury tional to a trial. right (1995) (decertifi- Pa. 669 542 A.2d 315 cation); v. Buonopane, Commonwealth right, The Commonwealth’s as (1991), Pa.Super. Constitution, 599 A.2d reciprocal. in the set out denied, Pa. A.2d in all instances which the attaches (1992) (death penalty). has to a right jury criminal defendant effect, simply, permit is to Its ¶ 21 It is the genesis of Common- jury a trial insist on Commonwealth trial, jury a our right wealth’s asserted despite criminal defendant’s decision to a Constitution, requires that state the order right. waive same It is clear as of right. right exercise of Commonwealth’s TRIAL MERITS OF THE JURY ISSUE intended jury trial was sitting 22 In as determining degree preclude from fact hearing determining guilt. guilt go could forward finder and Constitution, amended, entitles the jury Commonwealth’s erroneously just to do that. As precluded, the trial court re sult, on the Rules of on the rationale set forth Pennsylvania relied Crimi and based provide infra, nal Procedure.7 The Rules hold that the Commonwealth we charge generally, acquittal, the event of ents Common- an initial of murder wealth would have no because the Commonwealth’s statement followed precluded challenging a guilty it is from not degree proceed that would not with first it conviction, verdict. In the event of a the charges. murder right ap- Commonwealth would have no of Supreme clearly Court has stated that Our peal aggrieved because it be an would not generally can result guilty plea a to murder in party. first, murder, degree as or third well second claim, a related the also In Commonwealth manslaughter, long voluntary as there is as as that Ms. is not entitled to a asserts White support by presented the accused evidence event, degree guilt hearing any of in because 217, Myers, Pa. it. v. See Commonwealth charge only pending against her is third the (1978). also See Common- A.2d degree According to the murder. Common- Bickley, 448 Pa. 292 A.2d 317 v. wealth wealth, plead guilty, Ms. if White wishes (1972); Swaney, 445 Pa. Commonwealth v. degree a plea must enter to third murder. she (1971). Although this issue A.2d 732 claim, support of its the In Commonwealth light decision likely of our on irrelevant precludes to case a trial refers us law trial, right jury to a the Commonwealth’s jury voluntary judge instructing a on from degree a the law that where nonetheless manslaughter there is no evidence where forward, goes possibility guilt hearing the of a charge. support cases are con- the These manslaughter goes with voluntary conviction they jury trolling fol- address instructions it. Id. pres- lowing a murder whereas this case trial jury demand a trial in the charges face of the apart sets them from In others. defendant’s plead guilty to mur- instances, a most criminal defendant’s de- der generally. plead guilty cision to would be met with approval by attorney the district and the

