No. 38 January Term 1977, Appeal from the Order of the Superior Court at No. 396 October Term 1975, affirming the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 74-10,284.
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.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. 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.
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 non-jury 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.*fn1 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.*fn2
The Superior Court reasoned that, had a motion to recuse been made, it would have constituted reversible error to
deny it,*fn3 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. ...