NO. 2683 PHILADELPHIA, 1980, Appeal from the judgment of sentence of November 6, 1980, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 607-609, 611 February Term, 1979.
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Beck, JJ.
Appellant filed a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. He alleges, inter alia, that the trial judge improperly refused to recuse himself from consideration of appellant's post-verdict motions and sentencing. We vacate the judgment of sentence and remand for rehearing of appellant's post-verdict motion and sentencing.
The facts are undisputed in this appeal. In the middle of the night appellant forcibly entered a home and committed assault and indecent assault upon a woman who was eight and one-half months pregnant. Before departing, he stole
thirty dollars in cash from the dresser in the victim's bedroom.
After a jury trial appellant was found guilty of indecent assault, simple assault, burglary, and robbery. Appellant then filed post-verdict motions. The Trial Court empanelled a court en banc to hear argument on the post-verdict motions. The trial court opinion relates:
Shortly after the initial [post-verdict] motions were filed, the Trial Court requested that defense counsel prepare a brief and granted a continuance for that purpose. The points raised in post-verdict motions had to be briefed to be intelligently considered by the other members of the panel [ i.e., those judges who had not participated in the conduct of the suppression hearing and trial].
About a year after the trial, a hearing was held on the motions. At that time, defense counsel submitted what he styled Supplemental Post-Verdict Motions. These supplemental motions were delivered only to the two members of the panel who had not presided at the trial. In the supplemental motions for the first time, [appellant] asked [that] the Trial Judge recuse himself from hearing argument on the motions. The Trial Judge was not ...