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Home My WebLink AboutCP-21-MD-0000324-2021 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : BARRY LEE ORNDORFF : CP-21-MD-0324-2021 IN RE: MOTION FOR CHANGE OF VENUE PURSUANT TO PA.R.CRIM.P. 584 AND RECUSAL OF ALL CUMBERLAND COUNTY JUDGES OPINION AND ORDER OF COURT Masland, J., November 5, 2021:-- Defendant Barry Lee Orndorff is alleged to have mistreated numerous sheep, goats, birds, and other animals residing on his property in Southampton Township, Cumberland County. Following an inspection by the Pennsylvania State Police on June 1 4, 2021, he was charged with 450 Counts of Aggravated Cruelty to Animals (F3), 450 23 Counts of Cruelty to Animals (M2), and 1,350 Counts of Neglect of Animal (M3). Before us is Defendant’s Motion for Change of Venue Pursuant to Pa.R.Crim.P. 584 and Recusal of All Cumberland County Judges, filed July 6, 2021. A hearing was held on September 4 27, 2021, after which the parties’ filed briefs. For the reasons set forth intra, Defendant’s Motion will be granted as to recusal and, therefore, dismissed as to change of venue, but without prejudice to Defendant’s ability to renew that request with whichever of our esteemed colleagues is assigned to shepherd this case to its conclusion. 1 18 Pa.C.S. §5534(a)(2). 2 18 Pa.C.S. §5533(a). 3 Defendant is charged with 450 Counts each under 18 Pa.C.S. §5532(a)(1), (2), and (3). 4 Defendant’s preliminary hearing was postponed pending resolution of this Motion. Order of August 12, 2021. CP-21-MD-0324-2021 5 The facts essential to resolving Defendant’s Motion are undisputed. In total, 404 animals were seized from Defendant’s property by the Pennsylvania State Police on or about June 4, 2021 and placed in the care of Speranza Animal Rescue (“Speranza”), a 6 charitable enterprise located at 1216 Brandt Road in Mechanicsburg. The owner of this 7 parcel is our President Judge, Edward E. Guido; whose residence is adjacent to 8 Speranza’s facility; who receives rents and tax and insurance reimbursements from 9 Speranza; whose daughter, Janine Guido, is Speranza’s founder and current 1011 President; and who himself formerly served as Speranza’s Treasurer. Since June 4, 2021, Speranza has published information about the animals both to its 185,700 12 Facebook followers and via local news media. Further, Speranza has solicited donations on behalf of the animals, receiving in the month of the seizure $258,184.30, 13 more than four times its average monthly receipts in the preceding quarter. Finally, Speranza received in-kind donations from forty-six local businesses, including from such 14 well-known enterprises as Giant Foods, Lowe’s, Home Depot, and Pepsi. 5 See Joint Stipulations for Hearing on Defendant’s Motion for Change of Venue and Recusal of All Cumberland County Judges, filed September 23, 2021 (hereinafter “Stipulations”). 6 Id. at ¶ 1, 2. 7 Id. at ¶ 3. 8 We rely on our recollection of the Hearing of September 27, 2021. 9 Stipulations, at ¶ 5. 10 Id. at ¶ 6, 7. 11 Id. at ¶ 4. 12 Id. at ¶ 12-16. 13 Id. at ¶ 8-10. 14 Id. at ¶ 11. -2- CP-21-MD-0324-2021 Defendant argues not that this Court harbors any actual bias against him, but that President Judge Guido’s relationship to Speranza, coupled with his supervisory role with respect to the entire County bench, creates an appearance of impropriety, such as to mandate recusal under Rule 2.11 of the Code of Judicial Conduct. See also Commonwealth v. Stevenson, 393 A.2d 386, 394 (Pa. 1978) (“justice must satisfy the appearance of justice”). Specifically, the Rule requires recusal, inter alia, where the Judge 15 or his child have an “economic interest” or “more than a de minimis \[non-economic\] 16 interest” in the outcome, the Judge possesses “personal knowledge of \[disputed\] 1718 facts,” or either Judge or child is “likely to be a material witness.” While Defendant appears to exaggerate President Judge Guido’s economic interest in this matter, there being nothing of record to suggest that Speranza’s rents or reimbursements are in any way correlated with the ebb and flow of donations, it is nonetheless obvious that both our President Judge and his daughter have a considerably more than de minimis personal or moral interest in advancing Speranza’s charitable goals, which are now intertwined with the progress of this action. Further, President Judge Guido may possess personal knowledge of disputed facts, e.g., concerning the condition of the animals around the time of seizure, and thus – along with Janine Guido, who surely has such knowledge – may 15 Rule 2.11(A)(3). 16 Rule 2.11(A)(2)(c). 17 Rule 2.11(A)(1). 18 Rule 2.11(A)(2)(d). -3- CP-21-MD-0324-2021 19 be called as a material witness in future proceedings. Were this matter before President Judge Guido himself, it is obvious that the facts 20 supra would give rise to an appearance of impropriety; the more difficult question is whether our entire bench becomes similarly colored by imputation. Neither the filings of the parties nor our independent review of the caselaw has disclosed any directly applicable, binding authorities. Defendant relies principally on Commonwealth ex. rel. Armor v. Armor, 398 A.2d 173, 174 (Pa. Super. 1978) (plurality) (where mother in child support litigation with ex-husband was current wife of non-presiding Judge, recusal of all Judges was required, despite “\[not\] one iota of evidence” of actual impropriety) and, while that decision “does not create a presumption that in all cases where a member of the bench has an interest the entire bench must be recused” Lomas v. Kravitz, 130 A.3d 107, 124 (Pa. Super. 2015) (emphasis in original), and though we review recusal motions “on 21 a case-by-case basis,” Id. we find Armor’s holding persuasive. 