J-S46008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, 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 AUGUST 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-CR0004985-2013. Based on Appellant’s criminal 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-CR0013261-2001. The trial court consolidated Appellant’s three cases and 

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 Commonwealth 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. The [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 issues 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

- 3 -

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 will 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., 44 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 County 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 in 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 affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2016
I See Defendant's Concise Statement of Matters Complained of on Appeal,~~[ l, 2, 3 and 8. 

2 See Defendant's Concise Statement of Matters Complained of on Appeal.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 

DEMCHICK-ALLOY, J. NOVEMBER 5, 2015 

OPINION 

JOSEPH JUDE CASINO 

V. 

. . . . 

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Nos. (CP-46-CR-0.0049.85-20'-B'> 

·cr=-4K--C-R-OO 13261-2061 

CP-46-CR-0006154-192] 

COMMONWEALTH OF PE:t\TNSYL VANIA 

I ,-, 

CRIMINAL DIVISION c.n 

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IN THE COURT OF COMMON PLEAS OF MONTGO!v1ERY COUNTY, PENNSYLVi\tJIA .: 

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Circulated 07/26/2016 01:48 PM
2 

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 

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

Commonwealth subjected him to incorrect identification procedures. 3 

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7 See Defendant's Concise Statement of Matters Complained of on Appeal,~~ I, 2, 3 and 8. 

8 N.T. 5-27-2014, 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 merits, and directed the undersigned judge to determine whether appellant wished to be 

The Superior Court reversed and remanded the case 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." 

ul 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 

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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 

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10 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 the masonry trowel and other tools. Appellant has admitted facts 

Defendant admitted entering 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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II N.T. 8-18-2014 pp. 79-82. 

12 N.T. 5-27-2014, pp. 47-48. 

that he picked that particular window because: he wanted to escape quickly; he knew he would 

the house, appellant fortuitously exited the window with the slit screen. It is much more likely 

exited through the screen that had been slit. It is unlikely that, of all the doors and windows in 

one would expect if it had been closed at that time. Therefore, one may infer that appellant 

There was no evidence that the window appellant exited sustained the type of damage 

commit a crime therein. 

the screen to enter the home, which in turn constitutes circumstantial evidence of intent to 

screen required force. The Commonwealth produced circumstantial evidence that appellant slit 

the doors of the home, but found that the screen of a front window had been slit.12 Slitting the 

Township Police Detective Andrew Moretti, who stated that he found no signs of forced entry on 

At the parole violation hearing the Commonwealth produced the testimony of Plymouth 

and legally correct in spite of appellant's post-sentence claims. 

elements necessary to convict him of burglary, 11 an explanation that remains factually accurate 

trial, the undersigned judge explained how the Commonwealth's evidence proved all of the 

force, he did so with the intent to commit a crime therein." Id. At appellant's stipulated bench 

The trier of fact "may conclude beyond a reasonable doubt that when one enters a building by 

ul The Commonwealth may prove the requisite intent by means of circumstantial evidence. Id. 

of committing a crime inside it. Commonwealth v. Tingle, 419 A.2d 6, 9 (Pa. Super. Ct. 1980). 

The crime of burglary requires proof that the accused entered the building with the intent 

1·" Commonwealth's evidence. 

use of his tools as instruments of crime. One may infer proof of these elements from the 

o:, 

intent to commit a crime when he entered the Parylak's home, his intent to resist arrest, and his 

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13 Id. at 52. 

14 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 employs 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 

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15 See Defendant's Concise Statement of Matters Complained of on Appeal,~ 4. 

nothing more than his own testimony and allocution about the events on the morning of his 

photographs as required by law. Appellant's evidence in support of this claim consisted of 

prevail on this claim, appellant was required to prove the Commonwealth did not produce the 

circumstantial evidence proving he intended to commit a crime once inside the home. In order to 

circumstantial evidence that he used force to enter the Parylaks' home, and thus concealed 

pictures of the crime scene before trial. He seems to argue that the Commonwealth concealed 

Appellant claims the Commonwealth violated his right to discovery by failing to disclose 

B. Whether the undersigned judge erred by denying appellant'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.15 

The evidence thus supports an inference that appellant used the trowel as an instrument of crime. 

moment was that he had used it only minutes before to slit the screen through which he entered. 

Under the circumstances, the most likely explanation for why he was holding the trowel at that 

1978). Appellant was holding the masonry trowel when he was tackled as he ran from the house. 

possession of burglary tools." Commonwealth v. Jackson, 396 A.2d 436, 438 (Pa. Super. Ct. 

907(d). For example, "a screwdriver is a common burglary tool for purposes of criminal 

actor under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. § 

An instrument of crime is defined as, "Anything used for criminal purposes and possessed by the 

if he possesses any instrument of crime with intent to employ it criminally." 18 Pa.C.S. § 907(a). 

masonry trowel as an instrument of crime. "A person commits a misdemeanor of the first degree 

Finally, the Commonwealth's circumstantial evidence is sufficient to prove he used his 

with the intent of preventing him from effecting the arrest, 
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 Statement of Matters Complained of on Appeal, ~ 5. 

