J-A14043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ASHLEY PEDRICK
Appellant No. 1574 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-MD-0000122-2016
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2017
I concur with my distinguished colleagues that Appellant’s appeal from
the denial of her recusal motion alleging bias on the part of the judge lacks
merit. However, I write separately to point out that Appellant also asserted
on appeal that the appearance of partiality warranted recusal, an argument
that was not addressed by the majority. Appellant maintained that because
the judge made a “prior adverse credibility determination,” “her impartiality
might reasonably be questioned.” Appellant’s brief, at 20. Thus, Appellant
contended, “[the judge] had an obligation to recuse herself regardless of
whether she was angry or bitter at the defendant.” Reply Brief for
Appellant, at 16. I would characterize this as a claim of an appearance of J-A14043-17
partiality, which falls under the larger umbrella of appearance of
impropriety.
Under Pennsylvania law, "[a] judge shall act at all times in a manner
that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance
of impropriety." Pa. Code Jud. Conduct Rule 1.2. The comment to the rule
provides that, “[t]he test for appearance of impropriety is whether the
conduct would create in reasonable minds a perception that the judge
violated this Code or engaged in other conduct that reflects adversely on the
judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Comment [5].
It is well-settled that the appearance of partiality may require a
judge’s recusal. See Goodheart v. Casey, 565 A.2d 757 (Pa. 2007); see
also Lomas v. Kravitz, 2017 Pa. LEXIS 2275 (Pa. 2017) (acknowledging
that appearance of partiality may warrant recusal but finding issue waived as
it was not presented at the earliest possible time). However, Appellant did
not seek recusal below based on the appearance of partiality, nor did she
identify the court’s refusal to recuse itself on this ground as error in her
Pa.R.A.P. 1925(b) concise statement.1 Since Appellant limited her challenge
____________________________________________
1 Appellant assigned as error the trial court’s failure to grant her motion for recusal where it “had already found Ms. Pedrick guilty of contempt at a trial (Footnote Continued Next Page)
-2- J-A14043-17
to actual bias and partiality on the part of the trial court, her present
contention that the appearance of partiality mandated recusal is waived for
purposes of this appeal.
Despite waiver, I take this opportunity to reiterate the point made by
my esteemed colleague, Judge Stabile, in his concurring and dissenting
opinion in Lomas v. Kravitz, 130 A.3d 107 (Pa.Super. 2015) (en banc)
(aff’d 2017 Pa. LEXIS 2275 (Pa. 2017)). Judge Stabile noted the confusion
that still persists as to whether a litigant can challenge the judge’s denial of
a recusal motion asserting an appearance of partiality or impropriety. In
answering that question in the affirmative, Judge Stabile offered a well-
reasoned and thorough analysis of the evolution of the law of recusal for an
appearance of impropriety, which I commend to the reader.
Briefly, in Lomas, the defendants sought recusal of the entire
Montgomery County bench based on the appearance of impropriety created
by the fact that one sitting judge had an ongoing pecuniary interest in the
outcome of the case. The trial court denied the recusal motion. An equally
divided en banc Superior Court affirmed, concluding that the defendants’
(Footnote Continued) _______________________
that was vacated on post-sentence motion, which evidenced the Court’s bias and lack of [im]partiality to judge the matter.” Concise Statement of Errors Complained of on Appeal, at 2 ¶3(c).
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recusal motion was “patently untimely, and, therefore, waived.” Id. at 111.2
The majority went on to find further that, although the appearance of
impropriety alone could mandate recusal, “the circumstances here do not
provide a legal or ethical reason to impugn the impartiality of the entire
bench of the Montgomery Court of Common Pleas” or the presiding judge.
All parties agreed that the judge “was fair and impartial at all times” and
found no evidence of “bias, unfairness, or prejudice.” Id. at 125. Thus, the
majority found no abuse of discretion in the denial of the recusal motion.
In his concurring and dissenting opinion, Judge Stabile opined that the
majority ignored whether an appearance of impropriety warranted recusal.
It was his belief, also subscribed to by this author, that the appearance of
impropriety requires recusal even though no bias, unfairness, or prejudice
on the part of the trial judge was demonstrated. Judge Stabile analyzed the
appearance of impropriety standard in judicial decision-making and
concluded that a litigant had a substantive right to seek recusal on this basis
and rejected appellee’s contention in Lomas that the judge’s denial of such
a recusal motion was not reviewable.
