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Posted by on Oct 19, 2017 in Criminal, Juvenile | 0 comments

In re DCD: Best Interests of a Juvenile Delinquent Beat out Concerns over Community Welfare

DCD, a ten-year-old child with a low IQ, was adjudicated delinquent after sexually assaulting his younger sister. Several sexual assaults followed as DCD was moved from facility to facility and given treatments that ultimately did not help him progress. After several assaults, there were few facilities that were open to him, due to his record, his young age, the lack of contracts with the county, and his specific needs. One facility was eligible to take him, but would not because of their agreement with the local township not to take juveniles with current sexual assault delinquency adjudications. However, they intimated that they would accept him if his delinquency adjudication were terminated.

The trial court agreed to terminate his adjudication over the Commonwealth’s objection on the basis that the child needed to be moved from his current facility immediately, and that the only option to get him appropriate treatment was to terminate his delinquency.

Majority by Baer: Juvenile courts may unequally consider the three factors of BARJ

Justice Baer, writing for the majority, discussed the goal of “balanced and restorative justice” (BARJ) that is baked into the Juvenile Act. This “BARJ” is served by three goals in the Act and in the Rules of Juvenile Court Procedure:

  1. Community protection;
  2. Accountability; and
  3. Rehabilitation.

Furthermore, in determining the proper disposition of a child adjudicated delinquent, the trial court is required to consider what is “best suited” to the child’s treatment, supervision, rehabilitation and welfare, but must do so in a way “consistent” with the protection of the public interest. The majority ruled that this wording showed that the emphasis of the statute was on the rehabilitation of the offender, and that public protection was a secondary goal. The trial court must weigh the three factors, but need not give equal weight to the three. This conclusion was bolstered by the General Assembly’s directive to the courts to “use the least restrictive intervention consistent with community protection.” (citing 42 Pa.C.S. § 6301(b)(3)(i)).

In this case, where the trial court found that the child’s only option to get serious treatment was at a facility that could only house him if his delinquency adjudication was terminated, it was appropriate for a trial court to find that the interests of rehabilitation weighed more heavily than community protection. “The [trial] court had no hesitation in rejecting continued placement” at the juvenile’s current facility due to the “paucity of proper treatment provided to D.C.D.” at the present facility. The need to find an immediate place for him weighed in favor of terminating the adjudication of delinquency.

The Pennsylvania Supreme Court’s majority “view[s] it incumbent upon this Commonwealth’s juvenile court judges to consider specifically the three factors of BARJ when determining whether compelling reasons exist in the context of a motion for early termination of delinquency supervision, as with all other dispositions under the Juvenile Act. Balanced attention to the three factors, however, does not require that the factors themselves be equally weighted in the ultimate decision.”

Finding that the trial court had considered the three factors—even though he had not explicitly named them as such—the Pennsylvania Supreme Court affirmed the decision.

Dissent by Mundy: Serious offenses of DCD should have precluded termination of his supervision

While acknowledging that the trial court had taken DCD’s best interests into account, Justice Mundy dissented due to the seriousness of his crimes, and due to the need for community protection. “Based on the serious offenses D.C.D. has been adjudicated delinquent of, and the subsequent concerns about his progress with respect to personal boundaries and appropriate behavior, I cannot agree that terminating Juvenile Probation’s supervision to accommodate acceptance into a treatment program, which prohibits individuals who have active adjudications of delinquency for sexually-based delinquent acts, is appropriate.”

Conclusion: Supreme Court of Pennsylvania is willing to protect the rights of all, even those accused of sexual assault

The Supreme Court of Pennsylvania continues to chart a path respecting the rights of the worst accused, this term. Much as in Commonwealth v. Maconeghy, Jr., this decision shows the Supreme Court of Pennsylvania’s strict adherence to the text of a statute, even where it favors a young perpetrator of sexual assault. This may not be welcome news to all: Justice Mundy has dissent in both of these cases. But these opinions reflect an important role of a Supreme Court in our society. While society is finally waking up to the crisis of sexual assault going on in our midst, and proposing more serious penalties for perpetrators, it will remain the role of the dispassionate courts of our Commonwealth and country to ensure that those accused of crimes get fair trials and are punished justly.

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Posted by on Oct 6, 2017 in Civil, Insurance | 0 comments

Burke v. Independence Blue Cross: Legislature intended autism treatment to be offered in schools

The Autism Coverage Law requires insurance companies to provide coverage for autism treatment under certain group plans. One coverage specifically included in the statute is “applied behavioral analysis” (“ABA”). However, the statute allows companies to maintain “general exclusions or limitations of a health insurance policy.” ABA is defined as:

the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior or to prevent loss of attained skill or function, including the use of direct observation, measurement and functional analysis of the relations between environment and behavior.

