August 11, 2009
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
JONATHAN HARRIS, APPELLANT
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 judge himself is best qualified to gauge his ability to preside impartially.
Bonds, 890 A.2d at 418 (citing Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (Pa. 1998)).
The party who asserts that a trial judge should recuse bears the burden of setting forth specific evidence of bias, prejudice, or unfairness. See Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 318 (Pa. 1976). "Furthermore, a decision by the trial court against whom the plea of prejudice is made will not be disturbed absent an abuse of discretion." Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771, 782 (Pa. 1995). Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super. 2000). See also Commonwealth v. Tedford, 598 Pa. 639, 731, 960 A.2d 1, 55-56 (2008) ("[I]t is the burden of the party requesting recusal 'to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially.'").
¶ 7 Once a decision to deny a recusal request has been made, that decision is final and the cause must proceed. Commonwealth v. Urrutia, 653 A.2d 706, 711 (Pa. Super. 1995).
The propriety of this decision is grounded in abuse of discretion and is preserved as any other assignment of error, should the objecting party find it necessary to appeal following the conclusion of the cause. If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so the alleged disqualifying factors of the trial judge become moot.
Id. (italics in original) (citation omitted). See also Commonwealth v. Simmons, 565 A.2d 481, 482 (Pa. Super. 1989).
¶ 8 Here, like the appellant in Urrutia, Harris raised the question of the trial judge's partiality prior to trial, and the trial judge concluded that she was fully capable of presiding in a fair and unbiased manner. As the Urrutia Court explained, "it therefore falls to this court to determine whether the trial was fair and impartial. If the trial was fair, any allegations of bias are moot." Urrutia, 653 A.2d at 711.
¶ 9 In the present matter, the bulk of Harris' argument regarding recusal fails to allege, let alone demonstrate, that his 2007 trial was not fair or impartial. In the first instance, Harris claims that Judge Hughes showed partiality against him when, during his 2003 trial, she refused to allow court-appointed back up counsel, Attorney Charles Mirarchi, III, to sit with him, instead instructing counsel to "sit in the back row and be available when he could." Appellant's brief at 9 (citing N.T. 12/15/03 at 13-14).
¶ 10 This argument does nothing to convince us that the 2007 trial was unfair or lacking in impartiality, and we note with extreme displeasure that it distorts the facts. The wording of Harris' appellate brief implies that Judge Hughes forced counsel to sit in the back row of the courtroom, where he would be unable to assist Harris, and to merely "stop by" every now and then, depriving Harris of "meaningful assistance." Appellant's brief at 9. A reading of the cited trial transcript reveals this to be a misstatement at best, and purposefully deceptive to the Court at worst.
¶ 11 Attorney Mirarchi was appointed to serve as Harris' back up counsel during his second trial,*fn4 and he appeared with Harris at a November 6, 2003 bail hearing. When trial commenced on the day in question, December 15, 2003, Attorney Mirarchi was involved in another case which was to close that day. N.T. 12/15/03 at 12. Nevertheless, Harris advised Judge Hughes that he wished to proceed without back up counsel. Id. at 12-13. When Attorney Mirarchi appeared shortly thereafter to explain his schedule to Judge Hughes, he confirmed that Harris wished to proceed with jury selection that day without him. Id. Judge Hughes acquiesced, but advised Attorney Mirarchi to make himself available during the luncheon recess of his other case, during that evening, and during the following day for opening argument "as much as you can." Id. at 13. As Harris claims, Judge Hughes did instruct Attorney Mirarchi to sit "in the back row," but as Attorney Mirarchi's affirmative response to this instruction makes clear, that meant sitting right behind Harris as opposed to next to him. Id. at 14. Attorney Mirarchi then remained with Harris during subsequent discussion of outstanding motions to offer his assistance during some points of that discussion. Id. at 21-22. As such, not only does this claim fail to show that the 2007 trial was not fair and impartial, Urrutia, supra, it is factually inaccurate.*fn5
¶ 12 Harris also baldly asserts that "during the sentencing hearing after the former trial," Judge Hughes showed partiality against him by finding him in contempt of court "without a hearing, or advising Mr. Harris of his right to a hearing, nor providing the defendant with counsel to represent him." Appellant's brief at 9.*fn6 Since Harris has not bothered to specify to which of the previous trials he is referring, or to provide citation to the transcript of either of those trials, we do not know which part of the certified record, if any, would support these allegations. When an allegation is unsupported any citation to the record, such that this Court is prevented from assessing this issue and determining whether error exists, the allegation is waived for purposes of appeal. Pa.R.A.P. 2119(c) (requiring that if reference is made to the record, it must be accompanied by a citation to the record); Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) ("An appellate brief must provide citations to the record and to any relevant supporting authority. This Court will not become the counsel for an appellant, 'and will not, therefore, consider issues .which are not fully developed in [the] brief.'"). See also Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007); Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa. Super. 2006).
