### J - S46008 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSEPH JUDE CASINO, Appellant No. 2830 EDA 2015

Appeal from the Judgment of Sentence September 10 , 2014 In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP - 46 - CR - 0004985 - 2013 CP - 46 - CR - 0006154 - 1991 CP - 46 - CR - 0013261 - 2001 BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J. * 

### MEMORANDUM BY BENDER, P.J.E.: FILED AUGUS T 12, 2016 Appellant, Joseph Jude Casino, appeals from the judgment of sentence imposed after he was convicted of burglary, possessing an instrument of crime, and resisting arrest in a case docketed by the trial court at CP - 46 - CR 0004985 - 2013. Based on Appellant’s c riminal charges in that case, he was also found in violation of the terms of parole/probation he was serving in two prior, unrelated cases docketed at CP - 46 - CR - 0006154 - 1991 and CP - 46 - CR 0013261 - 2001. The trial court consolidated Appellant’s three cases an d sentenced/resentenced him on September 10, 2014, to an aggregate term

____________________________________________ * 

### Retired Senior Judge assigned to the Superior Court.

### J - S46008 - 16

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of 6 to 12 years’ incarceration. Appellant now raises six issues on appeal. After careful review, we affirm. The trial court concisely summarized the procedural history of Appellant ’s case in its Pa.R.A.P. 1925(a) opinion, and we need not reiterate it for purposes of our decision herein. See Trial Court Opinion (TCO), 11/5/15, at 8 - 17. Rather, we need only begin by setting forth the issues that Appellant raises on appeal: 1. The C ommonwealth failed to produce sufficient evidence that [A]ppellant intended to commit the crimes of which he was convicted, and failed to produce sufficient evidence that the tools in his possession were instruments of crime. 2. The [trial court] erred by denying [A]ppellant’s claim in his post - trial motion that the Commonwealth violated Pa.R.Crim.P. 573 by failing to produce photographic evidence until jury selection began. 3. The [trial court] erred by denying [A]ppellant’s claim in his post - trial motion that the Commonwealth subjected him to incorrect identification procedures. 4. The [trial court] erred by imposing an unduly harsh, excessive and “faulty” sentence. 5. The [trial court] erred by denying [A]ppellant’s motion for recusal prior to trial. 6. T he [trial court] erred by finding that [A]ppellant received adequate notice of the terms of the sentences of probation imposed on him for the 1991 and 2001 cases. Appellant’s Brief at 4. Initially, this Court has declared: “When briefing the various issu es that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with

### J - S46008 - 16

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citations to legal authorities. ” Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007), appeal denied , 596 Pa. 703, 940 A.2d 362 (2008) (citations omitted); Commonwealth v. Whitaker , 30 A.3d 1195, 1197 n. 7 (Pa. Super. 2011); Pa.R.A.P. 2119(b). We “will not act as counsel and wil l not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.” Hardy , 918 A.2d at 771. In re R.D. , 4 4 A.3d 657, 674 (Pa. Super. 2012). Here, Appellant does not present any discussion regarding how or why the trial court erred by issuing the rulings he challenges in issues two, three, five, and six. Instead, he simply sets forth the procedural history and/or facts underlying each claim, and then cursorily concludes that he is entitled to some form of relief. See Appellant’s Brief at 8 - 10 (setting forth issues 2 and 3); 11 - 13 (setting forth issues 5 and 6). Even more problematically, Appellant does not cite or discuss any pertinent legal authority to support his suggestions of error by the trial court. Consequently, we deem Appellant’s second, third, fifth, and sixth claims waived for our review. See In re R.D. , 44 A.3d at 674. We also conclude that Appellant has waived his fourth issue, a discretionary aspects of sentencing claim, because he did not include a Pa.R.A.P. 2119(f) statement in his brief, and the Commonwealth has objected to that omission. See Commonwealth’s Brief at 25 - 26; Commonwealth v. Kiesel , 854 A.2d 530, 533 (Pa. Super. 2004) (holding that, where the appellee objects to a Rule 2119(f) omission, “this Court is

### J - S46008 - 16

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precluded from reviewing the merits of the claim and the appeal must be denied”) (citations omitted). Nevertheless, even had Appellant preserved his issues two through six for our review, we would deem them meritless based on the analysis set forth by the Honorable Wendy Demchick - Alloy of the Court of Common Pleas of Montgomery Count y in her Rule 1925(a) opinion. See TCO at 8 - 17. Additionally, Judge Demchick - Alloy’s opinion thoroughly assesses the only claim that Appellant has adequately briefed, and thus preserved, on appeal, i.e. , his sufficiency - of - the - evidence claim (set forth i n his first issue, above). See id. at 3 - 8. Consequently, we also adopt Judge Demchick - Alloy’s decision as our own regarding that issue, as well, and affirm Appellant’s judgment of sentence on the grounds set forth therein. Judgment of sentence affirme d. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/12/2016I See Defendant 's Concise Statement of Matters Complained o f on Appeal , ~~[ l, 2, 3 and 8.