Independence Blue Cross denied ABA coverage at Anthony Burke’s school, arguing that the policy’s general “place-of-services” exclusion permitted them to decline delivery of otherwise-covered services at a location other than the doctor (in this case, the school). But of course, ABA coverage is most obviously needed in a school setting. What autistic child needs “environmental modifications” at the doctor?

Burke’s father argued that this exclusion operated to exclude ABA services at the main place where they are truly needed for Anthony in contravention of the General Assembly’s legislative intent in passing the Autism Coverage Law in the first place.

Majority by Saylor: Autism Coverage Law is materially ambiguous

Chief Justice Thomas Saylor, speaking for the 4-1 majority, holds that the Autism Coverage Law is “materially ambiguous in relevant aspects.” The holding is discussed more in a moment, but the ambiguity allows the Court to conclude the statute was incomprehensible without looking behind the statute to legislative intent. Simply put, “the Legislature did not intend to permit exclusions that would eviscerate aspects of the coverage for autism treatment services that the Assembly has provided are mandatory.” Thus, our Supreme Court held “that the Legislature intended to permit only general exclusions that would not substantially undermine the mandatory coverage requirement.”

In other words, in passing a general rule that insurance providers must provide autism treatment, and by explicitly including ABA treatment in the statute, the legislature did not envision allowing insurers to escape this mandate by simply providing a general exclusion that ABA couldn’t be provided at the place it was primarily needed. “[W]e simply do not believe that the Legislature intended to permit insurers to exclude coverage in the sensory-laden educational environment where children spend large portions of their days, or to require families to litigate the issue of medical necessity discretely in individual cases to secure such location-specific coverage for the treatment.”

With this holding in mind, we return to the ambiguity justifying the Court’s foray into legislative intent: the Court held that the statute’s “catchall” provision was oddly worded, and appeared to be internally inconsistent. (“Coverage under this section shall be subject to copayment, deductible and coinsurance provisions and any other general exclusions or limitations of a health insurance policy or government program to the same extent as other medical services covered by the policy or program are subject to these provisions.”) The “any other exclusions” language appeared to the majority to be a reference to an entirely different style of exclusions than the foregoing language (the legal doctrine for this argument is ejusdem generis), and the statute’s apparent confusion led the Court to conclude it was irreconcilable without looking behind the statute to legislative intent. Thus, Anthony Burke’s ABA treatment must be covered by Independence Blue Cross at his school.

Dissent by Mundy: What ambiguity?

I rearrange the majority’s analysis above to end on the point which Justice Mundy dissents on. The statute, though perhaps oddly worded, appears to be fairly unambiguous. The legislature certainly could have “indicated that coverage for in-school services was mandatory, but it did not do so,” as the majority admits. Justice Mundy believes the statute is devoid of any confusion. The statute “plainly permits a health insurance provider to apply a general exclusion of its health insurance policy to limit the coverage mandated by” the Autism Coverage Law. Therefore, because “the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute ‘under the pretext of pursuing its spirit.’” (quoting 1 Pa.C.S. § 1921(c)).

Conclusion

This case really appears to be a situation where the majority reached behind the statute without any real ambiguity. I read the section on ejusdem generis several times, and I just can’t follow why the majority felt the statute was unclear. The phrase in question may have been strange, but it doesn’t appear to be ambiguous. Furthermore, while going behind the statute is discouraged absent the existence of an ambiguity, the Court still could have ruled that the statute was frustrated by the exclusion without finding an ambiguity.

Justice Mundy calls the Court on its analysis—and the majority admits some reticence in its ruling in its final footnote (admitting “reluctance to accord too much weight to the statute’s  allusions to [] coordination” with schools’ individual education plan supervisors over ABA treatment on the basis that the legislature could have made it clearer that such coverage is required to be offered in schools).

This case should probably prompt legislative action either way. Was this the legislature’s intent? The statute can be clarified if the legislature doesn’t agree with the ruling, and ultimately, that would be a good use of the Assembly’s time.

One final note on the vote count: Justices Todd and Wecht did not cast votes, and Justice Wecht did not participate in consideration of the case.

