Commonwealth v. Badger, Appellant.
Superior Court of Pennsylvania
February 2, 1976
Allen E. Ertel, District Attorney, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., February 2, 1976:
Appellant contends that the trial court erred in refusing to admit the signed statement of her alleged co-conspirator and that trial counsel was ineffective in failing to request that the trial judge recuse himself following appellant‘s withdrawal of her guilty plea.
The circumstances leading to appellant‘s arrest for conspiracy, possession and delivery of heroin were related by Trooper Blackledge, of the State Police, who had assumed the role of an undercover narcotics agent. He testified that he arranged with Launey Rivers to meet at a residence in Williamsport on March 14, 1974, to purchase a quantity of heroin. Trooper Blackledge arrived at the home and engaged in conversation with Rivers and Robert Moore. Appellant was present during the negotiations, but did not take an active part in the discussion. Subsequently, appellant left the residence and drove to another house in Williamsport which was under surveillance, and then returned, carrying a paper bag containing three hundred glassine bags of heroin.
On September 30, 1974, appellant tendered a guilty plea. After the prosecutor summarized the Commonwealth‘s evidence, the trial judge asked appellant whether she was admitting this version of the case. When appellant responded negatively, the trial judge requested that
At trial, appellant attempted to call Robert Moore as a witness, but he advised the court that he would invoke his Fifth Amendment privilege against self-incrimination. Appellant then offered a typed statement accompanied by a notarized affidavit signed by Robert Moore. The Notary Public, who was also an attorney, testified that Robert Moore read the entire statement before signing the affidavit. The statement was taken in Lycoming
In Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974), our Supreme Court stated that the Supreme Court‘s decision in Chambers v. Mississippi, 410 U.S. 284 (1973), did not require the admission of every declaration against penal interest. Our Court had adopted a
The concurring opinion in Nash offered a different solution to the problem of the admissibility of declarations against penal interest. Justice ROBERTS, speaking for Chief Justice JONES and Justice POMEROY, stated that “...this Court should adopt as part of the common law of evidence the view permitting extrajudicial declarations against penal interest to be admitted into evidence as an exception to the hearsay rule. No need would then exist to consider the constitutional issues presented by these cases.” 457 Pa. at 303, 324 A.2d at 347. The test advanced by Justice ROBERTS would require the admission of the statement if “its proponent can show that the declaration states facts that are against the penal interest of the declarant, and that the declarant is unavailable at the time of trial. McCormick‘s Handbook of the Law of Evidence §276 (2d ed. E. Cleary 1972).” Id. at 305-306, n.4, 324 A.2d at 348, n.4.
There is no need in the instant case to decide if the statement is admissible under either the lead or concurring opinion in Nash, because our Supreme Court has recently held that a similar statement offered under similar circumstances was inadmissible. See Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554, 558 (1975).3 The
The remainder of the declaration was clearly against Moore‘s penal interest. The facts contained in the statement would subject Moore to possible criminal sanction. In fact, the District Attorney at the close of trial instructed appellant‘s counsel to retain the statement because “[i]t will be requested by the Commonwealth in the case of Robert Moore and that is evidence in that case.” Furthermore, the declarant was “unavailable” because he invoked his constitutional privilege against self-incrimination. See Commonwealth v. Colon, supra; McCormick‘s Handbook of the Law of Evidence, supra, §280; 5 J. Wigmore, Evidence, §1409 (Chadbourn rev. 1974). The declaration, therefore, meets the test for admissibility offered by the concurring opinion in Commonwealth v. Nash, supra. However, as was the case in Colon, the declaration is inadmissible because it is not relevant: “Throughout appellant‘s trial, it was the Commonwealth‘s theory that Hernandez and appellant had acted together in committing the crime. Thus Hernandez‘s statement admitting his role in the crime was not inconsistent with
Appellant‘s final contention is that she was denied effective assistance of counsel because her trial attorney failed to ask the judge to recuse himself following appellant‘s withdrawal of her guilty plea. Because appellant‘s present counsel did not represent her at trial, the issue is properly before us. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Before the issue of ineffectiveness can be resolved, however, it must first be decided whether, under the facts of this case, it would be reversible error for a trial judge to deny a request that he recuse himself. In Commonwealth v. Goodman, 454 Pa. 358, 362, 311 A.2d 652, 654 (1973), our Supreme Court held that a “judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise inadmissible during the trial of the cause.” That is precisely what occurred in the instant case. The prejudicial nature of a prior guilty plea was discussed in the recent case of Commonwealth v. Conti, 236 Pa. Superior Ct. 488, 345 A.2d 238 (1975), where we held that it was reversible error for a trial judge to deny a motion for mistrial after hearing testimony that the defendant had pleaded guilty at a preliminary hearing, even though the judge sat without a jury. Conti did not announce a fixed rule for determining when a trial judge “will be regarded as having been able to maintain his impartiality after hearing incompetent evidence,” 236 Pa. Superior Ct. at 501, 345 A.2d at 245, but noted that two factors are of “critical import” in a case-by-case determination: the inherently prejudicial nature of the evidence involved, and the importance of the evidence to the particular case, i.e., the extent of other evidence of guilt. Although the Commonwealth‘s other evidence in the instant case is stronger than it was in Conti, it would seem that had counsel requested recusation, it would have been error for the trial judge to refuse.