2 See Defendant's Concise Statement o f Matters Complained of on App e al . j] 4. 3. The undersigned judge erred by denying appellant's claim in his post-trial motion that the jury selection began.2 the Commonwealth violated Pa.R.Crim.P. 573 by failing to produce photographic evidence until 2. The undersigned judge erred by denying appellant's claim in his post-trial motion that tools in his possession were instruments of crime. 1 commit the crimes of which he was convicted, and failed to produce sufficient evidence that the 1. The Commonwealth failed to produce sufficient evidence that appellant intended to errors: 2001 and CP-46-CR-0006154-1991. I-Ie has filed a statement complaining of the following found to be in violation of the terms of parole in the matters indexed 

### at nos. CP-46-CR-0013261- indexed at no. CP-46-CR-0004985-2013. Based upon the charges filed 

### in that case, he was also found guilty of burglary, possessing an instrument of crime and resisting arrest in the matter above-captioned matters on September 10, 2014. Appellant, Joseph Casino, the defendant, was This opinion addresses a direct appeal taken from judgments of sentence filed in the NOVEMBER 5, 2015 DEMCHICK-ALLOY, J. OPINION JOSEPH JUDE CASINO V. 

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# · cr=-4K--C-R-OO 13261-2061 CP-46-CR-0006154-192] COMMONWEALTH OF PE:t\TNSYL VANIA I , - , c.n CRIMINAL DIVISION r r\ IN THE COURT OF COMMON P L EAS OF MONTGO!v1ERY COUNTY, PENNSYLVi\tJIA .: 

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3 See Defendant's Concise Statement of Matters Complained of on Appeal, 

# ,r 5. 4 See Defendant's Concise Statement of Matters Complained of on Appeal,~~ 6, 9. 5 See Defendant's Concise Statement of Matters Complained of on Appeal, 

# ,r 7. 6 See Defendant's Concise Statement of Matters Complained of on Appeal , 

# ,r 9. and a motion for the recusal of the undersigned judge. Both motions were denied. Appellant evidence and argument on two pretrial motions regarding the new charges: a suppression motion to have violated the terms of his sentences of parole. On August 18, 2014, the parties produced Appellant was given a hearing as to the parole violations on May 27, 2014 and was found and the new charges. of his parole. Appellant was represented by Benjamin Cooper, A.P.D. as to the parole violations CP-46-CR-0004985-2013. As a result of the new charges, he was accused of violating the terms property, possession of an instrument of crime and resisting arrest in the matter indexed at no. arrest, he was charged with burglary, criminal trespass, theft by unlawful taking, receiving stolen those crimes when he was again arrested while burglarizing a home in 2013. Following that CP-46-CR-0006154-1991 and CP-46-CR-0013261-2001. He was serving sentences of parole for Appellant was convicted on charges related to burglaries in the matters indexed at nos. I. Procedural 

### History recitation of the material facts into the discussion of the foregoing claims. This opinion will state the procedural history leading to the instant appeal and integrate a terms of the sentences of probation imposed on him for the 1991 and 2001 cases. 6 

### 6. The undersigned judge erred by finding that appellant received adequate notice of the '- . .. The undersigned judge erred by denying appellant's motion for recusal prior to trial. 5

5. sentence. 4 The undersigned judge erred by imposing an unduly harsh, excessive and "faulty" 

### 4. Commonwealth subjected him to incorrect identification procedures. 3

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~ ; : :1 ..... ... - . . . . ( (I7 See Defendant's Concise Statement of Matters Complained of on Appeal,~~ I, 2, 3 and 8.

8 N.T. 5-27-20 1 4, pp . 9-19; N.T. 8-18-2014 , pp. 12-20. 3 Officer Severson testified that he was on patrol on June 17, 2013 when he was dispatched to a Severson at both the parole violation hearing and the hearing on the suppression motion. 8 The Commonwealth produced the testimony of Plymouth Township Police Officer Scott A. Whether the Commonwealth failed to produce sufficient evidence that appellant intended to commit the crimes of which he was convicted, and failed to produce sufficient evidence that the tools in his possession were instruments of crime. 7 II. Discussion The instant appeal followed. evidence on the post-sentence motions on August 21, 2015, the undersigned judge denied them. filed an amended post-sentence motion on behalf of appellant on July 31, 2015. After hearing other than Mr. Cooper, so the undersigned judge appointed Sean E. Cullen, Esquire. Mr. Cullen On remand, appellant stated that he wished to be represented by court-appointed counsel represented by counsel during post-sentence proceedings. their m e rits, and directed the undersigned judge to determine whether appellant wished to be The Superior Court reversed and remanded the c ase for consideration of the pro-se motions on The undersigned judge filed an opinion stating that the pro se documents were legal nullities. Sentence," a "Post Sentence Motion , " and a "Statement of Matters Complained of on Appeal." u l Appellant then filed , 

### prose, three documents respectively styled as a "Motion to Modify

On September 10, 2014 the undersigned judge sentenced appellant in all three cases. - . ,. , possession of an instrument of crime, and resisting arrest.

affidavit of probable cause. The undersigned judge found defendant guilty of burglary, t-, .-.11 produced in the various hearings in the above-captioned matters and the facts stated in the

then waived his right to be tried by jury and stipulated to be tried on the evidence the parties had {~ ) l .l4

9 N.T. 8-21-2015, pp. 11-14, 52-57. living room and I yelled out, and then some girl screamed, 'get out, get out. ' I called the cops, attempted to enter the room in which Samantha Parylak was hiding. He said, "I walked into the then found the front door to be unlocked, so he walked inside and entered several rooms. He \Vl10, unbeknownst to him, had moved. He knocked on the front door, but no one answered. He Township, Montgomery County because he was owed money by persons who had lived there but oath at the hearing on his post-trial motions. 9 Appellant said that he went to a home in Plymouth Appellant corroborated most of Patrolman Severson's testimony when he testified under house, filled with jewelry belonging to Ms. Parylak's mother and sister. which he concealed some small tools. On the ground near him was a green pillow case from the tool with a thin, triangular metal blade four to five inches long. Appellant also wore a satchel in Appellant was wearing rubber gloves and carrying a masonry trowel , a wood-handled Patrolman Severson handcuffing appellant. to get in my room." 

