228 Pa. Super. 412 | Pa. Super. Ct. | 1974
Opinion by
This case involves a sale of narcotics to a police officer. After an adequate colloquy, appellant waived a jury trial. As pointed out in the opinion of the court below, the case comes down to the question of whether to believe the arresting officer or appellant. There was, however, some question as to the identity and role of
Appellant is entitled to a new trial because of this display of the trial judge’s attitude.
In Commonwealth v. Horvath, 446 Pa. 11, 285 A. 2d 185 (1971), the defendant was granted a new trial for two independently sufficient reasons, one of which was tiie manner in which the trial judge had reprimanded defense counsel in front of the jury. Speaking for the court (one justice not participating), Mr. Justice O’Brien said: “When a judge subjects counsel for one of the litigants to undeserved oral criticism, the delicate balance upon which [a fair impartial jury trial] depends may be affected. The jury is bound to remember the incident and the danger is too great that the party represented by the lawyer thus criticized may be prejudiced.” Id. at 18, 285 A. 2d at 188. This principle is in grained in our concept of what a trial should be. “While attorneys are expected to maintain a respectful attitude toward the court, the latter should be equally careful to treat counsel with proper courtesy and avoid every appearance of prejudice which might incline to influence the jury.” Commonwealth v. Stallone, 281 Pa. 41, 44, 126 A. 56, 58 (1924) (new trial ordered on this and other grounds).
Although the cases dealing with a trial judge’s conduct generally involve jury trials,
When a defendant waives a jury trial he does so on the trust that the judge will act with the impartiality presumed in a jury. Indeed, he may well expect (as we should hope) that the judge will be more impartial than a jury might be. No factfinder, especially a judge, should presume any class of witnesses to be more truthful than another, or else the presumption of innocence and the right to confront and cross-examine witnesses are destroyed. To presume that any police officer called by the Commonwealth is truthful unless “the Commissioner” has determined otherwise, and to tell defense counsel that his client’s case may hinge on an apology, constitutes such a display of partiality as to constitute basic and fundamental error.
Reversed and remanded for a new trial.
The Code of Judicial Conduct, effective January 3. 1974, makes no such distinction: “A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2, A.