19 The Commonwealth suggests that it is “unlikely” to call Janine Guido as a witness. We credit the sincerity of that prediction, but we are hesitant to rely upon it. This case is in its infancy, and the Commonwealth always retains the right to change strategy as events unfold. Indeed, that occurs (or, perhaps, should occur) in almost every trial. Commonwealth’s Brief in Opposition to Defendant’s Motion for Change of Venue and Recusal of All Cumberland County Judges, filed October 18, 2021 (hereinafter “Commonwealth’s Brief”), at 13. 20 The Commonwealth acknowledges that President Judge Guido’s “deep connection with Speranza prevent\[s\] him from sitting impartially in animal abuse and animal neglect cases” and, indeed, that our President Judge is of the same mind, having previously recused himself from such cases. Commonwealth’s Brief, at 16. 21 In contrast, we are not persuaded by the Commonwealth’s argument that the presence of a jury, standing between Judge and verdict, negates the appearance of impropriety. Commonwealth’s Brief, at 14-15, citing Commonwealth v. West, 411 A.2d 537, 541-542 (Pa. Super. 1979) (jury “insulated” fact-finding process from any bias of Judge, who had been exposed to inflammatory and inadmissible evidence prior to trial, such that recusal was not required). West cannot be read as establishing a bright-line rule that effectively voids Rule 2.11 in cases bound for jury trial. Indeed, as the Commonwealth gleans from Kravitz, the question of recusal is highly fact-sensitive, and, on the facts before us today, the jury’s “insulating” function is inadequate to cure the appearance of impropriety. -4- CP-21-MD-0324-2021 That President Judge Guido would or could use his position to influence the outcome of this case is, to our mind, risible. Our President Judge wields neither an iron fist nor a velvet glove. Pressuring a colleague is antithetical to his nature. However, a “significant minority of the lay community,” less familiar with the practices of courts generally or of this Court in particular, may reasonably, if incorrectly, arrive at a different conclusion, and so recusal is the appropriate remedy. Commonwealth v. Darush, 459 A.2d 727, 732 (Pa. 1983). We do not reach this decision lightly, nor are we deaf to the Commonwealth’s concern that we risk complicating the prosecution of future animal neglect or abuse offenses in this County, but, in our view, this case is extraordinary. While President Judge Guido will no doubt continue his relationship with Speranza, and Speranza will no doubt care for future animal victims, the special circumstances here present – hundreds of animals seized, hundreds of thousands of dollars raised, substantial media coverage, and widespread community involvement – are unlikely to recur with any regularity, and, ultimately, maintaining public faith in the impartiality of the Courts is more important than 22 avoiding any inconvenience of recusal. Having determined that recusal is warranted, we cannot properly resolve Defendant’s request for change of venue – especially by denying that request, as would 22 We note that reassignment following recusal under Rule 2.11 of the Code of Judicial Conduct “shall be made through the Administrative Office \[of Pennsylvania Courts\],” Pa.R.J.A. 701(E)(2) which means “the central office for the administration of the unified judicial system,” contra the Regional Unit. Pa.R.J.A. 102. See also Commonwealth v. Lambert, 57 A.3d 645, footnote 11 (Pa. Super. 2012) (“If all the judges in a county recuse, then the President Judge of the county must request that the Administrative Office of Pennsylvania Courts (AOPC) appoint a judge from another county”). Although we are the most senior jurist after the President Judge, we have no actual authority over our peers. So, out of an abundance of caution, we have confirmed their assent to this recusal. -5- CP-21-MD-0324-2021 be our inclination at this time – and so the Motion in this respect will be dismissed, without prejudice to Defendant’s refiling of the same following reassignment of the case. ORDER OF COURT AND NOW, this day of November, 2021, following hearing, briefing, and careful review, Defendant’s Motion for Change of Venue Pursuant to Pa.R.Crim.P. 584 and Recusal of All Cumberland County Judges is DISMISSED in part and GRANTED in part, as set forth in our accompanying opinion. The entire bench of Cumberland County having recused themselves, this case shall be reassigned through the Administrative Office of Pennsylvania Courts pursuant to Pa.R.J.A. 701(E)(2). By the Court, Albert H. Masland, J. Courtney E. Hair LaRue, Esquire Office of the District Attorney Karen L. DeMarco, Esquire For the Defendant Court Administrator Administrative Office of Pennsylvania Courts -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : BARRY LEE ORNDORFF : CP-21-MD-0324-2021 IN RE: MOTION FOR CHANGE OF VENUE PURSUANT TO PA.R.CRIM.P. 584 AND RECUSAL OF ALL CUMBERLAND COUNTY JUDGES ORDER OF COURT AND NOW, this day of November, 2021, following hearing, briefing, and careful review, Defendant’s Motion for Change of Venue Pursuant to Pa.R.Crim.P. 584 and Recusal of All Cumberland County Judges is DISMISSED in part and GRANTED in part, as set forth in our accompanying opinion. The entire bench of Cumberland County having recused themselves, this case shall be reassigned through the Administrative Office of Pennsylvania Courts pursuant to Pa.R.J.A. 701(E)(2). By the Court, Albert H. Masland, J. Courtney E. Hair LaRue, Esquire Office of the District Attorney Karen L. DeMarco, Esquire For the Defendant Court Administrator Administrative Office of Pennsylvania Courts