Submitted March 31, 2014
Appeal from the Judgment of Sentence January 15, 2013. In the Court of Common Pleas of Lehigh County. Criminal Division No(s).: CP-39-CR-0004173-2011. Before ANTHONY, J.
Fredrick Postie, appellant, pro se.
James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,[*] JJ.
Appellant, Fredrick Postie, appeals pro se from the judgment of sentence of a " flat" term of four months' imprisonment, entered in the Lehigh County Court of Common Pleas, following his bench conviction of driving while operating privilege is suspended or revoked (" DWOPS" ), a summary offense. Appellant alleges the court erred in: (1) denying his motion for recusal; (2) denying his suppression motion; (3) conducting partial and biased proceedings; (4) allowing the Commonwealth to reinstate the charge of DWOPS that was previously withdrawn pursuant to a plea agreement; (5) imposing a flat sentence of four months, without minimum and maximum terms; and (6) ordering his sentence to be served in state prison. We hold: (1) Appellant's flat sentence for the summary offense of DWOPS is not compliant with 42 Pa.C.S. § 9756; and (2) after review of the certified record, it is not clear whether Appellant may serve the instant sentence in state prison pursuant to 42 Pa.C.S. § 9762(a). We find no relief is due on his remaining issues. Accordingly, we vacate the judgment of sentence and remand for resentencing.
The underlying vehicle stop giving rise to these charges will be discussed infra, in our disposition of Appellant's suppression claim. On April 9, 2012, Appellant pleaded guilty to false identification to law enforcement authorities and habitual offenders in exchange for the Commonwealth's withdrawing the DWOPS charge. Appellant subsequently withdrew the plea; the circumstances of the withdrawal will likewise be discussed infra.
On August 14 and 15, 2012, the trial court conducted hearings on Appellant's
suppression motion. Appellant later also filed a motion for the trial judge's recusal, arguing the judge had presided over the suppression hearing, at which Appellant made admissions against his own interest. The court denied both the suppression and recusal motions.
The case proceeded to a bench trial on January 15, 2013, on charges of DWOPS and false reports. The officer who conducted the vehicle stop was the sole witness, and Appellant did not present any evidence or testify. The court found Appellant guilty of both counts and immediately sentenced him to four months in state prison, to be served consecutive to the unrelated state sentence he was currently serving.
Appellant did not file a post-sentence motion, but took this timely pro se appeal. He complied with the court's order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. As summarized above, he raises six allegations of trial court error.
Appellant's first claim is that the trial court erred in denying his motion for recusal. In support, he avers the court previously accepted his guilty plea, allowed withdrawal of the plea, and presided over the suppression hearing, at which he " made certain admissions of guilt." Appellant's Brief at 8. Appellant asserts he was prejudiced " with bias that could not have been cured by any other means aside from recusal." Id. We find no relief is due.
This Court has stated:
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.
The party who asserts that a trial judge should recuse bears the burden of setting forth specific evidence of bias, prejudice, or unfairness. " 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. Harris, 2009 PA Super 160, 979 A.2d 387, 391-92 (Pa. Super. 2009) (citations omitted).
In support of his argument, Appellant cites Commonwealth v. Simmons, 335 Pa.Super. 57, 483 A.2d 953 (Pa. Super. 1984). In that case, this Court stated, " In a case where the judge hears highly prejudicial testimony, such as a withdrawn guilty plea,
he should recuse himself from sitting as factfinder . . . ." Id. at 956 (citation omitted). However, we further note:
[T]he mere participation by the trial judge in an earlier stage of the proceedings does not provide a per se basis for requiring recusal of the trial judge.
The determination of whether a trial judge should recuse himself depends upon the following: the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal. The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. The burden to show prejudice, however, is on the party seeking recusal. If the evidence is admissible, or not of a highly prejudicial nature, recusal is not required, and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. This principle appears to be based on the prevailing view that judicial fact-finders are capable of disregarding prejudicial evidence.
Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612, 615 (Pa. Super. 1990).
With respect to the trial judge's presiding over the suppression hearing, Appellant does not explain what " certain admissions of guilt" he made. See Appellant's Brief at 8. We note that DWOPS is defined as " driv[ing] a motor vehicle on any highway or trafficway" while one's operating privilege is suspended, revoked, or cancelled, and false reports is defined as " giv[ing] information in oral or written reports . . . knowing or having reason to believe that the information is false." 75 Pa.C.S. § § 1543(a), 3748.
The Commonwealth points to the following testimony by Appellant on cross-examination:
[Commonwealth: This was the vehicle [t]hat you were driving while you were suspended[?]
* * *
Q. Did you lie to [Pennsylvania State Police Trooper Larry James McDaniel, the ...