Com. v. Badger

• Decision Date: 05 October 1978
• Citation: 482 Pa. 240,393 A.2d 642
• Parties: , 7 A.L.R.4th 930 COMMONWEALTH of Pennsylvania v. Linda BADGER, Appellant.
• Court: Pennsylvania Supreme Court

Page 642

393 A.2d 642

482 Pa. 240, 7 A.L.R.4th 930

COMMONWEALTH of Pennsylvania v. Linda BADGER, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 10, 1978.

Decided Oct. 5, 1978.

[482 Pa. 241] George E. Lepley, Jr., Asst. Public Defender, Williamsport, for appellant.

Allen E. Ertel, Dist. Atty., Robert F. Banks, First Asst. Dist. Atty., Williamsport, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

EAGEN, Chief Justice.

Linda Badger and two co-defendants were arrested on March 18, 1974, and charged with criminal conspiracy, delivery, and possession of a controlled substance, namely heroin. On September 30, 1974, Badger appeared before the Court of Common Pleas of Lycoming County and expressed an intention to plead guilty. The Commonwealth was then asked to detail the facts of the case. Following an oral recitation of the alleged facts by the district attorney, defense counsel challenged the accuracy of a portion of the district attorney's summary, which implied Badger was the ringleader in the criminal transaction. Thereupon, the court asked Badger if she were admitting the facts as recited by the district attorney, and when she replied in the negative defense counsel requested permission to withdraw the guilty plea and the motion was granted.

Following the foregoing, Badger entered a plea of not guilty and, without objection by defense counsel, a nonjury trial proceeded before the same judge before whom the guilty plea had been entered. Badger was found guilty and sentenced to a term of imprisonment of five to twelve years.

On appeal to the Superior Court, the judgment of sentence was affirmed. ¹ Badger filed a petition for allowance of appeal, and we granted the petition.

In the Superior Court, Badger was represented by new counsel who asserted trial counsel was ineffective, see Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1973), in failing to seek recusation of the judge following the withdrawal of Badger's guilty plea. The same issue was presented in Badger's petition for allowance of appeal and is now presented to this Court. Since we conclude this issue warrants reversal of the judgment of sentence, we shall not consider the other issues presented. ²

The Superior Court reasoned that, had a motion to recuse been made, it would have constituted reversible error to deny it, ³ but that counsel could not be deemed ineffective for failing to make the motion because the chances of success before another judge were not substantially greater than they were before the judge who heard the plea since the Commonwealth's evidence was particularly strong.

In this context, the test for determining the effectiveness of counsel is whether ". . . the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." (Emphasis in original.) Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Instantly, no reasonable basis for not requesting recusation is advanced and apparently there is none. Accordingly, counsel's failure to request recusation constitutes ineffectiveness and thus a new trial must be granted.

The Commonwealth's argument to the contrary is based on the majority opinion of the Superior Court. That opinion in essence reasoned that the Commonwealth's evidence was so strong that it would be a futile gesture for Badger's counsel to ask for trial before another judge. Such an assessment of the

". . . strength of the prosecution's evidence against the defendant is, of course, one step in applying a harmless error standard. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)."

Cf. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 165-66 (1978). Essentially, a harmless error standard seeks to determine whether the error had a prejudicial effect. Commonwealth v. Story, 476 Pa. at 412-413, 383 A.2d at 166. See Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973); Schneble v. Florida, supra. Such an analysis in determining whether counsel is effective cannot be used because

"assistance of counsel is among those 'constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' " Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) quoting from Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

This is not to say that in determining whether a "particular course chosen by counsel had some reasonable basis designed to effectuate (a) client's interests," Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 604, 235 A.2d at 352, a court should not "weigh the alternatives." Moreover, we reiterate that ". . . a finding of ineffectiveness (can) never be made unless (it can be) concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." Commonwealth ex rel. Washington v. Maroney, supra at 605, n. 8, 235 A.2d at 353, n. 8. But in examining the alternatives, a court may not utilize a harmless error analysis, and the alternatives must be examined only as a means of determining whether the course chosen had some reasonable basis.

