Opinion
J-S44039-17 No. 2673 EDA 2016 No. 2675 EDA 2016 No. 2677 EDA 2016 No. 2679 EDA 2016
08-15-2017
COMMONWEALTH OF PENNSYLVANIA, Appellant v. CARLA V. RISOLDI COMMONWEALTH OF PENNSYLVANIA, Appellant v. CARL ANTHONY RISOLDI COMMONWEALTH OF PENNSYLVANIA, Appellant v. CLAIRE A. RISOLDI COMMONWEALTH OF PENNSYLVANIA, Appellant v. SHEILA MARIE RISOLDI
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order August 1, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP-09-0002485-2015 Appeal from the Order August 1, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP-09-0002474-2015 Appeal from the Order August 1, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP-09-0002487-2015 Appeal from the Order August 1, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP-09-0002475-2015 BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, JJ.:
In these consolidated appeals, the Commonwealth of Pennsylvania appeals from the Order denying its Motion seeking recusal of the trial judge in this case, the Honorable Thomas G. Gavin ("Judge Gavin"). We affirm.
By means of background, the Commonwealth alleges that Claire A. Risoldi ("Claire"), Sheila Marie Risoldi ("Sheila"), Carl Anthony Risoldi ("Carl"), Carla V. Risoldi ("Carla"), Mark Goldman ("Goldman"), Richard Holston ("Holston"), and Tom French (collectively, "Defendants"), engaged in a course of criminal conduct, over several years, to defraud various homeowner's insurance companies in a multi-million dollar insurance fraud scheme. Some of the insurance claims involved three separate fires, in a span of less than five years, at a multi-million dollar home in Bucks County owned by some of the Defendants, known as "Clairemont." The third fire at Clairemont in October 2013 resulted in the total loss of the residence. Following this fire, Defendants made a claim with their homeowners' insurer, American International Group, Inc. ("AIG"). Defendants also claimed that more than $10 million in jewelry was stolen during the firefighting efforts.
The trial court provided a thorough factual background in its Opinion entered on September 15, 2015. See Trial Court Opinion, 9/15/15, at 2-9.
After a Grand Jury investigation, the Pennsylvania Attorney General's Office (the "AG") filed Criminal Complaints against Defendants in January 2015, charging them with, inter alia, insurance fraud, intimidation of witnesses and corrupt organizations. Due to the purported prominence of Claire and her family in the Bucks County political community, the entire Bucks County bench recused itself from the matter, and Judge Gavin, a Chester County judge, was specially appointed to preside over Defendants' cases.
The Bucks County District Attorney's Office requested that the AG handle these cases.
During the Grand Jury investigation, Defendants instituted a civil suit against AIG in federal court for refusing to pay damages pursuant to the insurance policies in place at the time of the 2013 fire.
In February 2015, the Commonwealth filed a Petition seeking to bypass the preliminary hearings for Defendants, pursuant to Pa.R.Crim.P. 565. The trial court denied this Petition following a hearing. At the preliminary hearings held in March 2015, the Magisterial District Judge bound over for court the majority of the charges against Defendants.
In the interim, the Commonwealth filed a Motion seeking disqualification of Claire's counsel, Jack McMahon, Esquire ("Attorney McMahon"), which Judge Gavin denied.
On June 15, 2015, Defendants respectively filed Petitions for habeas corpus relief (collectively, "the Habeas Petitions"), seeking dismissal of the charges. The Commonwealth thereafter filed a Reply to the Petitions. At the close of a hearing on July 17, 2015, Judge Gavin (1) denied the Petitions filed by Carl, Carla and Sheila; (2) granted the Petition filed by Claire as to one count of corrupt organizations, but in all other regards denied Claire's Petition; and (3) granted the Petition filed by Goldman and dismissed all charges against him.
Holston filed his Petition for writ of habeas corpus later, on October 2, 2015. In December 2015, Judge Gavin granted Holston's Petition and dismissed all of the charges against him. The Commonwealth filed an appeal from the dismissal, docketed at 223 EDA 2016, which is pending before this Court.
The Commonwealth thereafter refiled the charges against Goldman, along with some new charges. Following a preliminary hearing, Judge Gavin again dismissed all charges against Goldman in December 2015. The Commonwealth filed an appeal from the dismissal, docketed at 3822 EDA 2015, which is pending before this Court.
