Com. v. Rainey

• Decision Date: 07 July 2006
• Citation: 912 A.2d 755
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael RAINEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 755

912 A.2d 755

COMMONWEALTH of Pennsylvania, Appellee, v. Michael RAINEY, Appellant.

Supreme Court of Pennsylvania.

July 7, 2006.

Justice CASTILLE.

ORDER

AND NOW, this 7th day of July, 2006, upon review of Appellant's Motion for Recusal and the Commonwealth's Reply in opposition to the Motion, the Motion for Recusal is DENIED.

OPINION IN SUPPORT OF DENIAL OF APPELLANT'S MOTION FOR RECUSAL

Appellant Michael Rainey, through his counsel, Attorney Billy H. Nolas, Esquire, of the Defender Association of Philadelphia, Capital Habeas Unit, has filed a motion for my recusal in this capital matter, which is an appeal from the denial of appellant's petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541 et seq. For the reasons set forth below, I will deny the Motion.

On December 27, 1991, a Philadelphia County jury convicted appellant of first-degree murder and related charges arising from the December 7, 1989, robbery and murder of seventy-four year-old Carroll Fleming. The jury sentenced appellant to death. This Court affirmed the judgment of sentence in a unanimous opinion by Justice Frank J. Montemuro, filed on March 24, 1995. Commonwealth v. Rainey, 540 Pa. 220, 656 A.2d 1326 (1995), cert. denied, 516 U.S. 1008, 116 S.Ct. 562, 133 L.Ed.2d 488 (1995). I participated in that decision with no objection from appellant.

Appellant thereafter filed a pro se petition for PCRA relief, counsel was appointed, and amended petitions were filed. The PCRA court dismissed appellant's petition on August 8, 1997 and appellant appealed. On December 28, 2001, this Court remanded the case to the PCRA court to prepare an opinion consistent with Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (2001). Commonwealth v. Rainey, 567 Pa. 271, 786 A.2d 942 (2001). I participated in that decision and authored a concurring statement. Again, I was not asked to recuse. On July 26, 2004, the PCRA court filed an opinion dismissing appellant's PCRA petition without a hearing and addressing his claims. Appellant again appealed. On February 22, 2006, the Brief for Appellant was filed along with the instant motion requesting my recusal. The Commonwealth filed its brief as appellee, as well as a reply in opposition to the recusal request.

Mr. Nolas alleges the following "factual" predicates as grounds in support of recusal: 1) I was the elected District Attorney of Philadelphia County at the time appellant committed his offense, when the Commonwealth conducted its pre-trial investigation of the case, and when it decided to charge appellant; 2) I "decided to seek the death penalty for this teenaged defendant;" 3) I "decided to try appellant jointly with [his] codefendant;" 4) I "authorized the creation of a jury selection training videotape in which racially discriminatory jury selection methods are taught" (the "McMahon tape"); and 5) I "authorized a lecture by [the Office] Director of Training [ADA Bruce Sagel] in which similar racially discriminatory practices were taught." Mr. Nolas alleges that "all of these matters are subjects of the instant appeal." Based on these averments, Mr. Nolas argues that I "served as a lawyer" in the case and thus my recusal is "required" under Canon 3 of the Code of Judicial Conduct. Mr. Nolas also suggests that my impartiality might reasonably be questioned based upon his first three allegations. He separately alleges that my impartiality might reasonably be questioned based on his fourth and fifth factual allegations.

The Commonwealth responds by arguing, first, that Canon 3 creates no "right" in a party to have a judge or justice recused, but merely provides standards by which judges should exercise their discretion in ruling upon recusal requests. The Commonwealth further notes that, in Commonwealth v. Jones, 663 A.2d 142 (1995) (Recusal Opinion of Castille, J.), I thoroughly addressed recusal claims premised upon my official role as the publicly-elected District Attorney during some portion of a defendant's prosecution. The Commonwealth argues that my involvement as a prosecutor in appellant's case was no greater than in any other case where the Commonwealth sought the death penalty during my tenure. With specific respect to the role of the elected District Attorney in the decision to seek the death penalty, the Commonwealth describes the office policy respecting such decisions as follows:

[T]he decision to seek the death penalty is initially approved by the Chief of the Homicide Unit, after reviewing a memorandum prepared by the trial prosecutor. The recommendation to seek the death penalty is then referred to the Deputy District Attorney for the Trial Division and subsequently to the First Assistant District Attorney. If both the Trial Deputy and First Assistant concur in the recommendation, it is submitted to the District Attorney for final authorization. The District Attorney's authorization constitutes a concurrence in the judgments of the First Assistant, Trial Deputy and the Chief of the Homicide Unit that the trial prosecutor has demonstrated a statutory basis for seeking the death penalty.

