J-S37038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GREGORY BROWN, JR.

Appellee No. 1817 WDA 2015

Appeal from the Order Entered November 18, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006028-1996,

CP-02-CR-0008170-1996

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016

The Commonwealth of Pennsylvania appeals the denial of a motion 

seeking the recusal of the Honorable Joseph K. Williams, III, from the retrial 

of Gregory Brown, Jr. Upon careful review, we affirm.

On February 11, 1998, Brown was convicted of three counts of seconddegree murder and one count each of arson-endangering persons, arsonendangering property, and insurance fraud. The charges stemmed from a 

1995 house fire at 8355 Bricelyn Street, Pittsburgh, where Brown resided 

with his mother and family. The fire resulted in the deaths of three 

firefighters. Brown received three consecutive life sentences for the murder 

convictions, and concurrent sentences of 5 to 10 years and 2 1⁄2 to 5 years 

for the arson counts. On direct appeal, this Court affirmed Brown’s 

convictions, but vacated his sentence for arson-endangerment of persons. 

After this Court declined to grant reargument, our Supreme Court denied 
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allowance of appeal. Thereafter Brown unsuccessfully sought habeas corpus 

relief in federal court. 

On May 5, 2010, Brown filed a pro se petition under the PostConviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, which was 

subsequently amended in a series of filings by appointed counsel. 

Ultimately, the PCRA court granted relief to Brown in the form of a new trial 

by order dated February 19, 2014. The PCRA court found that the 

Commonwealth had withheld impeachment evidence from the defense at the 

time of Brown’s first trial. On appeal, a panel of this Court affirmed the 

ruling of the PCRA court, and our Supreme Court denied the 

Commonwealth’s petition for allowance of appeal. 

Upon remand to the trial court, the Commonwealth filed a motion to 

recuse, which Judge Williams denied by order dated November 18, 2015. 

The Commonwealth filed this timely appeal, contending that Judge Williams 

erred in denying recusal, arguing that the evidence and trial record 

demonstrate personal bias, and/or the appearance of bias, which should 

have led Judge Williams to conclude he could not preside impartially at the 

retrial.1 In the alternative, the Commonwealth argues that Judge Williams 

____________________________________________

1 We note that on January 21, 2016, Brown filed a counseled motion to 

quash the instant appeal, in which he asserted that the appeal is frivolous on 

procedural and substantive grounds and was initiated by the Commonwealth 

for delay purposes. The motion to quash was denied in an order entered 

March 14, 2016, and the parties agreed that the appeal would be scheduled 

for the next available submission panel of this Court. Additionally, the March 

14, 2016 order was entered without prejudice to Brown’s right to raise the 

issues included in the motion to quash again before the merits panel. We 

note that Brown’s motion to quash in essence requested a ruling on the 

substantive merits of this appeal; we have addressed this matter on the 

(Footnote Continued Next Page)
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abused his discretion by failing to sua sponte transfer the recusal motion to 

another judge for disposition, as he was unable to maintain his objectivity. 

A trial judge must recuse him or herself if there is any doubt as to his 

ability to “preside impartially in a criminal case or . . . impartiality can 

reasonably be questioned.” Commonwealth v. Goodman, 311 A.2d 652, 

654 (Pa. 1985). The standards for recusal are well-established. Generally, 

a motion for recusal is directed to and heard by the jurist whose impartiality 

is questioned. Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 

1998). The judge must make a conscientious determination of his ability to 

assess the case in an impartial manner, free of interest in the outcome or 

personal bias in considering a recusal request. Id. The jurist then must 

consider whether his continued involvement undermines public confidence in 

the judiciary and/or would create an appearance of impropriety. Id. This is 

a personal and unreviewable decision that only the jurist can make. Id. 

In reviewing a denial of a disqualification motion, we recognize that 

our judges are honorable, fair and competent. Id. As the trial court is in 

the best position to gauge its ability to preside impartially, we defer to its 

decision in denying the motion to recuse. Commonwealth v. Harris, 979 

A.2d 387, 391-92 (Pa. Super. 1990). If the trial judge determines that he or 

she can hear and dispose of the case fairly and without prejudice, that 

decision will be final unless there is an abuse of discretion. Reilly v. 

(Footnote Continued) _______________________

merits herein and have determined that the trial court did not err in denying 

the Commonwealth’s motion to recuse, as discussed below.
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Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1300 (Pa. 

1985).

