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COMMONWEALTH PENNSYLVANIA v. GARY MARTIN (11/19/82)

filed: November 19, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY MARTIN, APPELLANT



NO. 307 OCTOBER TERM, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 577-581 March Term, 1977.

COUNSEL

Jeffrey M. Voluck, Philadelphia, for appellant.

Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Per Curiam

[ 307 Pa. Super. Page 121]

Appellant was tried before Judge Prattis, non-jury, on charges of burglary, indecent assault, simple assault, attempted rape, and unlawful restraint. The Judge sustained a demurrer to the burglary charge and found appellant guilty on the other four charges. Motions for a new trial and in arrest of judgment were denied. On October 14, 1977, the court imposed a sentence of one (1) to three (3) years imprisonment for attempted rape. Sentence was suspended on the remaining charges. On November 14, 1977, appellant filed a notice of appeal to this court. On the same day a petition for reconsideration of sentence was filed. On November 30, 1977, the court vacated the original sentence and sentenced appellant to eleven and one-half (11 1/2) to twenty-three months allowing appellant to enter a work release program.

Appellant raises numerous issues on this appeal. We will address them in the order of their presentation in his brief. Additionally, the Commonwealth has raised an additional contention which we will address in part B of this Opinion. But first, a brief summary of the alleged criminal incident will prove to be helpful. At about 3:15, or 3:30 A.M., the victim was accosted in the hallway of her apartment building, by a black male. The man grabbed the victim, threatened to kill her, and declared his intentions to have sexual intercourse with her. The assailant dragged her toward a laundry room. The victim faked an asthma attack and

[ 307 Pa. Super. Page 122]

    when her wheezing kept getting louder and louder the actor desisted and left.

A.

I. WAS APPELLANT DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE FAILED TO RECUSE HIMSELF DESPITE HEARING HIGHLY PREJUDICIAL EVIDENCE DURING SUPPRESSION HEARING?

Trial counsel motioned to suppress certain identification testimony. At the scheduled time, immediately preceding the trial, a police officer necessary for the hearing on the motion to suppress was unavailable. With an understanding that the motion to suppress would be heard during the course of the trial, the Commonwealth proceeded to put in its case-in-chief before the court sitting as fact-finder. As part of her testimony, the victim testified as to having identified the appellant in a photographic array and at a line-up. She indicated that a police artist had composed a drawing based on the victim's description; the sketch was introduced into evidence. In open court the victim identified appellant as her assailant. At the conclusion of the Commonwealth's case the needed police officer was still unavailable to testify as to the pre-trial identification. Judge Prattis therefore granted the motion to suppress the testimony regarding the photographic array and lineup, but ruled that the in-court identification was based on "ample opportunity to observe her assailant" and therefore held it to be admissible. (N.T. 69-70).

Defense counsel made no motion to the court, requesting it recuse itself. Counsel's demurrer to the charge of burglary was granted, and defense testimony was heard. Appellant now contends that since the trial judge had heard identification testimony which was later determined to be inadmissible the judge should have recused himself.

The trial court after finding that the victim had ample opportunity to observe her assailant indicated that his finding was not tainted by the "out of court" identifications.

[ 307 Pa. Super. Page 123]

(N.T. p. 70). Our Supreme Court reconfirmed in Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980) that the burden to show bias and prejudice is on the party seeking recusal. Our courts have "adhered to the prevailing view that judicial fact-finders are capable of disregarding most prejudicial evidence." Id. 491 Pa. at 439, 421 A.2d 623. In Council, as in the current case the trial court expressly noted that it was not swayed by the questioned inadmissible evidence. There, as here the challenging party has failed to sustain its burden of demonstrating prejudice.

II. WAS APPELLANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO REQUEST ...


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