Commonwealth v. WhitmoreCommonwealth v. Whitmore
Lead Opinion
We granted allowance of appeal to decide “whether the Superior Court exceeded its authority by sua sponte removing the sentencing judge.” Commonwealth v. Whitmore,
FACTS AND PROCEDURAL HISTORY
On January 11, 1999, in the entrance of an alleyway behind the 3100 block of Custer Street in Philadelphia, Raheem Whitmore (Appellee) sold Patricia Lee (Lee) six clear plastic, black-lidded vials containing crack cocaine in exchange for an undetermined amount of U.S. currency. Sergeant Frank Gillespie (Sgt. Gillespie), Officer Dan Calder (Officer Calder), and Officer John McNesby (Officer McNesby) drove past in an unmarked car and observed the hand-to-hand exchange. All three officers are plainclothes officers with the City’s narcotics enforcement team and were in the area investigating complaints of open-air drug transactions. Officer Calder, who had extensive experience with narcotics investigations, immediately recognized that he had witnessed a narcotics transaction. The officers exited their vehicle, approached Appellee and Lee, and saw Appellee sorting out the cash Lee had given him. Appellee also appeared to be holding more small objects in his hand, which Officer Calder believed to be narcotics.
Upon seeing the officers, Appellee and Lee immediately separated and walked in different directions. Additionally, Appellee dropped two more clear plastic, black-lidded vials of crack cocaine into a nearby yard, crumpled and dropped the money Lee had handed him, and fled down the alley. Sgt. Gillespie pursued Lee from the alley and quickly arrested her. When searching her, Sgt. Gillespie recovered the six clear plastic, black-lidded vials of crack cocaine, which he saw her put in her right jacket pocket, three packets of crack cocaine, and a bag of sixteen prescription pills from elsewhere on her person.
A repair truck blocked the end of the alley in which Appellee was fleeing, thereby giving Officer Calder an opportunity to apprehend Appellee and arrest him. Officer Calder recovered the two vials of crack
On March 29, 2000, following a trial presided over by the Honorable Judge Eugene E.J. Maier (Judge Maier), a jury convicted Appellee of possession of a controlled substance,
Upon receipt of Appellee’s Notice of Appeal, the trial court ordered him to file a Rule 1925(b),
On July 26, 2001, in a memorandum Opinion, a three-judge panel of the Superior Court affirmed the Judgment of Sentence. After addressing and rejecting Appellee’s claims of error during trial, the panel turned to Appellee’s sentencing claims. First, the panel recognized that Appellee was requesting review of two issues: (1) whether the trial court improperly “double counted” Appellee’s criminal history when imposing sentence; and (2) whether the trial court failed to place on the record adequate reasons for imposing the statutory maximum sentence, which was beyond the aggravated guideline range. The panel recognized that Appellee failed to include his first claim concerning “double counting” within his original Rule 1925(b) Statement, and only raised it in the Amended Rule 1925(b) Statement, which was untimely filed. Therefore, the panel deemed this issue waived. The panel also determined that Appellee’s second issue, that the trial court failed to articulate adequate reasons for the sentence imposed, was interdependent with his “double counting” claim and, therefore was also waived. Finding waiver of both issues, the Superior Court affirmed the trial court. Commonwealth v. Whitmore,
Appellee then filed a timely Petition pursuant to the Post Conviction Relief Act (PCRA),
A three-judge panel of the Superior Court reversed in a published Opinion. Commonwealth v. Whitmore,
The Superior Court focused on Appellee’s allegation that the trial court impermissibly “double counted” by twice relying on his prior conviction in imposing sentence. The panel determined that this claim amounted to the type of substantial question contemplated in Commonwealth v. Mouzon,
It is well-settled that only discretionary sentencing challenges which present a substantial question fall within the scope of appellate review. See Commonwealth v. Mouzon,571 Pa. 419 ,812 A.2d 617 , 626 (2002). A claim that the sentencing court failed to state adequate reasons on the record for the sentence imposed presents a substantial question. See Commonwealth v. Goggins,748 A.2d 721 , 728 (Pa.Super.2000). Additionally, an assertion that the sentencing judge in imposing sentence relied on factors already included in the defendant’s prior record score raises a substantial question. Id. at 732. Thus, Whitmore’s claims have arguable merit. Moreover, we need not remand for hearing as appellate counsel’s failure to perfect on appeal a discretionary sentencing claim which has arguable merit is without any reasonable basis designed to effectuate his client’s interest. Cf. Commonwealth v. Hernandez,755 A.2d 1 , 12 (Pa.Super.2000) (observing that counsel’s failure to preserve a discretionary sentencing challenge for direct appeal lacks a reasonable basis to effectuate appellant’s interest). Consequently, our only inquiry is to determine whether Whitmore’s claims rise to the level of requisite prejudice to afford him relief.
Concluding that trial counsel’s performance lacked a reasonable basis for failing to appeal a discretionary sentencing claim that has arguable merit, the panel finally considered whether Appellee was prejudiced by counsel’s actions. The Superior Court quoted an exchange between the Commonwealth’s attorney and the trial court, in which the Commonwealth reminded the court that Appellee had a prior drug conviction. The Superior Court stated that:
[a] review of the record reveals that Whitmore’s sentence of ten to twenty years’ imprisonment was based on the following exchange:
[THE COMMONWEALTH]: Your Honor, if I may ask, the maximum being 10 to 20 here, is there a probationary tail?
* * Hi
[THE COMMONWEALTH]: It’s a second conviction, Your Honor.
THE COURT: All right. I didn’t see a second conviction. The Court is going to reconsider the sentence.
[WHITMORE’S COUNSEL]: Your Honor, if you felt that five to ten was the appropriate sentence, Your Hon- or, I don’t see—
THE COURT: I felt that five to 10 was the appropriate sentence because that’s what I thought was the maximum sentence.
[WHITMORE’S COUNSEL]: Your Honor, is it the appropriate sentence because it’s the maximum, or is it the appropriate sentence because five to 10 is inappropriate? Five to ten was appropriate at the time.
THE COURT: It was appropriate at that time because it was the maximum. It sounds like Mr. Whitmore should go to jail for about 50 years, quite frankly.
Id. at 1037 (citing N.T., 4/5/00, at 13-15) (emphasis in original).
Apparently, the Superior Court interpreted this exchange as evidence that the trial court erroneously sentenced Appellee above the aggravated range of the Sentencing Guidelines by considering his prior conviction, a factor already included in his prior record score. The authorized penalty for a violation of
Finally, the Superior Court added that before vacating the sentence, it felt compelled to offer instructions upon remand. The panel determined that Judge Maier, the trial judge who had imposed sentence, had only given cursory mention of the
DISCUSSION
The Commonwealth argues that the Superior Court improperly exercised supervisory power over the trial court by ordering the removal of a sentencing judge. The Commonwealth asserts that ordering the removal of a trial judge not only compromises the integrity of the judicial process, but also exceeds the Superior Court’s jurisdictional role as an intermediate appellate court, usurping authority expressly and exclusively reserved for this Court. The Commonwealth further notes that neither party sought Judge Maier’s recusal, the record for recusal was not developed in the trial court or PCRA court, and Judge Maier did not have the opportunity to address a motion to recuse himself.
Ultimately, the question is whether the Superior Court has the power to order the removal of a judge from a ease, where that judge has made no ruling concerning recusal because he or she was never asked. Such a question falls within the scope of supervisory and administrative powers over all of the courts. Article V, Section 10(c) of the Pennsylvania Constitution gives the Pennsylvania Supreme Court general supervisory and administrative authority over all of the courts of this Commonwealth and has also been interpreted as giving our Court the authority to review and resolve disputes concerning the assignment of common pleas court judges. See In re Avellino,
In Reilly v. Southeastern Pennsylvania Transportation Authority,
In the case sub judice, the Superior Court took a step beyond that of the Superior Court in Reilly; namely, Reilly had a motion for recusal that was remanded to be addressed by another judge. Here, the Superior Court sua sponte removed Judge Maier where recusal had never been raised by the parties. As a general rule, “[t]he proper practice on a plea of prejudice is to address an application by petition to the judge before whom the proceedings are being tried. He may determine the question in the first instance, and ordinarily his disposition of it will not be disturbed unless there is an abuse of discretion.” Id. at 1299. This is, in part, to allow the requested judge to state his or her reasons for granting or denying the motion and, as the allegedly biased party, to develop a record on the matter.
Moreover, despite Judge Maier’s comments regarding Appellee deserving fifty years of imprisonment, we do not find an automatic abuse of discretion. Rather, this Court has held that “a jurist who has made ... ill-advised comments does not necessarily abuse his or her discretion when he [or she] denies a motion for his or her disqualification.” Commonwealth v. Travaglia,
The sentencing decision is of paramount importance in our criminal justice system,and must be adjudicated by a fair and unbiased judge. Commonwealth v. Knighton, 490 Pa. 16 ,415 A.2d 9 , 21 (1980). This means, a jurist who assesses] the case in an impartial manner, free of personal bias or interest in the outcome. Commonwealth v. Abu-Jamal,553 Pa. 485 ,720 A.2d 79 , 89 (1998). Because of the tremendous discretion a judge has when sentencing, a defendant is entitled to sentencing by a judge whose impartiality cannot reasonably be questioned. Commonwealth v. Darush,501 Pa. 15 ,459 A.2d 727 , 732 (1983). A tribunal is either fair or unfair. There is no need to find actual prejudice, but rather, the appearance of prejudice is sufficient to warrant the grant of new proceedings. In Interest of McFall,533 Pa. 24 ,617 A.2d 707 , 714 (1992). If a party questions the impartiality of a judge, the proper recourse is a motion for recusal, requesting that the judge make an independent, self-analysis of the ability to be impartial. Commonwealth v. Travaglia,541 Pa. 108 ,661 A.2d 352 , 370 (1995). If content with that inner examination, the judge must then decide whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. Commonwealth v. Tharp,574 Pa. 202 ,830 A.2d 519 , 534 (2003) (quoting Abu-Jamal,720 A.2d at 89 ). This assessment is a personal and unreviewable decision that only the jurist can make. Id. Once the decision is made, it is final.... Travaglia,661 A.2d at 370 (quoting Reilly v. SEPTA,507 Pa. 204 ,489 A.2d 1291 , 1300 (1985)).
This 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. Commonwealth v. White,557 Pa. 408 ,734 A.2d 374 , 384 (1999). 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. Darush,459 A.2d at 731 .
Commonwealth v. Druce,
The comments made by Judge Maier clearly considered factors beyond the prior conviction. During the sentencing hearing, Judge Maier referenced the neighborhood and inability of its inhabitants to leave, other charges currently pending against Appellee, his history of trouble with the legal system, the nature of the area, and the like. (Reproduced Record at 191a-97a.) As such, the single comment was taken out of context by the Superior Court and does not warrant a per se recusal.
Ultimately, the sua sponte removal of the trial court judge on remand for sentencing exceeded the authority of the Superior Court. The parties are required to file a motion to recuse and for the judge in question to rule; his or her decision must stand absent an abuse of discretion. Consequently, we reverse this part of the decision of the Superior Court and remand it to Judge Maier for re-sentencing in accordance with the remainder of the Superior Court’s Opinion.
Notes
. It is important to note that this Opinion addresses only the section of the Superior Court Opinion that ordered a new trial judge for the re-sentencing proceeding. We do not address the substantive claim concerning the sentencing or the prejudice that results; rather, that information is merely background for the issue before us.
. The panel added that due to its finding that trial counsel was ineffective for failing to preserve the sentencing issue before the trial court, it was not necessary to reach Appellee's second issue concerning whether all prior counsel were ineffective for failing to preserve a challenge to the trial court’s remark during sentencing that “It sounds like Mr. Whitmore should go to jail for about 50 years, quite frankly.” Id.
. Canon 3(C) provides, in pertinent part:
(1) Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) they have a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) they served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law, served during such association as a lawyer concerning the matter, or the judge, or such lawyer has been a material witness concerning it; (c) they know that they, individually or as a fiduciary, or their spouse or minor child residing in their household, have a substantial financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (d) they, or their spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding.
Code of Judicial Conduct Canon 3(C)(1) (spacing modified).
. I respectfully disagree with the portion of the Concurring Opinion asserting that "the majority states that one of its reasons to remand today is to allow the judge to develop a written record when we declined to do so in White." On page 389, 912 A.2d on page 835 of the instant Opinion we note that a motion for recusal should be addressed to the jurist whose recusal is being sought. This procedure allows "the requested judge to state his or her reasons for granting or denying the motion and, as the allegedly biased party, to develop a record on the matter." However, in this case no motion for recusal was ever filed. Accordingly, on remand to the trial judge there is to be no consideration of the motion for recusal, let alone development of a written record.
Concurrence Opinion
concurring.
I join with the decision of the majority. I write separately as I find it remarkable that we would afford the judge in this case the opportunity to further develop the record concerning the request for recusal when we refused to extend that same courtesy to Judge Hughes in Commonwealth v. White,