### It was a sunny day and there was nothing obstructing Ms. Parylak's view of telephone, saying "They got him. That's the guy. He was coming into my room. He was trying from handcuffing him. Ms. Parylak was watching from the house, speaking to her father on the the driveway of the home. Appellant struggled to move his arms to prevent Patrolman Severson Patrolman Severson ordered appellant to stop but he ran, so the patrolman tackled him in emerge head-first from a front window into the bushes below. immediately followed by screaming from inside the house. Seconds later he saw appellant of the home. Within moments, he heard a loud sound of a large object hitting wood, saw the complainant, Samantha Parylak, then sixteen years old, in a window on the second floor home at 8 Westwood Circle, Plymouth Township, Montgomery County. When he arrived, he

crl te l ' ' • . , I · · · ' ' r· I 1. f.

### 5

1 0 

### N.T. 8-21-2015, pp. 

### 56-57. proving every element of every crime for which he was sentenced , with the exception of his He admitted possessing th e masonry trowel and other tools. Appellant has admitted facts Defendant admitted ent e ring the Parylaks' home and taking jewelry without permission. 

### Q. Okay, so the only single thing out of this entire record that you disagree with, all the evidence the Commonwealth presented, is whether you had the intent to take the 

### jewelry when you went 

### in the house , correct? 

### A. Right, when I went there. Q. Okay, 

### when you got inside of the house, you made the decision to take the jewelry , because you didn't find your money or the person that owed you that money? 

### A. Right. 

### Q. Okay. And that jewelry wasn't yours? 

### A. No.10 on the amended post-trial motion: Severson. He made the following admissions under oath during cross-examination at the hearing home without permission, his testimony was virtually identical to that given by Patrolman Except for appellant's claim that he did not intend to steal anything 

### when he entered the tools as a handyman. putty knife, a triangular mason's trowel and pliers. He explained that he earned money using the Appellant testified that when tackled by Patrolman Severson, he was carrying tools including a jewelry he had taken from the house without permission was on the ground next to him. '\ ,, once inside he found jewelry and took it without permission, He admitted that a bag containing

According to appellant, he did not enter the home 

### with the intent of stealing anything, 

### but Parylak came outside and saw him sitting inside a police car. and I walked back out, and then I got tackled to the ground by the police." He stated that Ms.

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### ~ · · ; , t "J ' 0 )

### 6 II 

### N.T. 8- 18

- 2 014 p p. 79 -82. 1 2 

### N . T . 5-27

- 20 1 4 , pp . 4 7

- 4 8 . th at he pi c ke d th at particul ar win d o w b e cau s e: h e 

### wanted t o e scap e qui ckl y ; h e kn ew 

### h e would th e h o u se, appell ant fortu it o usl y ex ited th e wind o w with th e slit s c reen. It is mu c h more l i kely exite d thr o u g h 

### th e s c reen th at had b ee n s li t. It i s u nlikel y that , o f al l th e d oor s and win dows in 

### o n e w oul d e x pe c t i f it had b ee n cl osed at th at ti m e. Th e refore , o n e m ay i n fe r th at ap pe ll ant T h ere w a s no evid e n ce th at the window appe llan t e x ited s u s tain e d the ty pe of d am a ge co mmit a cri me th e re in . th e s c re en t o e nt e r the h o m e , w hi c h i n turn 

### co n stitu tes c irc umst anti al e v id e n ce o f i nt en t t o s c reen re qu i re d fo r c e. Th e Co mmo nw e alth produ c e d c irc um s t anti al e v i denc e th at ap p e ll ant s l i t th e door s of the ho me, b ut fo und th at th e s c ree n of a fr o nt wi n d o w 

### had b ee n sl i t. 1 2 

### Slittin g th e Tow n s h i p 

### Po li ce D e tecti ve Andre w M ore tti , wh o s tate d that h e fou nd n o s ign s o f forc e d e ntry on At th e p aro l e vi o l ati o n h e ari ng th e C o mmon we al th pro du ce d th e t es tim o n y of P l ym ou th and l eg all y corr ec t in s p ite o f app e llant ' s post - se nt e n c e cl aim s . e l em ent s n e ces sary to c o nvict him of bur g l ary, 1 1 

### an expl an ation th at r e m ains fac tu ally a c c urate tri al , th e u nder s i g n e d jud g e expl ai n e d h o w 

