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COMMONWEALTH PENNSYLVANIA v. BRIAN SIMMONS (10/27/89)

filed: October 27, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
BRIAN SIMMONS, APPELLANT



Appeal from the Judgment of Sentence entered December 21, 1987, Court of Common Pleas, Philadelphia County, Criminal Division at No. 8/87 1029-1941.

COUNSEL

Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for Simmons, appellant.

Joann Verrier, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Brosky, J. joins and files a concurring opinion. Beck, J. files a concurring statement. Tamilia, J. concurs in the result. Popovich, J. files a dissenting opinion.

Author: Johnson

[ 388 Pa. Super. Page 273]

A jury convicted Brian Simmons of felony third degree robbery and criminal conspiracy. The Honorable Stanley L. Kubacki sentenced Simmons to a term of imprisonment. Simmons filed this direct appeal pro se, seeking a plenary review of the Career Criminal Program operated by the District Attorney's Office in and for Philadelphia County.

The sole issue properly before us is whether Judge Kubacki committed error in denying a pretrial Motion for Recusal and To Declare Career Criminal Program Null and Void. The motion is one that was being filed in all cases assigned to the Career Criminal Program involving the Defender Association of Philadelphia at the time this case reached trial status. Our review of the suppression hearing transcript, the Motion for Recusal, etc., and the briefs of the parties does not disclose any error by the trial judge. Accordingly, we affirm the judgment of sentence.

It is as important to point out what this case is not about as it is to recognize what Simmons now urges this court to review. No complaint is advanced that any error was committed by the distinguished trial judge, either in his rulings during trial or in his charge to the jury. The sentence is not under attack. Neither jury selection nor the conduct of the prosecutor during trial has been questioned.

We find no error in Judge Kubacki rejecting the motion for recusal. A party seeking the disqualification of a trial judge has the burden of producing evidence tending to show bias, prejudice or unfairness by the judge. Commonwealth v. McQuaid, 273 Pa. Super. 600, 609, 417 A.2d 1210, 1215 (1980). At the hearing on the motion on October 13, 1987, Simmons offered no evidence to establish bias or

[ 388 Pa. Super. Page 274]

    prejudice by Judge Kubacki. The entire proceeding on the recusal/career criminal program motion is set forth on less than five pages of the fifty-six page suppression hearing transcript.

At that hearing, the following colloquy between Judge Kubacki and Robert Jovanov took place:

THE CRIER: This is the case of the Commonwealth versus Brian Simmons.

MR. JOVANOV: Your Honor, basically -- Your Honor, I would direct -- the motion is for recusal and to declare the Career Criminal Program noll [sic] and void. It is a motion that we file on all our cases that are in the Career Criminao [sic] Program.

THE COURT: I know.

MR. JOVANOV: . . . . I would ask Your Honor to have this case randomly sent to 625 today. I am available today to go try it if it is sent out to another Judge. But it should not be before a Career Criminal Judge. There is a possibility there might be a waiver. It is before Your Honor at this point in time. Your Honor knows because it is in a career criminal room, that there are at least two prior robbery convictions, effectively eliminating my client's --

THE COURT: I didn't know that until just now.

MR. JOVANOV: Your Honor, the guidelines say very clearly if it is a career criminal, there has to be a prior criminal record. It can't be here for any reason, Your Honor knows that.

THE COURT: I never read the rules they promulgated and I don't want to read them.

MR. JOVANOV: It is here because he has a prior criminal record. I ask you to send it back and have it randomly reassigned. It doesn't belong here, Your Honor is sitting as a Career Criminal Judge. It is a career criminal courtroom. It belongs somewhere else.

[ 388 Pa. Super. Page 275]

THE COURT: I use the same standards, the same rules of evidence, everything. I honestly don't know why we have the Career Criminal Program.

Notes of Testimony, "Motion to Suppress" [sic], October 13, 1987, pages 2-4 (emphasis added).

In his Summary of Argument, Simmons asserts that:

     the only available factfinder was a judge who was aware of information so prejudicial that it has been said to strip a defendant of the presumption of innocence.

Brief for Appellant, page 6. This simply is not true.

First, the factfinder in this case was a jury of twelve persons, none of whom were aware of any information other than that presented at trial. Second, based upon the certified record filed with this court, the trial judge only became aware of Simmons' recidivism as a result of statements made by defense counsel at the hearing on recusal held October 13, 1987.