In October 2015, the Commonwealth filed a Motion to revoke and/or raise Claire's bail, pointing out that it had filed new charges against her concerning witness intimidation. Judge Gavin denied this Motion.
In January 2016, Carla filed a Motion ("the Severance Motion"), which was joined by Carl and Sheila, seeking severance of their respective criminal cases from that of Claire. The Commonwealth thereafter filed a Response opposing severance. After a hearing ("the severance hearing"), Judge Gavin granted the Severance Motion.
On April 18, 2016, the Commonwealth filed a Motion to recuse Judge Gavin. Three days later, it filed a Supplemental Motion to recuse. Carla thereafter filed an Answer to the Motion to recuse, which was joined by the remaining Defendants. Judge Gavin conducted a hearing on the Motion to recuse on April 29, 2016.
On May 12, 2016, the Commonwealth filed a Post-Hearing Memorandum in support of the Motion to Recuse.
On June 10, 2016, the Commonwealth filed a Motion seeking to hold Claire in contempt of a prior Order prohibiting her from contacting witnesses and to revoke her bail. Following a hearing on the same date, Judge Gavin found Claire in indirect criminal contempt and sentenced her to thirty days in jail.
This Court affirmed Claire's judgment of sentence on July 17, 2017. See Commonwealth v. Risoldi , 1864 EDA 2016 (Pa. Super. filed July 17, 2017) (unpublished memorandum).
By an Order entered on August 1, 2016, Judge Gavin denied the Commonwealth's Motion to recuse, and filed therewith an Opinion setting forth his reasons for the denial ("Recusal Opinion"). In response, the Commonwealth timely filed a Notice of Appeal. Judge Gavin ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth timely filed a Concise Statement, which included numerous issues and spanned sixteen pages. Judge Gavin then issued a Pa.R.A.P. 1925(a) Opinion ("1925(a) Opinion").
In filing this interlocutory appeal, the Commonwealth complied with Pennsylvania Rule of Appellate Procedure 311(d), which provides that "[i]n a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d); see also Pa.R.A.P. 904(e).
The Commonwealth now presents the following issue for our review: "Whether the lower court abused its discretion by denying the Commonwealth's Motion to Recuse where objective scrutiny of the record casts doubt on the court's impartiality and/or where the court's behavior appears to be biased?" Brief for the Commonwealth at 4 (capitalization omitted).
Though the Commonwealth purports to raise only one issue, it sets forth a multitude of discrete sub-issues in its eighty-four page Argument section, which largely mirror those presented in its voluminous Rule 1925(b) Concise Statement.
Initially, we voice our disapproval of the Commonwealth's Concise Statement, which is anything but concise. Although Rule 1925(b) dictates that, without more, the number of issues raised in a concise statement will not be grounds for finding waiver, this principle applies only "[w]here non-redundant, non-frivolous issues are set forth in an appropriately concise manner[.]" Pa.R.A.P. 1925(b)(4)(iv) (emphasis added); see also Kanter v. Epstein , 866 A.2d 394, 401 (Pa. Super. 2004) (holding that "[b]y raising an outrageous number of issues" in a Rule 1925(b) statement, an appellant impedes the trial court's ability to prepare an opinion addressing the issues on appeal, thereby effectively precluding appellate review). In the instant case, we, like the trial court, will address the merits of the sub-issues that the Commonwealth sets forth in its voluminous Argument section, as its brief otherwise complies with our Appellate Rules. See , e.g., Mahonski v. Engel , 145 A.3d 175, 181 (Pa. Super. 2016) (stating that "the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice," and recognizing that the complexity of the matter under review is a consideration for courts to make prior to finding waiver based on the sheer volume of the concise statement) (quotation marks and citation omitted).
Judge Gavin, in his 1925(a) Opinion, also chastised the Commonwealth's Concise Statement, which the court stated "is in large measure a generalized restatement of [the Commonwealth's] position[,] which [Judge Gavin's prior] Recusal Opinion addressed." 1925(a) Opinion, 10/17/16, at 1.