The term “discretion” imports the exercise of judgement, wisdom 

and skill so as to reach a dispassionate conclusion, within the 

framework of the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. Discretion is 

abused when the course pursued represents not merely an error 

of judgement, but where the judgement is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000), quoting Coker 

v. S.M. Flickinger Company, Inc., 625 A.2d 1181, 1186 (Pa. 1993).

The burden lies on the party seeking recusal to produce evidence 

establishing bias, prejudice, or unfairness which raises substantial doubt as 

to the ability of the jurist to preside impartially. Abu-Jamal, 720 A.2d at 

89, citing Rizzo v. Haines, 555 A.2d 58, 72 (Pa. 1989). 

Here, the Commonwealth’s claim is based largely upon an allegation 

that Judge Williams harbors bias toward the various agencies that 

investigated the fire in question, particularly ATF Special Agent Matthew 

Regentin, who investigated the Bricelyn Street fire and is a “necessary 

witness” at Brown’s retrial. Brief of Appellant, at 21. The Commonwealth 

asserts that Judge Williams’ alleged bias stems from an incident that 

occurred prior to his ascension to the bench, in which a store with which the 

judge had done business burned in an arson. During the investigation, law 

enforcement officials discovered that Judge Williams had previously been 

engaged in a dispute with the store’s owner and possessed a key to the 

store. Despite this prior dispute, the store’s owner retained Judge Williams 
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to represent him during questioning by Special Agent Regentin and other law 

enforcement officers. During the course of the interview, investigators 

asked Judge Williams if he had any involvement with the fire, which Judge 

Williams denied. 

Following the interview, Judge Williams wrote a letter to Pittsburgh 

Fire Department Captain Francis Deleonibus expressing his displeasure with 

the manner in which the interview had been conducted. In particular, Judge 

Williams conveyed his dismay at having, himself, been interrogated in front 

of his client. The Commonwealth asserts that Judge Williams “took the 

incident personally and harbored a deep resentment toward [the] 

investigators.” Corrected Motion to Recuse, 10/27/15, at 8. 

Subsequently, during 2012 PCRA proceedings in this matter, Judge 

Williams noticed ATF agents sitting in the courtroom. Among the agents was 

Special Agent Regentin, who was taking notes. At a sidebar with counsel, 

the court expressed concern that, if they left the courtroom, the agents 

might violate the sequestration order the court had put in place by sharing 

their notes or other information from the proceedings with potential 

witnesses located outside the room. Accordingly, the court indicated that he 

would prefer if the agents did not leave the courtroom. Prior to this incident, 

Judge Williams had asked another observer – a defense witness – to leave 

the courtroom because of the sequestration order. The Commonwealth 

argues that Judge Williams’ decision requiring the observing defense witness 

to leave the courtroom, while expressing concern over allowing the ATF 

agents to leave, demonstrated a mistrust of the agents, which the 
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Commonwealth posits is further evidence of the court’s bias against the 

prosecution.

The Commonwealth also argues that the language used by Judge 

Williams in his written opinions establishes bias against the prosecution. 

Judge Williams described the behavior of Agent Jason Wick, whom the court 

concluded withheld exculpatory information from the defense, as “ratcheted 

up” and “aggressive.” The court further found that Agent Wick 

“purposefully” chose not to share the exculpatory information which formed 

the basis for Brown being granted a new trial. 

The trial court held a hearing on the recusal motion on November 18, 

2015. The Commonwealth presented no evidence, choosing instead to “rest 

on [its] pleadings.” N.T. Recusal Hearing, 11/18/15, at 2. The trial court 

announced its decision on the record and subsequently supplemented its incourt statement with a Pa.R.A.P. 1925(a) opinion. 

In concluding that he need not recuse himself from Brown’s retrial, 

Judge Williams noted the general standard by which a recusal motion must 

be analyzed:

THE COURT: When I look at this analysis, there are two big 

parts to it. First, has there been evidence presented that 

establishes bias, prejudice or unfairness which raises a 

substantial doubt as to my ability to preside over the retrial of 

Mr. Gregory Brown?

Second, does my continued involvement in the case create the 

appearance of impropriety [that] would tend to undermine public 

confidence in the judiciary?

N.T. Recusal Motion Hearing, 11/18/15, at 37. 