¶ 24 A plea guilty to murder generally attorney notion that the district could or unique plea, is a anything unlike else pro- oppose plea appears such a absurd.9 vided statute or decisional law. It ap- only the crime per- Murder is wherein we pears to be like a guilty plea because the mit guilty plea general charge to a defendant at and concedes least some level of allow, cases, guilt. option But the proceeding non-capital at least in the 590(c) Rule is not the same as a defendant guilt by be determined pleading guilty charges to the filed against 590(c). judge. op- See Pa.R.Crim.P. This her. guilty plea, pre- no evidence is tion, by only created rule and available against sented judge defendant. The defendants, simple guilty murder is not a in her colloquy merely assures plea. is instead a variation of waiver defendant is aware of the facts underlying such, trial trump and as it cannot 590(c) plea. A Rule proceeding, on the right Commonwealth’s constitutional to de- other requires hand still presentation jury mand a trial. Common- Where evidence, the arguments of counsel and right jury wealth to a seeks to assert the finding of facts in support of a verdict. trial, facing a criminal defendant murder practical matter, As a the procedure set charges simply may not invoke Rule 590(c) out in Rule is akin ato bench or 590(c). waiver trial. The criminal defendant first right waives her by to be tried a jury.8 ¶ provision 26 The constitutional Thereafter, presented evidence is against giving a reciprocal the Commonwealth by attorney the district and her coun- right to a jury certainly permits trial sel advocates on her behalf testimony, via jury, Commonwealth to insist that a argument or At both. the end of this court, not the in a crimi render the verdict proceeding, a verdict is rendered nal Tharp, supra; court. The provides essence for a Puksar, v. 740 A.2d form of a waiver trial for the defendant (1999), denied, 829, 121 cert. 531 U.S. S.Ct. facing charges. murder newly Under the (2000). 79,148 L.Ed.2d 42 adopted constitutional provision, the Com- monwealth can oppose procedure law, 27 Based on the applicable demand that the matter be resolved aby concluding erred jury trial. jury Commonwealth had no to a reliance rule procedural 25 It is for the reasons set out above to oppose right a clear constitutional disagree that we with the trial court that misplaced. The trial must be court’s order the right Commonwealth’s exercise of its reversed and the jury permit- to demand a trial Commonwealth denies an accused right plead guilty. the to ted to exercise its a right We reiterate constitutional to the distinctive nature jury of murder trial. 8. The Comment to the Rule guilt directs that the 9. A defendant's decision to admit rape charged rape, judge plead trial when with or to elicit from the her rec- defendant guilty aggravated charged to assault when ognition of this fact. assault, aggravated prompt with would a challenge attorney. from the district 311(d), Majori- the why did and Pa.R.A.P. CONCLUSION regarding the a ty also consider issue ¶ light analysis, In of we conclude our manslaughter find follow- ability appeal of the the Commonwealth’s hearing? The order ing guilt a of denying must be quashed order recusal be in- to this issue also would pertaining the order because is not in the terlocutory, yet was considered 311(d). We further conclude that the view, my In to avoid Majority’s opinion. denying trial order of the court the Com- the con- and resolve piecemeal litigation jury a trial is monwealth’s arose, I flict would from which the rationale stated appealable. Under the raised herein.10 consider each of issues of above we reverse the order the Hence, merits of the I will turn and direct that the Commonwealth recusal issue. Commonwealth’s to exercise its constitutional permitted ¶ Pennsyl- in standard for recusal The jury a right to vania is well settled. ¶ quashed in part 29 Order reversed of party requesting is the burden part; pro- matter remanded for further establishing produce recusal to evidence Opinion. ceedings consistent with this bias, which rais- prejudice or unfairness ¶ relinquished. 30 Jurisdiction jurist’s a es doubt as to substantial gen- a preside impartially. As ability to ¶ JOYCE, Dissenting J. files a rule, initially eral a motion for recusal is Opinion. jurist impartiality directed to whose considering a challenged. In being JOYCE, BY DISSENTING OPINION jurist must first request, recusal J. of make a conscientious determination agree my 1 I with esteemed col- ability his the case or her assess league’s disposition regarding of the issues manner, impartial personal bias free of the trial court’s denial of Common- jurist or the outcome. interest jury ability wealth’s to a trial and the his or her must then consider whether manslaughter following find case cre- continued involvement in the plea to guilty generally. murder Howev- appearance impropriety ates er, I to separate myself write from the public tend to undermine and/or Majority’s consideration of recusal is- judiciary. in the This confidence sue. personal and unreviewable decision ju- only jurist can make. Where itself, I By agree Majority’s with the that he or can hear and rist rules she conclusion that the recusal issue is inter- prej- dispose fairly a case and without 311(d). locutory under Pa.R.A.P. Howev- udice, that decision will not be over- er, only one the recusal issue was of three an abuse of on but for turned ap- raised issues Commonwealth In a denial reviewing discretion. parcel were peal, part which all motion, recognize disqualification we fact, only of events. one same series honorable, judges fair and our of all three disposes order issues. See competent. Record, D-9, Entry Docket Or- Certified Abu-Jamal, v. If der dated each issue is 1/1/2001. (1998) (internal citations law A.2d 79 requisites meet the set forth open is does not temporal relationship is- cause one issue The between the 10. to raise all other issues. primary importance. Simply be- door sues is of omitted). integrity nearly unprecedented “Because the of the faced with a situa- judiciary compromised eleven-year-old tion appear girl fatally is where an stranger. upon ance of stabbed a total Based impropriety, necessary recusal is mental heath report Appellee’s profes- judge’s where the appears behavior to be sional, was operating the trial court prejudicial. biased or Accordingly, even if was Appellee decompensat- the belief that the court determined that there is no actu N.T., ing prison. in Bail Hearing, adult al prejudice, the court if must recuse itself 11/19/99, a result at 27. As of this it appears any that there improper is influ trial impres- information and the court’s ence.” Benchoff, Commonwealth v. sion that all wanted to parties resolve (citations A.2d (Pa.Super.1997) disposition, the case with a nontraditional omitted)(emphasis original). in im “The lengthy there discussion about the was court, partiality of the which is a funda Appellee’s need to have mental health trial, prerequisite mental fair of a must be appropriate party evaluated and who compromised by alone, deemed appearance was to evaluation. Id. at conduct the eliminating thus establishing the need for hope The evaluation would was that this actual prejudice.” In the Interest of parties finding assist the and the court McFall, (1992). 617 A.2d 707 more in which to appropriate facility house ¶ 4 The Commonwealth cites to various enough Appellee pro- which was secure portions of the record support its con- community addressing tect the while still tention that the trial court demonstrated her all seemed to parties needs. appearance First, impropriety. It agree appears, of action. this course Commonwealth contends that however, that the drafted Commonwealth expression anger court’s towards it is upon a letter mental heath agreed to the evidence of bias and the appearance of professional day as the on the same status impropriety. Specifically, the Common- hearing. The record indicates wealth refers to the following statement: the letter resulted in belief To say angry just am is even —doesn’t Appellee being planned. not evaluated begin equate you the level of hostil- N.T., 12/02/99, at Hearing, Status 4-5. now; ity that I feel num- because anger expressed The trial court then one, ber it thought every- was clear to at this of frustra- development, borne out one this room that I think do not perceived and what the court as deceit tion judicial system traditional prepared to by to undermine its accommodate the case that front facilitating disposition efforts at of the us, required and that it the acknowledg- was; A, ment that Miriam White ¶ Later, the same status hear- during necessarily appropriate to be in the com- Appellee. with ing, the trial court met B, munity; required us to not courtroom, Upon Appellee entering the necessarily think like and defense DA[’]s itself, Appel- trial court introduced showed lawyers and to look a resolution that machine and ex- stenographer’s lee the only community’s was not in the best plained responses that her needed to be interests but this child’s best inter- nothing verbal. was explained ests. going day and that the trial happen N.T., 12/02/99, Hearing, Status at 5. just Appellee meet her. wanted to concern, addressing the Commonwealth’s going was advised that a doctor was to see history some is required put the com- her and the trial a promise court elicited ment into context. The trial court was cooperate she would so that the trial I too. I like raw carrots THE COURT: “right place” her to the could send court lunch. Honest day for every them and where eat for “good [her]” that would be eat day for lunch I Every goodness. The trial Id. at 22-23. grow. can she else? what carrots. And beauti- raw “absolutely how Appellee court told is, “gorgeous that she has a hot hamburgers, ful” she I like [APPELLEE]: smile,” “to send and the court wanted chicken. dogs, toup place grow [she] to a where can [her] ham- like Me too. I THE COURT: 23. young woman.” Id. at be a beautiful You and chicken. dogs hot burgers, engaged Appellee then The trial court life. know, thing favorite my son’s following dialogue: pizza I like too. [APPELLEE]: all everything going THE Is COURT: kind? What THE COURT: right? sausage. I like [APPELLEE]: See, Kind of. [APPELLEE]: sausage. You like THE COURT: like mushrooms. you eating? THE Are COURT: too. I like mushrooms [APPELLEE]: IYes. eat a lot. [APPELLEE]: Yeah, good mushroom THE COURT: Okay. THE You eat a lot. COURT: if I good have to see It’s stuff. stuff. Good food? you pizza. get can some A lot food. APPELLEE: Yes. of bad Okay. [APPELLEE]: very Really. THE Food’s COURT: I can’t I don’t THE COURT: know. good? promise. APPELLEE: Uh-uh. I know. [APPELLEE]: they you any give THE Do COURT: if But I can call and see THE COURT: fruit? and get pizza every can now they you again.... Yes, I eat that too. [APPELLEE]: 12/02/99, N.T., at 24-26. Hearing, Status Good, good, THE good. COURT: What conclusion, Appellee trial court told like? they you you do don’t give it meet and “glad [her]” it was vegeta- I don’t like the [APPELLEE]: getting very [her] “work hard on bles. had to Appellee good place” but oh, vegetables. THE COURT: The— court good. and The trial cooperate good you. But What vegetables are for hand and stated Appellee’s then shook do, they long? them too do cook 27- her. Id. at pleased to meet” was “so they not like [APPELLEE]: tastes 28. all cooked done. “[t]his argues The Commonwealth Oh, why. you THE know COURT: the lower conversation between Crunchy you. are vegetables better concededly stabbed a defendant who they get you them until When cook disturbing. to death pedestrian innocent Yeah, mushy, they’re good. no then defen- praise of the The court’s fulsome you, crunchy vegetables better pleasure; its so- dant; its exclamations you they anything you know. Do have concern; of defen- and condonation licitous like? murdering [the characterization dant’s mistake; appearance create just peanut victim] Yes. I like [APPELLEE]: Com- personal involvement.” carrots, improper I like jelly, raw butter and Brief, at monwealth’s hamburgers.