### the Co mm o n we alth ' s e vid ence pro ved all of th e force , h e did s o w i th th e i n te nt t o c o mmi t a c rim e th e r e in ." Id. A t app e ll an t' s s tip ul ated be nch T h e tri er o f fact " may c o n clu de b eyo nd a re a s o n abl e dou b t that whe n o n e e nt er s a bui l di ng b y u l Th e Comm onw ealth m ay prov e th e requ i s ite in ten t by means o f ci rcum s t antial ev iden c e . Id. of c ommi tting a cri m e in s id e i t. Co mm o nwealt h v . Tin g l e, 41 9 A.2 d 6, 9 (Pa. S upe r. C t. 1 9 80 ) . T h e c rim e of bur gl ary re qu ire s proo f th at th e ac cus e d e nt e re d th e build in g w ith the int e n t 1 · " 

### C o mm o n w e alth 's ev id e nc e. u se of h i s t o ol s a s instru m ents of c rim e . O ne m ay inf er pro of of th es e e l e men t s fro m th e 

## o : , in tent t o c o mmi t a c rim e w hen h e e ntere d th e P ary lak ' s h o m e, h i s intent to res i s t arr es t , and hi s {) ) (I7

1 3 I d . at 

### 52. 1 4 Id. at 43-44. sufficient to prove that Patrolman Severson lawfully arrested appellant and that appellant resisted servant from effecting a lawful arrest. 18 Pa.C.S. § 5104. The evidence discussed above is requiring substantial force to overcome resistance, with the intent of preventing the public resist 

### arrest, A person commits the crime of resisting 

### arrest if he e mploys means justifying or The circumstantial evidence of record is also sufficient to prove appellant intended to strangers to him. debt owed to him: he broke into the house in order to steal jewelry from people who were lawfully regain possession of 

### property that belonged to him, or even to take property to offset a one may infer that he sought to avoid leaving fingerprints because he did not enter the house to the Parylaks' home. One may infer that he 

### wore gloves to avoid leaving fingerprints, and 

### in turn, Appellant did not attempt to explain why he was wearing rubber gloves when he entered only moments before, 

### in the same way and for the same purpose: by force, to steal 

### jewelry, steal jewelry by using force 

### supports an inference that he gained entry to the Parylak ' s home, Parylak's screams. The fact that appellant intentionally gained entry to the bedroom in order to Severson's testimony that he heard the sound of wood breaking, followed immediately by Ms. in two, split in the middle. 14 One may infer that appellant broke the door from Patrolman Detective Moretti testified that the door to Samantha Parylak ' s bedroom had been broken quickly as possible. may infer he exited the house by back-tracking the route he entered, in order to reach his car as house. Appellant was 

### in possession of keys to a car parked on the street near the house, 13 so one screen 

### in that 

### particular window had been slit open because he slit it 

### himself when he entered the not have to pause to open a door or 

### window if he took that 

### particular route; and he knew the ,/1

c rl :- , ,, tr ( (I

### 8

1 5 See Defe nd an t's Co n c ise S t at em e n t o f Matte r s Co mp l ai ne d of o n A p p eal , ~ 4 . n o th i ng m o re th an h is ow n t e s tim ony and all ocu ti o n abo ut th e e v e n ts o n th e morn i ng of his ph ot ograph s as r e qui re d by l a w . A p pe ll an t' s ev id e n ce in su pp ort o f thi s cl aim c on s is te d o f pr e v ail on thi s clai m , app e ll ant w as re quire d to prov e the Co mm o nw ealth did n o t p rodu c e th e c ir c um s t anti al e vi de nc e p rovin g h e i n t e n d ed to co mmit a c rim e o n ce in side th e hom e . 

### In o rd e r t o ci r c um s t an tial e v id e nc e th at h e u sed fo r c e to e n te r th e P arylak s ' hom e , and th us c onceal e d p i c ture s o f th e cri me s c e n e b efo r e tri al. H e se e m s t o ar g u e th at the Co mm on weal th c onceal e d A ppe ll ant c l aim s th e Co mm on w e alth vi o l ated hi s rig ht to d isco v e ry 

### by fai l i n g t o d i sclo s e 

### B. Whe the r th e u n d ersig n ed judge erre d by 

### de n y in g appellant' s c l aim in his pos t -trial motio n th at the Commo n wealth v i olated Pa . R. C rim . P . 573 b y 

### failing to pr o duc e photo g raphic evidence until jury se l e ctio n b e gan. 15 T he ev id e n ce thu s s upp o rt s an in fe ren ce th at ap pe ll ant u sed th e tro w e l a s an in s tru me nt of cri m e . mom e nt was th at h e h ad u s e d i t o nl y minu tes b efo r e t o slit th e s cree n throug h w hi c h he e nt e r e d . Und e r th e cir c um stanc es, th e mo s t like l y exp l anati o n for w hy he was h o ldin g the trowe l at th at 1978). Ap pell ant was h o ld i n g th e m as onry tro we l whe n h e w as ta ckle d as h e ran fr om the h o u se . po ss essi o n of bur g lary to o l s." Co mm o nw ea lth v . Ja c kson , 396 A.2d 43 6 , 438 (P a. S u pe r. C t. 907(d) . F or ex ample, "a scr e wdrive r i s a common burglary to o l for p urp o se s of c ri min al a ct o r under c i rcum s tan ce s n o t m anife stly app ro pri at e for l a w fu l uses it m ay hav e . " 1 8 P a .C. S . § A n in s trum e nt o f cri m e i s d e fin e d a s , "A n ythin g us e d for crimin al purpos es an d p ossess ed by th e if he p osse s ses an y in s trum en t of crim e wi th int e nt t o emp loy it c ri min ally ." 18 Pa. C. S . § 9 0 7( a). ma s onry trow e l a s an in s trument of crime. "A pe r s o n c ommit s a mi sd e m e an or o f th e fir s t d eg r ee Fi n ally, th e Commonw ealth 's c ir c umst anti al e vid e n ce is su ffici ent t o pro ve h e u se d his with th e int e nt o f prev e nti ng h i m from eff ec tin g th e arr e s t ,9

