*1 Counsel for a can more petitioner ably PCHA explore legal grounds facts, for complaint, investigate underlying promote articulate claims for relief and efficient administra- tion of justice. of the is
Accordingly, the order court below vacated and the matter is remanded to that court with instructions to determine whether and if appellant indigent so to counsel. If it is determined that appoint appellant is enti- counsel, tlеd to the she appointment may, upon request, amend her petition.
It is so ordered.
Submitted Oct. 1981.
Decided Dec. 1981.
Reargument 16; Denied Feb. *2 Packel, Chief, Div., DeMasse, Appeals John W. Elaine Defenders, Asst. Public for appellant. Chief, Lawler, Div.,
Robert Appeals B. Gaele McLaughlin, Barthold, Asst. Dist. Attys., appellee. O’BRIEN, J., ROBERTS, NIX, LARSEN,
Before C. and FLAHERTY, WILKINSON, KAUFFMAN and JJ.
OPINION NIX, Justice. Davis, William
Appellant, indicted as of June Ses- sions, simple assault, 1975for and and aggravated possessing instruments of crime. He was tried and convicted of all Post-verdict motions were charges. filed and following 1, 1976, their denial on July appellant was sentenced to concurrent and consecutive sentences prison totalling seven Thereafter, (7V2) (15) and onе-half fifteen years. appel- lant filed a direct to the which appeal Superior Court dissent, affirmed, without the judgments of sentence on A October for the allowance of timely petition with this appeal grаnted. was filed Court and was The essence of claim for relief is that the appellant’s trial conduct exceeded the bounds of failed judge’s propriety, and to maintain thus him of his impartiality, depriving right to a fair trial. To this hе number support proposition, cites a such as the court’s objections refusal defense permit counsel to make motions out of the hearing of the or to motions; make on that the argument court unnecеssarily motives for the crime suggested possible charge in his to the that the court misstated the in a jury; evidence manner favorable to the and prosecution highly prejudicial to the defense; that the court cross impeded examination by defense by repeatedly at interrupting points; critical *3 the court’s manner toward the his appellant, counsel and his witnesses was sarcastic and reflected his (the court’s) disbe- lief of the defense’s evidence. We need not all consider allegations these since one of the cited complaints is suffi- cient in itself to the support relief now appellant seeks. trial, the course of
During counsel for the defense adjudicated contempt the trial A by judge. part this occurred in the episode presence of the jury. For the follow, reasons that we are of the view that the prejudicial effect of this еvidence was such that appellant was indeed denied a fair trial.
The incident occurred during defense’s cross examina- victim, tion of the Mr. Mack Robinson. From the record it that the trial appears judge on at least three separate occasions interrupted the examination of the witness and which were interposed questions of a nature to rehabilitate that witness. Just prior the incident in question, defense counsel had attempted establish that the District Attor- aided the witness in ney preparation his testimony, thereby attempting to cast doubt on the witness’s testimony.
Q. How were long you with District Attorney? Quite A. awhile. A A good good while. while. pretty
Q. Pardon me? while. A pretty good
A. while?
AQ. pretty good Yeah.
A. ask about Attorney you anything Did the District Q. was taken or had been you or not from anything whether be taken from you? had to attempted I don’t know if he did or not. A. I don’t recall. that? Q. You don’t recall
A. No. tell Attorney you? the District
Q. What did A. Huh. tell Attorney you? the District
Q. What did [******] know.
A. I don’t it remember, from this what was morning, You don’t Q. told Attornеy you? that the District No. A. at all he said to anything you? You don’t recall
Q. recall, know. I don’t to tell you I can’t don’t say. A. the truth. remember you “to this can saying Are
Q. you ago, you? 6 months are something said [******] No.
A.v said 6 months something being ago— In Q. regard *4 Excuse me. THE COURT:
EXAMINATION THE BY COURT: Robinson, understand what you you’re being Mr. do
Q. asked?
A. Yeah. here, asked if talked to this man
Q. being you You’re Did talk to him? Attorney, morning. you District this Yeah. A. talked him he said
Q. something you, you When to to you him, right? to is it was something you said that Whatever about, together, you talked about did not? you talked A. Yeah. he
Q. What did to about this case? say you told me just A. He when I come intо the courtroom to truth, tell the and that was all. else?
Q. you Did he tell anything No, nothing A. not else.
CROSS-EXAMINATION (Defense counsel): BY MR. SAGEL to, have a for him Q. That would taken second or to you were tell that. You said him a you you talking long to while, right? is that I his long
A. was in office a while. We do no didn’t talking though.
Q. Who did the or the talking, you District Attorney? Who was talkative one? I
A. He was to me. didn’t talking do much talking. EXAMINATION BY THE COURT: he
Q. What was about? talking you A. He wasn’t too much. talking about Just about my case, case, thаt all. About like my is when I on the get to tell stand me what I know about the What case. I’m happened to me. That’s what doing.