The court began by observing that the Commonwealth, while 

acknowledging that it bore the burden of proof on the issue of recusal, had 
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nevertheless failed to present any evidence in support of its motion. Citing 

accusations of bias against Special Agent Regentin, the court noted the 

Commonwealth’s failure to present the agent’s testimony to establish “some 

animus, if there was a feud in a meeting, if there was any manifestations, 

[of] this ire or resentment that I’ve had over the course of the last 13 

years[.]” Id. at 38. The court stated that, when he saw Special Agent 

Regentin in court during PCRA proceedings, he did not know who he was, 

and “[i]f that gentleman was in court today, I couldn’t pick him out.” Id. at 

39. The court characterized the Commonwealth’s allegations as “conjecture, 

where the government just throws up these ideas, throws them on the wall, 

presents no evidence[.]” Id. at 40. 

Judge Williams cited Code of Judicial Conduct Rule 2.22and concluded 

that he had been impartial and fair, and had applied the law appropriately. 

Addressing the Commonwealth’s arguments regarding the “tone and tenor” 

____________________________________________

2 The Code of Judicial conduct Rule 2.11 regarding the disqualification of a 

jurist states:

(A) A judge shall disqualify himself or herself in any 

proceeding in which the judge’s impartiality might 

reasonably be questioned, including but not limited to 

the following circumstances:

(1) The judge has a personal bias or prejudice 

concerning a party or a party’s lawyer, or 

personal knowledge of the facts that are in 

dispute in the proceeding.

Pa. Code Judicial Conduct 2.11. 
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of his opinions, the court noted that “honesty does not equal fixed bias.” Id.

at 41. 

As to the perception of impropriety, Judge Williams posited that, rather 

than casting doubt in the mind of the public as to the impartiality of the 

judiciary, his recusal at the behest of the Commonwealth would lead the 

public to believe that “[w]hen one party doesn’t like the judge assigned to 

their matter and can get it changed, . . . justice can be manipulated.” Id. at 

42. The court also cited to Rule 2.7 of the Judicial Code of Conduct, which 

states that “[u]nwarranted disqualification or recusal may bring public 

disfavor to the court and to the judge personally.” Code of Judicial Conduct, 

Rule 2.7. Judge Williams concluded that “a reasonable man would believe 

that I’ve been reasonable,” and that his further participation in these 

proceedings would not create an appearance of impropriety. N.T. Recusal 

Motion Hearing, 11/18/15, at 45. Rather, the court concluded, “I believe 

that a reasonable man looking at this case would probably wonder why the 

government [would] withhold the fact that two principal witnesses in the 

case were paid and not disclose that to anyone.” Id. 

At the outset, we concur with the trial court that the Commonwealth 

plainly failed to sustain its burden of proof to raise a “substantial doubt” 

regarding Judge Williams’ ability to preside fairly over Brown’s retrial. AbuJamal, 720 A.2d at 89. Rather than create an evidentiary record at the 

recusal hearing, the Commonwealth “rest[ed] on [its] pleadings,” which 

incorporated copies of correspondence relating to the arson fire for which 
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then-attorney Williams’ client was questioned in 2004 and two affidavits 

relating to Judge Williams’ alleged bias against Special Agent Regentin. 

These documents, without additional testimony or other evidence to 

contextualize or explain them, fell far short of demonstrating that Judge 

Williams harbored bias against either the Commonwealth or any of the 

agencies that assisted in the investigation. Indeed, to conclude that Judge 

Williams was biased based on such meager evidence would require leaps of 

imagination, assumptions, and rank speculation that is simply not supported 

in the record, much less by actual evidence adduced in court. For this 

reason alone, the court was within its discretion to deny the 

Commonwealth’s request. 

Even reaching the merits of the claim, our review of the record reveals 

no evidence that any of Judge Williams’ challenged behavior evidences an 

inability to preside impartially. While the court certainly expressed 

frustration with the Commonwealth’s failure to disclose reward payments 

promised – and ultimately paid – to witnesses Wright and Abdullah, such a 

reaction was justified in light of the fact that the Commonwealth for years 

continued to deny the existence of reward money, in both state and federal 

court proceedings. Indeed, this Court previously found that there was “no 

dispute that the Commonwealth did not turn over” information relating the 

offer of a reward and that, over the course of PCRA proceedings, Brown was 

“thwarted by the Commonwealth’s repeated denials[.]” Commonwealth v. 
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Brown, 289 WDA 2014, at 26, 30 (Pa. Super. filed 3/20/15) (unpublished 

memorandum). 

Moreover, the Commonwealth’s reliance on the language used by 

Judge Williams in his February 19, 2014 opinion is misplaced. It is the trial 

court’s duty to make credibility determinations and apply them accordingly. 

Our Supreme Court has stated that “alleged bias stemming from facts 

gleaned from the judicial proceeding will rarely be grounds for recusal.” 