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Posted by on Sep 29, 2017 in Admissibility, Civil, Rules of Evidence | 0 comments

Coughlin v. Massaquoi: No per se Requirement for Corroborating Evidence before BAC is admissible in a civil case

When is blood alcohol content (BAC) admissible in a civil case to prove negligence (including contributory negligence)? In the context of a car accident, the Supreme Court of Pennsylvania has previously held that “the word drinking . . . carries the inevitable connotation of considerable drinking,” Harvey v. Doliner, 399 Pa. 356 (1960), and that courts must be careful to weigh the prejudice resulting from such connotations against the relevance of the evidence under Pennsylvania Rule of Evidence 403. The Superior Court has taken this ruling to mean that BAC is only admissible in a civil negligence case where there is some other, independent evidence of intoxication as a threshold matter to support admissibility of the BAC.

On the night of January 13, 2012, Ummu Massaquoi was traveling southbound on Castor Avenue in northeast Philadelphia (home of the short-lived Liberty County Secessionist Movement) struck Thomas Coughlin, a pedestrian that Massaquoi did not see in an intersection and killed him. The autopsy revealed that Coughlin had a BAC of .313 (for comparison’s sake, with a BAC of .08, it is illegal to drive) and trace amounts of illegal substances in his system. There were no other witnesses to the accident, and no other evidence regarding Coughlin’s drinking or other actions that night.

Coughlin’s estate moved to preclude the admission of BAC on the idea that the introduction of this evidence would prejudice the jury against Coughlin. The trial court denied the motion, and Massaquoi was permitted to put on expert testimony about the effect that a BAC of .313 would have on coordination and judgment. The jury found Massaquoi negligent, but found that her negligence was not the proximate cause of Coughlin’s death.

Majority by Todd: BAC and expert testimony are relevant to contributory negligence of the plaintiff

Justice Debra Todd, writing for the majority, ruled that the admissibility of BAC in a civil case is analyzed just like any other piece of evidence. Pennsylvania Rule of Evidence 402 asks if the evidence is relevant. If it is, then it is analyzed under rule 403: does its relevance outweigh any potential prejudice to the party against whom it is offered?

Considering this two-part analysis, the majority has no trouble ruling that a pedestrian’s blood alcohol level is directly relevant to whether he may have played a part in the negligence that brought about his death. But the word “drinking” carries a high risk of prejudice, as the Supreme Court held in Harvey, and so a trial court should only admit evidence of intoxication if it reasonably shows intoxication.

While recognizing that the mere introduction of BAC at a trial has the potential to confuse the jury, the Supreme Court rejected the standard of the Superior Court in requiring evidence from another source before admitting BAC. Rather, “the admissibility of BAC evidence is within the trial court’s discretion based upon general rules governing the admissibility of evidence and the court’s related assessment of whether the evidence establishes the pedestrian’s unfitness to cross the street.”

This latter term—the pedestrian’s unfitness to cross the street—is emphasized in the majority opinion. The Court uses this term as a sort of stand-in for the term “relevance.” In other words, proof of drinking, or proof that the pedestrian was a drunk, is prejudicial. Proof that his consumption of alcohol that evening may have made him stagger out into the street negligently is relevant. Where, as in the present case, an expert witness was offered to the jury to explain the effects of alcohol upon the pedestrian’s unfitness to cross the street, the Court found “the probative value of such evidence outweighs its potential for unfair prejudice.”

Concurrence by Donohue: The Majority Opinion should be read in light of the facts

Justice Christine Donohue concurs, writing however that the Court’s opinion “is not tethered to any discussion of the facts of this case,” and that the opinion should not be read broadly. Only where the facts support a finding of intoxication—and not merely where one could speculate from BAC as to the pedestrian’s intoxication—should the trial court admit the evidence.

Dissent by Mundy: Other Evidence of Intoxication Should be Required

Justice Sally Mundy briefly dissents, arguing that independent evidence of intoxication—an eyewitness who saw the pedestrian staggering, “or other evidence of his behavior or demeanor,” should be required before the admission of evidence as to intoxication. Admitting BAC level without solid evidence about what happened “in a poorly lit area at night” only “invites speculation on the part of the jury.”

Conclusion: BAC is just like everything else

The simplest takeaway from this case is that BAC evidence is just like any other kind of evidence in a civil negligence case. It can be admitted if it clears the hurdles of 402 and 403. Although the Court doesn’t explicitly say so here, where the BAC is high, it is more likely to be relevant. Where evidence exists to actual drunkenness, or where evidence shows the party’s response times were slowed, admission of BAC is a virtual lock. And where there is no corroborating evidence, the party seeking admission is not without hope.