¶ 13 Even if preserved, however, this allegation regarding the finding of contempt during a previous trial fails to allege, much less prove, the existence of any prejudice suffered by Harris during his 2007 trial, and offers nothing to convince us that the 2007 trial was not fair and impartial. Urrutia, supra. Moreover, the claim would provide no relief regardless of which trial it pertained to. In re Adams, 645 A.2d 269, 272-273 (Pa. Super. 1994), appeal denied, 539 Pa. 686, 653 A.2d 1225 (1994) (A judge before whom contemptuous conduct occurs has the power to impose punishment for such conduct and appropriate sanctions without recusing herself, unless there is a running, bitter controversy between the judge and offender.) Here, Harris claims only the "appearance of impropriety" caused by the alleged actions of Judge Hughes, not a "running, bitter controversy."
¶ 14 Harris further asserts that Judge Hughes showed prejudice against him resulting in the appearance of impropriety when she imposed a higher bail during the 2007 hearing, when the charges against him were reduced, than she imposed during one of his previous trials. Appellant's brief at 10. This claim consists of a mere four sentences of argument, and again contains no citation to the record or to pertinent case or statutory law to support it. Further, Harris provides nothing to suggest that the amount of bail resulted in an unfair or partial trial. As such, the claim is waived for purposes of appeal, and even if preserved would provide no grounds for relief in light of the lack of showing of prejudice. Pa.R.A.P. 2119(c); Urrutia, supra.
¶ 15 Also without an allegation that he was actually prejudiced, Harris additionally asserts that during the 2007 trial Judge Hughes allowed the Commonwealth to solicit evidence that he was incarcerated, despite a pre-trial ruling precluding such evidence. Appellant's brief at 10 (citing N.T. 1/23/07 at 166-167; N.T. 1/24/07 at 108-109; 1/25/07 at 104-105. A review of these portions of the transcript reveals, however, that Harris did not raise any objections during trial which would have given Judge Hughes an opportunity to strike the testimony or offer curative instructions to the jury. As such, Harris cannot now fault her for failing to take action when he himself took none.
¶ 16 Harris finalizes his allegations of error with regard to recusal with various allegations which lack supporting argument or citation to pertinent authority. As a result, such claims provide him no relief.*fn7
¶ 17 For the forgoing reasons, we find that Harris has failed to demonstrate that he did not receive a fair and impartial trial as the result of Judge Hughes' decision to deny the motion to recuse herself. As such, he is entitled to no appellate relief on this ground.
B. JURY INSTRUCTIONS
¶ 18 Harris' second allegation of error asserts that Judge Hughes erred in "failing to properly instruct the jury as to mere presence." Appellant's brief at 3, 12. Harris offered the proposed instruction prior to Judge Hughes charging the jury on January 30, 2007. N.T. 1/25/07 at 198; N.T. 1/29/07 at 5.*fn8 Judge Hughes responded that the concept of "mere presence" was "built into the conspiracy charge," and opined that she did not think the charge was necessary. Id. at 5-6.*fn9 She nonetheless agreed to hold onto the proposed charge in case the jury had a question on the issue of conspiracy, and noted Harris' objection. Id. at 6-7.
¶ 19 The lengthy instruction on conspiracy which was eventually given included the following language: "a defendant cannot be convicted merely because a defendant was present with others or even because the defendant knew what other people planned to do or were actually doing. There must be proof of an agreement between the defendant and another person to form or to continue a conspiracy." N.T. 1/29/07 at 37. At the close of the charge, Judge Hughes inquired of the parties, "Is there anything you need to place on the record or anything additional that you wish me to tell the jury before they begin deliberation?" to which Harris responded in the negative. Id. at 50-51.*fn10
¶ 20 On appeal, Harris now raises a two-fold allegation of error regarding the jury charge. He first asserts that it was error for Judge Hughes to reject his proposed charge on "mere presence," and instead offered a general charge on conspiracy. Id. at 13, 15. In addition, he asserts that the conspiracy charge actually given was "insufficient as to the law of 'mere presence' and not in accordance with the mandates of Henderson . ." Id. at 15. Neither of these allegations merits relief.
