Com. v. Darush

• Decision Date: 04 August 1980
• Citation: 420 A.2d 1071,279 Pa.Super. 140
• Parties: COMMONWEALTH of Pennsylvania v. William R. DARUSH, Appellant.
• Court: Pennsylvania Superior Court

Page 1071

420 A.2d 1071

279 Pa.Super. 140

COMMONWEALTH of Pennsylvania v. William R. DARUSH, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 10, 1979.

Filed May 30, 1980.

Reargument Denied Aug. 4, 1980.

William A. Hebe, Wellsboro, for appellant.

Thur W. Young, Dist. Atty., Coudersport, for Commonwealth, appellee.

Before SPAETH, HESTER and CAVANAUGH, JJ.

HESTER, Judge:

Following a jury trial, appellant William R. Darush was found guilty of burglary, theft, receiving stolen property, and conspiracy, ¹ in the Court of Common Pleas, Potter County. Post trial motions were argued and denied and a sentence of 2 1/2 to 5 years imprisonment was imposed followed by three years probation. As a condition of probation, appellant was ordered to make restitution to the victim. On this appeal, appellant posits several issues for our review, all of which we find without merit.

Pertinent facts surrounding the crime were as follows. The chief witness for the Commonwealth was appellant's accomplice, Randall Lee Cornelius. His testimony established that one evening during the last week of January, 1975, appellant asked Cornelius to accompany him for a ride: " 'Go with me and I'll make it worth your time' ". R.R. 69a. Cornelius agreed and the two drove in Cornelius' car to the residence of Jane Baxter, appellant's mother-in-law, the complainant herein. Appellant had told Cornelius on another occasion that there was a "considerable amount of money" in the Baxter residence. When they arrived at the house in Courdersport, Pennsylvania, Cornelius waited in the car behind the garage while appellant entered the house through a rear door. Presently, appellant returned carrying a heavy metal container which he placed in the car trunk, and the two then drove away. Later that night, in Cornelius' barn, appellant opened the box with a sledge hammer, and, after sifting through insurance policies, stocks and the like, retrieved a large bundle of cash, a portion of which he gave to Cornelius, while keeping the rest to himself. Cornelius later dumped the box and its remaining contents into the river.

Other evidence adduced by the Commonwealth established that appellant was well aware of the box's existence and its contents, knew where it was kept, and was in need of cash at that time. For example, it was shown that in the summer or fall of 1974, appellant and his fianceee Leslie Baxter were contemplating the purchase and restoration of the Deer Path Inn, a restaurant and bar in Roulette, then owned by appellant's family. Leslie's mother, Jane Baxter, wishing to help her daughter and future son-in-law, offered to loan them $10,000 for the project, interest free. At a conversation occurring in her kitchen, Mrs. Baxter showed appellant the metal container and withdrew therefrom $10,000 in cash, offering it to appellant. He declined the loan. Appellant and Leslie were married a short time afterward and eventually purchased the Deer Path Inn, with Leslie doing some of the bookwork for the business. In early January, 1975, after a short stay in the hospital, Leslie became aware that the Inn was in financial trouble when she was unable to pay the bills because of insufficient funds in the checking account. Through Mrs. Baxter, the Commonwealth established that the metal box was taken sometime between January 25 and 31, 1975, when she was not at home. It was also shown that appellant was a frequent guest at the Baxter house, and was familiar with the upstairs area where the box and money were kept.

Appellant, testifying in his own behalf, denied all charges and insisted that Cornelius' damaging testimony was prompted by the latter's belief that appellant had once had an affair with Cornelius' wife. Trial commenced before the Honorable Harold B. Fink and a jury on August 18, 1978. Verdicts were returned the same day.

Appellant first assigns as error the failure of Judge Fink to disqualify himself because of the judge's role as a prosecutor in a previous criminal action against appellant. In 1976, appellant was tried and convicted in two separate trials for violations of the Uniform Firearms Act. It appears that Judge Fink, then the district attorney for Potter County, personally prosecuted one of the trials, while an assistant district attorney prosecuted the other. Later, Judge Fink, again as district attorney, argued the consolidated appeals before this Court. ² Appellant concedes that the issues and facts in the 1976 trials and appeal are not in any way related to the instant proceedings, but argues that Judge Fink is ipso facto disqualified from presiding at the trial because of his former role in prosecuting this appellant. With such a broad proposition we cannot agree.

