No. 3349 Philadelphia, 1982, Appeal from the Judgment of Sentence of November 3, 1982, Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 245, 247 and 248 December, 1981.
Peter Levin, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cirillo, Beck and Johnson, JJ. Beck, J., concurs in the result.
[ 329 Pa. Super. Page 89]
Following a non-jury trial before the Honorable Charles L. Durham, Appellant, Ernest Brown, was convicted on April 8, 1982 of third-degree murder,*fn1 aggravated assault,*fn2 and possession of an instrument of crime.*fn3 A timely appeal was taken to this court raising several questions for our consideration. We affirm.
Of paramount concern is Appellant's contention that he did not receive effective assistance of counsel because his trial attorney did not seek recusal of the trial judge. Appellant appeared before Judge Durham on April 5, 1982 expecting
[ 329 Pa. Super. Page 90]
to plead guilty to all charges, but he changed his mind during the guilty plea colloquy and informed Judge Durham that he wanted a jury trial. Following an off-the-record discussion between Appellant, his trial counsel, and the prosecuting attorney, Appellant Brown changed his mind again and told Judge Durham that he did not want a jury trial, but rather wished to be tried by a judge in the place of a jury.
The next day, April 6, 1982, Judge Durham heard and denied Appellant's suppression motion. Appellant had attempted to suppress a knife seized in his apartment and a statement which he had given to the police. Following Judge Durham's denial of Appellant's suppression motion, the trial court conducted a colloquy with Appellant concerning Appellant's waiver of a jury trial. After explaining the various aspects and procedural advantages of a jury trial, Judge Durham informed Appellant about his knowledge of the case and offered Appellant an opportunity to have his case heard by another judge. As the following excerpt from the trial transcript indicates the trial court's colloquy was quite thorough.
"Q. In hearing this Motion to Suppress, I passed upon the credibility of certain witnesses. It might have been against you; do you understand that?
Q. If you care to have another Judge hear your case, I will send this to another court and another judge can hear your case without a jury if that is what you want; do you understand that?
Q. I don't have to be the Judge to hear your case. You can still have a waiver trial, a trial without a jury, before another Judge; do you understand that?
Q. Do you want me to hear the case without a jury?
[ 329 Pa. Super. Page 91]
Q. Then, you understand that I am also the Judge that heard initially that you intended to plead guilty to third degree murder; do you understand that?
Q. And you changed your mind and you said you wanted a jury trial. Then, you changed your mind again and said you wanted a waiver trial. I heard all of that; do you understand?
Q. Now, if you want me to recuse myself, that is to say if you want me to send it to another Judge to hear it, I will do that; do you understand that?
Q. Do you still want me to hear the case?
Q. That is your own wish; is ...