No. 80-3-509. Direct Appeal from the March 19, 1980 Judgment of Sentence of the Philadelphia County Court of Common Pleas, Trial Division, Criminal Section, Information No. 1580, October Sessions, 1978.
Andrew G. Gay, Philadelphia, for appellant.
Robert B. Lawler, Richard Goldberg, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., filed a dissenting opinion in which Papadakos, J., joins.
This is a direct appeal from the entry of judgment of sentence of murder of the third degree against appellant Frederick Hammer arising from the death of an off-duty Philadelphia police officer, Charles Uffelman. The appellant alleges that the conduct of the trial judge in conducting extensive and repeated examination of witnesses, including the defendant, acted ofttimes in the role of advocate for the prosecution in violation of Commonwealth v. Myma, 278 Pa. 505,
A. 486 (1924) and exhibited incredulity of the defendant's testimony in violation of Commonwealth v. Williams, 468 Pa. 453, 364 A.2d 281 (1976). We agree and accordingly reverse and remand for a new trial.
Proof adduced at trial was that the dead body of the victim, Charles Uffelman, was found on the sidewalk of Delaware Avenue in Philadelphia on Friday, October 13, 1978. The victim's blood alcohol content was determined to be .18 and vomit was on the sidewalk near the victim as well as on the cuff of the victim's trouser. The Commonwealth's case was based on the theory that the appellant, who had walked a lengthy distance in trying to reach the Philadelphia International Airport, was looking for a car to steal and at approximately 8:00 in the evening, after walking for approximately 3 hours, he reached Delaware Avenue where he came upon Uffelman.
The Commonwealth sought to prove that Uffelman had pulled his car over to the curb and was crouched over to vomit, having been drinking since 4:00 p.m. It was theorized that appellant, viewing this as an opportunity to steal a car, struck Uffelman over the head with a 4 inch square, 4 foot long piece of old lumber lying nearby as Uffelman was crouched over.
The defense presented consisted of testimony by several expert witnesses and the testimony of the defendant. Frederick Hammer was 18 years old at the time of the incident and lived approximately one and one-half hours driving time from Philadelphia, but was in Philadelphia that day to do a carpentry-type job with his brother and a co-worker on a building roof. During the job, scaffolding upon which they stood collapsed and appellant fell, whereupon he was transported to a local hospital by a rescue squad but released after examination determined that he was merely bruised. Appellant testified that he had less than a dollar and that after waiting for approximately three hours at the hospital in the expectation that his brother would retrieve him, he called his stepfather and was advised to get public transportation to "center city" and call his stepfather again once he
had an address. Appellant testified that he believed that he did not have enough money to take a bus and that he began walking beneath the elevated train after receiving direction from a police officer regarding the general direction of the airport. He testified that he decided to go to the airport because he thought that it was "center city" and also knew his stepfather would be able to easily find the airport. He himself was familiar with the airport location both because the route from his home to Philadelphia passes the airport complex and because during a period he served in the Navy he was briefly located at the Philadelphia shipyard which is close to the airport.
He testified that he had underestimated the distance to the airport and that after walking for over three hours he had reached Delaware Avenue where the driver of a passing car stopped to ask him if he needed a ride. He explained that his destination was the airport and accepted the offered ride. He testified that the driver, decedent Uffelman, made a homosexual proposition and advance, offering the appellant money and that when appellant refused, the driver became angry, violent and held a gun on appellant. He then allegedly pulled the car to the curb, began to quickly walk around the front of the car, saying "We'll see what you're made of," and then grabbed at appellant's chest through the car window. After appellant was forced to get out of the car, he picked up the post used as a weapon, and while approximately facing decedent, swung and struck the decedent who then fell to the ground. Appellant then went to the driver's side of the car, got in and drove away.
Approximately an hour later, he was stopped for speeding on route to his home by two Pennsylvania State Troopers. When he repeatedly presented false identification, which he held in order to be served liquor, he was ordered out of the car and frisked. He was wearing an old Navy issue shirt, on which his last name, "Hammer," was stenciled over a pocket. Appellant ran from the state troopers, hopped a guardrail, went down an embankment and escaped. Upon a
search of the glove compartment of the vehicle, the state troopers found Uffelman's identification whereupon they contacted Philadelphia and learned for the first time that the body of Uffelman had been found on Delaware Avenue. A description of the appellant was issued and a neighbor of appellant who was a Pennsylvania State Trooper and who knew Freddie Hammer arrested Hammer the following night.
The defense presented expert forensic testimony to the effect that the documented fractures to the skull of the victim were consistent with a single blow and that the location of the blow was not inconsistent with a stance of the actors approximately facing one another. The expert witness further testified that the type of head wound suffered by the victim affected an area of the brain controlling involuntary responses and thus could induce an involuntary vomiting response after the blow to the head, contrary to the Commonwealth theory that Uffelman was vomiting at the time he was struck.
