NO. 1028 Philadelphia, 1981, Appeal from the Judgment of Sentence of April 16, 1981, Court of Common Pleas of Philadelphia County, Criminal, No. 1700-1707, August 1980.
Marlene Cooperman, Philadelphia, for appellant.
Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and McEwen and Hoffman, JJ.
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We here review an appeal from a judgment of sentence imposed following a non-jury trial at which appellant was found guilty of rape, involuntary deviate sexual intercourse, burglary, possession of an instrument of crime, simple assault and criminal trespass. Appellant received consecutive sentences of from five to ten years each for the crimes of rape and involuntary deviate sexual intercourse and from two to five years for the crime of burglary, for a total period of confinement of from twelve to twenty-five years, to be followed by terms of probation of two years each for the offenses of possession of an instrument of crime, simple assault and recklessly endangering another person. We affirm.
Appellant raises several issues of ineffective assistance of counsel. He initially contends that "trial counsel was ineffective in failing to seek recusal of the trial judge who presided at the pre-trial suppression hearing and [the] non-jury trial." He then itemizes certain developments during the suppression hearing that would have prevented the trial judge from rendering an impartial verdict. Appellant also asserts that trial counsel was further ineffective by reason of a failure to assert a suppression issue in the post-verdict motions and by reason of the withdrawal of the post-trial motions.
On July 3, 1980, at approximately 4:00 a.m., appellant burglarized the apartment of the victim, entered the bedroom where she was sleeping with her two children, ages two and three, put a knife to her throat and demanded money before proceeding to rape her and force her to engage in various acts of involuntary deviate sexual intercourse, all in the presence of her children.
Appellant was apprehended nine days later when the victim and a neighbor observed appellant in the neighborhood. The distinguished Judge Alfred J. DiBona, Jr. dismissed
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the motion of appellant to suppress the identification evidence after concluding that probable cause to arrest existed, found appellant guilty after conducting a non-jury trial*fn1 and permitted trial counsel for appellant to withdraw the timely filed post-trial motions after conducting a colloquy with appellant and concluding the withdrawal was a voluntary and knowledgeable act of appellant.
It is well settled that "[w]hen confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client's interest." Commonwealth v. Pittman, 295 Pa. Super. 234, 237, 441 A.2d 436, 437 (1982) (citations omitted). See also Commonwealth v. McKnight, 307 Pa. Super. 213, 453 A.2d 1 (1982); Commonwealth v. Bossick, 305 Pa. Super. 196, 451 A.2d 489 (1982).
We shall first discuss the contention that trial counsel was ineffective for failing to request recusal of the trial judge. The Pennsylvania Supreme Court has suggested that "[t]he better practice in a multi-judge county would be to have the trial conducted by someone other than the judge who presided over the Suppression Proceedings particularly where there is a waiver of jury accepted." Commonwealth v. Paquette, 451 Pa. 250, 258, 301 A.2d 837, 841 (1973). The Court again articulated a preference for this practice in Commonwealth v. Goodman, 454 Pa. 358, 362, 311 A.2d 652, 654 (1973), as it concluded "that a judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise inadmissible during the trial of the cause." Whether a trial judge should recuse himself thus depends upon "the type of evidence that the judge hears; if the
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evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal." Commonwealth v. Lee, 262 Pa. Super. 280, 291, 396 A.2d 755, 760 (1978). The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982). The burden to show prejudice, however, is on the party seeking recusal. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); Commonwealth v. Martin, 307 Pa. Super. 118, 452 A.2d 1066 (1982). "If the evidence is admissible or not of a highly prejudicial nature, recusal is not required", Commonwealth v. Lee, supra, 262 Pa. Super. at 291, 396 A.2d at 760, and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. Commonwealth v. Baxter, 282 Pa. Super. 467, 422 A.2d 1388 (1980). Commonwealth v. Williams, 269 Pa. Super. 544, 410 A.2d 835 (1979). This principle appears to be based on "the ...