Com. v. Freeman, B.

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  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  BRYAN ROBERT FREEMAN                         :
                                               :
                       Appellant               :   No. 1007 EDA 2024

      Appeal from the Judgment of Sentence Entered February 29, 2024
     In the Court of Common Pleas of Lehigh County Criminal Division at
                      No(s): CP-39-CR-0001077-1995

 COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
 DAVID JONATHAN FREEMAN                        :
                                               :
                       Appellant               :   No. 1308 EDA 2024
      Appeal from the Judgment of Sentence Entered February 27, 2024
     In the Court of Common Pleas of Lehigh County Criminal Division at
                      No(s): CP-39-CR-0001078-1995

BEFORE:      LAZARUS, P.J., SULLIVAN, J., and STEVENS, P.J.E. *

OPINION BY LAZARUS, P.J.:                              FILED JANUARY 9, 2026

       Bryan Robert Freeman (Bryan) and David Jonathan Freeman (David)

(collectively, the Freeman Brothers or Brothers) appeal from the judgments




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* Former Justice specially assigned to the Superior Court.
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of sentence,1 entered in the Court of Common Pleas of Lehigh County,

following their respective guilty pleas to one count each of first-degree

murder.2     After careful review, we vacate the judgments of sentence and

remand for further proceedings consistent with this decision.

       On the evening of February 26, 1995, Bryan, David, and their adult

cousin, Nelson Birdwell, III (Birdwell), were inside the Freeman family home.

The Brothers’ mother, Brenda Freeman (Brenda), their father, Dennis

Freeman (Dennis), and their eleven-year-old brother, Erik Freeman (Erik),

were also home. At some point during the evening, Brenda, Birdwell, and the

Brothers got into an argument about Birdwell needing to go home. As a result

of this argument, Bryan fatally stabbed Brenda in the back and shoulder while

Birdwell bludgeoned her head with a pickaxe handle.

       After killing Brenda, Birdwell and the Brothers proceeded upstairs,

where David retrieved an aluminum baseball bat from a closet. David and

Birdwell stood on either side of the bed where Dennis was sleeping. David

used the baseball bat to bludgeon Dennis’ face and chest repeatedly, causing

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1 Bryan timely appealed from his judgment of sentence at docket number CP-

39-CR-0001077-1995 (No. 1077-1995), entered on February 29, 2024, and
David timely appealed from his judgment of sentence, at docket number CP-
39-CR-0001078-1995 (No. 1078-1995), entered on February 27, 2024. We
consolidate these cases sua sponte because the underlying facts are the same,
the Brothers raise virtually identical claims on appeal, and we grant the same
relief. See Pa.R.A.P. 513 (“[W]here the same question is involved in two or
more appeals in different cases, [this Court] may . . . order them to be argued
together in all particulars as if but a single appeal.”).

2 18 Pa.C.S.A. § 2501(a).


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his death. David then used a knife to stab Dennis in the chest. At some point,

Birdwell also struck Dennis and Dennis’ throat was cut. During the above-

described events, Erik was also murdered. However, neither the Brothers nor

Birdwell were ever convicted for Erik’s death. 3 At the time of this incident,

Bryan was seventeen years old and David was sixteen years old.

       On December 7, 1995, and December 15, 1995, Bryan and David each

pled guilty to one count of first-degree murder. Immediately after accepting

their guilty pleas, the trial court imposed the then-mandatory sentences of life

imprisonment without parole. The Brothers did not file post-sentence motions

or notices of appeal.

       On July 6, 2010, Bryan filed a Post Conviction Relief Act (PCRA) petition,

his first.   See 42 Pa.C.S.A. §§ 9541-9546.       After procedural history not

relevant to this appeal, Bryan’s PCRA petition was dismissed as untimely and

this Court affirmed. See Commonwealth v. Freeman, 

 (Pa.

Super. 2015) (Table). Bryan filed a petition for allowance of appeal in our

Supreme Court, which was granted, and our Supreme Court vacated and

reversed this Court based on the decisions of the United States Supreme Court

in Miller v. Alabama, 

 (2012), and Montgomery v. Louisiana,

 (2016). See Commonwealth v. Freeman, 

 (Pa.