After a jury trial, appellant was convicted of murder of the third degree. Judgment of sentence imposing a term of imprisonment of seven and one-half to fifteen years was entered on March 19, 1980. Notice of direct appeal to this Court was timely filed on April 18, 1980.*fn1
On appeal, Hammer argues that a pattern of examination of witnesses by the trial judge constituted advocacy of a point of view favoring the prosecution and that this undue participation adversely and prejudicially contributed to the verdict, thus amounting to a denial of due process, Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). The Commonwealth argues that the instances raised are waived due to the failure of trial counsel to object to the
court's questioning and are therefore not the proper subject of appellate review.
The difficult issue arises not in determining whether the judge's conduct was prejudicial, for that claim, discussed infra, is well-founded, but in determining whether the waiver doctrine precludes review due to counsel's failure to have lodged timely objection to each instance of objectionable questioning by the court as heretofore required by Commonwealth v. Jones, 487 Pa. 183, 185, 409 A.2d 25, 27 (1979); see also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Pa.R.Crim.P. 1123(a).*fn2
In the courtroom, the judge is the foremost authority, second to none and no governor of the judge's conduct resides in the courtroom save the judge. As stated in Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924):
The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality . . . . To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice.
Id., 278 Pa. at 508, 123 A. at 487. The duty therefore lies with the judge to insure that his conduct is "above reproach," Schlesinger v. Musmanno, 367 Pa. 476, 482, 81 A.2d 316, 319 (1951), or, minimally, is not prejudicial. We therefore question the continued validity of the waiver doctrine as applied to improprieties of the trial judge for
when the position of power and authority enjoyed by the judge is considered, the strict enforcement of the waiver doctrine becomes inadvisable.
The notion that the judge is the foremost regulator of his own conduct is amply recognized by the Code of Judicial Conduct, adopted by this Court in 1973, effective January 1, 1984:
A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.
Code of Judicial Conduct, Canon 1 (emphasis supplied).
A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Id., Canon 2, Section A (emphasis supplied).
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party. . . .
Id., Canon 3, Section C(1)(a) (emphasis supplied). Thus, an officer of the judiciary in this Commonwealth is charged with a self-regulating function and is deemed the foremost arbiter of his own personal bias or prejudice and hence his competence to preside over a matter.
Avoidance of a conflict of interest regarding financial matters requires that
A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
Id., Canon 3, Section C(2) (emphasis supplied). It would indeed be a contemptible system which required counsel in a civil case to ferret out the potential conflicts of interest
residing, for example, in a judge's financial interests in order to obtain the judge's disqualification. That duty resides expressly with the judge. So, too, would it be unacceptable to permit the inherent injustice of judicial impropriety to go without remedy in a criminal case for want of censure by objection of counsel. In a criminal prosecution, "[i]t is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial. '[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.'" Lakeside v. Oregon, 435 U.S. 333, 341-342, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319, 326-327 (1978) (citations omitted) (emphasis supplied).
The efficacy of counsel in assuring impartiality of the judge is negated by this self-regulatory function and the authority of the bench, for a judge who poses a question or makes a comment during trial is predisposed to believe that the question or comment is proper, lest it not be spoken. Given that predisposition, the likelihood that the judge will be well-cautioned by counsel's objection is negligible. In that context, the rationale underlying the waiver doctrine, that timely objection gives the court the opportunity to cure the error, becomes a relatively empty one. Indeed, the possibility exists that counsel's objection will be viewed as a source of annoyance*fn3 and may well aggravate the situation.*fn4
Thus, we are not inclined to strictly enforce the waiver doctrine in the case of judicial intemperance for counsel cannot veto actions viewed by the judge to be wholly permissible. The role of the judge being inextricably intertwined with the dispensing of justice, it would be manifestly unjust to permit the embodiment of justice in the courtroom to thwart the criminal process without benefit of relief to the accused where the judge has crossed beyond the threshold of impartiality and where objection by counsel may be to no avail.
On this record, whereas it appears that objection would be meaningless to satisfy the reasons for raising objection and, as further reflected by this record, indeed intensified judicial animosity, justice is not served by the strict application of the waiver doctrine. Accordingly, we hold that the failure of trial counsel to object to questioning by the judge, who is charged with a function of self-regulation, will not under all circumstances render the allegation of judicial impropriety unavailable for appellate review.*fn5
However, this is not to say that in cases such as a request for judicial recusal, counsel is excused from making such a request.
Turning to appellant's underlying claim, it is established that it is proper for the court to intervene to ask questions on facts which "did not appear from either counsel's examination" and which "had a tendency to enlighten the jury," Commonwealth v. Myma, supra 278 Pa. at 509, 123 A. at 487. However a new trial is required when the judge's remark is prejudicial; that is when it is of such nature or substance or delivered in such a manner that it may reasonably be said to have ...