The odd part of the majority’s opinion is called out in both the concurrence and the dissent (see footnote 3 of Mundy’s dissent, for example). The majority relies on the expert’s opinion to bolster their conclusion. But why should a jury be less confused just because an expert testified? The underlying evidence challenged was the basis for the expert’s testimony.

Regardless, the Supreme Court of Pennsylvania’s ruling in Coughlin v. Massaquoi clearly puts BAC evidence on part with other types of evidence, and its admissibility rests in the sound discretion of the trial court.

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Posted by on Sep 29, 2017 in Frye Test, Murder, Suppression | 0 comments

Com v. Jacoby: Capital Appeal: Introduction of unconstitutionally seized murder weapon evidence was harmless error

The opening paragraph of this case read like an Alfred Hitchcock screenplay. The police

received a call that originated from Monica Schmeyer’s residence . . . When the police arrived, they found Monica Schmeyer dead on her living room flolr. Blood droplets and stains surrounded her body. The telephone was off the hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded shell casing on the floor near Monica Schmeyer’s body.

In Commonwealth v. Jacoby, a direct capital appeal, the Supreme Court of Pennsylvania rules that the introduction of an unconstitutionally-seized barrel of the murder weapon, which was urged to the jury during closing argument, was “harmless error.” In addition, Jacoby was not entitled to a Frye hearing when his argument was about the novel application of non-novel scientific evidence. For these reasons, among others, Jacoby’s conviction was confirmed.

Timothy Jacoby, the Defendant, was part of an informal group of friends that regularly met at a local Hooters. The group dubbed themselves the “Orange Shorts Society” for the garb worn by waitresses at the restaurant, and gathered together for recreational purposes. During these “meetings,” Dr. Jon Schmeyer, one of the “members,” frequently offered life updates regarding his divorce, his ex-wife, the alimony he paid her, and his ex-wife’s curious habit of keeping the sums paid to her in envelopes squirreled away around the house. In addition, this Dr. Schmeyer mentioned casually that the couple’s daughter would be out of the country for a certain period of time.

As a subsequent meeting of the Orange Shorts Society, on the afternoon and evening of March 31, 2010, Jacoby was not present despite the expectation of the other members, including Jacoby’s fiancée, that he would attend. The murder at Schmeyer’s home took place during this meeting. Two witnesses would later testify to seeing a man matching Jacoby’s general description in the area during this time. One of the witnesses remembered the man was carrying a white envelope. The other witness remembered hailing the man walking by his home, and that the man only nodded and then looked down. (Personally, I don’t find this fact to be that odd—this is Pennsylvania, after all). Finally, surveillance video captured a work van from Jacoby’s employer in the area near the time of the murder despite the fact this his employer does not do work in that area. In addition, the “sign out sheet” for the work vans was missing for the month in question (highly unusual according to the supervisor), and Jacoby put in an expense reimbursement for the time period in question. In addition, DNA evidence collected at the scene did not exclude Jacoby or his male relatives.

But most damningly of all, the police learned that Jacoby—a convicted felon—owned a .32 caliber pistol that matched the shell casing found at the scene. 15 months after the crime, police obtained a search warrant for Jacoby’s home and found a barrel that matched the pistol, although they did not find the pistol. Jacoby was convicted by a jury and sentenced to death due to the aggravating factor of the commission of a felony while committing the murder (in this case, burglary and robbery).

Wecht for the Majority: Murder Weapon

Writing for a majority of the Court (but you’ll have to do some matching up with section numbers to determine how many are in the majority for each section), Justice David Wecht finds no error in the majority of the trial. As with all capital appeals, the Supreme Court of Pennsylvania is tasked with microscopically re-examining every aspect of the trial, and the vast majority of the time, there is no error. However, three holdings stand out, the most important of which are the first and third, below.

First, and most importantly, despite finding that the warrant issued for Jacoby’s home was invalid, and that the barrel of the murder weapon found there should have been suppressed, the Court rules that the error was harmless. The affidavit submitted in support of the request for the warrant stated that Jacoby had previously had a registered firearm, that he was now a convicted felon, and that “it is reasonable to believe Jacoby would retain this item as he is barred from legally obtaining another hand-gun.” The Court found this central allegation in support of the warrant application to be “conjecture and speculation, particularly considering the gap in time,” and ruled that there was no probable cause for a warrant under the Fourth Amendment or Article I, § 8. “[T]he general rule is that probable cause must be predicated upon individualized suspicion,” so where a warrant’s allegation about what it is “reasonable to believe” “is not tailored or individualized” to the Defendant “in any fashion,” the warrant “falls short of probable cause.” The Court came back to emphasize, several times, the long gap in time between when it was known that Jacoby owned a gun matching the description involved, and when they finally requested, obtained and executed a search warrant.

