No. 347 January Term, 1979, Appeal from the Order of the Superior Court Affirming the Judgments of Sentence at June 1975, No. 1561-62 of Philadelphia, Court of Common Pleas Criminal Trial Division.
John W. Packel, Chief, Appeals Div., Elaine DeMasse, Asst. Public Defenders, for appellant.
Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin, Barthold, Asst. Dist. Attys., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen, J., filed a dissenting opinion.
Appellant, William Davis, was indicted as of June Sessions, 1975 for simple and aggravated assault, and possessing instruments of crime. He was tried and convicted of all charges. Post-verdict motions were filed and following their denial on July 1, 1976, the appellant was sentenced to concurrent and consecutive prison sentences totaling seven and one-half (7 1/2) to fifteen (15) years. Thereafter, appellant
filed a direct appeal to the Superior Court which affirmed, without dissent, the judgments of sentence on October 20, 1978. A timely petition for the allowance of appeal was filed with this Court and was granted.
The essence of appellant's claim for relief is that the trial judge's conduct exceeded the bounds of propriety, and failed to maintain impartiality, thus depriving him of his right to a fair trial. To support this proposition, he cites a number of objections such as the court's refusal to permit defense counsel to make motions out of the hearing of the jury or to make argument on motions; that the court unnecessarily suggested possible motives for the crime in his charge to the jury; that the court misstated the evidence in a manner favorable to the prosecution and highly prejudicial to the defense; that the court impeded cross examination by the defense by repeatedly interrupting at critical points; that the court's manner toward the appellant, his counsel and his witnesses was sarcastic and reflected his (the court's) disbelief of the defense's evidence. We need not consider all of these allegations since one of the cited complaints is sufficient in itself to support the relief appellant now seeks.
During the course of the trial, counsel for the defense was adjudicated in contempt by the trial judge. A part of this episode occurred in the presence of the jury. For the reasons that follow, we are of the view that the prejudicial effect of this evidence was such that appellant was indeed denied a fair trial.
The incident occurred during the defense's cross examination of the victim, Mr. Mack Robinson. From the record it appears that the trial judge on at least three separate occasions interrupted the examination of the witness and interposed questions which were of a nature to rehabilitate that witness. Just prior to the incident in question, defense counsel had attempted to establish that the District Attorney aided the witness in preparation for his testimony, thereby attempting to cast doubt on the witness's testimony.
Q. How long were you with the District Attorney?
A. Quite awhile. A good while. A pretty good while.
Q. Did the District Attorney ask you anything about whether or not anything was taken from you or had been attempted had to be taken from you?
A. I don't recall. I don't know if he did or not.
Q. You don't recall that?
Q. What did the District Attorney tell you?
Q. What did the District Attorney ...