The notion that a denial of a recusal motion on this basis is final and
non-reviewable appears to have originated in Reilly v. Southeastern
2The Supreme Court affirmed on the basis of waiver, finding that the recusal motion was not filed at the earliest possible time.
-4- J-A14043-17
Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa. 1985) (overruled
on other grounds as recognized by Gallagher v. Harleysville Mut. Ins.
Co., 617 A.2d 790, 794 (Pa.Super. 1992)), where the Court stated that a
trial judge’s assessment of his ability to rule impartially “is personal,
unreviewable, and final.” As recently as this Court’s decision in
Commonwealth v. Kearney, 92 A.3d 51, 60-61 (Pa.Super. 2014), this
language was relied upon in support of the proposition that the appearance
of impropriety involves enforcement of the Code of Judicial Conduct, which is
beyond our jurisdiction. The panel reasoned that the canons of the Code
merely set norms of conduct and did not confer standing on others, including
this Court, to enforce the Code.3
Judge Stabile traced the evolution of the appearance of impropriety
standard from a canon to a mandatory rule of judicial conduct. He relied
upon In re McFall, 617 A.2d 707 (Pa. 1992), and several other decisions in
reaching his conclusion that a litigant has a substantive right to enforce and
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J-A14043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ASHLEY PEDRICK
Appellant No. 1574 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-MD-0000122-2016
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2017
I concur with my distinguished colleagues that Appellant’s appeal from
the denial of her recusal motion alleging bias on the part of the judge lacks
merit. However, I write separately to point out that Appellant also asserted
on appeal that the appearance of partiality warranted recusal, an argument
that was not addressed by the majority. Appellant maintained that because
the judge made a “prior adverse credibility determination,” “her impartiality
might reasonably be questioned.” Appellant’s brief, at 20. Thus, Appellant
contended, “[the judge] had an obligation to recuse herself regardless of
whether she was angry or bitter at the defendant.” Reply Brief for
Appellant, at 16. I would characterize this as a claim of an appearance of J-A14043-17
partiality, which falls under the larger umbrella of appearance of
impropriety.
Under Pennsylvania law, "[a] judge shall act at all times in a manner
that promotes public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance
of impropriety." Pa. Code Jud. Conduct Rule 1.2. The comment to the rule
provides that, “[t]he test for appearance of impropriety is whether the
conduct would create in reasonable minds a perception that the judge
violated this Code or engaged in other conduct that reflects adversely on the
judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Comment [5].
It is well-settled that the appearance of partiality may require a
judge’s recusal. See Goodheart v. Casey, 565 A.2d 757 (Pa. 2007); see
also Lomas v. Kravitz, 2017 Pa. LEXIS 2275 (Pa. 2017) (acknowledging
that appearance of partiality may warrant recusal but finding issue waived as
it was not presented at the earliest possible time). However, Appellant did
not seek recusal below based on the appearance of partiality, nor did she
identify the court’s refusal to recuse itself on this ground as error in her
Pa.R.A.P. 1925(b) concise statement.1 Since Appellant limited her challenge
____________________________________________
1 Appellant assigned as error the trial court’s failure to grant her motion for recusal where it “had already found Ms. Pedrick guilty of contempt at a trial (Footnote Continued Next Page)
-2- J-A14043-17
to actual bias and partiality on the part of the trial court, her present
contention that the appearance of partiality mandated recusal is waived for
purposes of this appeal.
Despite waiver, I take this opportunity to reiterate the point made by
my esteemed colleague, Judge Stabile, in his concurring and dissenting
opinion in Lomas v. Kravitz, 130 A.3d 107 (Pa.Super. 2015) (en banc)
(aff’d 2017 Pa. LEXIS 2275 (Pa. 2017)). Judge Stabile noted the confusion
that still persists as to whether a litigant can challenge the judge’s denial of
a recusal motion asserting an appearance of partiality or impropriety. In
answering that question in the affirmative, Judge Stabile offered a well-
reasoned and thorough analysis of the evolution of the law of recusal for an
appearance of impropriety, which I commend to the reader.