2016).



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3 Birdwell, an adult, was tried separately from the Brothers.




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       Similarly, on July 7, 2010, David filed a PCRA petition, his first. The

PCRA court dismissed his PCRA as untimely and this Court affirmed.           See

Commonwealth v. Freeman, 

 (Pa. Super. 2015) (Table).

David filed a petition for allowance of appeal in our Supreme Court, which was

granted, and our Supreme Court vacated and reversed this Court based on

Miller and Montgomery. See Commonwealth v. Freeman, 

(Pa. 2016).

       In light of Miller and Montgomery, our Supreme Court concluded that

Miller had announced a substantive rule that is retroactive for cases on

collateral review. See Freeman, 

; Freeman, 

.

Upon remand, this Court reversed and vacated the PCRA court’s dismissals of

the Brothers’ PCRA petitions and remanded for further proceedings consistent

with Montgomery and Miller. See Commonwealth v. Freeman, 

 (Pa. Super. 2016) (Table) (remanding Bryan’s case for new sentencing

hearing); see also Commonwealth v. Freeman, 

 (Pa. Super.

2016) (Table) (remanding David’s case for new sentencing hearing). 4

       On remand, the PCRA court scheduled the Brothers’ resentencing for

September 22, 2016.          There were significant delays, 5 but the only delay
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4 We note, as it is relevant to the claims raised on appeal, that during appellate

litigation, the trial docket was reassigned to the Honorable Maria L. Dantos.

5 These delays include, but are not limited to, COVID-19-related delays,
defense requests for funding for the Brothers to meet with experts for
psychological evaluations, the Commonwealth filing notices of intent to seek
(Footnote Continued Next Page)


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relevant to the claims raised herein is that, during the pendency of the

Brothers’ resentencing, Judge Dantos retired, see supra at n.4, and the case

was reassigned to the Honorable Douglas G. Reichley (hereinafter Judge

Reichley or the trial court).

       After the case was reassigned to Judge Reichley, the Brothers filed a

joint motion for recusal on February 12, 2024. See Joint Motion for Recusal,

2/7/24, at 1-7.      The Brothers argued that Judge Reichley had previously

served as the Lehigh County prosecutor in the case of a copycat killer, Jeffrey

Howorth.6 See id. The Brothers asserted that the Commonwealth’s theory

in Howorth’s case was that Howorth was “inspired” by the Brothers’ murders

of their family, and that was why Howorth murdered his own family weeks

later. See id. The Brothers contended that Judge Reichley’s prosecution of

Howorth, and subsequent news articles regarding comments Judge Reichley

made during his prosecution of Howorth,7 raised substantial doubts regarding
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sentences of life imprisonment, and the Commonwealth seeking stays of
proceedings while our Supreme Court decided Commonwealth v. Batts, 

 (Pa. 2017).

6 On March 3, 1995, Howorth shot and killed both of his parents with a hunting

rifle. It is uncontested that, during their investigation, the police uncovered
writings authored by Howorth in which he claimed he had been “inspired” or
“liberated” by the Brothers’ murder of their family. See Trial Court Opinion,
10/15/24, at 8 (summarizing Howorth case). Ultimately, Howorth was found
not guilty by reason of insanity.

7 These media comments include then-assistant district attorney (ADA)
Reichley’s comments that the Freeman Brothers’ murders were “central” to
the Commonwealth’s theory of the case against Howorth. See Joint Motion
(Footnote Continued Next Page)


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Judge Reichley’s ability to preside impartially over the Brothers’ resentencing.

See id. at 4-7.

       On February 12, 2024, the Brothers filed an amended motion for

recusal, based upon information that Judge Reichley was also the prosecutor

who represented the Commonwealth in the appeal of Birdwell, the Brothers’

co-defendant. See Amended Motion for Recusal, 2/12/24, at 1-3. On the

same day, the trial court proceeded to a resentencing hearing, at which it first

addressed the joint motion for recusal. After argument, the trial court denied

the motion and proceeded to conduct the resentencing hearing. See Order,

2/12/24, at 1.

