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COMMONWEALTH PENNSYLVANIA v. THEODORE SCHWARTZ (06/15/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 15, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THEODORE SCHWARTZ, APPELLANT

No. 1534 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County at Nos. 4364-76 and 4365-76.

COUNSEL

Peter F. Rogers, Abington, for appellant.

Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for Commonwealth, appellee.

Cercone, Hester and Hoffman, JJ. Cercone, President Judge, dissents.

Author: Hoffman

[ 267 Pa. Super. Page 171]

This is an appeal from judgment of sentence imposed after conviction of theft by deception,*fn1 three counts of bad

[ 267 Pa. Super. Page 172]

    checks,*fn2 and two counts of conspiracy.*fn3 Appellant now contends, inter alia,*fn4 that the sentencing judge erred in not disqualifying himself after stating that he was going to rely on a television program concerning appellant in sentencing him. We vacate the judgments of sentence and remand for resentencing.

At appellant's sentencing hearing, the judge below made the following remarks: "I have also heard something about him through, I think, Mr. Schwartz appeared on television on some program, I don't know how long ago it was, so I heard considerable about him, and therefore I feel it unnecessary to have a pre-sentence investigation and I am ready to sentence." 4/22/77 N.T. p. 7. In his opinion, however, the judge below stated that, while some court officer mentioned appellant's appearance in a television program during the sentencing hearing, the judge himself had neither seen nor heard of the program before that time.

"A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . ." Code of Judicial Conduct, Canon 3-C(1)(a). The opinion written by the court below is not part of the record

[ 267 Pa. Super. Page 173]

    in a given case. In the Interest of Carroll, 260 Pa. Super. 23, 27, 393 A.2d 993, 995 (1978). We are of the opinion that the statement by the judge below at sentencing reasonably allows his impartiality to be questioned, and thus we remand for resentencing. Because we are bound by the record, and not by the statements of the judge appearing in his opinion, on remand the judge should state explicitly on the record whether he saw a television program concerning the appellant or was otherwise exposed to off-the-record information concerning appellant.

If the judge below was not exposed to any such information about the appellant, then sentencing may proceed as of course.*fn5

If the judge did see a television program about appellant, then the judge should consider whether he should disqualify himself and have another judge sentence appellant. See Pa.R.Crim.P. 1401(a). If he decides to proceed, he must state on the record why his impartiality could not reasonably be called into question, and he must not in any event rely upon such unverified hearsay outside of the record in imposing judgment of sentence. See Commonwealth v. Cruz, 265 Pa. Super. 474, 402 A.2d 536 (1979).

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion.


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