20 N.T. 8-18-2014, 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. 17 

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 

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21 See Defendant's Concise Statement of Matters Complained of on Appeal,~~ 6, 9. 

22 N.T. 9-10-2014, p. 27. 

23 Id. at 17-24. 

24 Id. at 42. 

25 Id. at 27-32, 39-40, 48-52. 

unstoppable on the street," an "unstoppable one-man crime-wave," despite his substantial health 

they can only be met if he is confined, given that he has shown himself to be "virtually 

Appellant's lengthy sentence is consistent with his rehabilitative needs, which seem as if 

by subsection 972l(b) of the sentencing code,24 including appellant's rehabilitative needs.25 

the undersigned judge paid careful consideration to the facts relevant to the standards established 

allocution, even going so far as to read aloud his written notes for him. 

23 The record shows that 

read the pre-sentence reports22 and participated attentively when appellant exercised his right of 

Devers, 546 A.2d 12, 18 (Pa. 1988). The notes of testimony show that the undersigned judge 

and weighed those considerations along with mitigating statutory factors." Commonwealth v. 

that the sentencing judge was aware of relevant information regarding the defendant's character 

When, as in this case, pre-sentence reports were made, the appellate court must "presume 

defendant. 42 Pa.C.S. § 972l(b)." Id. at 964. 

relation to the impact on the victim and the community; and the rehabilitative needs of the 

sentencing found in Section 9721, i.e., the protection of the public; the gravity of the offense in 

express or implicit consideration by the sentencing court of the general standards applicable to 

A.2d 957, 961 (Pa. 2007). Thus, a sentence may be reversed if it was "was imposed without 

reached a different conclusion, but only for an abuse of discretion. Commonwealth v. Walls, 926 

A sentence may not be vacated on appeal merely because an appellate court might have 

Whether the undersigned judge erred by imposing an unduly harsh, excessive and 

"faulty" sentence.21 

D. 

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2003) (citing and briefly discussing similar cases). 
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. 

31 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 

crl 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 

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32 Id. at 4. 

33 Id. 

the Commonwealth: "I think you need to talk to your lawyer, because the D.A.'s willing to go in 

lawyer who had been appointed to counsel him as to the value of the plea agreement offered by 

the lawful maximum. The undersigned judge implored appellant to take full advantage of the 

appellant that unless he produced mitigating evidence, he was at risk of serving a sentence up to 

in disregard of evidence yet to be produced at a sentencing hearing, but instead informed 

quotations appellant's lawyer relied on,33 does not show a propensity to impose a harsh sentence 

require the Commonwealth to prove the new charges at trial. That quotation, and the other 

The quotation·does not reveal any bias, but to the contrary, expressly stated a willingness to 

if the Commonwealth's evidence is as strong as 1 heard in the Gagnon, you may 

get seriously hurt in here. On the other hand, if the government can't prove it, 

they can't prove it, and you will be found not guilty.32 

hearing, in which the undersigned judge stated, 

When moving for recusal, appellant's lawyer read from the record of the parole-violation 

of discretion." Id. (quoting Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998)). 

a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse 

decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of 

ui tend to undermine public confidence in the judiciary. Id "This is a personal and unreviewable 

whether her continued involvement in the case creates an appearance of impropriety or would 

LO impartial manner, free of personal bias or interest in the outcome, the judge must consider 

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After making a conscientious determination of her ability to assess the case in an 

disturbed except for an abuse of discretion. Id. 

o:, 

or unfairness necessitating recusal, and the decision by the undersigned judge may not be 
13 

34 Id. 

35 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 term of sentence. 

Commonwealth v. Guth, 735 A.2d 709, 710, n. 3 (Pa. Super. Ct. 1999). 

37N.T. 8-18-2014, p. 9. 

As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. 

Disinterestedness does not mean child-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 

UI 

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38 See Defendant's Concise Statement of Matters Complained of on Appeal,~ 9. 

2001 case. Judge Tressler expressly notified defendant on the record at the time of sentencing 

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 department habitually serves defendants with the terms of county probation and parole, 

adequate notice of the terms of parole if the Commonwealth produces evidence that the county 

The 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. UI 

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 Liteky 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 

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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 

sentence 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. 

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f.-!' 

r.rl 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 

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16 

(i.e. code-mandated) condition of parole makes no difference. In Sigafoos v. Pennsylvania 

The fact that appellant's obligation to make restitution was a special, rather 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 written 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 excused 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 ... ~. 

ul of Probation 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 giving 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 ;:J 
17 

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 

slightly 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. The 

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 possibility that his delinquent time was subject 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 

Sigafoos 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 

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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 

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