16 

### See N.T. 8-21-2015, pp. 26-34 ( appellant testifying at hearing on post-trial motions); 

### see also N.T. 9-10-2014, pp. 17-18 (appellant exercising right of allocution). 17 N.T. 8-18-2014, pp. 53-54, 63-74. 18 N.T. 8-18-2014, pp. 69-72. 19 See Defendant's Concise Stat e ment o f Matters Complained of o n Appeal, ~ 5. 2 0 N.T. 8-18-2 0 14 , pp. 52-53. under these circumstances. 

### See Commonwealth v. Moye, 836 A.2d 973, 977 (Pa. Super. Ct. bedroom door. Appellant cannot complain that her identification of him was unduly suggestive end of the line--her father--that she saw them arrest the man who had broken through her She was 

### on the telephone at the time, and the police overheard her say to the person on the other appellant inside her home. She watched as he fled her home and was arrested in the driveway. the suppression hearing, and stands by the reasoning stated at that time. 20 Samantha Parylak saw Alternatively, the undersigned judge addressed the merits of that claim on the record at would seem to have been rendered moot or meritless by his own testimony. erred by denying his claim that he was subjected to unduly suggestive identification procedures he said that the police tackled him when he fled the house. His claim that the undersigned judge Parylaks' home. He testified that while he was inside, he heard Samantha Parylak scream, and As discussed in section "A" above, appellant testified under oath that he was inside the 

### C. Whether the undersigned judge erred by 

### denying appellant's claim in his post-trial motion that the Commonwealth subjected him to incorrect identification procedures. 19 appellant's lawyer used the photographs to appellant's advantage at his stipulated bench trial. 18 the Commonwealth failed to disclose the photographs in question in pretrial discovery, and To the contrary, the record of the proceedings indicate that appellant's lawyer never stated that • , , credibility aside, his claim is not corroborated by the transcript of the proceedings in question. 1 7 upon appellant's demeanor. His claim failed for that reason alone. Putting appellant's trial. 16 The undersigned judge found those statements completely lacking in credibility based

LI' [ t- , -· l • f · · '' ( f l1 0

21 S e e D e fen d an t's Co n c i se S tat e me n t of M att e rs C o mp l aine d o f o n A pp e al , ~ ~ 6 , 9. 22 N . T. 9 -10- 2 014 , 

### p . 27. 23 Id. at 1 7

- 24 . 24 I d. at 42 . 2 5 Id. at 27

- 3 2 , 3 9- 40 , 4 8- 5 2 . u n s t oppable on th e s tr eet , " an "u ns top p able o n e -m an c rim e -wav e, " de spi te hi s s ub st antial h e alth th ey c an only be m e t if he is c o n fi n e d , gi ven th at h e ha s s h o wn h imsel f t o b e " virtu ally App e ll ant' s l e n gthy s en t e nc e i s co n s i s t e nt with h i s r e habilit ativ e nee d s , whi c h s ee m a s i f by s u b s e ctio n 9 72l ( b) of the se n te n c i ng c o d e, 2 4 i n c l ud in g app e ll an t 's r e h ab ili t ati ve n ee d s. 2 5 th e un de r s i g n e d jud ge p ai d car efu l co n s ide rati o n t o th e fa ct s rel evant to th e st an dard s e s t ab li s h ed alloc uti on , e v e n going so far a s t o r ea d alo ud hi s written n o t e s fo r h im . 2 3 T h e rec o r d sho w s th at r e a d th e pre - s e nt e n c e re p orts 22 and p arti ci pate d att en tiv el y w h e n app e ll ant e xe rcis e d hi s ri g h t of 

### De v e r s , 54 6 A .2d 1 2, 1 8 (Pa . 1 988 ). The n o t es of te s ti m on y s h o w th at th e u n d e r s i gn e d judg e and we igh ed thos e c ons i d e rati on s alo ng with mi ti g ati n g s tatut o ry fact o r s . " 

### C o m monwe a l t

h v . th at th e s en te ncin g j udg e w as a w are o f r e lev an t in f o rmati o n re gar din g th e d efe ndan t ' s ch ar a c ter Wh en , a s i n thi s cas e , pre-s ente n ce rep ort s we re m a de , th e ap pe ll ate c o urt mu s t "pr es um e d e fen dant. 42 P a.C . S. 

