Com. v. Lamey, E.

J-S39030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ELVIN JOHN LAMEY,

Appellant No. 924 MDA 2015

Appeal from the Judgment of Sentence April 14, 2015

in the Court of Common Pleas of Centre County

Criminal Division at No.: CP-14-CR-0000035-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ELVIN JOHN LAMEY,

Appellant No. 925 MDA 2015

Appeal from the Judgment of Sentence April 14, 2015

in the Court of Common Pleas of Centre County

Criminal Division at No.: CP-14-CR-0001385-2014

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ELVIN JOHN LAMEY,

Appellant No. 926 MDA 2015

J-S39030-16

Appeal from the Judgment of Sentence April 14, 2015

in the Court of Common Pleas of Centre County

Criminal Division at No.: CP-14-CR-0001480-2014

BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.: FILED JUNE 06, 2016

Appellant, Elvin John Lamey, appeals from the judgment of sentence

imposed following his jury conviction of numerous sex offenses against three

children, at the above-referenced docket numbers.1 We affirm.

The relevant facts and procedural history of this case are as follows.

Appellant moved in with his sister, C.K., and her family in 2009. Between

January 2010 and June 2012, he repeatedly molested and raped his nephew,

J.K., and two nieces, H.K. and K.K (Children). Appellant was twenty-two

years old when he began to abuse the Children, and they were between the

ages of two and five. The Children disclosed the abuse to C.K. and she

reported it to the authorities in July of 2012. Police initially interviewed

Appellant on July 20, 2012, and he denied the allegations. During a second

interview on September 6, 2012, Appellant admitted to molesting J.K. and

H.K.

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*

Retired Senior Judge assigned to the Superior Court.

1

The cases were consolidated for trial.

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On August 5, 2013, Appellant entered a guilty plea to multiple charges

arising from the abuse. The trial court subsequently granted his motion to

withdraw his plea, and the case was listed for trial.

On October 24, 2014, Appellant filed a motion seeking recusal of the

trial court judge, the Honorable Bradley P. Lunsford. Appellant maintained

that Judge Lunsford’s recusal was necessary because of his public support

for and involvement in the Centre County Children’s Advocacy Center

(CCCAC), which “provide[s] a friendly, comforting setting for child crime

victims.” (N.T. Motion for Recusal, 10/24/14, at 3).2 The Children in the

instant case never visited the CCCAC, and Judge Lunsford resigned from the

CCCAC’s board when the center opened in February 2014. (See Trial Court

Opinion, 8/24/15, at 2; Appellant’s Brief, at 62). The court denied

Appellant’s motion following a hearing.

On November 19, 2014, the Commonwealth filed a motion in limine,

noting that Appellant’s counsel wished to provide an illustration of

reasonable doubt to the jury during closing summation, and requesting that

the court preclude this. (See Commonwealth’s Motion in Limine, 11/19/14,

at unnumbered page 4 ¶¶ 24-27). Counsel’s proposed illustration involved

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2

Appellant also sought recusal based on a comment the court made to

counsel in an unrelated case involving a different defendant who was

charged with sex-related offenses against a child; Judge Lunsford recused

himself from that case. (See N.T. Motion for Recusal, 10/24/14, at 6).

Appellant makes no attempt to resurrect this argument on appeal.

Therefore, we deem this argument abandoned.

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using one’s common sense and experience in deciding whether to ice skate

on a pond. (See id. at ¶ 24; Trial Ct. Op., 8/24/15, at 5). The court

granted the Commonwealth’s motion following argument.

On November 24, 2014, Appellant proceeded to trial, and the jury

found him guilty of: six counts of rape of a child; six counts of statutory

sexual assault; one count of involuntary deviate sexual intercourse with a

child (IDSI); six counts of incest of a minor; nine counts of indecent assault

of a person less than thirteen years of age; one count of indecent assault,

without complainant’s consent; and three counts of corruption of minors.3

The court deferred sentencing pending preparation of a pre-sentence

investigation (PSI) report. The case was reassigned to the Honorable

Jonathan D. Grine prior to sentencing.