Commonwealth v. Druce, 848 A.2d 104, 110 n.3 (Pa. 2004). The Druce

Court quoted with approval a statement by the U.S. Supreme Court in 

Liteky v. United States, 510 U.S. 540, 555 (1994), in which the Court 

observed:

[O]pinions formed by the judge on the basis of facts introduced 

or events occurring in the course of the current proceedings, or 

of prior proceedings, do not constitute a basis for a bias or 

partiality motion unless they display a deep-seated favoritism or 

antagonism that would make fair judgment impossible. Thus, 

judicial remarks during the course of a trial that are critical or 

disapproving of, or even hostile to, counsel, the parties, or their 

cases, ordinarily do not support a bias or partiality challenge. 

They may do so if they reveal an opinion that derives from an 

extrajudicial source; and they will do so if they reveal such a 

high degree of favoritism or antagonism as to make fair 

judgment impossible. 

Druce, 848 A.2d at 110 n.3, quoting Liteky, supra (emphasis in Liteky). 

Here, Judge Williams’ credibility determinations were rendered as a 

necessary part of his judicial duties. His findings were affirmed by this 

Court, which found them to be supported by the record, and our Supreme 

Court declined further review. Based on the record before us, we are 
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unable to conclude that Judge Williams abused his discretion in declining to 

recuse himself from further proceedings in this matter. 

Lastly, the Commonwealth claims that Judge Williams abused his 

discretion by failing to sua sponte transfer its recusal motion to another 

judge for adjudication. 

For the first time in its Rule 1925(b) statement, the Commonwealth 

asserted that Judge Williams should have sua sponte referred the recusal 

motion to another judge because his “comments proved he could not 

maintain an objective posture over the Commonwealth’s allegations of bias, 

prejudice, and unfairness.” Brief of Appellant, at 42. The Commonwealth 

acknowledges that it did not request that another judge decide its motion, 

but, citing Municipal Publications, Inc. v. Court of Common Pleas of 

Philadelphia County, 489 A.2d 1286 (Pa. 1985), argues that the trial court 

was required to refer the matter to another judge sua sponte, because Judge 

Williams allegedly made his own credibility an issue. 

In Municipal Publications, the defendant moved for the recusal of 

the trial judge on the basis that the judge was biased in favor of plaintiff’s 

counsel, citing a purported personal relationship as well as alleged ex parte

conversations between the two concerning the underlying case, as well as 

the recusal motion itself. At the hearing on the recusal motion, the trial 

judge both presided and gave testimony. Thereafter, the defendant filed in 

this Court a writ of prohibition, seeking to bar the trial court from proceeding 

on the recusal motion. This Court granted the writ and directed that a new 

judge be appointed to conclude the matter. The plaintiff, who had opposed 

the writ of prohibition, filed a petition for allowance of appeal and/or the 
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assumption of plenary jurisdiction with our Supreme Court, which accepted 

plenary jurisdiction. 

The Supreme Court held that, where a judge concludes that the 

allegations of a recusal motion justify an evidentiary hearing in which he will 

testify, it becomes incumbent upon him to step aside for the appointment of 

another judge to hear and rule upon the issue of disqualification. The Court 

reasoned that, in such a circumstance, the disqualification hearing brings in 

question the credibility of the judge, such that the judge is not in the 

position to maintain the objective posture required to preside over and 

assume the role of the trier of fact in that proceeding. 

Here, unlike in Municipal Publications, the trial court did not testify 

during the recusal hearing. Indeed, no testimony whatsoever was presented 

at the hearing. Rather, in announcing its ruling, the court made passing 

reference to the fact that he had not recognized Special Agent Regentin. 

This certainly does not rise to the level of sworn testimony such as occurred 

in Municipal Publications. Accordingly, and in light of our above findings 

regarding the merits of the Commonwealth’s recusal motion, we can discern 

no merit in the Commonwealth’s claim that the trial court was required to 

sua sponte refer the motion to another judge. 

Additionally, because the Commonwealth failed to request in the first 

instance that Judge Williams transfer the recusal motion to another judge, 

any claim that the motion should have been transferred is waived on appeal. 

Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. 

Super. 2003), citing Pa.R.A.P. 302(a). Moreover, “[a] party cannot rectify 
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the failure to preserve an issue by proffering it in response to a Rule 1925(b) 

order.” Id. If the Commonwealth wished for the recusal motion to be heard 

by another judge, it had every opportunity to request this relief before Judge 

Williams; it failed to do so. Accordingly, this claim is waived. 

Order affirmed.

President Judge Gantman joins this Memorandum.

Judge Shogan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2016