decided: October 6, 1977.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
No. 2124 October Term, 1976, Appeal From the Order Entered July 2, 1976 of the Court of Common Pleas of Northumberland County at No. CR-74-147., Crim.
James J. Rosini, District Attorney, Milton, for Commonwealth, appellant.
A. Stephen Cohen, Sunbury, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, files a concurring opinion in which Price and Van der Voort, JJ., join.
[ 250 Pa. Super. Page 178]
Appellant Commonwealth contends that: (1) the lower court improperly granted appellee's demurrer after the Commonwealth presented its case, and (2) the trial judge should have recused himself because he had represented appellee in an earlier stage of the criminal proceedings. We
[ 250 Pa. Super. Page 179]
vacate the order granting appellee's demurrer because the lower court improperly considered the prosecutrix's credibility in ruling on the request for a demurrer. If the Commonwealth retries appellee, a new judge should conduct the proceedings.
On March 27, 1974, the prosecutrix filed a private criminal complaint accusing appellee of neglect to support a bastard child.*fn1 On September 18, 1975, after a jury trial in the Northumberland County Court of Common Pleas, appellee was found guilty. However, on December 19, 1975, the presiding judge granted appellee's post-verdict motion for a new trial because appellee produced after-discovered evidence. On June 24, 1976, a second trial commenced before a jury and a different judge in the Northumberland County Court of Common Pleas. At the beginning of trial, the Commonwealth's attorney*fn2 asked the trial judge to recuse himself because the judge had represented appellee at an earlier stage of the criminal proceedings. The trial judge refused to disqualify himself. The Commonwealth then presented the testimony of the prosecutrix, her father, and a female friend of the prosecutrix. At the end of the Commonwealth's case, the trial court granted appellee's demurrer and dismissed the charge. The Commonwealth subsequently appealed.
The Commonwealth first contends that the lower court improperly sustained a demurrer to its evidence. In ruling on a request for a demurrer, the trial court must determine whether the Commonwealth's evidence, if believed by the factfinder, and all reasonable inferences stemming from this evidence establish the elements of the crime charged. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569
[ 250 Pa. Super. Page 180]
(1976); Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Act of June 5, 1937, P.L. 1703, No. 357, § 1; 19 P.S. § 481.
In the instant case, the prosecutrix's testimony, if believed, established all the elements of the charge of neglect to support a bastard child: (1) appellee's status as parent, (2) the illegitimacy of appellee's child, and (3) appellee's refusal to support his child. The prosecutrix presented the following testimony: she had intercourse with appellee, and with no one else during the period May-July, 1973. On March 19, 1974, she gave birth to an illegitimate son. Appellee refused to support this child. The trial court, however, refused to allow the jury to consider and evaluate the Commonwealth's prima facie case. Instead, the court sustained a demurrer because the weight of the evidence was insufficient to establish appellee's guilt beyond a reasonable doubt. In particular, the court canvassed various inconsistencies in the prosecutrix's testimony in reaching its decision. By so doing, the court usurped the jury's province. Because the trial court improperly considered the prosecutrix's credibility in granting the demurrer, we believe that the order granting the demurrer and dismissing the charge must be vacated.*fn3
On remand, trial should be conducted before a new judge who has not represented appellee at any earlier stage of this criminal proceeding. As the concurring opinion
[ 250 Pa. Super. Page 181]
notes, the appearance of judicial integrity and neutrality mandates that a judge who has represented a party in a proceeding remove himself from further participation in that case.*fn4 Specifically, The Code of Judicial Conduct, Canon 3(C)(1)(b) provides: "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . . he served as lawyer in the matter in controversy . . ." Accordingly, if the Commonwealth retries appellee, a new trial judge must conduct the proceedings.
Order granting demurrer and dismissing charges vacated.
WATKINS, President Judge, concurring:
The Code of Judicial Conduct, Canon 3, C(1)(b) recites: "(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned including but not limited to instances where: (b) he served as lawyer in the matter in controversy . . ." The Act of 1843 specifically applies to criminal proceedings. Act of 1843, April 4, P.L. 131, § 8, 17 P.S. 587.
The appellee was first tried September 17, 1975, before then President Judge Michael Kivko and found guilty of the charge of neglect to support a bastard child. He was granted a new trial which was scheduled before President Judge Peter Krehel. The Special Prosecutor made a written request to the trial judge to disqualify himself and call in an outside judge. The prosecutrix in this case was represented by private counsel as special prosecutor for the Commonwealth. The trial judge had served as counsel for appellee at an earlier stage of the criminal proceedings prior to his election, but refused to disqualify himself at trial. The
[ 250 Pa. Super. Page 182]
Commonwealth again, at trial, requested that the trial judge disqualify himself because of his prior involvement with the appellee and he again refused. After the introduction of the Commonwealth's case, he granted a demurrer.
The appellee argues that the only other judge in the judicial district was the former District Attorney and the same question may be raised as to his impartiality. The trial judge, however, was faced with the request by the appellee to disqualify himself. He could have assigned it to his associate judge in the judicial district and then the appellee would have had the option to seek his disqualification as the former District Attorney and an outside judge would be required to hear the case or the appellee could have waived and agreed to have the case tried by the associate judge. The trial judge should have disqualified himself to remove even a hint of prejudice or bias. The integrity of the court must be above question.