Commonwealth v. D'Sant

24 Pa. D. & C.4th 152, 1995 Pa. Dist. & Cnty. Dec. LEXIS 260
CourtPennsylvania Court of Common Pleas, Chester County
DecidedMarch 15, 1995
Docketno. 635-92
StatusPublished

This text of 24 Pa. D. & C.4th 152 (Commonwealth v. D'Sant) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. D'Sant, 24 Pa. D. & C.4th 152, 1995 Pa. Dist. & Cnty. Dec. LEXIS 260 (Pa. Super. Ct. 1995).

Opinion

WOOD, J.,

On September 10, 1992, following a bench trial, I found the defendant, Anthony D’Sant guilty of criminal trespass, kidnapping, unlawful restraint, false imprisonment, reckless endangerment, possession of instruments of a crime, theft, simple assault, aggravated assault and attempted homicide. This matter is before me on the defendant’s post-verdict motions in arrest of judgement and for a new trial. The defendant challenges my refusal to recuse myself, the sufficiency of the evidence, and trial counsel’s effectiveness.

MOTION FOR RECUSAL

After the close of the Commonwealth’s case, defense counsel advised the court that she needed to withdraw from representing the defendant for ethical reasons. I explained that I would not permit defense counsel to withdraw if the same ethical problem she faced would arise in the course of another attorney’s representation of the defendant. Discussion ensued in chambers and I determined not to allow defense counsel to withdraw.

We then returned to court. The defendant then asked that his case be heard by another judge, claiming that he could not get a fair trial because trial counsel told me that he was thinking about lying on the stand. Trial counsel had said no such thing. I told defendant that [154]*154although I was aware that confiding in one’s attorney that one intends to commit perjury can lead to a request by that attorney to withdraw, his attorney did not discuss the basis for withdrawal with me.

Defendant moved for my recusal at this point. Since I felt that I could evaluate fairly any testimony defendant might offer, I denied the defendant’s motion for recusal. The defendant chose not to testify.

In considering a motion for recusal, a trial judge must determine whether “he can hear and dispose of the case fairly and without prejudice....” Reilly by Reilly v. SEPTA, 507 Pa. 204, 220-21, 489 A.2d 1291, 1299 (1985). This decision is final unless the judge commits an abuse of discretion. Id. “The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal.” Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983).

Counsel have raised the issue of whether judges should apply an objective or subjective standard in deciding motions for recusal. In Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973), our Supreme Court explained that a “trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.” Goodman, supra at 361, 311 A.2d at 654. In Reilly, the court reiterated that judges themselves are to decide the question of recusal in the first instance and give due consideration “to the fact that the administration of justice should be beyond the appearance of unfairness. ” Reilly, supra at 220-21, 489 A.2d at 1299. Therefore, judges must first decide subjectively whether their impartiality has been compromised and second, using an objective standard, decide whether others would have [155]*155reason to question their fairness, regardless of whether their ability to be fair has in fact been compromised.

In this case, the defendant moved for my recusal because he thought his attorney told me that he was thinking about committing perjury. However, his attorney did not mention perjury when she asked for permission to withdraw. (Trial counsel confirmed this during the hearing on post-verdict motions. (N.T. 8/22/94, p. 25.)) Any mention of perjury came from defendant’s mouth. I denied the motion because I was prepared to hear the defendant’s testimony without any preconceived notions. I determined that I was able to judge the testimony without bias toward defendant. I do not automatically believe or disbelieve any witness’s testimony. I am aware that defendants in particular are under considerable stress in a trial situation, and that although they may at times make ill-advised statements, they are not necessarily lying. I also determined that this same situation could come up again no matter who was hearing the case. The problem was implicit in the fact that this was a bench trial.

Defendant suggests that I analogize this situation to cases where a judge denies a suppression motion, the defendant then requests a bench trial, and the judge transfers the case to another judge. However, these situations are not analogous. In Goodman, the court ruled that “a judge should honor a request for recusation where prejudicial information is received in a pretrial proceeding that would be otherwise inadmissible during the trial of the cause.” Goodman, supra at 362, 311 A.2d at 654. Here, the defendant moved for recusal after the close of the Commonwealth’s case, rather than at a pretrial proceeding. The policy considerations underlying the standard for a motion for recusal protect both the parties before the court and the integrity of [156]*156the judicial system. Reilly, supra at 220-21, 489 A.2d at 1299. “[Cjauses may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness. ...” Id.

In this case, granting the motion for recusal after the close of the Commonwealth’s case would have permitted the defendant to control and delay the proceedings. It is a tactic he could have called upon at future trials any time he felt the evidence was going against him. I find that the defendant has not met his burden of “establishing bias, prejudice, or unfairness necessitating recusal.” Commonwealth v. Darush, supra at 21, 459 A.2d at 731.

SUFFICIENCY OF THE EVIDENCE

Defendant also argues that the evidence was insufficient to establish unlawful restraint because the Commonwealth failed to present evidence that defendant held Charlotte Moskosky “in a condition of involuntary servitude.” Under 18 Pa.C.S. §2902, one is guilty of unlawful restraint when he: “(1) restrains another unlawfully in circumstances exposing him to serious bodily injury; or (2) holds another in the condition of involuntary servitude.” Id.

Unlawful restraint is “intended to cover restraints which do not reach the magnitude of kidnapping but are somewhat more serious than mere false imprisonment.” Commonwealth v. Wells, 313 Pa. Super. 557, 561 n.4, 460 A.2d 328, 330 n.4 (1983). Kidnapping requires that a person remove another a “substantial distance from the place where he is found” or “confine another for a substantial period in a place of isolation.” 18 Pa.C.S. §2901. False imprisonment requires that one knowingly restrain another “so as to interfere substantially with his liberty.” 18 Pa.C.S. §2903. Proof of “the [157]*157extraction of forced labor” is not required to establish that one is holding another in a condition of involuntary servitude. Commonwealth v. Dehoniesto, 425 Pa. Super. 83, 624 A.2d 156 (1993).

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Related

Commonwealth v. Darush
459 A.2d 727 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Ellis
626 A.2d 1137 (Supreme Court of Pennsylvania, 1993)
Commonwealth v. Clark
626 A.2d 154 (Supreme Court of Pennsylvania, 1993)
Commonwealth v. Dehoniesto
624 A.2d 156 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Pierce
527 A.2d 973 (Supreme Court of Pennsylvania, 1987)
Reilly v. Southeastern Pennsylvania Transportation Authority
489 A.2d 1291 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Durst
559 A.2d 504 (Supreme Court of Pennsylvania, 1989)
Commonwealth v. Wells
460 A.2d 328 (Superior Court of Pennsylvania, 1983)
Commonwealth v. GOODMAN
311 A.2d 652 (Supreme Court of Pennsylvania, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
24 Pa. D. & C.4th 152, 1995 Pa. Dist. & Cnty. Dec. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dsant-pactcomplcheste-1995.