We note that although the Commonwealth's brief is ninety-nine pages long (and, according to the Commonwealth, is 23,255 words in length), it sought, and was granted, permission by this Court to exceed the brief's maximum word count, prescribed by Pa.R.A.P. 2135(a)(1) (providing that "the principal brief shall not exceed 14,000 words"). See Commonwealth v. Roane , 142 A.3d 79, 86 n.3 (Pa. Super. 2016) (where the appellant's principal brief was 122 pages in length, stating that the Court would consider the issues on their merits because counsel had filed a petition requesting permission to exceed the brief's maximum word count and page limit).
Our standard of review for a denial of recusal is well settled.
Our [Pennsylvania] Supreme Court presumes judges of this Commonwealth are honorable, fair and competent, and, when confronted with a recusal demand, have the ability to determine whether they can rule impartially and without prejudice. The party who asserts a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal ....Commonwealth v. Kearney , 92 A.3d 51, 60-61 (Pa. Super. 2014) (citations, quotation marks, and brackets omitted); see also Pa. Code Jud. Conduct Canon 1.2 (providing that "[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."). "Adverse rulings alone do not, however, establish the requisite bias warranting recusal, especially where the rulings are legally proper." Commonwealth v. Abu-Jamal , 720 A.2d 79, 90 (Pa. 1998).
As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist 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. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion.
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. It is presumed that the judge has the ability to determine whether he will be able to rule impartially and without prejudice, and his assessment is personal, unreviewable, and final.
In its first sub-issue, the Commonwealth contends that Judge Gavin revealed his bias and an appearance of impropriety in his denial of the Commonwealth's Motion to disqualify Attorney McMahon as Claire's counsel. See Brief for the Commonwealth at 15-28. The Commonwealth asserts that Judge Gavin improperly overlooked the fact that Attorney McMahon had a conflict of interest in representing Claire, as the Commonwealth could call him as a necessary fact witness in this case, and had considered filing criminal charges against him. See id. at 18-23. The Commonwealth further claims that "shockingly, the [trial] court did not consider significant Attorney McMahon's statement to Commonwealth witness James O'Keefe[, an AIG insurance adjustor who performed an inspection of jewelry in 2014 concerning Defendants' jewelry loss insurance claim from the 2013 fire,] that 'snitches get stitches'" (hereinafter "the snitches comment"). Id. at 23; see also id. (explaining the context of the snitches comment). According to the Commonwealth, the snitches comment constituted intimidation of a witness "in a verbally threatening manner[.]" Id. at 24. Finally, the Commonwealth argues that several components of Judge Gavin's reasoning regarding this matter in the 1925(a) Opinion and Recusal Opinion exhibit an appearance of impropriety, including, inter alia, the court's (1) ignoring Attorney McMahon's conflict of interest; (2) minimizing the significance of the snitches comment; and (3) failing to address several of the Commonwealth's arguments regarding this matter raised in the Motion to recuse. See id. at 26-28.
In his Recusal Opinion, Judge Gavin thoroughly addressed and expounded upon the Commonwealth's claims, and determined that he exhibited no bias or appearance of impropriety in denying the Commonwealth's Motion to disqualify Attorney McMahon. See Recusal Opinion, 8/1/16, at 22-29; see also 1925(a) Opinion, 10/17/16, at 5. As Judge Gavin's analysis is supported by the record, and we agree with his determination, we affirm on this basis as to the Commonwealth's first sub-issue. See id.
In its second sub-issue, the Commonwealth urges that Judge Gavin abused his discretion by declining to recuse himself where he had engaged in improper ex parte communications with Claire. See Brief for the Commonwealth at 29-39; see also id. at 29-30 (explaining the context of the ex parte communication, wherein Claire directly contacted Judge Gavin via telephone and stated that she was without a lawyer and could not afford to retain one). According to the Commonwealth, this ex parte communication made Judge Gavin a potential fact witness. See id. at 32-33 (asserting that Claire's statement to Judge Gavin that she was destitute was relevant to the criminal charges against Claire, as she previously had made representations to AIG that she is a multi-millionaire and, thus, lacked a financial motive to commit insurance fraud); see also Pa.R.E. 605 (providing that "[t]he presiding judge may not testify as a witness at the trial or other proceeding."). According to the Commonwealth,
the ex parte communication between the court and Claire[,] including the court's failure to disclose the communication[,] coupled with the factual discrepancies and the court's reaction to the request to place the matter on the record[,] demonstrate clear bias and raise the appearance of impropriety. The court was required to disclose the communication pursuant to [Canon] 2.9 of the Code of Judicial Conduct[,] as [Claire's] claims to the court directly contradicted statements to [AIG] and, therefore, constitute proof of the elements of the crimes which she is charged with.Brief for the Commonwealth at 29 (footnote added). Finally, the Commonwealth asserts that Judge Gavin further exhibited his bias concerning the ex parte communications in addressing this matter in his Recusal Opinion and 1925(a) Opinion. See id. at 35-39.