       From February 12, 2024, through February 21, 2024, the trial court

conducted a multi-day resentencing hearing, after which the court imposed

sentences of 60-years-to-life imprisonment for both Bryan and David.         On

February 27, 2024, the trial court issued amended judgments of sentence to

reflect that the original 1995 sentences were vacated. Both Bryan and David

filed timely post-sentence motions, which the trial court denied.




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to Recuse, 2/12/24, at 1-7 (summarizing news articles); see also id. at
Exhibits 1-7 (news articles from, inter alia, the Philadelphia Inquirer
summarizing then-ADA Reichley’s comments about the Freeman Brothers’
trial, its importance in his prosecution of Howorth, and his disagreement with
the jury’s finding of insanity). Those comments further demonstrate that
then-ADA Reichley’s theory against Howorth was that the Freeman Brothers’
actions “liberated” Howorth and “inspired” him to kill his own family. See id.

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      Bryan and David filed timely notices of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal.

Bryan raises the following claims for our review:

      [1.] Did not the [trial] court err, abuse its discretion[,] and violate
      due process, in denying [the Brothers’] joint motion for recusal,
      due to the [trial] court’s earlier role as prosecutor in [Birdwell]’s
      appeal in the same case, with the identical facts, where [Birdwell]
      was alleged to have acted in concert with [the Brothers]; and the
      [trial] court’s role as trial prosecutor in another earlier murder
      case in which his theory of prosecution was that [the Brothers’]
      crimes in this case inspired and enabled the murders in the case
      he prosecuted?

      [2.] Did not the [trial] court err and abuse its discretion in:

         (i) Imposing a manifestly excessive sentence due to its
         consideration of only the gravity of the offense, to the
         exclusion of the other critically important factors of 42
         Pa.C.S.[A.] § 9721(b).

         (ii) Imposing a manifestly excessive sentence based in part
         on the impermissible sentencing recommendations of two
         police officials involved in the prosecution?

      [3.] Is not the [60]-years-to-life sentence imposed manifestly
      excessive and a de facto life sentence under Article I, Section 13,
      of the Pennsylvania Constitution, requiring proof, not found here,
      that the juvenile was permanently incorrigible, irreparably
      corrupt, or irretrievably depraved?

Bryan’s Brief, at 5-6.

      David raises the following claims for our review:

      [1.] Are the Eighth and Fourteen[th] Amendments violated where
      the Court of Common Pleas Judge presiding over a juvenile-lifer
      resentencing hearing declines to recuse himself when he has
      previously participated as [a] prosecutor in related matters, and
      expressed opinions concerning [David]’s guilt and influence upon



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      other crimes, creating an actual bias, or at a minimum, an
      appearance of bias?

      [2.] When a juvenile defendant has demonstrated a capacity for
      change and rehabilitation, does it violate the Eighth Amendment
      of the United States Constitution’s prohibition on cruel and
      unusual punishment to sentence the juvenile to a de facto life
      sentence?

      [3.] Where a sentencing court finds that a juvenile defendant has
      demonstrated a capacity for change and rehabilitation, does it
      violate Article 1, Section 13 of the Pennsylvania State
      Constitution’s prohibition on cruel punishments to sentence the
      juvenile to a de facto life sentence?

      [4.] Did the sentencing court abuse its discretion in imposing a
      sentence of 60 years to life, rendering [David] ineligible for parole
      until he is 76 years old, where the sentencing court deviated from
      sentencing guidelines and focused only [on David]’s crime to the
      detriment of fully considering his youth, history, and rehabilitative
      needs?

David’s Brief, at 5-6.

      It is well-settled that “[w]here a jurist rules that he . . . can hear and

dispose of a case fairly and without prejudice, that decision will not be

overturned on appeal but for an abuse of discretion.” Commonwealth v.

Watson, 

 (Pa. Super. 2020).

      In reviewing the denial of a recusal motion to determine whether
      the judge abused his discretion, we recognize that our judges are
      honorable, fair[,] and competent. Based upon this premise,
      where a judge has refused to recuse himself, on appeal, we place
      the burden on the party requesting recusal to establish that the
      judge abused his discretion.

