No. 80-3-716, Appeal from the Judgment of the Superior Court of Pennsylvania at No. 3069 October Term, 1978 Affirming the Opinion and Order Dated November 9, 1978, of the Court of Common Pleas of Potter County, Pennsylvania, Criminal Division, at No. 74 of 1978 (Counts 7, 8, 9, & 10), 279 Pa. Superior Ct. 1401,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson, and Zappala, JJ. Roberts, C.j., files a dissenting opinion.
Appellant, William R. Darush, was found guilty of burglary, theft, receiving stolen property, and conspiracy following a jury trial in Potter County Court of Common Pleas. Post-verdict motions were denied and appellant was sentenced to serve 2 1/2 to 5 years imprisonment followed by 3 years probation.*fn1 Appellant was also ordered to pay a sum for the use and benefit of Potter County and to provide restitution to the victim. After appeal thereto, the Superior Court, 279 Pa. Super. 140, 420 A.2d 1071, affirmed the judgment of sentence. This appeal followed our allowance thereof. In it appellant asserts the trial judge should have recused himself because the record shows him biased.
Although we find no evidence of bias and are convinced the judge acted in what he sincerely felt was a proper manner, we nevertheless believe appellant is entitled to resentencing by another judge because certain remarks the judge was said to have made about appellant could raise a reasonable question concerning his impartiality in sentencing.*fn2 In disposing of appellant's post trial motion raising the recusal issue the trial court said:
In support of defendant's motion for disqualification, the defendant himself gave testimony to the effect that the present Judge of Potter County at the time when he
was District Attorney made a statement to one Dr. Jackie Briggs that Potter County did not need the presence of the defendant or anyone like him.*fn3 This was not purportedly said by the Court in the presence of the defendant and was, therefore, hearsay. There was no objection made at the time and, accordingly, even though it were hearsay it should be considered by the Trier of Fact who can either accept or reject such testimony. It is obvious that the Court was in an unusual position in that the Court did not feel it proper that he himself give testimony either admitting or denying the statement, however, it is further observed that the hearsay statement was repeated out of context. The Court here can neither admit or deny this statement as the Court simply has no recollection of said statement being made.
In the final analysis this Court did and can now assure this defendant that there was not nor shall there be any prejudice in the trial of this defendant's cause or any further causes shown by this Court against the defendant.
Common Pleas Slip Op. at 8-9.
Appellant asserts four reasons why the judge was required to recuse himself. We find no merit in the first three. We have therefore reserved our principal discussion for appellant's fourth issue which prompts the disposition set forth above.*fn4
Appellant argues recusal was required because:
(1) the trial judge occupied the office of district attorney when the ...