Canon 2.9 provides, in relevant part, that, generally, "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter[.]" Pa. Code Jud. Conduct Canon 2.9(A); see also id. Canon 2.9(B) (stating that "[i]f a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall promptly notify the parties of the substance of the communication and provide the parties with an opportunity to respond.").
Judge Gavin adeptly addressed and expounded upon the Commonwealth's above claims in his Recusal Opinion and 1925(a) Opinion, and determined that (1) no improper ex parte communication had occurred; and (2) there was no reason for Judge Gavin to recuse himself in this regard. See Recusal Opinion, 8/1/16, at 7-9, 29-32; see also 1925(a) Opinion, 10/17/16, at 1-3. We agree with Judge Gavin's sound rationale and determination, which, contrary to the Commonwealth's claim, does not exhibit bias or an appearance of impropriety. Accordingly, we affirm on this basis as to the Commonwealth's second sub-issue. See id.
In its third sub-issue, the Commonwealth argues that "[t]he trial court abdicated its responsibility to protect witnesses from repeated efforts by Claire [] to intimidate and improperly influence [them,] which demonstrates clear bias and advances the appearance of impropriety." Brief for the Commonwealth at 39; see also id. at 39-52. The Commonwealth maintains that Claire engaged in multiple instances of intimidation of Commonwealth witnesses, all of which the trial court "made light of ... and exhibited a clear misunderstanding of the charges." Id. at 41; see also id. at 39-43, 45-46 (detailing the alleged instances of witness intimidation). According to the Commonwealth,
[t]he court failed to hold [Claire] accountable for [her] continued efforts to intimidate and influence witnesses[,] by giving her at least a fourth "bite" at intimidation[,] which clearly raised an appearance of impropriety. The court itself appeared to acknowledge that it had "bent over backwards" for Claire []. As such, a significant minority of the lay community could reasonably question the court's impartiality.Id. at 47 (citation omitted); see also id. at 42 (asserting that "[t]he trial court was [] aware that, despite being held for court on two charges of intimidation, Claire [] continued that conduct following her preliminary hearing and subsequent habeas proceedings.").
In his Recusal Opinion and 1925(a) Opinion, Judge Gavin exhaustively addressed the Commonwealth's claim, set forth the applicable law, explained the complained-of instances of Claire's purported intimidation of witnesses, and determined that the court did not exhibit any bias or appearance of impropriety in this regard to merit recusal. See Recusal Opinion, 8/1/16, at 9-22; see also 1925(a) Opinion, 10/17/16, at 4-5. We agree with Judge Gavin's sound rationale and determination, which, contrary to the Commonwealth's claim, does not exhibit bias or an appearance of impropriety. Accordingly, we affirm on this basis as to the Commonwealth's third sub-issue. See id.