¶ 7 Although disagree I Com- always fully appreciated with the I have of both to, trial, monwealth’s characterization of con- go this need if have to your you to versation, agree I type do that of this disadvantaged to not have one another dialogue rarely is seen a between court cooperate at by your point desire to this and a unquestionable is defendant. time, got I to have but have some- the subject peculiar matter in the court- thing. subpoena if I Even records setting, although room appears it that the me, I and hold them camera trial court attempting Appel- was to gauge that, but I got am to do have permitted stability lee’s mental and chose a level of something to need now have—I because conversation appropriate for twelve- leaving'me you’re what with if we now year-old in to do order so. The trial hurdle, get past can’t this and this is to Appellee’s intention assess men- mind, my if significant hurdle in we can’t tal health in a casual manner is evidenced hurdle, you get past this what are leav- by its okay, you comment “Miriam seems any me with to this case like ing treat know. presented At least she well for the I system. case in the And don’t other I five minutes that was able to interact [Chief] who knows from Justice care this ” her, However, with .... Id. at Flaherty system all the down. This way doing managed so the trial court to share case, is not with this equipped to deal personal information about itself and its way. I treat it this don’t want to family. yet, the Worse trial court told by higher- I am to And unless ordered Appellee get that it would attempt to to, I am and I am still not ups, going not incarcerated, pizza while she was which going you. either one of disadvantage would certainly special constitute treat- so I to do some things And have ment doubt often court don’t want to unusual. be attempted pizza alleged obtain for other this like a treating regular boxed into murderers who await trial. or Whether It’s It’s not appropriate. ap- case. not the trial during court’s conduct point this in time propriate. And at hearing ap- status amounts to 12/02/99 nobody can to do this force me unless pearance very of impropriety is a close come in here with order from /all However, question. the Commonwealth Flaherty. You can’t [Chief Justice] asks that portions other of the record me like a regular force to treat case. this reviewed support appear- to further Id. at 41-42. ance of impropriety. ¶ 8 The next cites greatly I am with the trial concerned trial court’s statement that it not be I can appreci- court’s statements. While “forced to treat this like a normal case” to enjoys ate fact seeing that no one support the of an appearance existence twelve-year-old standing child adult impropriety. Certainly, Appellee’s case murder, court with charged criminal far from normal and to that end the provide fact does remains that the law court attempted persuade the Com- § type situation. 42 Pa.C.S.A. 6322 monwealth and the defense to to- work states: gether disposition to reach that would proceedings Transfer from criminal protect community addressing while (a) If However, appears rule. — ...