On February 23, 2015, the Commonwealth filed notice of its intent to

seek mandatory sentences of not less than ten nor more than twenty years’

incarceration under 42 Pa.C.S.A. § 9718 for the rape and IDSI counts. On

April 14, 2015, the court held a sentencing hearing at which it designated

Appellant a sexually violent predator (SVP). It sentenced Appellant to an

aggregate term of not less than eighty-two nor more than 164 years’

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3

18 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3123(b), 4302(b)(1), 3126(a)(7),

3126(a)(1), and 6301(a)(1)(ii), respectively.

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incarceration. The court entered an order and opinion denying Appellant’s

timely post-sentence motion on May 22, 2015. This timely appeal followed.4

Appellant raises the following questions for our review:

A. Did the trial court abuse its discretion in denying [Appellant’s]

motion to recuse?

B. Did the trial court err in granting the Commonwealth’s motion

in limine with respect to preventing the defense from presenting

an illustration of reasonable doubt during closing summation?

C. Did the sentencing court impose illegal sentences pursuant to

42 Pa.C.S.A. §[]9718, a statute that has been found to be

unconstitutionally [sic] infirm in light of the United States

Supreme Court’s decision in Alleyne v. United States[,133

S.Ct. 2151 (2013),] and the Pennsylvania [Superior] Court’s

decision in [Commonwealth] v. Newman[,99 A.3d 86 (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.

2015)]?

(Appellant’s Brief, at 33) (unnecessary capitalization omitted).5

In his first issue, Appellant argues the trial court abused its discretion

in denying his motion to recuse from the case. (See id. at 57). Appellant

points to Judge Lunsford’s extensive involvement in the CCCAC, and claims

that his support of the organization demonstrates his bias in favor of child

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4

Pursuant to the trial court’s order, Appellant filed a timely concise

statement of errors complained of on appeal on June 11, 2015. Judge Grine

filed an opinion on June 15, 2015, in which he relied on the opinion and

order of May 22, 2015. On August 24, 2015, Judge Lunsford entered a

supplemental opinion. See Pa.R.A.P. 1925.

5

Appellant’s seventy-seven-page brief substantially exceeds the

presumptively compliant length of thirty pages, and he has failed to include

a certification that the brief complies with the word count limits. See

Pa.R.A.P. 2135(a)(1), (d).

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victims of sexual abuse. (See id. at 55, 61-62).6 This issue does not merit

relief.

Upon a recusal motion,

the judge makes an independent, self-analysis of the

ability to be impartial. If content with that inner examination,

the judge must then decide whether his or her continued

involvement in the case creates an appearance of impropriety

and/or would tend to undermine public confidence in the

judiciary. This assessment is a personal and unreviewable

decision that only the jurist can make. Once the decision is

made, it is final. . . .

This Court presumes judges of this Commonwealth are

honorable, fair and competent, and, when confronted with a

recusal demand, have the ability to determine whether they can

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6

We note Appellant discusses and appends to his brief two documents

relating to Judge Lunsford, but not to this specific case, that are not listed on

the docket or a part of the certified record. (See Appellant’s Brief, at 59,

Appendix D-E). Additionally, Appellant accuses Judge Lunsford of destroying

two exhibits attached to the motion for recusal and reproduces a purported

excerpt from one of these documents in his brief; he did not refile the

documents. (See id. at 57-58). “It is black letter law in this jurisdiction

that an appellate court cannot consider anything which is not a part of the

record in the case.” Commonwealth v. Boyd, 679 A.2d 1284, 1290 (Pa.

Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997) (citation omitted).

“[F]or purposes of appellate review, what is not of record does not exist . . .

[C]opying material and attaching it to a brief does not make it a part of the

certified record.” Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.

Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008) (citations and

internal quotation marks omitted). Further, “it is appellant’s responsibility to

supply this Court with a complete record for purposes of review. A failure by

appellant to insure that the original record certified for appeal contains

sufficient information to conduct a proper review constitutes waiver of the

issue sought to be examined.” Boyd, supra at 1290 (citations, emphasis,

and internal quotation marks omitted). Accordingly, we are precluded from

considering the non-record materials submitted by Appellant.

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rule impartially and without prejudice. The party who asserts a

trial judge must be disqualified bears the burden of producing

evidence establishing bias, prejudice, or unfairness necessitating

recusal, and the decision by a judge against whom a plea of

prejudice is made will not be disturbed except for an abuse of

discretion.

Commonwealth v. Thomas, 44 A.3d 12, 24 (Pa. 2012) (citation and

quotation marks omitted).

“Our standard of review of a trial court’s determination not to recuse

from hearing a case is exceptionally deferential.” Commonwealth v.

Harris, 979 A.2d 387, 391 (Pa. Super. 2009) (citations omitted).

“[A]lthough we employ an abuse of discretion standard, we do so

recognizing that the judge himself is best qualified to gauge his ability to

preside impartially.” Id. at 392 (citations omitted).

Here, the trial court explained its rationale for denying the recusal

motion, in pertinent part, as follows:

The undersigned judge was one of the lead organizers of the

[CCCAC]; however, the undersigned judge was no longer

connected to the center [when Appellant filed the recusal

motion] as he resigned from the board after it opened in

February 2014 as indicated in the article [Appellant] cited. . . .

The purpose [of establishing the CCCAC] was to make the

process after averments of abuse are made more effective and

efficient which does reduce stress on the child by avoiding

multiple interviews with several people. . . .

* * *

This court denied the motion for recusal because the Code

of Judicial Conduct does not prevent a judge from participating

in activities that improve the law, the legal system, and the

administration of justice. Once the [CC]CAC opened, the

undersigned judge was no longer involved to avoid any conflict

of interest. It is illogical to believe that a judge’s impartiality

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may reasonably be questioned based on his assisting to establish

a [CC]CAC which benefits those involved in the justice system,

including alleged perpetrators of abuse who may be shielded

from false accusations when forensic interviewing techniques are

utilized. Forensic interviewing of the minor accuser can result in

charges not being filed.

(Trial Ct. Op., 8/24/15, at 2-4) (record citations and some capitalization

omitted).

After review of the record, and mindful of our “exceptionally

deferential” standard of review, we conclude that it does not reveal

impartiality or bias on the part of the trial court judge during the recusal

proceeding or Appellant’s jury trial. Harris, supra at 391. Appellant has

not met his burden of “establishing bias, prejudice or unfairness

necessitating recusal[.]” Thomas, supra at 24. Therefore, Appellant’s first

issue does not merit relief.7

Appellant next claims the trial court erred in granting the

Commonwealth’s motion in limine, thereby precluding defense counsel from

providing the jury with an illustration of reasonable doubt involving the

decision to ice skate on a pond. (See Appellant’s Brief, at 66-73). He

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7

We recognize that our case law has not always spoken with clarity

regarding the standard for recusal, and that the standard set forth by our

Supreme Court in Thomas contains a subtle difference from that it set forth

in Goodheart v. Casey, 565 A.2d 757, 764 (Pa. 1989) (providing for

objective review of appearance of impropriety assessment). However, here,

where there is clearly no appearance of impropriety with respect to the trial

court judge, we conclude the facts of this case satisfy both standards. See

Lomas v. Kravitz, 130 A.3d 107, 122 (Pa. Super. 2015) (en banc); see

also id. at 137-38 (Stabile, J., concurring and dissenting).

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asserts it was reversible error to bar the illustration, stating “[the Superior]

Court has approved of the practice of the trial court giving the jury a

practical illustration of reasonable doubt.” (Id. at 69; see id. at 70, 73)

(emphasis added; unnecessary capitalization omitted). We disagree.

