Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 1767, in case of Commonwealth of Pennsylvania v. Jerry Fields.
John Myers and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.
[ 231 Pa. Super. Page 240]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Jerry Fields, after his conviction by a judge sitting without a jury of aggravated assault, robbery, theft and receiving stolen goods. He was sentenced to six (6) to twenty-three (23) months on the robbery charge.
The only issue in this appeal is that the defendant is entitled to a new trial because the court below erred in failing to recuse or disqualify himself upon hearing in the colloquy for waiver of a jury trial that the defendant had been at Camp Hill. The Commonwealth contends that the information learned by the trial judge was not so prejudicial as to deprive the defendant of a fair and impartial trial and further that the defendant knowingly and intelligently waived his right to be tried before another trial judge.
The defendant was called to trial on September 20, 1973, before the Honorable Matthew W. Bullock, Jr., on various charges. During the jury waiver colloquy, the judge asked the defendant from what school he had graduated. The defendant answered, "I graduated from Camp Hill." Defense counsel then stated that "he would be disposed. . . to ask (Judge Bullock) to disqualify (himself)." However, it was indicated that the defendant wanted to have the case disposed of that day by the sitting judge. The court then stated that he would not be influenced by the knowledge inadvertently received by him, but because the very appearance of fairness and impartiality was necessary to be maintained, he offered to disqualify himself.
The defendant then indicated that he wanted to go to trial before Judge Bullock as he felt that Judge Bullock could be fair and he waived his right to have trial before another judge. The record is as follows:
[ 231 Pa. Super. Page 241]
"Q. Mr. Fields, the Judge told you he had found something out about this matter that he should not have found out. Do you ...