Com. v. White

• Decision Date: 25 February 2003
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellant, v. Miriam T. WHITE, Appellee.
• Court: Pennsylvania Superior Court

818 A.2d 555

COMMONWEALTH OF PENNSYLVANIA, Appellant, v. Miriam T. WHITE, Appellee.

Superior Court of Pennsylvania.

Argued February 12, 2002.

Filed February 25, 2003.

Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth.

Bradley S. Bridge, Philadelphia, for appellee.

Before FORD ELLIOTT, JOYCE and BECK, JJ.

OPINION BY BECK, J.:

¶ 1 In this case we consider whether the Commonwealth may appeal, as of right, a pretrial order denying recusal. We also consider the Commonwealth's right to appeal an adverse ruling on its request for a jury trial. We hold that the Commonwealth may not appeal the denial of recusal as of right, but is entitled to an appeal in the event the trial court refuses its request for a jury trial.

FACTS

¶ 2 This case involves a homicide committed by an eleven-year-old girl, appellee Miriam White. The Commonwealth alleges and Ms. White appears to concede that on the afternoon of August 20, 1999, she stabbed fifty-five year old Rose Marie Knight in the chest, causing her death. By operation of law, Ms. White was charged as an adult for the crime of murder. 42 Pa.C.S.A. § 6355(e). Legal proceedings concerning the proper manner in which to punish, treat, restrain and rehabilitate Ms. White have been ongoing for nearly three years.

¶ 3 In a series of pretrial hearings before the Honorable Renee Cardwell Hughes, defense counsel and the Commonwealth attempted to reach a plea agreement, but the effort was unsuccessful. Thereafter, defense counsel moved to decertify the case to juvenile court and the matter came before the Honorable Legrome D. Davis. Again, attempts at plea negotiations commenced, but again they proved unsuccessful. After extensive analysis and a thorough assessment of the case, Judge Davis denied decertification in November 2000 and the matter returned to Judge Hughes's courtroom.

¶ 4 Defense counsel informed Judge Hughes that Ms. White intended to plead guilty to murder generally and requested that the court schedule a degree of guilt hearing. The prosecutor then inquired whether the judge believed that the degree of guilt hearing could result in a verdict of less than third degree murder, i.e., voluntary manslaughter. The court responded in the affirmative. One week later, the prosecutor appeared before Judge Hughes and asked that she recuse herself and assign the matter to another judge. Judge Hughes denied the request. The prosecutor then requested that the Commonwealth be afforded its right to a jury trial. Judge Hughes denied the request. Finally, the prosecutor asked the court to certify for appeal both the recusal issue and the request for a jury trial. Judge Hughes denied the request. The Commonwealth then filed this appeal.¹

APPEALABILITY OF THE RECUSAL ISSUE

¶ 5 The threshold question in this case is whether the orders for which the Commonwealth seeks review are appealable. We begin with the denial of recusal. The Rules of Appellate Procedure permit pretrial Commonwealth appeals in the event the prosecution is terminated or substantially handicapped:

In 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).

¶ 6 There exists a sizeable body of case law discussing the Commonwealth's right under Rule 311(d) to file pretrial appeals. The most familiar cases are those addressing the admission or exclusion of evidence. Rule 311(d) has been held applicable to an order of suppression, Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); an order granting a defendant's motion in limine to exclude certain evidence, Commonwealth v. King, 456 Pa.Super. 72, 689 A.2d 918 (1997); and an order granting a defendant's motion in limine to admit certain evidence, Commonwealth v. Allburn, 721 A.2d 363 (Pa.Super.1998), appeal denied, 559 Pa. 662, 739 A.2d 163 (1999).

¶ 7 But in the past decade, we have deemed several non-evidentiary pretrial orders to be appealable as of right by the Commonwealth. For instance, the Commonwealth may appeal an order precluding it from seeking the death penalty, Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), appeal denied, 530 Pa. 651, 608 A.2d 27 (1992); an order transferring a case from criminal to juvenile court, Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995); and an order denying a Commonwealth request for a continuance in order to secure a witness, Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). In each of these cases, the appellate court determined that the nature of the order made an appeal as of right proper.

