January Term, 1979 - No. 451, Appeal from Judgments of Sentence of the Court of Common Pleas of Delaware County, March Sessions, 1974 Nos. 1, 2 and 3. imposed October 11, 1979.
Clarence D. Bell, Jr., Barry W. Van Rensler, Media, for appellant.
Richard A. Sprague, Sp. Prosecutor, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Hutchinson, J., filed a concurring opinion. Flaherty, J., filed a dissenting opinion in which Roberts and Larsen, JJ., joined.
This is a direct appeal from a conviction on three charges of murder of the first degree as a result of the death of Joseph, Margaret, and Charlotte Yablonski.*fn1 At trial the Commonwealth offered evidence to establish that Mr. Boyle, appellant, instigated and participated in a conspiracy to kill Joseph Yablonski, who was attempting to wrest control from Boyle of the United Mine Workers' Union (UMW). As a result of this conspiracy, the jury found that Joseph Yablonski, his wife and his daughter were killed in January 1970.*fn2 Appellant sets forth a myriad of challenges to this most recent conviction. Many of them are totally without merit and do not require explication.*fn3 We will address only the more substantial questions raised.
Appellant argues that the trial judge, who also presided at the first trial, by refusing a motion of recusal committed reversible error requiring a new trial. Recusal is required whenever there is substantial doubt as to a jurist's ability to preside impartially.*fn4 Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). See Code of Judicial Conduct Canon 3C(1)(a) ("Disqualification"); ABA Project on Standards for Criminal Justice, Standards Relating to: The Function of the Trial Judge § 1.7 ("circumstances requiring recusation") (Approved Draft, 1972).
The mere participation by the presiding judge in an earlier stage of the proceeding neither suggests the existence of actual impropriety nor provides a basis for a finding of the appearance of impropriety. U.S. v. Lowrey, 77 F.Supp. 301 (E.D.Pa. 1948) affirmed 172 F.2d 226 (1949). See, Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971); Commonwealth v. Smith, 274 Pa. Super. 280, 418 A.2d 406 (1980); Commonwealth v. Lee, 262 Pa. Super. 280, 396 A.2d 755 (1978). Moreover, appellant fails to identify any specific event or incident during the earlier proceeding which would reasonably give rise to a question of the court's objectivity.*fn5
Appellant seeks to support his position by arguing that the charged bias can be demonstrated by the rulings of the challenged jurist at the second trial. He contends the record reflects this pattern of bias and that he is entitled to the award of a new trial presided over by a different judge. Commonwealth v. Goodman, supra, 454 Pa. at 360, 311 A.2d at 653-654.
The fact that the presiding judge's rulings in the former trial were similar to his rulings in the retrial does not, standing alone, establish a pattern of conduct which would compel a finding of bias or partiality.*fn6 If the rulings at the second trial constituted a fair exercise of discretion, the fact that the trial judge had previously ruled in a similar manner under similar circumstances is to be expected.
Appellant cites as illustrative of the prejudice of the court the ruling relating to Mr. Boyle's daughter's admission pro hac vice and the exclusion of the accused at side bar and in-chambers conferences. These rulings were clearly correct and in no way suggested a prejudice by the court against the appellant.*fn7 The other alleged erroneous rulings to demonstrate
the court's prejudice against the appellant are equally without merit. Not only did these rulings reflect a proper exercise of discretion, there was nothing to suggest a bias or unfairness to the defense. To the contrary, the record is replete with instances where the court displayed an extraordinary effort to protect the rights of appellant.
Appellant also charges that the trial court erred in allowing to be read to the jury the entire transcript of the sentencing of Turnblazer, a co-conspirator. First, the allegation is factually incorrect. The lower court deleted at defense counsel's request that portion of the transcript that contained Turnblazer's confession. Even more significant, it was the defense that first referred to portions of the transcript of Turnblazer's sentencing in an effort to destroy Turnblazer's credibility as a witness for the Commonwealth.
Turnblazer, the then president of District 19, was a key Commonwealth witness in that it was his testimony which provided the link between Boyle and the murders. On cross examination the defense attempted to attack Turnblazer's credibility by showing that he had received favorable consideration from the Commonwealth for his testimony against Boyle. The defense referred to portions of the transcript of Turnblazer's sentencing to establish that an agent of the FBI and the Special Prosecutor had deliberately misinformed the sentencing court of the extent of Turnblazer's cooperation in the ...