The fact that trial counsel failed to proceed before a different judge, however, is not dispositive of the issue presently before us. It is one thing to say that counsel could have successfully requested recusation; it is quite another matter to hold that his client was denied her right to effective assistance of counsel by his failure to do so. The standard for judging ineffectiveness is well-settled: “We cannot emphasize strongly enough, however, that our inquiry ceases and counsel‘s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client‘s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel‘s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967). It is not necessary to inquire into possible prejudice to the defendant “[s]ince our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Obviously, then, if there is no reasonable basis to support trial counsel‘s decisions (a finding prerequisite to a con-
In the instant case, appellant initially tendered a plea of guilty. During the District Attorney‘s recitation of the facts, he stated that appellant told Trooper Blackledge “This is my deal.” When the District Attorney concluded his summary, defense counsel stated: “She didn‘t say anything to the effect this was her deal or anything like that. If there was any shortage, she would make it up. [The District Attorney] seemed to imply that it was her deal totally.” The officer, upon questioning from the bench, admitted that this alleged statement by appellant was not included in his testimony at the preliminary hearing, but was in fact true. At that point, the trial judge asked appellant if those were the facts she was admitting. When appellant stated that they were not, defense counsel informed the court that appellant now wished to change her plea.
It is fair to infer that counsel and appellant, after reviewing the testimony at the preliminary hearing, decided that it was in appellant‘s best interest to plead guilty, because she was not depicted as the “ringleader” of the transaction. During the colloquy, however, it became apparent that the Commonwealth would now rely on a previously undisclosed fact: that appellant had stated that it was “her deal.” Because this evidence placed appellant in a worse light than counsel had anticipated, it was certainly reasonable to withdraw the plea. It should be noted that counsel was prepared to go to trial, and to use Robert Moore‘s statement as the defense.
At this point, then, counsel had two distinct choices: he could proceed before Judge RAUP, or he could request recusation and go to trial before another judge at a later time. In deciding whether counsel‘s decision constituted ineffective assistance, we must determine whether appellant‘s chances of success before a judge who did not know
Judgment of sentence is affirmed.
PRICE, J., concurs in the result.
DISSENTING OPINION BY SPAETH, J.:
Appellant initially offered a plea of guilty before Judge RAUP, but when the guilty plea colloquy disclosed that the Commonwealth would try to depict her as the ringleader of the transaction, she withdrew her plea. Thereupon appellant waived her right to a jury trial and began a bench trial with Judge RAUP presiding. Although the entry and withdrawal of the plea and the commencement of the bench trial occurred in immediate sequence, appellant‘s counsel did not ask the judge to recuse him-
The standard for judging ineffectiveness of counsel is well-settled:
“We cannot emphasize strongly enough, however, that our inquiry ceases and counsel‘s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client‘s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel‘s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967). (Emphasis added) 1
Neither the majority opinion, the Commonwealth‘s brief, nor the lower court record suggests “any reasonable basis” for counsel‘s failure to request Judge RAUP‘S recusal; nor can I imagine one. A guilty plea is inherently prejudicial. Counsel cannot reasonably assume that a judge as the trier of fact will be able to put that plea out of his mind and arrive at an impartial adjudication of guilt. See Commonwealth v. Conti, 236 Pa. Superior Ct. 488, 345 A.2d 238 (1975).
A fair trial before an impartial tribunal is a basic requirement of due process. Peters v. Kiff, 407 U. S. 493 (1972) (judgment of the Court, per MARSHALL, J.); In re Murchison, 349 U.S. 133 (1955); Tumey v. Ohio, 273 U.S. 510 (1927); Commonwealth ex rel. Light v. Maroney, 413 Pa. 254, 196 A.2d 659 (1964). It is therefore fundamental that counsel take every possible reasonable measure to assure that his client is tried before an impartial judge. Counsel here took no such measures, thereby denying appellant effective assistance of counsel.