Com. v. Mickell

• Court: Pennsylvania Superior Court
• Writing for the Court: HOFFMAN
• Citation: Com. v. Mickell, 598 A.2d 1003, 409 Pa.Super. 595 (Pa. Super. Ct. 1991)
• Decision Date: 24 October 1991
• Parties: COMMONWEALTH of Pennsylvania v. Johnnie J. MICKELL, Appellant.

Page 1003

598 A.2d 1003

409 Pa.Super. 595

COMMONWEALTH of Pennsylvania v. Johnnie J. MICKELL, Appellant.

Superior Court of Pennsylvania.

Submitted July 1, 1991.

Filed Oct. 24, 1991.

Anne L. Saunders, Williamsport, for appellant.

Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before MONTEMURO, KELLY and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for possession with intent to deliver cocaine, possession of cocaine, possession with intent to deliver marijuana, possession of marijuana and possession of drug paraphernalia. Appellant presents four issues on appeal:

I. WHETHER THE SENTENCING COURT ERRED IN DENYING APPELLANT'S MOTION TO RECUSE WHERE THE COURT HAD, PRIOR TO SENTENCING, REVIEWED A LETTER ALLEGEDLY WRITTEN BY APPELLANT ALLEGING MORAL MISCONDUCT BY THE COURT.

II. WHETHER THE COURT ABUSED ITS DISCRETION AND ERRED IN IMPOSING A MANIFESTLY EXCESSIVE SENTENCE WHERE THE COURT CONSIDERED UNRELATED EVIDENCE ALLEGING APPELLANT'S INVOLVEMENT IN THE DRUG COMMUNITY, WHERE THE COURT HAD PREVIOUSLY REVIEWED A LETTER ALLEGEDLY WRITTEN BY APPELLANT ALLEGING MORAL MISCONDUCT AND WHERE THE COURT PLACED TOO MUCH EMPHASIS ON THE NATURE OF THE OFFENSE.

III. WHETHER THE MOTIONS COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE WHERE THE SEARCH OF THE VEHICLE AND THE BAG INSIDE EXCEEDED THE BOUNDS OF THE WARRANT AND WHERE THERE WAS NEITHER PROBABLE CAUSE NOR EXIGENT CIRCUMSTANCES TO JUSTIFY THE SEARCH.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S RENEWED MOTION TO SUPPRESS WITHOUT HEARING WHERE EVIDENCE AT TRIAL PROVED THE AFFIDAVIT IN SUPPORT OF PROBABLE CAUSE CONTAINED MATERIAL MISSTATEMENTS OF FACT. ¹

For the reasons that follow, we affirm the judgment of sentence.

Appellant was arrested following the execution of a search warrant at his residence on August 19, 1989. He was charged with multiple counts of controlled substance violations. Prior to trial, appellant moved to suppress the evidence seized at his home, asserting that the search warrant was issued without a showing of probable cause and that the officers executing the search did not sufficiently attempt to locate appellant prior to searching the unoccupied apartment. In the same motion, appellant also sought to suppress admission of a bag containing cocaine that was seized from appellant's car when he returned to the residence while the search was still underway. The Honorable Thomas C. Raup denied the motion to suppress, and appellant was found guilty at a nonjury trial conducted before the Honorable Clinton W. Smith on June 26, 1990. Appellant was convicted of five of the six counts with which he was charged. ² Thereafter, Judge Smith recused himself, after receiving a letter allegedly written by appellant. Judge Raup replaced Judge Smith and fined appellant a total of $30,000, and sentenced him to consecutive terms of incarceration of five-to-ten years for possession with intent to deliver cocaine, two-to-four years for possession with intent to deliver marijuana, and six-months-to-one year for possession of drug paraphernalia. A concurrent term of incarceration of one-to-three years was imposed for possession of cocaine and possession of marijuana. Appellant's timely post-verdict and post-sentencing motions were denied, and this timely appeal followed.

I.

Appellant first contends that the sentencing judge should have recused himself after reading a letter allegedly written by appellant. The court's post-sentencing opinion [hereinafter Opinion, February 20, 1991, Raup, P.J.], which denied appellant's motion for reconsideration, provided a thorough description of the events leading up to this contention:

After trial and before sentencing, the defendant addressed a scandalous letter to the trial judge, the purport of which was that unless a lenient sentence were imposed the defendant would release certain outrageous allegations of immoral conduct on the part of members of the County Court system, principally the trial judge. The trial judge immediately provided the letter to the district attorney and new criminal charges were brought against the defendant. Since the trial judge was now a potential witness against the defendant in the new case, the judge recused himself for sentencing purposes. The letter in question attributed illegal conduct to a nonexistent son of the undersigned judge. The request was made that this Judge therefore also recuse himself for sentencing purposes.

