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Commonwealth v. Sita Dip

Superior Court of Pennsylvania

October 16, 2019

SITA DIP, Appellee

          Appeal from the Order Entered April 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006971-2018



          BENDER, P.J.E.

         In this interlocutory appeal, the Commonwealth contends that the trial court abused its discretion by denying its "Motion to Disqualify Judge Scott DiClaudio."[1] The Commonwealth alleges that Judge DiClaudio's relationship to his domestic partner ("DP"), a former employee of the Office of the District Attorney of Philadelphia, presents an appearance of impropriety due to DP's filing of a charge of racial discrimination against the district attorney's office following her dismissal. After careful review, we affirm.

         The facts concerning the criminal case against Sita Dip, Appellee, are not germane to the disposition of this appeal. Indeed, "Appellee takes no position in this matter." Appellee's Brief at 5. Instead, the unique facts and allegations before us concern only the dispute that has arisen between the district attorney's office and Judge DiClaudio.

         In 2015, Judge DiClaudio was elected to the First Judicial District of Pennsylvania, otherwise known as the Court of Common Pleas of Philadelphia County. From January of 2016 until the present day, he has served in the Criminal Division of the First Judicial District in various capacities. Trial Court Opinion (TCO), 8/12/19, at 2. "At the time he began his term, he had already been in a long[-]term relationship with [DP], who had been employed as an Assistant District Attorney in Philadelphia County since 2013." Id.

         "Mr. Larry Krasner began his term as the Philadelphia District Attorney in January [of] 2018. [DP] worked … for approximately fourteen months under [District Attorney] Krasner." Id. DP never appeared before Judge DiClaudio before or during Mr. Krasner's tenure as District Attorney, and prior to the instant matter, no party had ever sought Judge DiClaudio's recusal due to his relationship with DP. Id. at 6.

         On February 9, 2019, DP left the district attorney's office. Id. at 2. Soon thereafter, she "filed a confidential [charge] with the Equal Employment Opportunity Commission …, alleging that she had been forced to leave on the basis of racial discrimination." Id.[2] Two months later, on April 11, 2019, the district attorney filed the Recusal Motion in the above-captioned case. Until then, "[t]he [charge of racial discrimination] had remained confidential and unknown to the public at large[.]" Id. at 2.

         Judge DiClaudio addressed the issues raised in the Recusal Motion during hearings held on April 9, 10, and 12 of 2019.[3] At the April 9th hearing, the Commonwealth initially "explained that its [recusal] motion[s] w[ere] based on the appearance of partiality caused by [DP]'s [charge of racial discrimination], and not any specific partial or biased act." Commonwealth's Brief at 7.[4] Nevertheless, in support of the recusal motions, the Commonwealth alleged that Judge DiClaudio had engaged in several improper ex parte communications with employees of the district attorney's office before and after DP's allegation.[5] See N.T., 4/9/19, at 6-7. The Commonwealth asked Judge DiClaudio to order an evidentiary hearing before a different judge to address the factual allegations it had made concerning those communications. Id. at 7, 9, 12, 14-15. "By the end of the hearing, Judge DiClaudio had acknowledged the existence of [DP]'s race discrimination [charge] against the [district attorney's office], and appeared to admit the existence of his conversations with members of [the district attorney's office] about her employment months earlier, as well as his ex parte communications about the [recusal] motions the day before. He continued, however, to challenge the content of [those] conversations." Commonwealth's Brief at 7. Judge DiClaudio held the recusal motion(s) under advisement at the end of the April 9, 2019 hearing.

         Meanwhile, the Commonwealth filed recusal motions in all of its cases before Judge DiClaudio. On April 10, 2019, the Commonwealth continued to argue for Judge DiClaudio's recusal in the cases scheduled for that day. During those arguments, Judge DiClaudio noted several unrelated situations where he believed the district attorney's office had demonstrated an appearance of impropriety. "These examples were somehow meant to show why Judge DiClaudio should not" recuse himself from cases involving the district attorney. Id. at 9. "Ultimately, Judge DiClaudio denied the Commonwealth's" recusal motions. Id.

          "The Commonwealth also filed [recusal] motions [before] Judge DiClaudio in four cases scheduled before him on April 12, 2019. [Appellee]'s case was one of them…." Id. "Judge DiClaudio asked [Appellee] whether he thought he could be fair, and [Appellee] responded that he did." Id. at 10. Ultimately, Judge DiClaudio denied the Recusal Motion in Appellee's case. Thereafter,

[t]he Commonwealth immediately asked Judge DiClaudio to certify his ruling for interlocutory appeal, and presented him with a motion. When Judge DiClaudio refused even to consider it, the Commonwealth promptly filed a notice of appeal and asked the court not to proceed in the case. Judge DiClaudio denied the Commonwealth's request and prepared to proceed to trial.
But the case could not be tried that day because the police witness was unavailable in the afternoon, and it had to be continued until the next week. Despite the Commonwealth's appeal, Judge DiClaudio continued to list the case for trial. The Commonwealth filed its motion to certify the court's ruling for interlocutory appeal that same day, and the court denied it the following week. The Commonwealth also moved to stay the trial, but the court took no action on that motion. The Commonwealth was finally able to stay [Appellee]'s trial by filing an emergency motion with this Court, which this Court granted.
The trial court issued a Pa.R.A.P. 1925(b) order, and the Commonwealth filed a statement of matters complained of on appeal.

Id. at 10-11.