While finding the warrant requirement was not satisfied under either Constitution, the Court emphasized the heightened particularity required of a warrant under Article I, § 8. (“We also note that there is a strict particularity requirement” in § 8, and that “a warrant must describe the items as specifically as is reasonably possible.” (quoting Com v. Grossman, 521 Pa. 290 (1989)).

Despite finding that the barrel should have been suppressed, the Court rules that the error of introducing it was harmless. The barrel played, “at best, only a minimal part in the Commonwealth’s ballistics evidence and its overall evidentiary presentation,” and the existence of biological evidence, evidence that the bullet that killed the victim was “proven definitively to have been fired from a gun that also was fired” on a shooting range on Jacoby’s parents’ private property, and other circumstantial evidence rendered the admission of evidence of the barrel harmless error.

Second, the Supreme Court held “there are limits to automatic standing,” and that Jacoby lacked any standing to challenge a search of his parents’ home. Although Jacoby was charged with a possessory offense (Felon in Possession of a Firearm—a newer Desert Eagle was found in his parents’ possession, titled to Defendant), he did not benefit from automatic standing under the time differential doctrine of Com v. Peterkin 511 Pa. 299 (1986). Peterkin requires focus on “whether the defendant is charged with possessing” the contraband “at the time of the contested search and seizure.” Here, Jacoby’s possessory crime took place on the date of the murder, according to the Commonwealth, and the search happened some time later. Thus, Jacoby lacked standing to challenge the search of his parents’ home.

Finally, the Court ruled that Jacoby did not meet the threshold showing required to force a Frye hearing on the DNA evidence presented. Frye hearings are required where “novel scientific evidence” is to be presented. In contrast to the Federal Courts’ Daubert rules, Pennsylvania maintains the older Frye standard which precludes the admission of scientific testimony based on methods that are not yet well established in their respective scientific discipline.

Here, Jacoby argued against the expert’s conclusions were a novel application of well-established scientific tests—that is, that the tests and findings themselves were not the result of novel science, but only the expert’s findings based on those tests. He believed that the expert had placed too much weight on one type of DNA, rather than looking at a full battery of DNA tests.

Reviewing this point under an abuse of discretion standard, the Court declined to find any wrongdoing on the part of the trial court. Jacoby’s argument went to the weight of the evidence. He could always argue the weight of the evidence to the jury—which he in fact did.

Concurrence by Mundy: I would find probable cause for search of Defendant’s home

Justice Mundy concurs in the result, joined by Justice Baer. Mundy argues there was probable cause to search Jacoby’s home in this case. Citing Federal Court of Appeals caselaw for the proposition that judges should be permitted to infer that “suspects keep instrumentalities of crime in their own residences.” Arguing that guns are “durable and sometimes valuable objects” that are kept long term, Mundy finds no reason to believe that the passage of time made it less likely the police would find the gun at Jacoby’s home in this case.

Dissent by CJ Saylor: This error was not harmless

Chief Justice Saylor dissents, arguing that the verdict should be overturned and the case remanded for a new trial due to both the invalid search of Defendant’s home, and because the Defendant was entitled to a Frye hearing (Justice Donohue joins the Chief Justice’s dissent on this latter point). On the first point, the Chief Justice says, “I have difficulty with [the majority’s] application of the harmless error standard” because the Commonwealth did not advance this argument—and bears the responsibility to prove harmless error beyond a reasonable doubt—and because the majority did not assess the facts in favor of the Defendant in its analysis. Saylor criticizes the majority’s omission of major problems with the witnesses’ testimony, developed on cross examination, as well as evidence that Jacoby frequently missed Orange Shorts Society meetings. These facts make the harmless error ruling untenable in Saylor’s view.

Furthermore, arguing that the Frye standard may bar the evidence of DNA presented against Jacoby, Pennsylvania’s Chief Justice offers “an efficient use of limited judicial resources” adopted in other jurisdictions, such as California, Flordia and Maryland: where a Frye hearing should have occurred, the case should be remanded for purposes of that hearing only, and if the evidence is ruled admissible, the original jury verdict may stand. Only if the evidence is determined by the trial court to be inadmissible must a new trial be granted.