As a general principle, the trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially on a criminal case, or whenever he believes his impartiality can reasonably be questioned. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); ABA Standards Relating to the Function of the Trial Judge, § 1.7; Code of Judicial Conduct, Canon 3(c) (1). The most obvious cases are those where the trial judge has a pecuniary interest in the controversy or a consanguinal relationship or close affinity to a party. Cf. Perry at 524-5, 368 A.2d at 317; Commonwealth ex rel. Armor v. Armor, 263 Pa.Super. 353, 398 A.2d 173 (1978). The issue of recusal has also frequently arisen where the trial court, sitting without a jury, has become aware of some prejudicial or inflammatory information about the accused which would not otherwise be admissible at trial. See, e. g., Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978); Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978); Commonwealth v. Griffith, 249 Pa.Super. 252, 376 A.2d 253 (1977); Commonwealth v. Fields, 231 Pa.Super. 238, 331 A.2d 494 (1974); Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975); Commonwealth v. Rivers, 218 Pa.Super. 184, 279 A.2d 766 (1971). Similarly, our Courts have held that the appearance of judicial integrity and impartiality mandates that a judge who has represented a party or participated as a lawyer in the proceedings should remove himself from further participation in that case. Thus, the district attorney who prosecuted or was responsible for the prosecution of a defendant cannot later sit on the en banc post-verdict court, Commonwealth v. Pavkovich, 444 Pa. 530, 283 A.2d 295 (1971), nor should he sit as the PCHA or habeas corpus judge in that same case, Commonwealth v. Young, 439 Pa. 498, 269 A.2d 18 (1970); Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963). See also, Commonwealth v. Parrish, 250 Pa.Super. 176, 378 A.2d 884 (1977). We have never held, however, that simply because a judge had previously prosecuted or participated in the prosecution of a defendant that he is for all time precluded in future unrelated cases from sitting as a judge. The cases in other jurisdictions are in accord that the fact that the trial judge prosecuted the defendant for other offenses while he was district attorney is not, in and of itself, ground for disqualification. See, In Re Grand Jury Investigation, 486 F.2d 1013 (3 Cir., 1973); Gravenmier v. U. S., 469 F.2d 66 (9 Cir., 1972); U. S. ex rel. Fletcher v. Maroney, 280 F.Supp. 277, W.D.Pa., 1968); State v. Maduell, 326 So.2d 820 (La., 1976); Satterlee v. State, 549 P.2d 104 (Okl.Cr., 1976); Sam v. State, 510 P.2d 978 (Okl.Cr., 1973); People v. Tartaglia, 73 Misc.2d 506, 342 N.Y.S.2d 998 (1973); Maloney v. Maxwell, 174 Ohio St. 84, 186 N.E.2d 728 (1962). "It is of course well settled that the mere fact that the trial judge personally prosecuted the (defendant) in past crimes does not disqualify him from presiding over a trial where a new offense is charged." Hathorne v. State, 459 S.W.2d 826, 829 (Tex.Cr., 1970); Anno. 72 A.L.R.2d 443; 21 Am.Jur.2d, Judges, § 197. Thus, the common thread running through the Courts' decisions in Allen, Pavkovich, Young, and Parrish is that recusal will be required only when the judge is asked to hear the same case in which he, at some prior stage, served as counsel for a party, or more particularly, where he was the prosecutor. See, In Re Grand Jury Investigation, supra, 486 F.2d at 1015 (3 Cir., 1973). Indeed, the Code of Judicial Conduct would require no more: "A judge should disqualify himself in a proceeding in which ... (b) he served as lawyer in the matter in controversy." Canon 3(c)(1) (emphasis added).

Since, in the instant case, the former prosecution of appellant under the Uniform Firearms Act was completely unrelated to, did not in any sense involve, the present prosecution, we must reject appellant's claim that the trial judge was disqualified merely because he was a former prosecutor. Our inquiry does not end here, however, because appellant may still show the presence of actual prejudice stemming from the judge's role as a prosecutor, despite the absence of presumed prejudice. cf. Perry, supra, at 526, 364 A.2d at 318. The lower court did provide appellant and counsel this opportunity. At the pre-trial hearing, appellant failed to address himself to this narrow issue, but rather dwelt briefly upon the recent judicial election in which the trial court had been elevated to the bench. It seems appellant had openly opposed Judge Fink's election and had made unspecified derogatory remarks to Judge Fink's campaign manager, which remarks appellant was sure the judge had overheard. Further, appellant charged that Judge Fink as an attorney had once said to someone, "We want to get people like him (referring to appellant) out of Potter County." R.R. 16a. Appellant did not specify times or places as to either of these events and admitted that the alleged statement by Judge Fink was hearsay. At the conclusion of the...