Preliminarily, we note that “[w]e review a trial court’s [ruling on] a

motion in limine for an abuse of discretion.” Commonwealth v. Widmer,

120 A.3d 1023, 1025 (Pa. Super. 2015) (citation omitted). Further, as

Appellant implicitly recognizes, it is the duty of the trial court, not counsel,

to frame legal issues for the jury and instruct it on the applicable law. See

Commonwealth v. Hallman, 67 A.3d 1256, 1262 (Pa. Super. 2013),

appeal denied, 84 A.3d 1062 (Pa. 2014).

Here, the trial court rejected defense counsel’s proposed ice-skating

illustration based on its finding that it was not useful in understanding the

concept of reasonable doubt, that it had a tendency to confuse the jury, and

involved an experience that can be un-relatable and frightening. (See Trial

Ct. Op., 8/24/15, at 5). The court did not bar counsel from proposing a

different, more appropriate illustration. (See id.). The court indicated its

comfort with the standard jury instructions on reasonable doubt, and a

review of the trial transcript reflects that the court and defense counsel

thoroughly explained the concept to the jury. (See N.T. Motion in limine,

11/21/14, at 10; N.T. Trial, 11/24/14, at 43, 293-94, 334). After review, we

discern no abuse of discretion in the trial court’s ruling on this issue. See

Widmer, supra at 1025. Appellant’s second claim does not merit relief.

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In Appellant’s final issue, he maintains that his sentence is illegal

because the court imposed mandatory minimum terms of ten years’

incarceration pursuant to 42 Pa.C.S.A. § 9718 to the rape and IDSI counts.

(See Appellant’s Brief, at 74-76). He argues that this Court must remand

for resentencing because section 9718 has been found to be constitutionally

infirm in light of Alleyne, supra.8 (See id.). This issue does not merit

relief.

“Issues relating to the legality of a sentence are questions of law[.] . .

. Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.

Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015) (citation omitted).

Preliminarily, we note our agreement with Appellant that “Section

9718 is [] facially unconstitutional.” Commonwealth v. Wolfe, 106 A.3d

800, 805 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015).

However, our review of the record indicates that the trial court did not apply

this void provision.

Specifically, at the sentencing hearing, the Commonwealth sought

imposition of the mandatory minimums relative to the rape and IDSI counts.

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8

Appellant first raised this issue in his Rule 1925(b) statement, albeit in

vague manner without reference to Alleyne. (See Rule 1925(b) Statement,

6/11/15, at 3 ¶ I). However, a waiver analysis is of no moment because his

claim implicating the legality of his sentence cannot be waived on appeal.

See Newman, supra at 90.

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(See N.T. Sentencing, 4/14/15, at 35). However, the Commonwealth

maintained that, even if the court declined to apply section 9718, it could

achieve the same sentencing structure by imposing standard-range

sentences pursuant to the Sentencing Guidelines. (See id. at 35, 37-38,

40). Immediately before imposing sentence, the court took a recess to

review the sentencing guidelines. (See id. at 41). When it returned, it

explained the basis for its sentence as follows:

The [c]ourt was assigned this case for sentencing

purposes. The [c]ourt has been through the entire file. Has also

been through the transcripts that were prepared for all the

hearings, including the trial.

The [c]ourt has reviewed the PSI and incorporates it

into the record as reasons for the sentencing. The [c]ourt

has also reviewed both the sentence memorandums from the

defense and the Commonwealth. Has heard from defense

counsel as well as the Commonwealth.

And we’ll give the following sentence, and it will be

imposed based on the minimum amount of confinement

consistent with the protection of the public, the gravity of

the offense, and the rehabilitative needs of [Appellant].

The [c]ourt has already set forth what it has relied upon.

The [c]ourt has also considered the circumstances of the

offense, [Appellant’s] character and education, and has

looked to the guidelines of the Sentencing Code[.]

(Id. at 42) (emphases added).

Thus, the record shows that the court imposed an individualized

sentence taking into consideration all relevant sentencing factors, including

the PSI and the sentencing guidelines; it does not reflect that the court

applied the mandatory minimums under section 9718. Therefore,

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Appellant’s final issue does not merit relief. Accordingly, we affirm the

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2016

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