Commonwealth v. Spanier

• Decision Date: 10 August 2018
• Docket Number: No. 1093 MDA 2017,J-A04034-18,1093 MDA 2017
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. GRAHAM B. SPANIER Appellant
• Court: Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
GRAHAM B. SPANIER Appellant

J-A04034-18
No. 1093 MDA 2017

SUPERIOR COURT OF PENNSYLVANIA

August 10, 2018

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 2, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0003615-2013

MEMORANDUM

Stabile, J.

Pending before this Court is the July 10, 2018 application of Appellant Graham B. Spanier ("Appellant"), requesting my recusal in this appeal and a vacatur of our panel decision issued June, 26, 2018 ("application"), affirming Appellant's misdemeanor conviction for endangering the welfare of children ("EWOC"). The basis for this request lies in Appellant's assertion that I, no later than a dozen years ago, in a completely unrelated matter to Appellant's current criminal appeal, was part of an alumni association that opposed a proposal by the Pennsylvania State University ("PSU") to relocate the then Dickinson School of Law ("DSL") from Carlisle, Pennsylvania, to PSU's main campus in State College. Appellant asserts that my conduct constitutes prior, personal involvement with Appellant that establishes bias or lack of impartiality on my part requiring that I recuse myself from this appeal. I write

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both to address the application and to provide the transparency to which the citizens of this Commonwealth are entitled.

By way of background, more than 20 years ago in 1997, PSU announced that it would affiliate and then merge with DSL located in Carlisle. I recall attending a celebratory reception at DSL around that time attended by several hundred people. I briefly met Appellant, then the PSU President, simply to introduce myself as a member of the DSL community. To my knowledge, that brief introduction over 20 years ago and to the present, was the first, only, and last time I had any interaction, conversation, or communication whatsoever with Appellant.

In late 2003, despite earlier assurances to the contrary, PSU announced a proposal to close the DSL Carlisle campus and relocate the law school to PSU's main campus in State College. Carlisle, as of 2003, had been the home of DSL for more than 170 years. This announcement surprised many and set off a course of events wherein people for and against the proposal sought to voice their concerns to the governing bodies that would be voting on the proposal including, on behalf of DSL, its then Board of Governors ("Board of Governors"). Almost immediate opposition to the announced plan was heard from, inter alia, numerous state house representatives, senators, regional chambers of commerce, economic development councils, newspapers, a large cross-section of the Central Pennsylvania community, numerous members of the Board of Governors, and the DSL General Alumni Association ("GAA") of

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which I was a member, but never an officer. I held membership on the GAA board due to my position as the president of the Capital Area alumni chapter of DSL.

After the DSL Board of Governors rejected PSU's relocation proposal, PSU submitted a second proposal to establish two law schools under a single accreditation. PSU, inter alia, would build a new law school on its State College campus and appropriate monies to upgrade and maintain the DSL Carlisle campus. In early 2005, the DSL Board of Governors accepted this proposal. During the years 2003-2005, when these proposals were considered, I made my views known to the DSL community through the GAA and within the Carlisle community. At no time did I attempt to communicate my views to Appellant, or to the Penn State Board of Trustees. Moreover, I did not hold a position individually, or within an organization entitled to vote on any proposal. In summary, I was one person within the GAA who joined a cacophony of people, representatives, and organizations that expressed an interest in the future of DSL and opposition to its closure and relocation to State College. The central purpose of an alumni association is to promote the general welfare of its alma mater, which in this case was DSL. In brief, my participation through the GAA was precisely to foster that objective.

After receipt of this Court's panel decision (which I authored) upholding Appellant's conviction for misdemeanor EWOP, Appellant filed his application seeking my retroactive recusal from his appeal based upon his claim that I

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harbored a personal bias against him, or that there was an appearance of bias suggesting impropriety by my participation in his appeal. The fundamental flaw in Appellant's application is that it conflates opposition to PSU's relocation plan and two-campus proposal as one directed at him personally. In effect, Appellant attempts to supplant himself as the alter ego for PSU as the party to the DSL dispute to argue bias as a basis for my recusal. The matter, and my participation as a member of the GAA did not involve Appellant personally.