¶ 8 The Commonwealth argues that its certification alone establishes its right of appeal and an appellate court may not inquire into the reasons upon which it relies to assert a substantial handicap under Rule 311(d). It is true that in cases regarding the admission or exclusion of evidence, we have not inquired into the appropriateness of the Commonwealth's claim of substantial handicap and explicitly have held that the Commonwealth's certification is determinative of its right to appeal. See, e.g., Dugger, supra; Allburn, supra; Commonwealth v. Pitts, 740 A.2d 726 (Pa.Super.1999).² This treatment of evidentiary issues is logical; the judiciary does not intrude upon evidentiary assessments made by the district attorney in the cases she chooses to bring to court. But the fact that we decline to probe evidentiary issues in this context does not mean that the district attorney alone decides what is and what is not appealable under Rule 311(d).

¶ 9 Prior case law establishes that the courts have placed and continue to place limits on the Commonwealth when it invokes the Rule. In Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988) (plurality), our Supreme Court held that an order for severance did not constitute one that substantially handicapped the prosecution because the Commonwealth still was permitted to seek convictions on the charges it filed, albeit in two separate proceedings rather than one, Id. at 527-28, 544 A.2d at 945. Just this year, a panel of this court did not accept blindly the Commonwealth's certification of substantial handicap. In Commonwealth v. Shearer, 2002 WL 398798 (Pa.Super.2002), the panel's majority held that a pretrial order directing that a child witness be examined by a psychologist could not be appealed under Rule 311(d) because the order did not affect the Commonwealth's ability to pursue the charges against the accused. The Shearer majority observed:

[D]espite the Commonwealth's certification,... the order [will not] in and of itself hamper, much less terminate, prosecution of the case. Only if the child is ultimately ruled incompetent by the trial court, with or without the assistance of a psychologist's prior expert opinion, will the Commonwealth be obstructed in its actions.

Id. at *2.

¶ 10 Although Shearer has since been withdrawn so that the Superior Court may consider the case en banc,³ its rationale is compelling and its conclusion, along with that of the plurality in Smith, suggests that when issues other than those evidentiary in nature are raised, we may pause to consider the propriety of the Commonwealth's certification.⁴ No doubt this is due in part to a concern that invocation of Rule 311(d) not become the norm, but rather remain an exception to be utilized only where necessary.

¶ 11 With that precise concern in mind, and based on Rule 311(d) case law generally, we find that notwithstanding the Commonwealth's certification, we are authorized to consider whether an order denying recusal is appealable. Further, our consideration of the issue leads us to conclude that such order falls short of establishing a substantial handicap.

¶ 12 The ability of the Commonwealth to present its case has not been affected by the court's order denying recusal. Not only are there no adverse evidentiary rulings facing the Commonwealth, but, unlike in Johnson, the charges remain intact. Unlike in Buonopane, the possible punishment has not been altered. And unlike in Matis, the availability of witnesses is not compromised. Further, to expand the Rule would be to disturb the orderly process of litigation. Strict application of the Rule assures that trials will go forward as scheduled. We decline to expand Rule 311(d) to include an appeal from an order denying recusal.⁵ We find that such an order is beyond the scope of Rule 311(d) and, therefore, is not appealable as of right.

MERITS OF THE RECUSAL ISSUE

¶ 13 Although we find that the court's recusal order is not appealable, we address its merits in response to the dissent's consideration of the issue. The dissent believes that recusal was proper in this case, but we do not agree that bias or prejudice is established by the record nor do we believe that an appearance of bias or prejudice is evident.

¶ 14 The Commonwealth devotes a substantial portion of its brief to comments Judge Hughes made to Ms. White prior to the decertification proceedings, while plea negotiations were ongoing. Those comments included questions about Ms. White's diet, food preferences and other factors concerning her condition and treatment while awaiting trial. The Commonwealth argues that the court's "fulsome praise" of and "solicitous concern" for Ms. White combined to "create an appearance of improper personal involvement." Appellant's Brief at 32. We disagree.

¶ 15 The exchanges between Judge Hughes and Ms. White were proper when viewed in context. The court had before it a twelve-year-old girl, whom all parties conceded was severely troubled. It appeared at that time that a negotiated resolution would be reached. Judge Hughes, in questioning and reassuring Ms. White, attempted to put the child at ease, to reassure the child and to put a human face on the...