                                     …

      The term “discretion” imports the exercise of judgment, wisdom[,]
      and skill so as to reach a dispassionate conclusion, within the
      framework of the law, and is not exercised for the purpose of


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     giving effect to the will of the judge. Discretion must be exercised
     on the foundation of reason, as opposed to prejudice, personal
     motivations, caprice[,] or arbitrary actions. Discretion is abused
     when the course pursued represents not merely an error of
     judgment, but where the judgment is manifestly unreasonable or
     where the law is not applied or where the record shows that the
     action is a result of partiality, prejudice, bias[,] or ill will.

Commonwealth v. King, 

 (Pa. 2003) (internal citations

and quotation marks omitted). “In general, a motion to recuse is properly

directed to and decided by the jurist whose participation the moving party is

challenging.” Watson, 

.

     In applying the above standard, we note that:

     The inquiry is not whether a judge was in fact biased against the
     party moving for recusal, but whether, even if actual bias or
     prejudice is lacking, the conduct or statement of the court
     raises an appearance of impropriety. The rule is simply that
     disqualification of a judge is mandated whenever a significant
     minority of the lay community could reasonably question the
     court’s impartiality.

Commonwealth v. Druce, 

 (Pa. Super. 2007) (internal

quotations and citations omitted; emphasis added). “There is no need to find

actual prejudice, but rather, the appearance of prejudice is sufficient to

warrant the grant of new proceedings.” Commonwealth v. Rhodes,

 (Pa. Super. 2009) (emphasis added).

     Furthermore, motions for recusal are not limited to judges who preside

over trials, but extend to other proceedings, including sentencing.         See

Druce, 

 (“[A] defendant is entitled to sentencing by a judge

whose impartiality cannot reasonably be questioned.”); see also Rhodes,

 (“The sentencing decision is of paramount importance in our


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criminal justice system, and must be adjudicated by a fair and unbiased judge

. . . who assess[es] the case in an impartial manner, free of personal bias or

interest in the outcome.”).

      In the context of a now-sitting judge having prior employment in the

district attorney’s office, the United States Supreme Court has held that in

order to determine whether a judge harbors an unconstitutional level of bias,

the inquiry is an objective one wherein the requisite question is whether “the

average judge . . . is likely to be neutral, or whether there is an

unconstitutional potential for bias.” Williams v. Pennsylvania, 

 (2016) (internal quotations omitted). Further, there is an impermissible risk

of actual bias when a judge has had “significant, personal involvement as a

prosecutor in a critical decision regarding the defendant’s case.” 

      By way of background, the defendant in Williams was convicted of the

1984 murder of Amos Norwood and sentenced to death. During the trial, the

then-district attorney of Philadelphia, Ronald Castille, approved the trial

prosecutor’s request to seek the death penalty against Williams. See 

.   In 2012, Williams filed a successful PCRA petition and the PCRA court

stayed his execution and ordered a new sentencing hearing. See 

 The

Commonwealth appealed to the Pennsylvania Supreme Court, whose then-

chief justice was former District Attorney Castille, to vacate the PCRA court’s

stay of execution. See 

 Williams filed a response, in which he requested

that Chief Justice Castille recuse himself, which was denied.            See 

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Ultimately, the Pennsylvania Supreme Court vacated the PCRA court’s order

and reinstated Williams’ death sentence. See 

      Williams sought certiorari in the Supreme Court of the United States,

which was granted.      See 

    Based upon its review, the United States

Supreme Court held that Chief Justice Castille’s prior authorization to seek the

death penalty in Williams’ case amounted to a “significant personal

involvement in a critical trial decision” and that his failure to recuse presented

an unconstitutional risk of bias. 

. In reaching these conclusions, the

United States Supreme Court explained:

      No attorney is more integral to the accusatory process than a
      prosecutor who participates in a major adversary decision. When
      a judge has served as an advocate for the State in the very case
      the court is now asked to adjudicate, a serious question arises as
      to whether the judge, even with the most diligent effort, could
      set aside any personal interest in the outcome.         There is,
      furthermore, a risk that the judge “would be so psychologically
      wedded” to his or her previous position as a prosecutor that the
      judge “would consciously or unconsciously avoid the appearance
      of having erred or changed position.” Withrow [v. Larkin], 421
      U.S. [35,] 57 [(1975)]. In addition, the judge’s “own personal
      knowledge and impression” of the case, acquired through his or
      her role in the prosecution, may carry far more weight with the
      judge than the parties’ arguments to the court.          [In re]
      Murchison, [

,] 138 [(1955)].