### § 9 72l (b) . " 

### I d. at 9 6 4 . re l atio n t o the imp a c t on the vi ctim an d th e commu n ity ; an d th e r e h ab i litati ve ne ed s of th e s e n ten c in g found in Sec ti o n 972 1 , i . e ., th e pro t ecti o n of th e pu b li c ; th e gravi ty o f the off e n se in e xp r e ss o r implicit co n s i derati o n b y th e se nt e n c in g co urt o f th e ge n eral s t and ard s ap pli cab l e to A . 2d 9 57 , 961 ( P a. 2 007 ). T h u s , a sen te n c e may be r e v e r s ed i f 

### it wa s " was i mp o s ed w ith o ut reac h e d a diff

e r ent c on cl u s io n, b u t o n l y for an ab u s e o f di s c reti on . 

### Co mm on we alt h v . Wa lls, 92 6 

### A s e n ten c e may no t b e va cate d o n appe al m e rel y b e cau s e an appe ll ate c o urt mi ght hav e 

### Wh e ther the un de rsi g n e d ju dg e e rre d b y imp os ing an unduly h ar s h , e x ces siv e and " faulty" se nten ce. 21 D. O J 2 0 03) ( c iti n g an d bri efly d isc u s s ing s imil ar c a ses).11 26 

### d l.at38,4l. 27 Id at 34, 35, 37. 28 

### Id. at 40-41. 29 

### Id. at 42-44. 30 See Defendant's Concise Statement of Matters Complained of on Appeal . f[ 7. 3 1 N.T. 8-18-2014, pp. 3-6. judge must be disqualified, bears the burden of producing evidence establishing bias, prejudice, 92 A.3d 51 , 60 (Pa. Super. Ct. 2014 ). Appellant, as the party asserting that the undersigned to determine whether she can rule impartially and without prejudice. 

### Commonwealth v. 

### Kearney, When confronted with a demand for recusal, a trial judge is presumed to have the ability Commonwealth ' s plea offer or go to trial. 31 judge had made to enable appellant to make an informed decision as to whether to accept the violations. Prior to trial, appellant's lawyer moved for recusal based on remarks the undersigned appellant ' s bench trial as to his new charges after having presided over his hearing on his parole Appellant claims the undersigned judge erred by refusing to recuse herself from E. 

### Whether the undersigned judge erred by denying appellant's motion for recusal prior to trial. 30 These facts provide robust support for the sentences imposed in the above-captioned matters. caused Samantha Parylak was catastrophically life-changing and appears to be irreversible. 29 sequestered 

### in juvenile and adult detention facilities for 

### twenty of those years. 28 The damage he history, an astounding sixteen burglary convictions in twenty-eight years despite having been c rl Appellant's disregard of the legitimate security interests of others is manifest in his criminal

public in general, have a fundamental interest safety and security in their own homes. impact 

### on the victims and the protection of the public. Samantha Parylak and her family, and the Appellant prefers the court to focus on his rehabilitative needs, to the exclusion of the in a cold record was in fact transparently manipulative as it occurred in court. 27 problems. 26 Appellant acted as 

### if he was remorseful, but what may appear to be genuine remorse

< , i' i : I U I t ,·., f l1 2

3 2 

### Id. at 4 . 3 3 

### I d. th e Co mmon w ealth: " I think y o u nee d t o talk t o y o u r l awye r , bec au s e th e D. A. 's wi lli n g t o g o in l aw y er who ha d b ee n appo i nted to co u n s el him a s to th e v al ue of th e pl ea a greem e nt off e r ed b y th e lawfu l m axi mum . Th e un d er s igned judge i mp lored ap p e ll ant to take fu ll adv ant a ge of th e appe ll an t th at u nl ess he produced mitigating evid e nce, h e was at ri s k of s erv in g a s e nt e n c e up to i n di s re gard o f evi den c e y e t t o b e pro du ced at a s e nte n cing h e aring, but in s t ead info rm ed quot ation s appe ll ant's l awy e r r elied o n , 33 does not show a propensity t o impose a harsh sen t enc e req uir e th e Commonweal th to prove th e new char g e s at trial. T h at quo t ati o n , an d the oth e r The qu otation· d o e s no t r e veal any bias, but to the c o ntrary, ex p r e s s l y stat e d a w i l l ingne ss to i f th e Commo n wealth ' s ev i denc e i s as s trong as 1 heard i n th e Gag no n , yo u may g e t se ri o us l y hurt i n here . On the other h and , if th e govern m ent can 't p rove it, they can ' t prove i t, and you w ill b e fo u nd no t gu i lty. 32 h e ari n g, in w h ich th e u n de r s ign e d j u dge s t at ed , Whe n m oving for rec u sal , app ell ant ' s l awyer r ead fro m the rec o r d of th e paro l e - viol ati o n of di s c r etion . " I

d. (quoting Commo nw e alth 

### v . Abu

- Ja m a l , 553 Pa . 48 5, 720 A. 2d 7 9 , 89 (1 99 8)) . a cas e fairly an d witho u t prej udice , that d e cis i o n w ill n o t be ove rru l ed on ap p eal b u t for an ab u s e deci s io n th at on l y th e j uri s t can m ake . Wh e re a juris t ru l es that he or she c an he ar an d di s pose o f u i t e nd to u ndermin e pub lic con fid ence in th e j ud ici ary . I d "T h i s is a p e r sonal and u nr evie w ab l e wh e th e r h e r continued i nvo l v e ment in th e case cr e ates an ap p earanc e of imp ropriety o r wo uld i mpartial mann e r , free o f pers o nal b i as o r i nt ere s t i n th e outco m e, th e jud g e mu s t con s i der LO 

# "·· r,, : ; £,: ;I Afte r making a c on s c i entio u s de te rmi n ation o f h e r ab ility to a ss e ss th e ca s e i n an di s turb e d ex cep t fo r an ab u se of di s cr e ti on . 