The Commonwealth concludes this point by noting that, aside from concurring in the judgment of my assistants concerning the facial applicability of the death penalty statute, and serving in a formal role (such that my name appeared upon pleadings, etc.), there is no showing, or claim, that I actually directed, oversaw, or participated in the prosecution of this matter, a matter which went to trial long after I left the District Attorney's Office.

To the extent the recusal request is premised upon my role as District Attorney when certain pre-trial prosecutorial decisions were made, my opinion in Jones, which Mr. Nolas neglects to cite, controls. As I noted there, because of my position as District Attorney, my signature was affixed onto every indictment and complaint as an administrative formality. I believe my name was also listed on many, if not all, motions filed by my assistants, again as an administrative formality. I was not personally involved in every charging decision made by my assistants, nor did I actively participate in routine decisions involving, inter alia, whether to seek a joint trial for co-conspirators. To the best of my knowledge and recollection, I was not personally involved in any pre-trial investigation of appellant, the charging decisions that were made in his case, or the decision to seek to try him jointly with his codefendant. I have no special knowledge of any facts regarding whatever pre-trial proceedings occurred during my tenure as District Attorney; indeed, my only familiarity with this case is that which I have gleaned from the pleadings filed with this Court and the opinions published in appellant's prior appeals. Moreover, Mr. Nolas has pointed to nothing in the record that demonstrates otherwise. Thus, for example, Mr. Nolas's assertion, as if it were a historical fact, that I "decided to try [a]ppellant jointly with [the] codefendant," an assertion unsupported by any citation to the record, is simply false. In short, the first and third factual assertions made by Mr. Nolas, which at best relate to my formal role as the elected District Attorney, establish no basis for recusal. I have no doubt as to my "ability to preside impartially." Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652, 654 (1973) (quoting from A.B.A. Standards Relating to the Function of the Trial Judge § 1.7); see also Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727, 731 (1983).

Mr. Nolas's claim that recusal is required because I "decided to seek the death penalty for this teenaged defendant" likewise establishes no basis for recusal. Although Mr. Nolas is vague and his argument peremptory, the "decision" he presumably refers to is the written "Notice of Aggravating Circumstances" that this Court's Rules of Criminal Procedure require the Commonwealth's attorney to file and serve upon the defendant very early in a capital prosecution, i.e., at or before the time of arraignment. See Pa.R.Crim.P. 802 (formerly Rule 352).¹ The purpose of this notice Rule is to give the defendant sufficient time and information to prepare for the penalty hearing, should there be one. See id. Comment; see also Commonwealth v. Wesley, 562 Pa. 7, 753 A.2d 204, 212 (2000). The Commonwealth's account of office policy respecting such preliminary decisions to seek the death penalty is an accurate description of the manner in which such decisions were made during my tenure. My formal approval of such recommendations from my assistants, recommendations approved at all levels in the chain of command, simply represented a concurrence in their judgment that the death penalty statute applied, i.e., that one or more of the statutory aggravating circumstances set forth in the Sentencing Code, see 42 Pa.C.S. § 9711(d), existed, and nothing more.

My concurrence in the judgment of my assistants that notice should be provided to a murder defendant of potential aggravating circumstances is not, in my considered view, a level of involvement in the matter in controversy which recommends or warrants recusal. The Commonwealth's notice is subject to challenge in appropriate cases, with the trial court authorized to "rule that the case shall proceed non-capital." Commonwealth v. Buck, 551 Pa. 184, 709 A.2d 892, 896-97 (1998). Moreover, even if the case continues on a capital track and the defendant is convicted of first-degree murder, it is the trial judge who will ultimately determine whether sufficient evidence exists to submit the aggravator to the factfinder, and it is then the factfinder who must ultimately determine (by unanimous vote, if a jury) if the aggravator has been proven beyond a reasonable doubt.

In this case, Mr. Nolas does not allege that the single aggravating circumstance — i.e., that appellant murdered the victim during the perpetration of a felony — was unsupported by any...