Briefly, in Lomas, the defendants sought recusal of the entire
Montgomery County bench based on the appearance of impropriety created
by the fact that one sitting judge had an ongoing pecuniary interest in the
outcome of the case. The trial court denied the recusal motion. An equally
divided en banc Superior Court affirmed, concluding that the defendants’
(Footnote Continued) _______________________
that was vacated on post-sentence motion, which evidenced the Court’s bias and lack of [im]partiality to judge the matter.” Concise Statement of Errors Complained of on Appeal, at 2 ¶3(c).
-3- J-A14043-17
recusal motion was “patently untimely, and, therefore, waived.” Id. at 111.2
The majority went on to find further that, although the appearance of
impropriety alone could mandate recusal, “the circumstances here do not
provide a legal or ethical reason to impugn the impartiality of the entire
bench of the Montgomery Court of Common Pleas” or the presiding judge.
All parties agreed that the judge “was fair and impartial at all times” and
found no evidence of “bias, unfairness, or prejudice.” Id. at 125. Thus, the
majority found no abuse of discretion in the denial of the recusal motion.
In his concurring and dissenting opinion, Judge Stabile opined that the
majority ignored whether an appearance of impropriety warranted recusal.
It was his belief, also subscribed to by this author, that the appearance of
impropriety requires recusal even though no bias, unfairness, or prejudice
on the part of the trial judge was demonstrated. Judge Stabile analyzed the
appearance of impropriety standard in judicial decision-making and
concluded that a litigant had a substantive right to seek recusal on this basis
and rejected appellee’s contention in Lomas that the judge’s denial of such
a recusal motion was not reviewable.
The notion that a denial of a recusal motion on this basis is final and
non-reviewable appears to have originated in Reilly v. Southeastern
2The Supreme Court affirmed on the basis of waiver, finding that the recusal motion was not filed at the earliest possible time.
-4- J-A14043-17
Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa. 1985) (overruled
on other grounds as recognized by Gallagher v. Harleysville Mut. Ins.
Co., 617 A.2d 790, 794 (Pa.Super. 1992)), where the Court stated that a
trial judge’s assessment of his ability to rule impartially “is personal,
unreviewable, and final.” As recently as this Court’s decision in
Commonwealth v. Kearney, 92 A.3d 51, 60-61 (Pa.Super. 2014), this
language was relied upon in support of the proposition that the appearance
of impropriety involves enforcement of the Code of Judicial Conduct, which is
beyond our jurisdiction. The panel reasoned that the canons of the Code
merely set norms of conduct and did not confer standing on others, including
this Court, to enforce the Code.3
Judge Stabile traced the evolution of the appearance of impropriety
standard from a canon to a mandatory rule of judicial conduct. He relied
upon In re McFall, 617 A.2d 707 (Pa. 1992), and several other decisions in
reaching his conclusion that a litigant has a substantive right to enforce and
seek review of the denial of a recusal motion based on the appearance of
impropriety. In McFall, twenty-nine appellees sought and were granted
new criminal proceedings where the judge who presided over their original
3I cannot reconcile this view with language in Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa.Super. 2014), to the effect that a jurist’s ruling that “he or she can hear and dispose of a case fairly and without prejudice, will not be overruled on appeal but for an abuse of discretion.”
-5- J-A14043-17
proceedings failed to disclose that she had worked as an undercover agent
for the FBI. The issue was framed in terms of whether the court’s conduct
denied defendants their right to a fair and impartial tribunal. Our High Court
answered that question in the affirmative, finding that “the air of
impropriety” alone, without proof of actual prejudice, was sufficient. McFall,
supra at 610. Impartiality of the trial court was viewed as a fundamental
prerequisite of a fair trial. Each appellee was granted a new proceeding
because the Court concluded that the trial judge’s impartiality was deemed
compromised by appearance alone.
Our Supreme Court relied upon McFall in Joseph v. Scranton Times
L.P., 987 A.2d 633 (Pa. 2009). The Court assumed plenary jurisdiction
over the case under Pa. Const. art. V, § 19(a), granting an application for
relief and exercising King’s Bench authority, and appointed Judge Platt, now
a senior judge of this Court, to preside over a remand of the matter. He
was charged with determining whether there was judicial impropriety or the
appearance of such impropriety in the assignment and trial of the underlying
defamation case so as to entitle petitioners to a new trial.
