Commonwealth v. Brown

477 A.2d 1364, 329 Pa. Super. 85, 1984 Pa. Super. LEXIS 4728
Superior Court of Pennsylvania·Decided May 18, 1984·No. No. 3349·Published·Cited by 8 cases

Opinion

JOHNSON, Judge:

Following a non-jury trial before the Honorable Charles L. Durham, Appellant, Ernest Brown, was convicted on April 8, 1982 of third-degree murder,1 aggravated assault,2 and possession of an instrument of crime.3 A timely appeal was taken to this court raising several questions for our consideration. We affirm.

Of paramount concern is Appellant’s contention that he did not receive effective assistance of counsel because his trial attorney did not seek recusal of the trial judge. Appellant appeared before Judge Durham on April 5,1982 expect[90] ing to plead guilty to all charges, but he changed his mind during the guilty plea colloquy and informed Judge Durham that he wanted a jury trial. Following an off-the-record discussion between Appellant, his trial counsel, and the prosecuting attorney, Appellant Brown changed his mind again and told Judge Durham that he did not want a jury trial, but rather wished to be tried by a judge in the place of a jury.

The next day, April 6, 1982, Judge Durham heard and denied Appellant’s suppression motion. Appellant had attempted to suppress a knife seized in his apartment and a statement which he had given to the police. Following Judge Durham’s denial of Appellant’s suppression motion, the trial court conducted a colloquy with Appellant concerning Appellant’s waiver of a jury trial. After explaining the various aspects and procedural advantages of a jury trial, Judge Durham informed Appellant about his knowledge of the case and offered Appellant an opportunity to have his case heard by another judge. As the following excerpt from the trial transcript indicates the trial court’s colloquy was quite thorough.

“Q. In hearing this Motion to Suppress, I passed upon the credibility of certain witnesses. It might have been against you; do you understand that?
A. Yes, I understand.
Q. If you care to have another Judge hear your case, I will send this to another court and another judge can hear your case without a jury if that is what you want; do you understand that?
A. I understand.
Q. I don’t have to be the Judge to hear your case. You can still have a waiver trial, a trial without a jury, before another Judge; do you understand that?
A. I understand.
Q. Do you want me to hear the case without a jury?
A. Yes, sir, I do.
[91] Q. Then, you understand that I am also the Judge that heard initially that you intended to plead guilty to third degree murder; do you understand that?
A. I understand.
Q. And you changed your mind and you said you wanted a jury trial. Then, you changed your mind again and said you wanted a waiver trial. I heard all of that; do you understand?
A. Yes, sir.
Q. Now, if you want me to recuse myself, that is to say if you want me to send it to another Judge to hear it, I will do that; do you understand that?
A. Yes.
Q. Do you still want me to hear the case?
A. I do.
Q. That is your own wish; is that correct?
A. That’s right.
Q. Has anyone promised you anything to get you to waive your right to a jury?
A. No.
Q. Has anyone threatened you to get you to waive your right to a jury?
A. No.
Q. Do you have any questions? Are you satisfied with your lawyer?
A. Very satisfied.
Q. You are very satisfied with your lawyer?
A. Yes.”

(N.T., 4/7/84, at 36, 37)

Appellant’s present counsel argues that trial counsel was ineffective in failing to request recusal of the trial judge since the trial judge ruled against Appellant at the suppression hearing and was aware that Appellant had initially intended to plead guilty.

In Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978), as in the instant case, the defendant had pleaded guilty but then decided to withdraw her guilty plea. The [92] defendant was subsequently convicted following a non-jury trial before the same judge who initially heard the guilty plea. Defense counsel in Badger did not request recusal. Unlike the instant case, however, the trial judge did not offer to recuse himself.4 The supreme court found that counsel’s failure to request recusation constituted ineffectiveness and granted a new trial.

In the case at bar, as distinguished from Badger, the trial judge made certain that Appellant was aware of the fact that he had heard the suppression motion and was aware that Appellant had originally intended to enter a guilty plea. On two separate occasions the trial judge indicated that Appellant could have the case heard by another judge. The decision to continue to have Judge Durham hear the case was made by Appellant with full knowledge of the trial court’s prior involvement in the case and with full knowledge the he could opt to have the case tried by another judge.

In analyzing Appellant’s claim of ineffectiveness, we must first determine whether Appellant raises an issue of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude that Appellant has raised an issue of arguable merit; we then must examine the approach employed by trial counsel in light of the available alternatives to determine whether counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). See also Commonwealth v. Stitzel, 309 Pa.Super. 43, 45, 46, 454 A.2d 1072, 1074 (1982).

In applying the traditional Maroney-Hubbard test for determining whether trial counsel was ineffective we must first look to see if an issue of arguable merit is raised. Since Judge Durham indicated on the record that he would recuse himself upon request, it is obvious that a motion for [93] recusal made by trial counsel with Appellant’s consent would have been granted. Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978). Under these circumstances we must conclude that this issue has arguable merit.

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Commonwealth v. Brown, 477 A.2d 1364, 329 Pa. Super. 85, 1984 Pa. Super. LEXIS 4728 (Pa. Ct. App. 1984).

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