While an appearance of impropriety may itself be enough to warrant judicial recusal, In re McFall, 617 A.2d 707 (Pa. 1992), "[a] party seeking recusal bears the burden of producing evidence to establish bias, prejudice, or unfairness which raises a substantial doubt as to [a] . . . jurist's ability to preside impartially." Commonwealth v. Watkins, 108 A.3d 692, 734 (Pa. 2014) (citation omitted). In addition, when a motion for recusal is filed after a decision has been rendered, the burden of proof is more exacting. In Reilly by Reilly v. SEPTA, 489 A2d. 1291 (Pa. 1985), our Supreme Court explained the rationale for this more exacting standard. While stated in the context of addressing a post-verdict claim for recusal of a trial judge, the logic and rationale apply equally here.

Charges of prejudice or unfairness made after trial expose the trial bench to ridicule and litigants to the uncertain collateral attack of adjudications upon which they have placed their reliance. One of the strengths of our system of justice is that once decisions are made by our tribunals, they are left undisturbed. Litigants are given their opportunity to present their cause and once that opportunity has passed, we are loathe to reopen the controversy

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for another airing, save for the greatest of need. This must be so for the security of the bench and the successful administration of justice. Accordingly, rules have developed for the overturning of verdicts and judgments for after-acquired evidence. In our view, recusal motions raised after verdict should be treated no differently than other after-acquired evidence situations which compel the proponent to show that: 1) the evidence could not have been brought to the attention of the trial court in the exercise of due diligence, and 2) the existence of the evidence would have compelled a different result in the case.

Id. at 1301.

Litigants also are counseled that a request for disqualification of a judge should not be made lightly. See Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (Chief Justice Saylor, dissenting, citing cases). A request for disqualification is a most serious undertaking not to be pursued absent thorough factual investigation and legal research. Id. Here, inexplicably, despite having the burden of proof in this matter, Appellant chose not to provide this Court with the documentary evidence relied upon in his application. Instead, Appellant principally relies upon his selection of passages from documents apparently sent to him by DSL former Dean Philip McConnaughay (2002-2013).¹ Application at 9. Nevertheless, for purposes of deciding Appellant's application, I will assume Appellant's document

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selections represent his best attempt at demonstrating the necessary bias to justify my recusal.

The standard under which a judge presented with a recusal motion must conduct his or her inquiry is as follows.

A motion for disqualification or recusal is properly directed to and decided by the jurist whose participation is challenged. Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). In disposing of a recusal request, a jurist must first make a conscientious determination of his or her ability to assess the case before the court in an impartial manner, free of personal bias or interest in the outcome. "This is a personal and unreviewable decision that only the jurist can make." Id. at 201, 565 A.2d at 764. Once satisfied with that self-examination, the jurist must then consider whether or not continued involvement in the case would tend to undermine public confidence in the judiciary. Id. at 201-202, 565 A.2d at 764.

Commonwealth v. Travaglia, 661 A.2d 352, 370 (Pa. 1995). Consideration of a recusal motion also must be tempered by a jurist's obligation to hear and decide cases assigned to the judge. See Pa. Code of Judicial Conduct Rule 2.7. Although there are times when disqualification or recusal is necessary to protect the rights of litigants and to preserve the public's confidence in the judiciary, unwarranted recusal or disqualification may bring public disfavor upon the court and judge. Id. cmt. Judges may not use recusal or disqualification to avoid cases that are difficult, controversial, or present unpopular issues. Id. Against the above background and standards, I now address, seriatim, the bases upon which Appellant claims my recusal is required in this matter.

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Based upon emails and documents provided Appellant by former Dean McConnaughay (application at 9), Appellant first generally identifies a writing from November 2003 that he avers I wrote to a "DSL administrator" expressing concern about exclusion of the GAA from discussions about the move to State College. Appellant does not identify the "DSL administrator." Nonetheless, Appellant is not the subject of the communication and the communication is not represented as containing any disparaging comments about the Appellant.

Appellant next generally identifies a second writing from me the following day (date...