The issue of impropriety arose after it came to light that two judges,
one of whom assigned the case to the other, were co-conspirators in a
scheme involving two private juvenile facilities in which they held a financial
interest. Judge Platt recommended a new trial, and the Supreme Court
agreed. Our High Court found the earlier trial to have been “infected with
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the appearance of judicial impropriety.” It relied upon Pa. Const. art. I, §
11 (“right and justice are to be administered without sale, denial or delay”)
and art. V, which grants the Supreme Court supervisory and administrative
authority over all courts, in granting a new trial “to remedy the pervasive
appearance of impropriety . . . and to give justice, and the appearance of
justice, an opportunity to prevail.” Id. at 635. The Court stated that even
the appearance of impropriety was sufficient justification for the grant of
new proceedings, and applied McFall’s test: “A jurist's impartiality is called
into question whenever there are factors or circumstances that may
reasonably question the jurist's impartiality in the matter." McFall, supra at
712-13. The Court rejected the notion that a showing of prejudice was
necessary where the appearance of impropriety was established, citing
McFall and In re Cunningham, 538 A.2d 473, 480 (Pa. 1988)
(superseded by statute on other grounds as noted in In re Jaffe, 814 A.2d
308 (Pa. Ct. Jud. Discipline 2003). In accord Commonwealth v. Darush,
459 A.2d 727, 732 (Pa. 1983) (appellant entitled to resentencing by another
judge where trial judge’s derogatory remarks about him raised a reasonable
issue as to his impartiality).
I believe Judge Stabile correctly stated Pennsylvania law when he
concluded that litigants have a substantive right to a fair and impartial
tribunal, and that denial of a recusal motion premised on the appearance of
partiality or impropriety is reviewable by this Court for an abuse of
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discretion. Furthermore, I find the objective test articulated by the Court of
Appeals for the Seventh Circuit in Pepsico v. McMillen, 764 F.2d 458, 460
(7th Cir. 1985), and cited with approval in the Pennsylvania Code, to be
more than adequate: “whether an objective, disinterested observer fully
informed of the facts underlying the grounds on which recusal was sought
would entertain a significant doubt that justice would be done in the case.”
207 Pa. Code § 15-4. Moreover, the appearance of impropriety may
warrant the grant of a new proceeding before a different judge.
Herein, even if the issue had been preserved, the prior adverse
credibility determination by the judge did not warrant recusal for an
appearance of partiality. It was not a circumstance even remotely
comparable to the illustrative examples in the Code of Judicial Conduct
where a judge “shall” recuse because his or her impartiality might
reasonably be questioned:
(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:
a. a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
b. acting as a lawyer in the proceeding;
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c. a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
d. likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or is a party to the proceeding.
(4) The judge knows or learns that a party, a party's lawyer, or the law firm of a party's lawyer has made a direct or indirect contribution(s) to the judge's campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge's consideration of a case involving the party, the party's lawyer, or the law firm of the party's lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge's ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge's Statement of Financial Interest.
(5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
(6) The judge:
a. served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;
b. served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion
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concerning the merits of the particular matter in controversy; or
c. was a material witness concerning the matter.
Code of Judicial Conduct, Rule 2.11(A) (as discussed in 207 Pa. Code § 15-
4) (Formal Advisory Opinion of the Ethics Committee of the Pennsylvania
Conference of State Trial Judges)).
Absent herein is any evidence of judicial bias or partiality against
Appellant or her lawyer or personal knowledge of the facts. The present
situation does not implicate personal or economic interests of the judge, her
family, or other members of the Bench. It does not involve political
contributions. The judge did not make a public statement that would have
suggested that she was committed to reaching a particular result. Nor was
the judge at one time a lawyer involved or associated with the matter, or a
material witness to the events.
While the list is not exhaustive, an adverse credibility determination,
without more, is not the type of circumstance that creates an appearance of
partiality. I submit that if every judge who made an adverse credibility
determination against a party was disqualified from presiding in any
subsequent proceeding involving that party on the theory that it created the
appearance of partiality, recusal would be the norm. See Commonwealth
v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998) ("Adverse rulings alone do not,
however, establish the requisite bias warranting recusal, especially where
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the rulings are legally proper."). In short, even if the issue had been
preserved, the circumstances herein did not raise an appearance of partiality
that would have warranted recusal and a new proceeding.
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