the best General Appellee. interests parties proceeding charg- when it evident in a criminal became that the approach Appellee’s ing any could not amica- murder or offenses ex- (2)(ii) (iii) bly, the trial court stated: or of the paragraph cluded Appellee’s with “delinquent required proceed act” in section definition child, court’s belief Contrary is a to the trial that the defendant to deal with similarly system equipped transferred and is not be “this case already has made legislature provisions chapter applied. the of this this case” the type of case determining In whether to transfer as to how this a determination of- any murder or of the charging pro- case The trial court’s is to be handled. from the definition to going fenses excluded was not be nouncement it the “delinquent act” section normal this like a treating into “boxed required by to establish higher- child shall be by it was “ordered to case” unless the of the evidence that preponderance pre- the trial court ups” indicates that public transfer will serve the interest. unwilling to fol- case and was judged the the has so determining In whether child by legislature, as set forth the low the law that the transfer will serve established it do. required and as is to interest, court shall con- public the the did Ultimately, Appellee’s pro- case sider the factors contained section §§ by proscribed ceed the fashion 6355(a)(4)(iii) to to (relating transfer to in that the defense moved and 6355 proceedings). criminal from criminal court. transfer the case 6355(e), § entitled “Transfer Pa.C.S.A. court, However, which the decertification proceedings” provides: to criminal court, trial denied than the was different “(e)Murder and other excluded acts.— Following the decertification the motion. if petition alleges the conduct which Where presid- was hearing, again case Appellee’s murder, proven would ... the constitute over the trial court. Because of the by ed the to require prose- court shall offense be prior regarding trial court’s declarations proce- cuted under the criminal law and handled, how it the case should be believed dures, except where the case has been expressed concern the Commonwealth (re- pursuant to section transferred ability impar- court’s to be about the trial from lating proceed- transfer criminal candidly trial response, tial. court ings) judge from the division or a wrong. “I think the admitted. law assigned pro- court to conduct criminal However, any I think fair examination of ceedings.” absolutely uphold my record reveals that Thus, legislature has deter- will the law in all instances. Miriam White crimes, mined that certain when commit- has tried an adult. That decision be as children, by ted are so heinous that by a court over which have no been made are to be treated adults. perpetrators as N.T., Hear- authority.”11 review Status Murder, crime, the most heinous falls 11/17/00, ing, at 3. into squarely category, specifi- this ¶ 12 cites to the The Commonwealth also However, cally legisla- enumerated. its to re- response to motion exception ture also created an that would inability as further evidence crim- cuse allow the to be transferred from impartial. rulings alone do juvenile proved by inal if “Adverse court the child however, not, requisite establish the bias preponderance evidence that recusal, where the especially public warranting interest would be served trans- Abu-Jamal, rulings legally proper.” law This is the ferring at An oral motion was supra, 720 A.2d 90. manner in which the trial court was is the Appellee's decertification who trial court’s reference to court over conducted hearing. authority it has no is the trial which made where trial court asked was n during recuse itself status 11/17/00 11/17/00,