### I d. o :, or u n fairne s s necessi t ating recu sal , and th e de ci s ion by th e un der s ig n ed judg e may n ot b e13

34 

### Id. 3 5 

### Id. at 

### 8-10. 36 An "open plea agreement" is one in which the parties agree as to the charges to which the defendant 

### will plead, but do not restrict the prosecution's right to seek the maximum sentences applicable. 

### Commonwealth v. 

### White, 787 A.2d l 088 (Pa. Super. Ct. 2001 ). Put another way , an open plea is one that contains no bargain for a specific or stated t e rm of sentence. 

### Commonwealth v. Guth, 735 A.2d 709 , 710, n. 3 (Pa. Super. Ct. 1999). 37 N.T. 8-18-20 1 4, p. 9. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean chi l d-like innocence. 

### If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." 

### In re JP. Linahan, Inc., 138 F.2d 650, 654 (C.A.2 1943). Also not subject to deprecatory characterization as "bias,' or "prejudice" are opinions disagreed: evidence 'that an impartial finder of fact would not have known, "' 

### Id. at 61. The Superior Court pre-sentence investigation report which provided Appellant's criminal history, she was aware of have recused herself because, after presiding over the first two jury trials, and exposure to the prior sentencing."). In that case, as in this one, the appellant argued that "the trial judge should CR-211 and CR-223, after presiding over the jury trials, the attendant motion hearings, and the challenges the trial judge's decision not to recuse herself from presiding over the bench trial for This case is factually indistinguishable from 

### Kearney. See id. ("Appellant's first question sentence. 37 "open" guilty plea, 36 she would consider that as evidence mitigating in favor of a reduced she would continue to accept a negotiated guilty plea; and that if appellant were to make an proven guilty beyond a reasonable doubt by means of evidence produced by the Commonwealth; his benefit, that he had a constitutional right to a trial; that he was presumed innocent until not create an appearance of impropriety. 35 The undersigned judge again informed appellant, for impropriety on the record and explained why the claim of bias was faulty and why the facts did the standard range. " 34 The undersigned judge considered appellant's charges of bias and

U I ; \ ' I 1:C: :I { /I14

38 See Defendant ' s Con c ise Statement of Matters Complained o f on Appeal , ~ 9. 2001 case. Judge Tressler expressly notified defendant on the record at the time of s e ntencing of probation in the 1991 case was ordered to 

### run concurrently to the sentence imposed 

### in the case also required defendant to pay restitution, although 

### it did not specify the amount. The term Montgomery County Adult Probation and Parole 

### Department. The sentencing order in the 1991 defendant was re-sentenced to a term of probation of fifteen years, in the custody of the amount of $1 , 350.00. On the same date, 

### in the case indexed at no. CP-46-CR-0006154-1991 , of probation that was to run concurrently with parole. The order also included restitution in the sentencing order included a te1111 of imprisonment for 11 1/2 to 23 months and a five-year term Tressler (now retired) for the first time in the case indexed at no. CP-46-CR-OO 13261-200 

### I. The On December 30, 2005, defendant was sentenced by the Honorable Judge Paul 

### W. defendant was personally served with notice of those terms for the particular case at issue. sentenced previously in a different case , but the Commonwealth fails to produce evidence that and that the defendant had received notice of the standard terms of probation and parole when parole departmen t habitually serves defendants with the terms of county probation and parole, adequate notice of the terms of parole if the Commonwealth produc e s evidence that the county Th e issue to be decided on appeal is whether a parolee may be found to have been given Whether the undersigned judge erred by finding that appellant received adequate notice of the terms of the sentences of probation imposed on him for the 1991 and 2001 cases. 38 

## F. U I h :I by refusing to recuse herself.

precedent established 

### in Kearney supports the conclusion that the undersigned judge did not ell' Id. at 62 ( quoting L iteky v. U.S., 510 U.S. 540, 551 (1994)) (bold emphasis omitted). The held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit 

### in successive trials involving the same defendant.

(. (i t · · · · = · 0 :115

incarceration in MCCF are advised of the terms of probation before they are released. immediately after being sentenced. Also , defendants who are sentenced to a 

### term of of the terms when they arrive at the courthouse office of the county probation department Officer Mangle testified that "in the regular course of business," defendants are normally advised sente nce imposed in 2005 in the case indexed at no. CP-46-CR-0006154-1991. Adult Probation department could revoke his probation for doing or failing to do something, 

### with respect to the defendant of the terms of his probation, i.e., the conditions upon which the county probation Commonwealth was unable to produce evidence that the county probation department advised 1991 and the 2001 cases. At a hearing on the probation violation on May 27, 2014, the parole on account of the new criminal arrest and defendant's failure to pay restitution on both the County Adult Probation Officer Joshua Mangle notified defendant that he was in violation 