In its fourth sub-issue, the Commonwealth argues that Judge Gavin's resolution of the Habeas Petitions demonstrated his bias against the Commonwealth and evidenced an appearance of impropriety. See Brief for the Commonwealth at 52-86. The Commonwealth complains that "[d]uring the oral argument on the [H]abeas [P]etitions, [] it appeared that the court had not reviewed either" "the 199 exhibits that were admitted during the preliminary hearing ... [or] the transcript from the lengthy preliminary hearing ...." Id. at 53. According to the Commonwealth,
[d]espite not having read the transcript or reviewed the evidence, during the oral argument on the [H]abeas [P]etitions, the court repeatedly challenged the Commonwealth's version of facts and accepted the defense version[,] in contravention of the well-established standards for evaluating whether or not a prima facie case had been established. While under normal circumstances this would be troubling, in the present case it is even more alarming because the court did so without having read the
transcript. And, because the court had not read the transcript, it relied on averments in the defense filings which were not part of the record.Id. at 53-54. The Commonwealth further avers that, "the court repeatedly refused to give effect to reasonable inferences drawn from the Commonwealth's evidence as required[,] as well as failed to view the evidence in the light most favorable to the Commonwealth." Id.; see also id. at 54-57 (detailing the alleged occurrences). The Commonwealth contends that Judge Gavin also "made improper credibility determinations, [] exhibited a misunderstanding of or refusal to acknowledge the elements of the offenses charged[,] as well as mischaracterized the Commonwealth's theory of the case." Id. at 52. Finally, the Commonwealth asserts that Judge Gavin's granting the Habeas Petitions filed by Goldman and Holston, and dismissing all charges against them, reveals the court's bias against the Commonwealth and "demonstrate glaring examples of the court's failure to view the evidence in the light most favorable to the Commonwealth[.]" Id. at 59.
In the interest of brevity, we will not set forth herein the Commonwealth's voluminous argument in support of the claim that Judge Gavin erred in granting the Habeas Petitions filed by Goldman and Holston, but instead refer to its brief. See Brief for the Commonwealth at 59-86. Further, as noted above, the Commonwealth's appeals from the Orders granting these Petitions are pending before this Court.
In his Recusal Opinion and 1925(a) Opinion, Judge Gavin thoroughly addressed and expounded upon the Commonwealth's claims, and determined that he did not abuse his discretion in declining to recuse in this regard. See Recusal Opinion, 8/1/16, at 32-40; see also 1925(a) Opinion, 10/17/16, at 6-7. Judge Gavin's analysis is supported by the record, and we agree with his determination; accordingly, we affirm on this basis as to the Commonwealth's fourth sub-issue. See id.
In its fifth sub-issue, the Commonwealth contends that Judge Gavin's resolution of the Severance Motion demonstrates his bias against the Commonwealth and misunderstanding of the case. Brief for the Commonwealth at 86; see also id. at 87 (asserting that "[t]he court's resolution also demonstrated ... an effort to prevent the Commonwealth from presenting relevant evidence."). According to the Commonwealth, "[t]he fact that the court sua sponte fashioned a severance that significantly damaged the prosecution as to all [D]efendants[,] and provided a potentially viable appellate issue for the lead defendant[, i.e., Claire,] provides substantial evidence that the court has lost objectivity." Id. at 87.
In his Recusal Opinion and 1925(a) Opinion, Judge Gavin addressed the Commonwealth's claim and determined that recusal was not warranted in this regard. See Recusal Opinion, 8/1/16, at 40-42; see also 1925(a) Opinion, 10/17/16, at 7-8. Judge Gavin's cogent reasoning is supported by the record, and we discern no abuse of his discretion in declining to recuse. Accordingly, we affirm on this basis concerning the Commonwealth's fifth sub-issue. See id.
In its sixth sub-issue, the Commonwealth argues that "because [] [D]efendants have never claimed that they would be prejudiced from the recusal, [Judge Gavin's] response to the recusal [M]otion added to the appearance of impropriety." Brief for the Commonwealth at 91; see also id. at 88-91.
Judge Gavin concisely addressed and rejected this claim in his 1925(a) Opinion. See 1925(a) Opinion, 10/17/16, at 8. We affirm on this basis as to the Commonwealth's sixth sub-issue. See id.
In its seventh sub-issue, which the Commonwealth titles "Miscellaneous," it avers that Judge Gavin exhibited an appearance of impropriety in his (1) mischaracterization of the testimony of Commonwealth witness Ashley Rodrigues ("Rodrigues"); and (2) "continued unfamiliarity with the record" as concerns Rodrigues's testimony. Brief for the Commonwealth at 91-93. The Commonwealth asserts that "[t]he court's characterization of Rodrigues as 'a cleaning lady' rather than an individual specially trained to evaluate and painstakingly catalog the contents of properties exhibits a continued unfamiliarity with the record[,] as well as an ongoing effort to minimize evidence[,] to the detriment of the Commonwealth[.]" Id. at 92; see also id. at 92-93 (asserting that the court's Recusal Opinion is factually incorrect to the extent it states that Rodrigues was involved in the investigation of the 2010 fire at Clairemont, which exhibits the court's unfamiliarity with the record). Additionally, the Commonwealth argues that Judge Gavin improperly considered credibility issues in resolving the Habeas Petitions. Id. at 93 (citing Recusal Opinion, 8/1/16, at 44-45 (wherein Judge Gavin stated that his Opinions "are written to demonstrate [his] compliance with the controlling legal principles applied to the credible facts.")) (emphasis supplied by the Commonwealth).