hearing. N.T. at 2. The motion again argued

November 2000. In response

motion the trial court referred Com- to the “arrogant”

monwealth as and found the N.T.,

motion “patently to be offensive”. 11/17/00,

Status Hearing, at 16. A review

of the record makes- obvious the trial displeasure with the Common-

wealth’s motion.

¶ 13 The vehement reaction of the trial

court to a reasonably motion meri-

torious is the final proverbial nail

coffin, in my opinion, examining when this

case. examples While the I have re-

viewed, alone, standing may not warrant appear- conclusion that there exists an

ance impropriety, that in would find

the aggregate, such a determination is

compelling. appreciate While can

efforts of attempting the trial court in

reach a par- resolution favorable to all the involved, doing

ties so the overall effect appearance

was to create improprie- Thus, view,

ty. my the trial court

should have its'elf recused from Appellee’s I would Accordingly, reverse

issue as well. WOOD,

In re: OF ESTATE Catherine

Appeal Joseph Cosgrove of: M.

Superior of Pennsylvania. Court Nov.

Argued 2002. Feb.

Filed

Case Details

Case Name: Commonwealth v. White

Court Name: Superior Court of Pennsylvania

Date Published: Feb 25, 2003

Citation: 818 A.2d 555

Court Abbreviation: Pa. Super. Ct.