         The trial court issued its Rule 1925(a) opinion on August 12, 2019. The Commonwealth now presents the following questions for our review:

I. After she was not promoted to a supervisory position and her employment with the Philadelphia District Attorney's Office ended, the trial court's domestic partner filed a complaint against the [o]ffice, which alleged that [it] discriminated against her because she is white. The [district attorney's office] represents the Commonwealth of Pennsylvania in this case. Did the trial court abuse its discretion and err as a matter of law by refusing to disqualify itself where the Commonwealth is a party in this case?
II. To the extent the trial court disputes the Commonwealth's factual claims, and those facts are necessary to the resolution of this case, did the trial court abuse its discretion by refusing to refer issues of disputed fact to another judge when the court had personal knowledge of those facts?

         Commonwealth's Brief at 4.

         "The standards for recusal are well established. It 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." Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998).

In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent.

Id. (internal citations omitted).

         The Code of Judicial Conduct dictates that a "judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." Pa. Code of Judicial Conduct, Canon 2.2 (emphasis added). 'Impartiality' is a concept more often invoked in principle than defined with particularity. John Stuart Mill described the term "as an obligation of justice" that requires the state of "being exclusively influenced by the considerations which it is supposed ought to influence the particular case in hand; and resisting the solicitation of any motives which prompt to conduct different from what those considerations would dictate." John Stuart Mill, UTILITARIANISM 45 (Batoche Books 2011) (1863).[6] Thus, impartiality is not the absence of influences external to the matter at hand; judges exist in the real world, not behind a veil of ideals. Instead, as Mill suggests, a jurist achieves impartiality by successfully resisting the unavoidable presence of external influences that might affect him or her. As our Judicial Code dictates, "[a] judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment." Pa. Code of Judicial Conduct, Cannon 2.4(A) (emphasis added). Thus, we assume that a jurist will possess interests and relationships that might conceivably influence their judgment but, in the normal course of events, the mere presence of an interest or relationship that could theoretically affect a judicial decision does not create a presumption of partiality.

         Rather, "[r]ecusal is required wherever there is substantial doubt as to the jurist's ability to preside impartially." In the Interest of McFall, 617 A.2d 707, 713 (Pa. 1992) (emphasis added). "A jurist's impartiality is called into question whenever there are factors or circumstances that may reasonably question the jurist's impartiality in the matter." Id. Thus, "[i]n order for the integrity of the judiciary to be compromised, we have held that a judge's behavior is not required to rise to a level of actual prejudice, but the appearance of impropriety is sufficient." Id. at 712. In this regard, the appearance of impropriety sufficient to disqualify a judge exists when "a significant minority of the lay community could reasonably question the court's impartiality." Commonwealth v. Bryant, 476 A.2d 422, 426 (Pa. Super. 1984) (quoting Commonwealth v. Darush, 459 A.2d 727, 732 (Pa. 1983)).

         Here, Judge DiClaudio expressed his confidence in his ability to impartially judge cases involving the district attorney's office. TCO at 3 ("[DP] did not communicate anything to this [c]ourt about the substance of her claim and this court would refuse to hear any such information, precisely because it takes its impartiality so seriously."). He also ruled that his relationship to DP does not create an appearance of impropriety because:

In this case, the mere fact [that DP] filed [the charge of racial discrimination] would not create a perception in a reasonable person's mind that this [c]ourt violated the Rules of Judicial Conduct or engaged in conduct that reflects adversely on the Judge's honesty, impartiality, temperament[, ] or fitness to serve as Judge. This [c]ourt has never made any comments regarding the potential success or failure of [DP]'s claim and a reasonable person observing this [c]ourt[] would see that all litigants are treated fairly and respectfully. The [d]istrict [a]ttorney's [o]ffice simply has no basis to conclude that the reasonable person would have any view other than seeing this [c]ourt for what it is, an impartial and fair jurist.

Id. at 4.

         For ease of disposition, we first address the Commonwealth's second claim. The Commonwealth argues that we should consider the Recusal Motion filed in response to DP's charge of racial discrimination in light of further allegations it makes regarding Judge DiClaudio's conduct. However, in the three hearings held by Judge DiClaudio concerning the Commonwealth's recusal motions in this and other cases, the Commonwealth refused to present any witnesses before the court concerning the alleged ex parte communications the judge had with members of the district attorney's office, despite Judge DiClaudio's repeated attempts to hear such evidence. See N.T., 4/9/19, at 9; N.T., 4/10/19, at 6, 10-11; N.T., 4/12/19, at 10.[7] Nevertheless, the Commonwealth maintains that "[h]ad he held an evidentiary hearing, Judge DiClaudio would have been required to evaluate his own credibility against that of any potential witness. Under such circumstances, a different judge must conduct the evidentiary hearing." Commonwealth's Brief at 24.

         It is true that "no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome." In Re Murchison, 349 U.S. 133, 136 (1955). However, recusal motions are routinely addressed in the first instance by the judge whose recusal is sought. Abu-Jamal, 720 A.2d at 89 ("As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged."). Therefore, it cannot be the case that any question of fact even remotely involving a judge's impartiality requires a separate hearing before a separate judge. Instead, the general rule is that a party seeking the recusal of a judge, at a minimum, must satisfy a burden of production and persuasion to show that the recusal claim is not frivolous. This may require the presentation of witnesses or evidence before the judge whose recusal is sought.

         There are times when a judge must refer a recusal motion to another judge. For instance, in Mun. Publications, Inc. v. Ct. of Com. Pleas of Philadelphia County, 489 A.2d 1286, 1287 (Pa. 1985), the appellees/defendants filed a motion seeking recusal of the trial court judge, the Honorable Bernard Snyder, based on the allegation that Judge Snyder was biased in favor of the appellant's/plaintiff's counsel. Judge Snyder initially referred the recusal matter to another judge, but then vacated that order and scheduled a recusal hearing before himself. Id. Judge Snyder held recusal hearings over the course ...

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