Commonwealth v. Yeager

41 Pa. D. & C.3d 428, 1986 Pa. Dist. & Cnty. Dec. LEXIS 307
CourtPennsylvania Court of Common Pleas, Berks County
DecidedNovember 10, 1986
Docketno. 85-1331
StatusPublished

This text of 41 Pa. D. & C.3d 428 (Commonwealth v. Yeager) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Yeager, 41 Pa. D. & C.3d 428, 1986 Pa. Dist. & Cnty. Dec. LEXIS 307 (Pa. Super. Ct. 1986).

Opinion

SAYLOR, J.

Defendant filed a motion with this court on September 15, 1986, asking, inter alia, that I disqualify myself from his case because I refused final acceptance of and" struck his guilty pleas to lesser crimes charged in the information. In paragraph 17 defendant avers that my action creates “the appearance that the [429]*429court may have been influenced by ex parte communications which might lead one to reasonably question the court’s impartiality.” (Emphasis added.) In paragraph 18 he further asserts that he believes I may have formed an opinion about his guilt which might affect rulings at trial. (Emphasis added.) He further notes in paragraph 21(d) that because I was the trial judge in Commonwealth v. Cody, involving similar offenses against the same victims, I apparently relied on matters outside the record. (Emphasis added.)

After the motion was filed, defense counsel was invited to put anything on the record by way of evidence or argument to support these allegations, but he declined to do so. Both parties are satisfied that I resolve this portion of defendant’s motion on its face.

I

In Municipal Publications, Inc. v. Snyder, 322 Pa. Super. 464, 469 A.2d 1084 (1983); the court held that when a recusal motion is filed, the challenged judge:

“. . . . must first decide the sufficiency of the allegations of bias and prejudice. In making this decision, the judge must take the allegations as true. If on the basis of the allegations, taken as true, the judge’s impartiality might reasonably be questioned, the judge must refer the recusal motion to another judge for a hearing. If instead the judge hears the motion himself, he exceeds his jurisdiction.” Id. at 494, 469 A.2d at 1099.

Later, our Supreme Court vacated the order granting a writ of prohibition in Municipal Publications on the ground that the Superior Court was without jurisdiction to entertain a prohibitive action [430]*430in that case. Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985). On the recusal issue, without commenting on the Superior Court’s analysis, the Supreme Court stated, in essence, a recusal motion must be decided by another judge only where the presiding judge has personal knowledge of disputed facts and permits himself to be a crucial witness in the recusal proceedings. The court, in further elaboration, said:

“This does not mean that we will permit a party who is dissatisfied with the progress of the trial midstream to arbitrarily attempt to cause the disqualification of the presiding judge. Judge shopping has been universally condemned, and will not be tolerated at any stage of the proceedings. (Citations omitted.) Thus, where fabricated, frivolous or scurrilous charges are raised against the presiding judge during the course of the proceeding, the court may summarily dismiss those objections without hearing where the judge is satisfied that the complaint is wholly without foundation. In such case the complaining party may assign the accusation as a basis for post-trial relief and, if necessary, a record can be developed at that stage and in that context. Where, as here, a judge concludes that the allegations justify an evidentiary hearing in which he will testify, it then becomes incumbent upon that judge to step aside for the appointment of another judge to hear and rule upon the issue of disqualification.” Id. at 202, 489 A.2d at 1289-90.

If the threshold “jurisdictional” question formulated by the Superior Court is still viable, I am of the opinion that the defendant fails to state any facts, yet alone facts. sufficient to require referral of his motion to another judge. The petition merely states conclusions and vaguely speaks of unconfirmed [431]*431possibilities. And, as I noted, no testimony or other evidence has been offered to support the motion. For these reasons referral to another judge is not required. Furthermore, under the Supreme Court’s analysis, since I am not being called upon to preside over a hearing — yet alone one in which I could present myself as a witness — not only is referral unnecessary, I may summarily dismiss the motion without a hearing. Rather than do that, however, I will proceed to decide it on its face.

II

Canon 3 C of the Code of Judicial Conduct, adopted by our Supreme Court, effective January 1, 1974, provides, in part:

“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

“(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed facts concerning the proceedings . . . .”

On commenting upon this Canon, the court in Reilly by Reilly v. Southeastern Pa. Transportation Authority, 330 Pa.Super. 420/479 A.2d 973 (1984), said:

“To be sure, if the. judge does subjectively feel unable to be impartial, he must recuse himself. But Canon 3 C sets forth an objective standard: no matter how the judge himself feels, if “his impartiality might reasonably be questioned,” recusal is required. The question, therefore, is not how the judge appraises the situation but how a detached observer — the common law’s “reasonable man” — would appraise it. If a reasonable observer would conclude that the situation is such that the judge’s [432]*432“impartiality might reasonably be questioned,” the judge should recuse himself. The party claiming that the judge should have recused himself is therefore under no obligation to show any actual prejudice — to show, that is, that subjectively, or in fact, the judge was not impartial; it is enough to show that a reasonable observer might have questioned the judge’s impartiality.” Id. at 4345, 479 A.2d at 980.

One who seeks to disqualify a trial judge has the burden of producing some evidence tending to show bias, prejudice or unfairness and if the judge feels able to hear and dispense of the case fairly and without prejudice — absent a reasonable basis to question his impartiality — there is no abuse of discretion on the part of the trial judge in refusing to recuse. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Finally, a trial judge is not disqualified merely because he has some previous acquaintance with the case. Commonwealth v. Conrad, 241 Pa. Super. 324, 361 A.2d 421 (1976). With these principles in mind, I am of the opinion that recusal is not required and, for the reasons to follow, defendant’s request will be denied.

First, from a subjective standpoint, I state without reservation that I am able to hear and dispose of this case fairly. I have no personal bias or prejudice concerning the defendant nor do I have personal knowledge of disputed evidentiary facts concerning the proceedings.

Second, from an objective analysis, I fail to see how anything I have said or done would create in a reasonable mind the appearance of impropriety or partiality.

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Related

Commonwealth v. Darush
459 A.2d 727 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Kane
184 A.2d 405 (Superior Court of Pennsylvania, 1962)
Municial Publications, Inc. v. Court of Common Pleas
489 A.2d 1286 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Strunge
429 A.2d 1176 (Superior Court of Pennsylvania, 1981)
Municipal Publications, Inc. v. Snyder
469 A.2d 1084 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Conrad
361 A.2d 421 (Superior Court of Pennsylvania, 1976)
Commonwealth v. Council
421 A.2d 623 (Supreme Court of Pennsylvania, 1980)
Commonwealth v. Schwartz
115 A.2d 826 (Superior Court of Pennsylvania, 1955)
Commonwealth v. Perry
364 A.2d 312 (Supreme Court of Pennsylvania, 1976)
Reilly v. Southeastern Pennsylvania Transportation Authority
479 A.2d 973 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
41 Pa. D. & C.3d 428, 1986 Pa. Dist. & Cnty. Dec. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-yeager-pactcomplberks-1986.