Q. doing That’s what now? your [sic] A. Yes.
Q. Did he tell are not you say anything you saying now?
A. No.
Q. Did he you part tell that was not say anything case? your
MR. and— Judge, may interrupt SAGEL: Never interrupt THE COURT: court. Sit down. *5 respectfully— I MR. SAGEL: down. THE COURT: Sit object, Sir. respectfully I
MR. SAGEL: sit down. to to you I said COURT: THE object— I must SAGEL: MR. We’ll Sheriff, custody. him into take
THE COURT: jury. of the recess, members stand in P.M.)1 at 3:15 (Recessed courtroom, appellant’s to the returned jury
After conference a sidebar was granted and requested counsel jury: presence of the following out of the occurred The Sir, contempt fine is one you’re court. The in THE COURT: hundred dollars. May heard? I be MR. SAGEL: рay fine. No, to have until tomorrow Sir. You THE COURT: May Sir? a statement I make MR. SAGEL: No. THE COURT: May I make a motion? MR. SAGEL: you for a mistrial? Do move COURT: THE Yes. SAGEL: MR. Anything else? Denied. THE COURT: Honor, contemptuous. I was I don’t believe Your SAGEL: MR. during Sir, you interrupted its effort this court THE COURT: You five times to sit down. You were told postulate evidence. withstanding the court. a direction of persisted not not. You did understanding— my It is MR. SAGEL: your understanding, Sir. in not interested I am THE COURT: obey the Your function is to of the court. as an officer You’re here obeying contempt by You have the court. not acted in You court. morning pay your fine. until tomorrow wishes, your your in view of apologize, if Honor SAGEL: MR. opinion that— your apologizing, in because interested I am not THE COURT: my opinion. motion, saying your say you own so of If wish you may apologize contempt, for that. you’re then in If, opinion— in Your Honor’s MR. SAGEL: contempt. my opinion. You’re in You heard THE COURT: contempt. my to be in not intention It was MR. SAGEL: you contеmpt or did you were do not know that If THE COURT: not, Bring contempt. my You were in fault. that is not Back. P.M.) at 3:35 (The jury to the courtroom returned Robinson, resumed: Mack THE Gentlemen? COURT: Honor, may begin, I see Your Honor at Your Before I SAGEL: MR. sidebar? THE Yes. COURT: Thеreafter, with the court. the court excused the jury for *6 the of the The remainder trial resumed next day. the day. outset,
At be the it must made clear our concern here is not whether the of conduct the attorney justified the оf adjudication We are contempt. upon called to determine whether the impact of this incident was to prejudicial appel- case; lant’s and if so, denied, was he a result, a fair as trial. The in this casе witnessed jury the attorney appellant for being admonished by the court and being ordered into the of the The custody significance sheriff. of this incident is because highlighted of the unique position the trial judge holds.
Regardless fault, оf was at who any display of partiality or on of the prejudice part judge, the trial for against or a or an must party, tend to attorney necessarily influence the The trial is the jury. judge person jurors whom the guidance look for and in whom they expect and have a to find an right impartial attitude. Any indication that the judge language condemns the or conduct of of the one or his is parties counsel reflected in the usually jury box. Our Constitution givеs anyone charged violation with law, of the the to be heard right himself and counsel. by While are attorneys expected to maintain a respectful court, attitude towards the the latter should be equally to treat careful counsel with proper and avoid courtesy every prejudice of appearance which incline to might influence the jury. Stallone, 41, v. 43-44,
Commonwealth Pa. 126 A.2d 57 (1924). case,
In this we are with provided circumstances that do more than rise to an merely give inference of of partiality the trial judge against defense counsel. To laypersons, in inexperienced the of operation procedures, trial the event in question a memorable undoubtedly one. It was a situation an likely leave indelible impression upon the viewers. The of the severity responses court’s would sug- gest to the uninitiated that counsel’s conduct represented a grave departure frоm the conduct expected of one in his reasonable the incident probability There was a
position. objective from an jury appraisal have distracted may on the or presented question guilt issues legitimate those innocence. trial court and defense counsel is also
Discord between the cause. The client’s position may to affect the client’s likely of the their eyes jury, by less worthy be deemed as an indicаtion of the the court’s translating displeasure the client’s cause. The fact that counsel lack of substance in as in some serious by jury having engaged is perceived, to the that he was forced to may suggest misbehaviоr such because of the of his hopelessness resort to behavior counsel, The lack of which respect may client’s case. *7 well been would diminish his engendered, necessarily have his as a advocate оf client’s persuasive posi- effectiveness tions. a incident occurs a trial prejudicial during
Where defendant, the it then must unfavorably upon which reflects whether it is of such manner or substance as be determined the a deprived be said to have defendant of may reasonably v. Goosby, fair and verdict. See Commonwealth impartial 609, (1973); 673 Commonwealth v. Phillips, 450 Pa. 301 A.2d 377, (1957). A.2d 733 183 132 Pa.Super.
It must be determined from all the circumstances whether effect; has a there is no fixed rule prejudicial a remark guide case. An in determin- every accepted applicable that, if effect is the remark be said ing prejudicial may had but a slight upon with fair assurance to havе effect all, and one is not left in doubt that it if at jury, any case, influence in the it will not vitiate had no substantial fair trial. the otherwise 382, v. at 132 Phillips, supra Pa.Super.
Commonwealth (1957). at 736 A.2d event can not obviously
This be dis- highly provocativе Even significance. of no if counsel’s con- being missed as action, the court’s his client does justifying duct is viewed as we cannot that this event say to suffer. Since not deserve cause and appellant’s improperly аffect unfavorably did not case, influence an adverse decision in this we are constrained hold that judgments sentence must be reversed and a new trial awarded.
It is so ordered. LARSEN, J., filed dissenting opinion. a LARSEN, Justice, dissenting. dissent;
I a judge’s proper efforts to maintain order in the courtroom cannot be a for awarding basis a trial. new would affirm judgment therefore of sentence.
Supreme Pennsylvania. Court of 18,
Argued Jan. 1982.
Decided Feb. *8 Knauer, Chester, H. Timothy West court appointed, for appellant. Ruslander, Chief,
Lee Div., Appeals Carroll, Joseph III, W. Chester, West appellee. O’BRIEN, J.,
Before ROBERTS, NIX, C. and LARSEN, FLAHERTY, HUTCHINSON, McDERMOTT and JJ.