Conclusion: Important holdings where you least expect them

I don’t normally invest much analysis into these cases simply because they are usually garbage appeals. The Defendant’s attorney has to appeal to the Court, the Court has to take it, and both sides have to present a thorough re-airing of the entire trial. This serves an important constitutional function, but rarely yields interesting legal holdings.

This case is certainly an exception to that rule. Justice Wecht’s well-written opinion makes it enjoyable to read, for one thing, but more to the point, the three holdings discussed above will provide ammunition in future cases. The Court’s re-affirmance of the specificity requirements for a warrant under Article I of the Commonwealth’s Constitution should be carefully examined by defense attorneys, while District Attorneys across the state will benefit from the re-affirmation and discussion of the limits on automatic standing in possessory offenses. In short, this case was much more than the typical throw-away, and is worth the read (or skim) for attorneys in criminal practice.

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Posted by on Sep 29, 2017 in Civil, Recusal | 0 comments

Lomas v. Kravitz: Motion for Recusal should be made immediately, if not sooner

The Pennsylvania Supreme Court ruled in Lomas v. Kravitz that a motion for recusal must be made as soon as the facts on which the motion is based come to light, or be forever barred.

James Kravitz breached a contract with Roy Lomas in Montgomery County (home of the largest mall in the United States) and had judgment of more than $200,000 entered against him. Lomas was represented during this time by a lawyer who is now Judge Branca of the Montgomery County Court of Common Pleas. For the next 25 years, Kravitz played cat and mouse with Lomas, leading to a lawsuit alleging Fraudulent Conveyance and attempting to pierce Kravitz’s various corporate veils. The Montgomery CCP entered judgment in Lomas’s favor, yet again, and set a hearing on damages, where Judge Branca testified regarding the reasonableness of his attorneys’ fees.

What should have been a routine line of questions got interesting, however, when Judge Branca revealed on cross-examination that he had an ongoing financial interest in the case in the form of a contingent referral fee, and that he had been in fairly routine communication with Lomas’s current trial counsel. Thirty-nine days later, Kravitz filed a motion to recuse the entire Montgomery CCP bench on the theory that any of them would be inclined to rule in favor of Lomas, given that their fellow Judge Branca stood to benefit from the outcome of the case.

This case’s tortured history includes an en banc split 4-4 at the Superior Court, which opinion was appealed and accepted by SCOPA for review.

Majority by Baer: What took you so long?

Judge Max Baer writes for the 4-1 majority and notes that it is well settled in Pennsylvania law that a motion for recusal “requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.” (quoting Goodheart v. Casey, 523 Pa. 188 (1989)). Recusal decisions are reviewed by appellate courts on an “abuse of discretion” basis, and will only be reversed “where the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” (quoting Zappala v. Brandolini Prop. Mgmt., Inc., 589 Pa. 516 (2006).

Declining to set the precise moment at which trial counsel should have moved for recusal, the majority holds that his failure to so motion 1) immediately during cross-examination upon learning of the grounds for recusal, 2) at the close of the hearing, or 3) within the 30 days granted by the trial court for review of certain documents, fails the required timeliness standard. In addition, though unstated by the Court, one senses the length of time this matter has dragged on suggests that trial counsel had plenty of time to discover the facts that would have given him grounds for a motion of recusal.

Dissent by CJ Saylor: I would adopt the federal rules

Chief Justice Saylor dissents, arguing that the case presents “an appearance of impropriety,” and that the submission of trial counsel’s motion was not late. The Chief Justice says a motion for recusal should be made with “care and good faith,” and should only be offered in rare circumstances by counsel. The Chief Justice further suggests adoption of the federal rules’ 4-part test to determine the appropriateness of recusal. The majority responds to this latter point in their final footnote, stating, “we are circumspect to adopt and apply a new test in this case, particularly when the parties offer no advocacy in this regard.”

Conclusion: Recusal is always a long-shot

A few clean-up notes: Justices Donohue and Wecht did not participate in the case, and with a Superior Court judge’s non-participation, that makes three judges who did not participate in the case. Unfortunately for Kravitz, the one judge who will still be participating is the trial judge below, and there may be no place more uncomfortable for a litigant than standing before the judge that you attempted to force recusal on.

Recusal is always a long-shot. The Supreme Court’s opinion makes clear in this case that it will only reverse for a clear abuse of discretion, the highest standard of appellate review in Pennsylvania. Judges also may be circumspect to question each other, and such motions are generally disfavored. But when the motion is appropriate, it must be made immediately and without delay to avoid forfeiture.

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