Appeal from the Judgment of Sentence January 29, 2007 In the Court of Common Pleas of Philadelphia County Criminal at No(s): CP-51-CR-0409431-2002.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, PANELLA, and FREEDBERG, JJ.
¶ 1 Appellant, Jonathan Harris, appeals from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.
¶ 2 This matter stems from a September 23, 2001 shooting on the streets of Philadelphia. Witnesses saw Harris arguing with Leon Bryant, who got into a car occupied by Joseph Pratt. As the car drove away, Harris and an accomplice fired multiple shots into it, killing Bryant and wounding Pratt. Following an August 2003 jury trial, during which Harris represented himself, he was found not guilty of first degree murder and voluntary manslaughter. A mistrial was declared, however, because the jury deadlocked on the charges of third degree murder, possessing instruments of crime (PIC), criminal conspiracy, and recklessly endangering another person.
¶ 3 Harris, again representing himself, was retried in December 2003. Following his second jury trial, Harris was found guilty of PIC and criminal conspiracy, and not guilty of recklessly endangering another person, but the jury again deadlocked on the third degree murder charge. Harris was subsequently sentenced to two and a half to five years' incarceration on the PIC conviction, and a consecutive ten to twenty years' incarceration for the criminal conspiracy conviction. Harris appealed, and through counsel raised the allegation that the trial court had erred in allowing him to proceed pro se without conducting a full colloquy. A panel of this Court agreed, and, on September 1, 2005, vacated the judgment of sentence and remanded the matter for a new trial.
¶ 4 Harris' third jury trial commenced in January 2007, before the distinguished trial judge Renee Cardwell Hughes. Harris, again choosing to represent himself, was eventually convicted of third degree murder, criminal conspiracy, and PIC. Judge Hughes, who had presided over Harris' second trial as well, sentenced him to 20 to 40 years' incarceration for third degree murder, a consecutive 20 to 40 years' incarceration for conspiracy, and a consecutive two and one half to five years for PIC.
¶ 5 Harris now appeals,*fn1 raising the following issues for our review:
1. Did the trial court err in denying the defendant's motion for recusal without a hearing?
2. Did the trial court err in failing to properly instruct the jury as to mere presence?
3. Did the trial court err in allowing the prosecution to read the defendant's prior testimony concerning Joseph Pratt?
4. Did the trial court err in repeatedly interrupting the defendant's pro se closing argument?
5. Did the court err in lifting the nolle prosequi without a hearing?
6. Did the prosecutor engage in misconduct during his closing argument?
7. Did the trial court err in allowing the prosecutor to introduce portions of the bail motion as an admission of guilt? Appellant's brief at 3. We address these claims in order.
¶ 6 Turning to Harris' first allegation, we note that although he asserts that the trial court erred in denying his motion for recusal "without a hearing," his actual argument is focused on the underlying denial of the motion, and does not discuss or provide supporting case law regarding the failure to hold a hearing on the motion.*fn2 As such, we consider this a challenge to the denial of a motion for recusal.*fn3
Our standard of review of a trial court's determination not to recuse from hearing a case is exceptionally deferential. We recognize that our trial judges are "honorable, fair and competent," and although we employ an abuse of discretion standard, we do so recognizing that the ...