                                      …

      The involvement of other actors and the passage of time are
      consequences of a complex criminal justice system, in which a
      single case may be litigated through multiple proceedings taking
      place over a period of years. This context only heightens the need
      for objective rules preventing the operation of bias that otherwise
      might be obscured. Within a large, impersonal system, an
      individual prosecutor might still have an influence that, while not
      so visible as the one-man grand jury in Murchison, is

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         nevertheless significant. A prosecutor may bear responsibility for
         any number of critical decisions, including what charges to bring,
         whether to extend a plea bargain, and which witnesses to call.
         Even if decades intervene before the former prosecutor revisits
         the matter as a jurist, the case may implicate the effects and
         continuing force of his or her original decision.       In these
         circumstances there remains a serious risk that a judge would be
         influenced by an improper, if inadvertent, motive to validate and
         preserve the result obtained through the adversary process. The
         involvement of multiple actors and the passage of time do not
         relieve the former prosecutor of the duty to withdraw in order to
         ensure the neutrality of the judicial process in determining the
         consequences that his or her own earlier, critical decision may
         have set in motion.

Williams, 

 (emphasis added).

         The United States Supreme Court further considered the fact that Chief

Justice Castille did not personally prosecute Williams, but nevertheless

emphasized that his “significant, personal involvement in a critical decision in

Williams’[] case gave rise to an unacceptable risk of actual bias.” 

.

         Instantly, as noted above, Judge Reichley previously represented the

Commonwealth of Pennsylvania as an ADA against the Brothers’ co-

defendant, Birdwell, on appeal, and prosecuted the copycat killer, Howorth, at

trial.

         In light of the foregoing, we conclude that an appearance of bias or

impartiality exists under these circumstances. Indeed, Judge Reichley’s role

as an advocate against Birdwell was so related and intertwined with the

Brothers’ case as to create an impermissible risk of actual bias.             See

 see also Withrow, supra; 

 In our

view, Judge Reichley’s prior representation of the Commonwealth against



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Birdwell, as the Brothers’ co-defendant in the same case, at any stage of the

proceedings, requires that he recuse from the Brothers’ cases. See 

     Accordingly, Judge Reichley abused his discretion by refusing to

recuse.8

       In reaching our conclusion, we emphasize that our standard of review is

not whether Judge Reichley is subjectively capable of being impartial. See

        Rather, our standard of review is an objective one of

whether a reasonable person would conclude that an appearance of bias

exists. See id.; see also 

 The holding in Williams makes

it clear in this case that if a jurist has previously represented the

Commonwealth in a case against a defendant, or even that of a co-defendant

in the same case, he or she must recuse, as such prior representation creates

an objective appearance of bias, which is impermissible.        See 

 Accordingly, we vacate the Brothers’ judgments of sentence, vacate

Judge Reichley’s order denying the joint motion for recusal, and remand for


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8 While we do not hold that it is independently sufficient nor essential here,

we note that Judge Reichley’s role as the prosecutor of Howorth, who
expressed how he was “inspired” by the Brothers to murder his own parents
within a week of the Brothers’ crimes, also weighs in favor of our holding here.
We note that then-ADA Reichley’s media comments and prosecution of
Howorth certainly strengthen the need for recusal in the instant cases where
the Commonwealth’s theory against Howorth was that his killings were
inspired by the Freeman Brothers’ brutal murders of their family, and that the
Brothers’ murders were “central” to the prosecution of Howorth. See supra,
at n.7. Indeed, such comments could tend to demonstrate that then-ADA
Reichley was intimately familiar with the facts of Freeman Brothers’ cases.


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the appointment of another jurist who will preside over the Brothers’ new

resentencing proceeding.9

       Judgments of sentence vacated.              Cases remanded.   Jurisdiction

relinquished.

Sullivan, J., joins this Opinion.

Stevens, PJE files a Dissenting Opinion.




Date: 1/9/2026




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9 In light of our disposition, we need not address the Brothers’ remaining
claims.

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