Disregarding the harmless error analysis instantly, the alternative of having a judge, who was not aware of the plea, try the case would have offered a "potential for success substantially greater than" the tactics used. Commonwealth ex rel. Washington v. Maroney, supra at 605, n. 8, 235 A.2d at 353.

Judgment of sentence reversed and new trial ordered.

O'BRIEN, J., concurs in the result.

POMEROY, J., files a dissenting opinion.

NIX, J., joins in Part I of dissenting opinion by POMEROY, J.

POMEROY, Justice, dissenting.

In my judgment the Court today errs seriously in two respects. In the first place, the Court assumes that a judge who hears a proffered guilty plea, quickly withdrawn, is thereby rendered disqualified to try the case non-jury on the merits. In the second place, the Court perpetuates the mistaken idea that each and every instance of ineffectiveness of trial counsel, as found under the "reasonable basis" test, is ground for a new trial.

For this Court to assume that a trial judge can no longer try a case with impartiality once he has heard a suggestion (for such it was here) of a guilty plea is to me a novel and dismaying proposition. I find it equally disturbing to say that in every case in which a lawyer representing a defendant in a criminal trial has made a mistake or a misjudgment or has been inattentive in neglecting to register an objection or make a motion, a new trial must be had, regardless of the degree of prejudice, if any, suffered by the client. Hence this dissent.

I.

Although a full-dress guilty plea hearing may concededly contain enough material damaging to the defendant so that the judge who took the plea and conducted the accompanying colloquy should not, when the plea is withdrawn, try the case on the merits, it should not be assumed that such disqualification results in every plea situation. Every trial judge knows that impartiality is the hallmark of justice and that if he cannot be impartial, he must recuse himself. See Code of Judicial Conduct 3C(1)(a); ABA Standards Relating to the Function of the Trial Judge, § 1.7 at 34. ¹ If we are to deal in presumptions, it should be that a judge is capable of recognizing in himself when they appear the symptoms of bias and partiality, and that he will conduct himself properly in the light of that recognition.

I know of no law in Pennsylvania or elsewhere that says that exposure to a guilty plea automatically disqualifies the hearing judge from later trial on the merits; whether or not a judge should disqualify himself depends on the facts in each situation. Only if the facts are such that a judge should recuse himself, either sua sponte or on motion, can it be said with some assurance that it would be poor lawyering for the defense counsel not to make such a motion. Absent such a factual showing a presumption of judicial impartiality should obtain.

The Superior Court in the case at bar erroneously supposed that the lawyer for Badger had simply to move for recusation to have the court grant that relief. ² Such a notion was dispelled by our decision in Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975), where a suppression judge was sought to be disqualified from presiding at trial. We there pertinently stated:

"In effect appellant is arguing that the mere exposure to prejudicial evidence is enough to nullify a judge's verdict in a case. We cannot subscribe to such a view, for it is of the essence of the judicial function to hear or view proffered evidence, whether testimonial or in exhibit form, and to decide whether or not it should be admitted into evidence, or if admitted initially or provisionally, should later be excluded or disregarded. 1 For us to accept appellant's contention would be, in effect, to find disqualification of a judge to be a judge; it would go against the time honored practice in our courts in a myriad of situations, civil as well as criminal, and would add immeasurably to the workload of the trial courts."

Id. at 561, 347 A.2d at 683. In my view, the rationale of Green leads inescapably to the conclusion that mere exposure of a judge to possibly inculpatory material does not automatically mandate a recusation.

On the record before this Court, I am satisfied that the trial judge had no reason Sua sponte to remove himself from the trial of Badger's case, and by the same token would not have been obliged to grant a motion for recusation had one been made. ³

At the commencement of trial, Linda Badger's lawyer told the court:

"At this time, I think we have a guilty plea. Miss Badger intended to plead guilty to the indictment." N.T....