### of his Defendant was arrested on new charges on June 17 , 2013. As a result, Montgomery case did not begin to 

### run until 2013. five years ' probation consecutive to the 2007 case. Therefore, his probationary term in the 2001 correctional institution. Defendant was simultaneously sentenced in the 2001 case to a term of sentenced for a new crime and given a term of incarceration of two to five years in a state i\ :f incarceration on the 2001 case. i , ;; 1 1 f .-! ' r .r l On May 27, 2008, in the case indexed at no. CP-46-CR

- 0000748-2007, defendant was

the Montgomery County Correctional Facility (MCCF) to begin serving a sentence of sentencing hearing so that he could present a copy of the sentencing order when he reported to was to go to the courthouse office of the county probation department immediately after the (in 2005) that he was to pay the restitution within the fifteen year term of probation, and that he
n : 11 6

(i.e. code-mandated) condition of parole makes no difference. In Sigafoos v. Pennsylvania Th e fact that appellant's obligation to make restitution was a special, rathe r than general of acknowledgement to the board." cannot now excuse his non-compliance with parole conditions by attempting to shift the burden "Having failed to fully comprehend and comply with the conditions of his parole , Benefiel conditions upon the 

### parolee." Id. (italics in original). The Commonwealth Court continued, it [sic] to him[,]" because 37 Pa.Code§ 67.3 "puts the burden of acknowledging parole himself with the conditions of his parole, either by reading them himself or having someone read Commonwealth Court rejected his argument: "the obligation was with Benefiel to acquaint condition of parole nor did he ever see the wri tten condition .... " 

### Id. at 244. The with that parole condition because he did not endorse a parole contract indicating this was a (quoting 37 Pa.Code. § 63.4(10)). The parolee argued that "he was excus e d from complying that threatens or presents a clear and present danger to himself or others." 

### Id. at 244 & n.10 charge violated one of the general conditions of state parole, i.e., to refrain from "overt behavior was arrested on a new charge of terroristic threats. 

### Id. at 243. The facts supporting the new appealed from a decision of the Board recommitting him as a technical parole violator after he t .. . ~ . u l 

### ofProbation and Parole, 426 A.2d 242 (Pa. Commw. Ct. 1981 ). In 

### Benefiel, a state parolee probation, then one may draw guidance from 

### Benefiel v. Commonwealth of Pennsylvania, Board parole. Assuming that the decisional law that controls state probation also applies to county establishes procedures or standards for the givin g of notice of the terms of county probation or ; -. ,: , 42 , Pa. Cons. Stat. Ann.) or the statutes governing counties (title 16, Pa. Stat. Ann.) expressly

The law to be applied to this issue is not obvious. No statute in the Judicial Code (title ; : J17

39 The rules in Benefiel and Sigafoos were not followed in Pana 

### v. Pennsylvania Board of Probation and Parole, 703 A.2d 737, 739 (Pa. Commw. Ct. 1997) because Pana presented a sli g htly different issue. In Pana, the parolee appealed from a determination by the Pa.B.P .P. giving him no credit for time on the street after revoking his parole for a technical violation. The Commonwealth Cami agreed with Pana's factual claim that the state parole regulations failed to give him notice that he would be given no credit for time on the street if he violated parole, citing the form Pana signed that advised him of the conditions governing his parole. The Commonwealth Court stated, "Obviously, a parolee cmmotfully understand the possible penalties unless specifically notified of what they might be." Id. at 739 (citing 37 Pa.Code§ 67.3). The Commonwealth Court then wrote, "It is not.. .clear that a parolee has the understanding that time determined to be delinquent is subject to forfeiture .... " 

### Id. T he Commonwealth Cami denied Pana's appeal because it found that he had constructive notice of that condition of parole because he had twice before determined to be a technical parole violator and delinquent , and was sentenced to serve backtime. 

### Id. "Thus, Pana should have known that there was at least the p o ssibility that his delinquent time was s ubject to forfeiture." notice of the conditions of his parole, and this claim of error fails. decisional law supports the conclusion that appellant must be deemed to have received adequate would have been advised of the terms of his probation and parole. Therefore, the applicable to go to the courthouse office of the county probation department, and if he had done so, he particularly applicable to this case because Judge Tressler expressly told appellant on the record S igafoos at 1080. 39 The rationale behind the rules developed in Sigafoos and Benefiel is It is the obligation of every parolee to ensure that he is familiar with the terms and conditions of his parole. Benefiel v. Commonwealth of Pennsylvania, Board of Probation and Parole, 426 A.2d 242 (Pa. Commw, Ct. 1981). That same obligation is applicable to special conditions and instructions imposed by the Board or its agents. Court stated , Board of Probation and Parole, 503 A.2d 1076 (Pa. Commw, Ct. 1986), the Commonwealth



### u r 0 : 118

copies of the above order sent 

### on ---L.L-.t'----+--'--- ~ to the following: Sean E. Cullen, Esquire; Cullen & Conwell; 40 E. Main Street; Norristown , PA 19401; by firstclass mail Robert M. Falin, Deputy District Attorney, Appellate Division, by inter-office mail BY THE COURT, ( ~ ' , the judgements of sentence in the above-captioned matters should be affirmed. Upon consideration of the foregoing discussion, the undersigned respectfully submits that CONCLUSION

f JI !

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