Appeal from the Judgment of Sentence entered February 16, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 8606-1313-1316-1/1.
Nino V. Tinari, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
Montemuro, Kelly and Popovich, JJ.
[ 380 Pa. Super. Page 336]
In this appeal, we are called upon to consider whether appellant, Robert Hewett, was denied his right to a fair and impartial trial based solely upon the fact that the trial judge, who presided over his jury trial, was the subject of a Judicial Inquiry and Review Board (JIRB) investigation. After careful review of the record and the applicable authority, we conclude that absent a showing of specific instances of partiality, bias or prejudice, we will not reverse an otherwise valid verdict based solely on the assertion that the trial judge was, at the time of trial, the subject of an investigation by the JIRB. Accordingly, we affirm.
The relevant factual and procedural history of this case is as follows. On October 23, 1986, a federal grand jury returned a multi-count indictment charging nineteen individuals associated with the Roofers Union Local 30-30B with violation of our federal laws. The JIRB requested and obtained information developed in connection with the federal investigation. Shortly thereafter, letters of inquiry pursuant to JIRB Rule 1(b)*fn1 were issued to several members of the Philadelphia judiciary, including the trial judge in this case, William J. Porter. In the letter the JIRB stated that it had reason to believe that he had received cash from the Union in 1985. Formal charges, however, were not issued until January 15, 1987. On January 30, 1987, Judge Porter was suspended with pay by our Supreme Court pending the ultimate resolution of the matter.*fn2
[ 380 Pa. Super. Page 337]
On December 17, 1986, appellant was found guilty by a jury of two counts of corruption of minors. Timely post-verdict motions were filed on December 23, 1986. Following the suspension of Judge Porter by our Supreme Court, the matter was reassigned to the Honorable George J. Ivins for the disposition of post-verdict motions and sentencing. On November 27, 1987, appellant filed a supplemental post-verdict motion in which he asserted that he was denied a fair and impartial trial because, at the time of trial, Judge Porter was the subject of an investigation by the JIRB. On January 15, 1988, Judge Ivins denied appellant's post-verdict motions. Thereafter, on February 16, 1988, appellant was sentenced to three years probation and ordered to pay $700.00 restitution by September 1, 1988. Appellant was further ordered to avoid employment opportunities, during his term of probation, that would place him in contact with persons under the age of eighteen. This timely appeal followed.
On appeal, appellant contends that he is entitled to a new trial because the trial judge who presided at his trial failed to disclose the fact that he (the judge) was the subject of an investigation conducted by the JIRB at the time of appellant's trial. