J-S81008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : DAVID F. KELLY BEY : : No. 789 MDA 2017 Appellant :
Appeal from the Judgment of Sentence March 20, 2017 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-SA-0000104-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 30, 2018
In this nunc pro tunc appeal,1 David Bey challenges the judgment of
sentence entered after the trial court convicted him of driving while his license
was suspended pursuant to a previous conviction for driving under the
influence (“DUI”). Bey’s lone argument on appeal is the Honorable Todd M.
Sponseller erred in refusing to recuse himself from this case after Bey
requested his recusal. We affirm.
While we do not have the benefit of a transcript of the proceedings
below, Bey has stipulated to the procedural and factual history as set forth by
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1Bey’s appellate rights were restored after he filed a petition pursuant to the Post Conviction Relief Act (“PCRA”). J-S81008-17
the Honorable Angela R. Krom in her Pa.R.A.P. 1925(a) opinion. We therefore
summarize Judge Krom’s recitation of the history of this appeal.
Magisterial District Judge Glenn K. Manns found Bey guilty of the
summary offense of driving while his license was suspended for a previous
conviction for DUI. Bey appealed this conviction to the Court of Common Pleas.
The Honorable Jeremiah D. Zook was scheduled to hear the case de
novo. However, Bey presented an oral motion requesting Judge Zook to recuse
himself. Judge Zook acknowledged he had an extensive history with Bey that
included both prosecuting and defending Bey. Thus, Judge Zook recused
himself, and the case was reassigned to Judge Sponseller.
At the opening of the trial before Judge Sponseller, Bey again moved for
recusal, highlighting Judge Sponseller’s previous defense of Bey in a summary
appeal from a conviction for driving while Bey’s license was suspended. Bey
contended this previous representation established a conflict of interest.
Judge Sponseller noted that the case in which he represented Bey had
occurred approximately seven years prior to this trial. Furthermore, he did not
remember any of the particulars of the prior case. He therefore concluded
there was no conflict of interest, and denied the motion to recuse.
At trial, Officer Matthew Lynch testified that at approximately 3 a.m. in
the morning, he responded to a call at the Franklin County Housing Authority.
Upon arriving, he encountered Bey standing on the sidewalk near an
improperly parked minivan. When Officer Lynch questioned Bey about the
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minivan, Bey claimed his wife had parked it there while intoxicated, and
walked away.
Officer Lynch directed Bey to leave the area. Bey agreed, and started to
walk away. In the meantime, however, Officer Lynch had discovered that
Bey’s license was suspended, and came to suspect that Bey would ultimately
attempt to drive away in the minivan.
Officer Lynch drove a short way from the scene and parked his car. He
then returned to the scene on foot. Upon arriving, he observed Bey enter the
minivan and drive away. Officer Lynch quickly stopped Bey and charged him
with driving while his license was suspended.
Bey, acting pro se, cross-examined Officer Lynch. This process proved
contentious. For example, Bey asked Officer Lynch to elucidate the elements
of a speeding violation. Judge Sponseller advised Bey to move to a different
line of questioning, as speeding was not at issue. Bey responded with a
declaration that Judge Sponseller was practicing law from the bench, thereby
demonstrating his bias and conflict of interest.
Judge Sponseller found Bey guilty of driving while his license was
suspended (DUI related). He then appointed counsel to represent Bey. Bey
subsequently filed a PCRA petition in another matter asserting that then-
attorney Sponseller had rendered ineffective assistance of counsel while
-3- J-S81008-17
representing Bey.2 In response, Judge Sponseller recused himself from
hearing two other cases involving Bey.3 Bey then filed this nunc pro tunc
appeal.
On appeal, Bey argues Judge Sponseller’s prior representation of him
creates an appearance of bias, partiality, or unfairness. He does not argue
that Judge Sponseller was, in fact, biased, partial, or unfair. See Appellant’s
Brief, at 16-17 (“That is not to suggest that Judge Sponseller acted with
partiality, bias, or ill-will. There is no evidence of that in the record.”)
The party who asserts that a trial judge should be disqualified must
“produce evidence establishing bias, prejudice, or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.” Arnold v.
Arnold, 847 A.2d 674, 680 (Pa. Super. 2004) (citation omitted). There is a
presumption that judges of this Commonwealth are “honorable, fair and
competent,” In re Lokuta, 11 A.3d 427, 453 (Pa. 2011) (citation omitted)
(Baer, J., concurring), and, when confronted with a recusal demand, are able
to determine whether they can rule “in an impartial manner, free of personal
2 This petition is not in the certified record on appeal, but is referenced in Judge Krom’s opinion and in Bey’s appellate brief. As noted above, Bey adopted Judge Krom’s factual and procedural summary in his brief. Thus, Bey has waived any challenge to our summary of the contents of the petition. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc).
3Judge Sponseller’s order recusing himself in these two cases is in the certified record. In it, he acknowledges that Bey’s PCRA petition asserts ineffective assistance of counsel claims against him.
-4- J-S81008-17
bias or interest in the outcome,” Arnold, 847 A.2d at 680 (citation omitted).
If the judge determines he or she can be impartial, “the judge must then
consider 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.” Id., at 680-681 (citation omitted). A judge’s decision to deny
a recusal motion will not be disturbed absent an abuse of discretion. See In
re Lokuta, 11 A.3d at 435.
Thus, even when a jurist is impartial, an appearance of partiality may
require recusal when “an objective, disinterested observer fully informed of
the facts underlying the grounds on which recusal was sought would entertain
a significant doubt that justice would be done in the case.” 207 Pa. Code §
15-4. However, our Supreme Court has also recognized that it
would be an unworkable rule which demanded that a trial judge recuse whenever an acquaintance was a party to or had an interest in the controversy. Such a rule ignores that judges throughout the Commonwealth know and are known by many people, … and assumes that no judge can remain impartial when presiding in such a case.
Commonwealth v.
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J-S81008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : DAVID F. KELLY BEY : : No. 789 MDA 2017 Appellant :
Appeal from the Judgment of Sentence March 20, 2017 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-SA-0000104-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 30, 2018
In this nunc pro tunc appeal,1 David Bey challenges the judgment of
sentence entered after the trial court convicted him of driving while his license
was suspended pursuant to a previous conviction for driving under the
influence (“DUI”). Bey’s lone argument on appeal is the Honorable Todd M.
Sponseller erred in refusing to recuse himself from this case after Bey
requested his recusal. We affirm.
While we do not have the benefit of a transcript of the proceedings
below, Bey has stipulated to the procedural and factual history as set forth by
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1Bey’s appellate rights were restored after he filed a petition pursuant to the Post Conviction Relief Act (“PCRA”). J-S81008-17
the Honorable Angela R. Krom in her Pa.R.A.P. 1925(a) opinion. We therefore
summarize Judge Krom’s recitation of the history of this appeal.
Magisterial District Judge Glenn K. Manns found Bey guilty of the
summary offense of driving while his license was suspended for a previous
conviction for DUI. Bey appealed this conviction to the Court of Common Pleas.
The Honorable Jeremiah D. Zook was scheduled to hear the case de
novo. However, Bey presented an oral motion requesting Judge Zook to recuse
himself. Judge Zook acknowledged he had an extensive history with Bey that
included both prosecuting and defending Bey. Thus, Judge Zook recused
himself, and the case was reassigned to Judge Sponseller.
At the opening of the trial before Judge Sponseller, Bey again moved for
recusal, highlighting Judge Sponseller’s previous defense of Bey in a summary
appeal from a conviction for driving while Bey’s license was suspended. Bey
contended this previous representation established a conflict of interest.
Judge Sponseller noted that the case in which he represented Bey had
occurred approximately seven years prior to this trial. Furthermore, he did not
remember any of the particulars of the prior case. He therefore concluded
there was no conflict of interest, and denied the motion to recuse.
At trial, Officer Matthew Lynch testified that at approximately 3 a.m. in
the morning, he responded to a call at the Franklin County Housing Authority.
Upon arriving, he encountered Bey standing on the sidewalk near an
improperly parked minivan. When Officer Lynch questioned Bey about the
-2- J-S81008-17
minivan, Bey claimed his wife had parked it there while intoxicated, and
walked away.
Officer Lynch directed Bey to leave the area. Bey agreed, and started to
walk away. In the meantime, however, Officer Lynch had discovered that
Bey’s license was suspended, and came to suspect that Bey would ultimately
attempt to drive away in the minivan.
Officer Lynch drove a short way from the scene and parked his car. He
then returned to the scene on foot. Upon arriving, he observed Bey enter the
minivan and drive away. Officer Lynch quickly stopped Bey and charged him
with driving while his license was suspended.
Bey, acting pro se, cross-examined Officer Lynch. This process proved
contentious. For example, Bey asked Officer Lynch to elucidate the elements
of a speeding violation. Judge Sponseller advised Bey to move to a different
line of questioning, as speeding was not at issue. Bey responded with a
declaration that Judge Sponseller was practicing law from the bench, thereby
demonstrating his bias and conflict of interest.
Judge Sponseller found Bey guilty of driving while his license was
suspended (DUI related). He then appointed counsel to represent Bey. Bey
subsequently filed a PCRA petition in another matter asserting that then-
attorney Sponseller had rendered ineffective assistance of counsel while
-3- J-S81008-17
representing Bey.2 In response, Judge Sponseller recused himself from
hearing two other cases involving Bey.3 Bey then filed this nunc pro tunc
appeal.
On appeal, Bey argues Judge Sponseller’s prior representation of him
creates an appearance of bias, partiality, or unfairness. He does not argue
that Judge Sponseller was, in fact, biased, partial, or unfair. See Appellant’s
Brief, at 16-17 (“That is not to suggest that Judge Sponseller acted with
partiality, bias, or ill-will. There is no evidence of that in the record.”)
The party who asserts that a trial judge should be disqualified must
“produce evidence establishing bias, prejudice, or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.” Arnold v.
Arnold, 847 A.2d 674, 680 (Pa. Super. 2004) (citation omitted). There is a
presumption that judges of this Commonwealth are “honorable, fair and
competent,” In re Lokuta, 11 A.3d 427, 453 (Pa. 2011) (citation omitted)
(Baer, J., concurring), and, when confronted with a recusal demand, are able
to determine whether they can rule “in an impartial manner, free of personal
2 This petition is not in the certified record on appeal, but is referenced in Judge Krom’s opinion and in Bey’s appellate brief. As noted above, Bey adopted Judge Krom’s factual and procedural summary in his brief. Thus, Bey has waived any challenge to our summary of the contents of the petition. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc).
3Judge Sponseller’s order recusing himself in these two cases is in the certified record. In it, he acknowledges that Bey’s PCRA petition asserts ineffective assistance of counsel claims against him.
-4- J-S81008-17
bias or interest in the outcome,” Arnold, 847 A.2d at 680 (citation omitted).
If the judge determines he or she can be impartial, “the judge must then
consider 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.” Id., at 680-681 (citation omitted). A judge’s decision to deny
a recusal motion will not be disturbed absent an abuse of discretion. See In
re Lokuta, 11 A.3d at 435.
Thus, even when a jurist is impartial, an appearance of partiality may
require recusal when “an objective, disinterested observer fully informed of
the facts underlying the grounds on which recusal was sought would entertain
a significant doubt that justice would be done in the case.” 207 Pa. Code §
15-4. However, our Supreme Court has also recognized that it
would be an unworkable rule which demanded that a trial judge recuse whenever an acquaintance was a party to or had an interest in the controversy. Such a rule ignores that judges throughout the Commonwealth know and are known by many people, … and assumes that no judge can remain impartial when presiding in such a case.
Commonwealth v. Perry, 364 A.2d 312, 318 (Pa. 1976). Also,
while the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. It is of great importance to the administration of justice that such should not occur. If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion. This must be so for
-5- J-S81008-17
the security of the bench and the successful administration of justice. Otherwise, unfounded and ofttimes malicious charges made during the trial by bold and unscrupulous advocates might be fatal to a cause, or litigation might be unfairly and improperly held up awaiting the decision of such a question or the assignment of another judge to try the case. If lightly countenanced, such practice might be resorted to, thereby tending to discredit the judicial system. The conscience of the judge alone is brought in question; he should, as far as possible, avoid any feeling of unfairness or hostility to the litigants in a case.
Reilly by Reilly, 489 A.2d 1291, 1299 (Pa. 1985) (emphasis added).
Here, other than the uncontested fact of Judge Sponseller’s previous
representation of Bey, Bey has provided no basis upon which a disinterested
observer would base a significant doubt as to Judge Sponseller’s impartiality.
At the time of the trial, Bey had not yet filed an allegation of ineffectiveness
against Judge Sponseller. Nor is there any indication that Judge Sponseller
had previously occupied an adversarial role with respect to Bey. Finally, Bey
provides no attempt to argue that Judge Sponseller was privy to otherwise
privileged information that would have biased him against Bey by virtue of the
prior representation.
Based upon the record before us, there is no evidence of an appearance
of impropriety at the time Judge Sponseller denied Bey’s request for recusal.
Indeed, the record before us strongly suggests, but does not necessarily
establish, that Bey is using his own lengthy history of motor vehicle violations
to unduly delay the prosecution of pending violations. We therefore affirm the
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 04/30/2018
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