¶ 21 Judge Hughes' refusal to give the proposed "mere presence" charge will only be reversed if Harris proves that the refusal amounted to an abuse of discretion. Commonwealth v. Al Hamilton Contracting Co., 557 A.2d 15, 17 (Pa. Super. 1989) ("[The decision of the trial court to refuse to charge the jury in the specific manner requested by a party will only be reversed if an abuse of discretion is shown."). Further, "[t]he refusal to give a proper instruction requested by a [defendant] is ground for a new trial only if the substance thereof has not otherwise been covered by the trial court's general charge." Commonwealth v. Shoup, 620 A.2d 15, 20 (Pa. Super. 1993) (citing Commonwealth v. LaMassa, 532 A.2d 450, 452 (Pa. Super. 1987)).
¶ 22 As Judge Hughes herself clearly explained, the substance of the proposed charge has been included in the 2005 amendments to the Standard Jury Instructions, and thus was covered by the conspiracy charge she gave, which was based on those standard instructions. N.T. 1/25/07 at 3, 5-9; N.T. 1/29/07 at 34-39. We decline to find that Judge Hughes abused her discretion in this regard. Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990) ("When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration."); Commonwealth v. La, 640 A.2d 1336, 1344-1345 (Pa. Super. 1994) (finding no error in the trial court's refusal to issue a separate "mere presence" instruction when the trial court's conspiracy charge as a whole conveyed to the jury that a defendant does not become criminally liable for merely being at the scene of a crime or merely knowing about a crime).
C. USE OF HARRIS' PRIOR TESTIMONY
¶ 23 Harris argues that Judge Hughes "erred in allowing the prosecution to read the defendant's prior testimony concerning Joseph Pratt." Appellant' brief at 15. Because this allegation is unsupported any citation to the record, we are prevented from assessing this issue and determining whether Judge Hughes did, in fact, err in this regard.*fn11 As such, it is waived for purposes of appeal. Pa.R.A.P. 2119(c); Tielsch, supra; Einhorn, supra; Judd, supra.
D. INTERRUPTION OF CLOSING ARGUMENT
¶ 24 Harris asserts that judgment must be arrested because Judge Hughes erred in "repeatedly stopping and admonishing" him during his closing argument, without "legitimate purpose" and solely to "disrupt" his train of thought and the jury's attention. Appellant's brief at 19, 21. Harris is entitled to no relief on this claim.
¶ 25 In so concluding, we first note that Harris was permitted to give a two hour and fifteen minute closing argument. Rule 1925(a) Opinion at 8. Despite complaining that Judge Hughes "repeatedly" interrupted that closing, Harris only cites to four instances which he now claims require arrest of judgment. Appellant's brief at 19- (citing N.T. 1/26/07 at 82-83, 120, 124, 131). Our review of those four instances confirms that Judge Hughes' actions were entirely proper. As the Judge explained:
The appellant sought to use his closing statement as a vehicle to testify. Closing statements are not evidence and the appellant cannot use his summation to testify and thereby avoid cross-examination. The appellant's conduct was so egregious that it was necessary to excuse the jury and to explain the concept of closing to him. Appellant had to be specifically directed to seek guidance from his experienced standby counsel. Despite these efforts, appellant continued to attempt to testify. Appellant was afforded every opportunity to make a proper closing statement.
He cannot now complain because he was incapable of focusing on the evidence.
Rule 1925(a) Opinion at 9-10 (citations omitted). As Judge Hughes correctly concluded, "[t]he fact that an appellant decides to proceed with a pro se defendant does not absolve him of the responsibility to comply with procedural rules," and this claim is without merit. Id. at 8-9 (citing Commonwealth v. Abu-Jamal, 555 A.2d 846, 852 (Pa. Super. 1989)).