We find nothing in this record to support Simmons' charge that the trial judge had prejudicial information about the defendant before trial. Although an order setting a hearing "on the within motion" was received by the Clerk of Quarter Sessions on September 29, 1987, the Motion for Recusal and To Declare Career Criminal Program Null and Void was not filed of record until October 20, 1987 along with Simmons' post-verdict motions. Our reading of the above excerpt from the proceedings held on the first day of trial persuades us that Judge Kubacki became aware of Simmons' status as a "career criminal" only after Simmons, himself, through his counsel, placed the issue before the court. We therefore reject the allegation that:

     the information was disclosed to the trial judge because of Court Administration's intentional creation of a system of three designated "career criminal judges."

Brief for Appellant, page 9.

It is clear that the jury had absolutely no information concerning Simmons' status at time of trial. It is equally clear that Judge Kubacki only became aware of Simmons'

[ 388 Pa. Super. Page 276]

    prior convictions as a direct result of Simmons' counsel introducing this information during the pre-trial recusal hearing. We conclude that Simmons has failed to lay an adequate factual predicate to permit our court to assume prejudice for review purposes. Commonwealth v. Edney, 318 Pa. Super. 362, 464 A.2d 1386 (1983).

Simmons contends that the trial court violated his right to a non-jury trial under Pa.R.Crim.P. 1101, arguing that his case was taken from the "random assignment" system and assigned to a "career criminal judge" who was aware of the serious nature of his criminal record. Simmons argues that the rejection of his recusal motion, coupled with his inability to be transferred from the program, deprived him of the choice to have a non-jury trial. We cannot agree.

Rule 1101 requires an affirmative request, in writing, by a defendant wishing to waive a jury trial. At no time did Simmons request a waiver either orally or in writing. We reject the suggestion that the knowledge of the trial judge precluded Simmons' exercise of choice since the assumption upon which the suggestion is based is factually incorrect. Moreover, the right to a bench trial is not absolute. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Carter, 347 Pa. Super. 624, 501 A.2d 250 (1985).

We have concluded that Simmons' rights under Pa.R.Crim.P. 1101 have not been violated, and that Judge Kubacki did not abuse his discretion in rejecting the motion for recusal. Appellant urges us to consider further whether previous decisions by this court involving the career criminal program have been wrongly decided, and whether the career criminal program, as institutionalized in Philadelphia County, should have any place in the administration of justice. Appellant urges this court to review and evaluate the program guidelines heretofore established within the District Attorney's Office. This, we decline to do.

[ 388 Pa. Super. Page 277]

Our supreme court has instructed us that the formal purpose of the Superior Court is to maintain and effectuate the decisional law of the Supreme Court of Pennsylvania as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). No right of review exists in the Superior Court except as expressly authorized by statute. This court lacks authority to review the work of an inferior tribunal, as on certiorari, where there is no statutory right of appeal. We do not possess the powers of the Court of King's Bench. Commonwealth v. Harris, 409 Pa. 163, 171-174, 185 A.2d 586, 590 (1962), citing Bell Appeal, 396 Pa. 592, 597 et seq., 152 A.2d 731, 734 et seq. (1959). We, ourselves, have recognized that the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, as amended, 42 Pa.C.S. ยง 101 et seq. does not give this court any broad discretionary power of review. Toll v. Toll, 293 Pa. Super. 549, 553-554, 439 A.2d 712, 714-715 (1981) affirmed per curiam 498 Pa. 536, 448 A.2d 1379 (1982).

We are here presented with an appeal taken from the judgment of sentence where no attack is made upon either the sentence itself or any of the trial proceedings leading up to that sentence. Simmons argues that, although he finds no error in the trial proceedings or the conduct of the trial by the judge, he was a victim of certain rules or procedures of the district attorney which somehow forced him to appear before one judge rather than another judge.

We view this portion of the appeal as an attack upon the procedure alleged to have been in existence in the court of common pleas. As such, we conclude that the appeal can only be heard, if at all, by the Supreme Court of Pennsylvania, under that court's general supervisory and administrative authority over all the courts as found in Article 5, Section 10 of the Pennsylvania Constitution.

This court lacks authority to direct the Office of the District Attorney to establish guidelines for the Career Criminal Program as a condition to its continued existence. We decline therefore to delve into the reasons which the

[ 388 Pa. Super. Page 278]

Commonwealth might have for Simmons' inclusion in ...


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