Opinion, February 20, 1991, Raup, P.J., at 2.

Our Supreme Court has noted that "[r]ecusal is required whenever there is a substantial doubt as to a jurist's ability to preside impartially." Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982) (footnote and citations omitted). The party moving for recusal bears the burden of producing evidence that establishes bias, prejudice or unfairness necessitating recusal. Commonwealth v. Stanton, 294 Pa.Super. 516, 522, 440 A.2d 585, 588 (1982) (citations omitted). Furthermore, a judge's decision not to recuse himself will not be disturbed absent an abuse of discretion. Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 732 (1983).

In the instant case, appellant argues that his sentence, "one within the aggravated range of the Sentencing Guidelines, proves a substantial likelihood of unfairness by the sentencing court." Appellant's Brief at 12. Appellant also argues that because the letter contained a personal attack upon all Lycoming County judges, none of those judges, including Judge Raup, could have sentenced appellant with impartiality. However, appellant produces no evidence that Judge Raup was biased or unfair in imposing an aggregate sentence of seven-and-one-half-to-fifteen years. First, Judge Raup stated at the sentencing hearing, "[t]hat letter will play no part in our sentencing here today." N.T., November 14, 1990, at 8. Thus, Judge Raup expressed a belief that he could sentence appellant without being prejudiced by the letter. See Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (trial judge should recuse himself when he has doubt as to his ability to preside impartially). Moreover, Judge Raup repeatedly refused to hear the Commonwealth's proffered evidence with respect to the letter, concluding it was not appropriate to consider it at the sentencing hearing. N.T., November 14, 1990, at 23-25. Additionally, Judge Raup sufficiently explained his reasons for imposing a sentence in the aggravated range:

It is my judgment that this is a case where there are aggravating circumstances. First of all you have recently been on parole, you were only out for a short period of time when this occurred. The fact that you were on parole and the fact that you were so quickly involved with such serious criminal activity is indicative to the extent you are a danger to the community and extent you have a likelihood to go on with a way of criminal life.

Secondly, as an aggravating circumstance this was a business for you. The evidence presented at trial was overwhelming, that you were delivering this, delivering various drugs, you were doing it for profit....

Third, the type of drug includes crack cocaine which is in and of itself an aggravating circumstance....

Fourth, I see no evidence of remorse on your part and all that does is to offer a likelihood to us that the same thing is going to continue in the future, and to a lessor [sic] degree you have not been a good inmate as far as the security staff is concerned at the prison....

N.T., November 14, 1990, at 26-27. Finally, appellant had an extensive criminal record, resulting in a prior record score of 6. Hence, the sentencing judge did not abuse his discretion by refusing to recuse himself, as there is no evidence that he was biased in imposing a sentence in the aggravated range. ³

II.

Appellant next contends that the sentencing court abused its discretion by imposing an aggregate sentence of seven- and-one-half-to-fifteen years. As a preliminary matter, we note that appellant's brief contains a statement of reasons relied upon for allowance of appeal, and thus it complies with Pa. R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Therefore, we may proceed to a determination of whether, in our discretion, appellant's claims present a substantial question for our review.

A.

Appellant first argues that the sentencing court considered irrelevant evidence when sentencing appellant. We note that appellant raises a substantial question here, because "[i]t is sufficient to render a sentence invalid, if it reasonably appears from the record that the trial court relied in whole or in part on an impermissible factor." Commonwealth v. Dugan, 335 Pa.Super. 82, 87, 483 A.2d 965, 968 (1984) (reliance on fact that defendant was naturalized citizen impermissible) (citations omitted). ⁴ However, after reviewing this claim, we conclude that it is without merit.

Specifically, appellant objects to references made at the sentencing hearing to two individuals--Ms. Harris and Mr. Richard Wilson. Appellant claims that the district attorney was referring to drug transactions for which appellant was not charged. However, the district attorney's references to Ms. Harris and Mr. Wilson pertained to their testimony at appellant's trial. N.T., November 14, 1990, at 18-19. We fail to see how these references indicate that the court considered impermissible evidence, as the district attorney only referred to evidence admitted at appellant's trial.

Furthermore, appellant patches together selective quotes from the sentencing hearing to argue that the court considered unrelated prior allegations. ⁵ However, the court specifically stated, with regard to those prior allegations, "[y]ou are not charged in those cases, those are not before me in sentencing, you are not sentenced on those...." Thus, the sentencing court recognized that appellant's name had been...