OPINION BY STRASSBURGER, J.:
Martin Cain (Appellant) appeals from the judgment of sentence of ten to twenty years' incarceration entered on June 25, 2009 following his conviction after a jury trial of robbery, theft by unlawful taking, receiving stolen property, and terroristic threats.
The trial court summarized the facts as follows:
Trial Court Opinion (TCO), 9/30/2010, at 1-2 (pages unnumbered) (citations omitted).
A jury trial presided over by Judge Willis W. Berry, Jr. resulted in Appellant's convictions on April 29, 2009. Judge Berry sentenced Appellant on June 25, 2009, the same day on which the Court of Judicial Discipline filed its opinion and order suspending Judge Berry from his office based upon finding, inter alia, that Judge Berry violated 18 Pa.C.S. § 3926(b).
Judge Berry filed his opinion on July 30, 2010. Apparently there was some confusion, as the court states that Appellant failed to file his 1925(b) statement. Judge Berry proceeded to address some of the issues raised by Appellant in his post-sentence motion, but did not acknowledge or address the question of whether he should have recused himself.
In his brief on appeal, Appellant asks this Court to review two issues:
Appellant's Brief at 2.
We begin with Appellant's second issue.
Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 94 (2009) (internal quotations and citations omitted).
At trial, the trial judge allowed the Commonwealth to call Paul Bowell to testify about his dealings with Appellant on December 10, 2007, which was approximately two weeks before the incident at issue in this case. The trial court summarized Bowell's testimony as follows:
TCO, 9/30/2010, at 4 (pages unnumbered) (citations omitted).
While "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," Pa.R.E. 404(b)(1), "[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Pa.R.E. 404(b)(2). "Factors to be considered to establish similarity are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed." Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super.2010) (quoting Commonwealth v. Taylor, 448 Pa.Super. 238, 671 A.2d 235, 240 (1996)).
Appellant argues that the robberies lacked sufficient similarity because "the only thing both robberies had in common was that a cell phone might have been taken." Appellant's brief at 6. We disagree. As the trial court explained:
TCO, 9/30/2010, at 4-5 (pages unnumbered) (citations omitted).
Furthermore, the trial court gave the jury a cautionary instruction as to the limited value of the evidence of the Bowell incident. The trial court explained that the evidence may only be considered to show a common scheme, and not to show that Appellant has criminal tendencies. The jury was specifically instructed that it could not convict Appellant because it believed that he engaged in improper conduct at another time. See Commonwealth's Brief at 13 (quoting N.T., 4/28/2009, at 25-26).
We see no abuse of discretion or error of law committed by the trial court in admitting Bowell's testimony. This issue is without merit.
The remaining question for our review is whether it was improper for Judge Berry to try this case while he himself faced possible prosecution by the Commonwealth, one of the parties. "[A] trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned." Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727, 731 (1983) (quoting Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652, 654 (1973)) (emphasis in cases cited). "A jurist's impartiality is called into question whenever there are factors or circumstances that
Our Supreme Court has long recognized
Joseph v. Scranton Times L.P., 604 Pa. 677, 987 A.2d 633, 634 (2009) (internal citation and quotations omitted). "[T]he appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of either of these elements." McFall, supra at 713 (quoting Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652, 654 (1973)).
Here, Appellant argues that Judge Berry was aware that his business practices had drawn attention as early as April 2007. Appellant's Brief at 4. Judge Berry was under investigation by the Judicial Conduct Board prior to hearing Appellant's case, as the complaint against Judge Berry was filed in the Court of Judicial Discipline (CJD) on January 5, 2009. Id. Appellant argues that, given these circumstances, Judge Berry had to believe, at the time of Appellant's trial, that the Philadelphia District Attorney's Office was investigating his criminal activity or might choose to prosecute him therefor.
Such allegations clearly place Judge Berry's impartiality at issue. Because Judge Berry does not address Appellant's recusal issue in his opinion, we do not know whether he had knowledge that, at the time he presided over Appellant's trial and sentencing, he faced criminal investigation from Appellant's prosecutors. Without this information, this Court is unable to determine whether sufficient reason to question Judge Berry's impartiality exists to warrant granting Appellant relief.
We also do not know when Appellant became aware of the criminal investigation of Judge Berry by the District Attorney's Office. If Appellant was aware of an existing or imminent investigation prior to trial or sentencing, Appellant may have waived this issue by failing to raise it earlier. See, e.g., Commonwealth v. Boyd, 835 A.2d 812, 820 (Pa.Super.2003) (quoting Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa.Super.2000)) ("It is well-settled that a party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.").
Therefore, we remand this case for an
Case remanded for further proceedings consistent with this opinion. Panel jurisdiction retained.