E. LIFTING THE NOLLE PROSEQUI
¶ 26 As we noted above, when Harris stood trial for the second time, the jury convicted him of criminal conspiracy and possession of an instrument of crime, but deadlocked on the charge of third degree murder. The Commonwealth moved to nolle prosequi the murder charge, but later moved to lift the nolle prosequi after Harris was successful in securing a new trial on appeal.*fn12
¶ 27 Harris' appellate argument regarding the nolle prosse fails for several reasons. Initially, we note with disapproval that Harris has again hampered our ability to assess his claim by failing to provide any citation to the portion of the certified record which contains the original motion for nolle prosequi, any objections he made to it, the order granting it, the subsequent request to lift it, or the order granting that request.
¶ 28 Additionally, although Harris' Statement of Questions Involved asserts that it was error for the trial court to lift the nolle prosequi, the argument he actually makes in his brief is that it was error for Judge Hughes to grant the nolle prosequi in the first place. Appellant's brief at 3, 22. This violates Pa.R.A.P. 2116, which requires that the issues to be resolved must be included in the statement of questions involved.
¶ 29 Finally, and most significantly, the error for which Harris provides supporting argument, i.e. that it was error to grant the nolle prosequi, Appellant's brief at 22 (citing Rega, supra),*fn13 was never appealed.*fn14 For these combined reasons, the instant allegation cannot form the basis for relief at this later stage of the proceedings.
F. PROSECUTORIAL MISCONDUCT
¶ 30 Harris asserts that the prosecutor committed misconduct requiring the grant of a new trial when, during his closing argument, the prosecutor "likened the war in Iraq to the streets of Philadelphia, and the defendant a Muslim [sic]," and "further broadcast that young men are being killed on the streets everyday in Philadelphia and the appellant was having a war." Appellant's brief at 23. This argument is, yet again, wholly unaccompanied by citation to the certified record. Appellant's brief at 23-25. We note, however, that in his earlier challenge to the denial of his recusal motion, Harris cited to a portion of the January 26, 2007 hearing during which the prosecution made the following statement on closing: "I was just outside the courtroom five minutes ago, looking at today's, the cover of the Daily News. It has all these headlines about people being shot and murdered and killed in Iraq. The one thing about ." N.T. 1/26/07 at 147-148.*fn15 Thus we will give Harris the benefit of this earlier citation, even if it was not made in support of the current argument, and find preserved an allegation that the prosecution committed misconduct with regard to this specific statement.
¶ 31 In finding that a new trial is unwarranted on these grounds, we first note that although the prosecutor's closing involved additional comments regarding the murder rate in Philadelphia, Harris objected only to the above cited statement. We find that it alone, in the context of the case as a whole, does not amount to prosecutorial misconduct requiring a new trial.
[An] [a]ppellant is entitled to a new trial on the basis of prosecutorialmisconduct only where the unavoidable effect of the prosecutor's comments was to prejudice the jurors, forming in their minds a fixed bias and hostility toward appellant, such that they were incapable of weighing the evidence objectively and rendering a true verdict. The prosecutor's comments cannot be viewed in isolation, but must be considered in the context in which they were made.
Commonwealth v. Williams, 581 Pa. 57, 77-78, 863 A.2d 505, 517 (2004) (citations omitted). Here, although Harris asserts that the prosecutor's statement "exceeded the acceptable bounds and standards," and "overstepped the acceptable balance of the principles of summation," Appellant's brief at 23, 24, Harris never actually asserts that it prejudiced the jurors, or that it rendered them incapable of weighing the evidence objectively and rendering a true verdict. Examining the statement in the context of the closing as a whole, we find that the statement did not have such an effect, and, therefore, that a new trial is not necessary on this ground.
G. BAIL MOTION
¶ 32 Harris lastly asserts that Judge Hughes erred in allowing the prosecutor to introduce a bail motion which he himself had previously filed. Appellant's brief at 25.*fn16 The motion was, as Harris is forced to acknowledge, a document of his own creation. Thus his current argument that it should not have been admitted because it contains an error is perplexing.*fn17 Harris himself signed and filed the motion. Since Harris was the originator of the document, he should have proof read it for errors before filing it, and cannot now complain that it was introduced in the form that he himself approved.
¶ 33 For the foregoing reasons, we affirm the judgment of sentence.
¶ 34 Affirmed.