The Commonwealth asserts that Rodrigues is an employee of a company that "evaluates building contents alleged to be damaged or lost in connection with an insurance claim[,]" who "led a team of individuals trained to evaluate and catalog the contents of [Clairemont, after the 2013 fire,] including window treatments." Brief for the Commonwealth at 92. --------
In his 1925(a) Opinion, Judge Gavin addressed the above claims and opined that he did not abuse his discretion in refusing to recuse in this regard. See 1925(a) Opinion, 10/17/16, at 8-9; see also Recusal Opinion, 8/1/16, at 42-44 (addressing the court's remarks concerning Rodrigues). We affirm on this basis as to this sub-issue, see id., with the following addendum. Contrary to the Commonwealth's claim, we discern no bias or appearance of impropriety as to either Judge Gavin's (1) remark in the 1925(a) Opinion concerning the alleged public perception (and media reporting) of the court's bias in favor of Defendants; or (2) purportedly disparate allocation of peremptory challenges to the parties. See Brief for the Commonwealth at 93-94.
In its final sub-issue, the Commonwealth contends that the cumulative effect of Judge Gavin's above-mentioned actions "demands" recusal. See Brief for the Commonwealth at 95-97 (citing Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009) (stating "if multiple instances of deficient performance are found, the assessment of prejudice properly may be premised upon cumulation"), and Commonwealth v. Rhodes , 990 A.2d 732, 748-49 (Pa. Super. 2009) (stating that "a party's call for recusal need not be based only upon discreet incidents, but may also assert the cumulative effect of a judge's remarks and conduct even though no single act creates an appearance of bias or impropriety.")). According to the Commonwealth, "[w]hen considered as a whole, the totality of [Judge Gavin's] errors, misstatements of facts, failure to adhere to well-established legal principles, ex parte communications, exhibition of hostility towards the Commonwealth's attorneys, deference to [] [D]efendants, and abdication of judicial responsibilities, the appearance of bias and impropriety is unmistakable" and "painfully evident"). Brief for the Commonwealth at 95, 97. We disagree.
Judge Gavin addressed and rejected this claim in his 1925(a) Opinion and Recusal Opinion. See 1925(a) Opinion, 10/17/16, at 9-10 (distinguishing Rhodes , supra and Johnson , supra ); see also Recusal Opinion, 8/1/16, at 57-58 (citing Commonwealth v. Williams , 615 A.2d 716, 722 (Pa. 1992) (stating that no number of failed claims may collectively attain merit if they could not do so individually)). We agree with Judge Gavin's analysis and determination, which is supported by the record and the law. Accordingly, we affirm on this basis with regard to the Commonwealth's final sub-issue. See 1925(a) Opinion, 10/17/16, at 9-10; see also Recusal Opinion, 8/1/16, at 57-58.
In closing, we discern no bias or appearance of impropriety in Judge Gavin's evenhanded handling of these contentious cases. Judge Gavin articulated sound, thorough reasoning supporting his determination that he could preside over these cases impartially, which is supported by the record. In this regard, we incorporate herein Judge Gavin's summarization of his position, as set forth in the Recusal Opinion. See Recusal Opinion, 8/1/16, at 2-3, 4 (wherein Judge Gavin stated, inter alia, as follows: "The main thrust of the [] [M]otion[] to recuse is that I am favoring the defense at the expense of the prosecution. I flatly reject this suggestion. The only party favored is the one with the facts and law on its side, something I have adhered to in my rulings in this case. ... I have no bias for or against any party. I believe that an objective review of my handling of this case will show an evenhanded approach[,] guided by the applicable legal principles and the credible objective evidence pertinent to the decision then being made.").
Accordingly, we affirm the Order denying the Commonwealth's Motion to recuse.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/15/2017
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