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COMMONWEALTH v. BADGER (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
BADGER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, No. 74-10, 284, in case of Commonwealth of Pennsylvania v. Linda Badger.

COUNSEL

Kenneth D. Brown, Assistant Public Defender, with him John A. Felix, Public Defender, for appellant.

Allen E. Ertel, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price, J., concurs in the result. Dissenting Opinion by Spaeth, J.

Author: Hoffman

[ 238 Pa. Super. Page 286]

Appellant contends that the trial court erred in refusing to admit the signed statement of her alleged co-conspirator and that trial counsel was ineffective in failing to request that the trial judge recuse himself following appellant's withdrawal of her guilty plea.

The circumstances leading to appellant's arrest for conspiracy, possession and delivery of heroin were related by Trooper Blackledge, of the State Police, who had assumed the role of an undercover narcotics agent. He testified that he arranged with Launey Rivers to meet at a residence in Williamsport on March 14, 1974, to purchase a quantity of heroin. Trooper Blackledge arrived at the home and engaged in conversation with Rivers and Robert Moore. Appellant was present during the negotiations, but did not take an active part in the discussion. Subsequently, appellant left the residence and drove to another house in Williamsport which was under surveillance, and then returned, carrying a paper bag containing three hundred glassine bags of heroin.

On September 30, 1974, appellant tendered a guilty plea. After the prosecutor summarized the Commonwealth's evidence, the trial judge asked appellant whether she was admitting this version of the case. When appellant responded negatively, the trial judge requested that

[ 238 Pa. Super. Page 287]

    appellant relate her account. At that point, appellant's counsel informed the court that appellant now wished to enter a plea of not guilty and proceed to trial. The trial judge did not offer to recuse himself and defense counsel did not request that he do so. The case proceeded to trial and appellant was found guilty, and sentenced to a term of five to twelve years.*fn1

At trial, appellant attempted to call Robert Moore as a witness, but he advised the court that he would invoke his Fifth Amendment privilege against self-incrimination. Appellant then offered a typed statement accompanied by a notarized affidavit signed by Robert Moore. The Notary Public, who was also an attorney, testified that Robert Moore read the entire statement before signing the affidavit. The statement was taken in Lycoming

[ 238 Pa. Super. Page 288]

County Prison when Moore was under indictment as a result of his participation in this transaction. The statement tended to exculpate appellant by alleging that appellant was an innocent conduit who had no knowledge of the transaction or the contents of the paper bag. Although the statement does not contain the words "I am guilty of this charge," the trial judge concluded that "there is an inevitable inference that the declarant knowingly participated in the sale of a drug to the trooper at the time in question." Although it found the statement to be ...


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