Commonwealth v. Simmons

565 A.2d 481, 388 Pa. Super. 271, 1989 Pa. Super. LEXIS 3197
CourtSupreme Court of Pennsylvania
DecidedOctober 27, 1989
Docket327
StatusPublished
Cited by15 cases

This text of 565 A.2d 481 (Commonwealth v. Simmons) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Simmons, 565 A.2d 481, 388 Pa. Super. 271, 1989 Pa. Super. LEXIS 3197 (Pa. 1989).

Opinions

JOHNSON, Judge.

A jury convicted Brian Simmons of felony third degree robbery and criminal conspiracy. The Honorable Stanley L. Kubacki sentenced Simmons to a term of imprisonment. Simmons filed this direct appeal pro se, seeking a plenary review of the Career Criminal Program operated by the District Attorney’s Office in and for Philadelphia County.

The sole issue properly before us is whether Judge Kubacki committed error in denying a pretrial Motion for Recusal and To Declare Career Criminal Program Null and Void. The motion is one that was being filed in all cases assigned to the Career Criminal Program involving the Defender Association of Philadelphia at the time this case reached trial status. Our review of the suppression hearing transcript, the Motion for Recusal, etc., and the briefs of the parties does not disclose any error by the trial judge. Accordingly, we affirm the judgment of sentence.

It is as important to point out what this case is not about as it is to recognize what Simmons now urges this court to review. No complaint is advanced that any error was committed by the distinguished trial judge, either in his rulings during trial or in his charge to the jury. The sentence is not under attack. Neither jury selection nor the conduct of the prosecutor during trial has been questioned.

We find no error in Judge Kubacki rejecting the motion for recusal. A party seeking the disqualification of a trial judge has the burden of producing evidence tending to show bias, prejudice or unfairness by the judge. Commonwealth v. McQuaid, 273 Pa.Super. 600, 609, 417 A.2d 1210, 1215 (1980). At the hearing on the motion on October 13, 1987, Simmons offered no evidence to establish bias or [274]*274prejudice by Judge Kubacki. The entire proceeding on the recusal/career criminal program motion is set forth on less than five pages of the fifty-six page suppression hearing transcript.

At that hearing, the following colloquy between Judge Kubacki and Robert Jovanov took place:

THE CRIER: This is the case of the Commonwealth versus Brian Simmons.
MR. JOVANOV: Your Honor, basically — Your Honor, I would direct — the motion is for recusal and to declare the Career Criminal Program noil [sic] and void. It is a motion that we file on all our cases that are in the Career Criminao [sic] Program.
THE COURT: I know.
* * * * *
MR. JOVANOV: .... I would ask Your Honor to have this case randomly sent to 625 today. I am available today to go try it if it is sent out to another Judge. But it should not be before a Career Criminal Judge. There is a possibility there might be a waiver. It is before Your Honor at this point in time. Your Honor knows because it is in a career criminal room, that there are at least two prior robbery convictions, effectively eliminating my client’s—
THE COURT: I didn’t know that until just now.
MR. JOVANOV: Your Honor, the guidelines say very clearly if it is a career criminal, there has to be a prior criminal record. It can’t be here for any reason, Your Honor knows that.
THE COURT: I never read the rules they promulgated and I don’t want to read them.
MR. JOVANOV: It is here because he has a prior criminal record. I ask you to send it back and have it randomly reassigned. It doesn’t belong here, Your Hon- or is sitting as a Career Criminal Judge. It is a career criminal courtroom. It belongs somewhere else.
[275]*275THE COURT: I use the same standards, the same rules of evidence, everything. I honestly don’t know why we have the Career Criminal Program.

Notes of Testimony, “Motion to Suppress” [sic], October 13, 1987, pages 2-4 (emphasis added).

In his Summary of Argument, Simmons asserts that: the only available factfinder was a judge who was aware of information so prejudicial that it has been said to strip a defendant of the presumption of innocence.

Brief for Appellant, page 6. This simply is not true.

First, the factfinder in this case was a jury of twelve persons, none of whom were aware of any information other than that presented at trial. Second, based upon the certified record filed with this court, the trial judge only became aware of Simmons’ recidivism as a result of statements made by defense counsel at the hearing on recusal held October 13, 1987.

We find nothing in this record to support Simmons’ charge that the trial judge had prejudicial information about the defendant before trial. Although an order setting a hearing “on the within motion” was received by the Clerk of Quarter Sessions on September 29, 1987, the Motion for Recusal and To Declare Career Criminal Program Null and Void was not filed of record until October 20, 1987 along with Simmons’ post-verdict motions. Our reading of the above excerpt from the proceedings held on the first day of trial persuades us that Judge Kubacki became aware of Simmons’ status as a “career criminal” only after Simmons, himself, through his counsel, placed the issue before the court. We therefore reject the allegation that:

the information was disclosed to the trial judge because of Court Administration’s intentional creation of a system of three designated “career criminal judges.”

Brief for Appellant, page 9.

It is clear that the jury had absolutely no information concerning Simmons’ status at time of trial. It is equally clear that Judge Kubacki only became aware of Simmons’ [276]*276prior convictions as a direct result of Simmons’ counsel introducing this information during the pre-trial recusal hearing. We conclude that Simmons has failed to lay an adequate factual predicate to permit our court to assume prejudice for review purposes. Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983).

Simmons contends that the trial court violated his right to a non-jury trial under Pa.R.Crim.P. 1101, arguing that his case was taken from the “random assignment” system and assigned to a “career criminal judge” who was aware of the serious nature of his criminal record. Simmons argues that the rejection of his recusal motion, coupled with his inability to be transferred from the program, deprived him of the choice to have a non-jury trial. We cannot agree.

Rule 1101 requires an affirmative request, in writing, by a defendant wishing to waive a jury trial. At no time did Simmons request a waiver either orally or in writing. We reject the suggestion that the knowledge of the trial judge precluded Simmons’ exercise of choice since the assumption upon which the suggestion is based is factually incorrect. Moreover, the right to a bench trial is not absolute. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Carter, 347 Pa.Super. 624, 501 A.2d 250 (1985).

We have concluded that Simmons’ rights under Pa.R.Crim.P. 1101 have not been violated, and that Judge Kubacki did not abuse his discretion in rejecting the motion for recusal.

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Commonwealth v. Simmons
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Cite This Page — Counsel Stack

Bluebook (online)
565 A.2d 481, 388 Pa. Super. 271, 1989 Pa. Super. LEXIS 3197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-simmons-pa-1989.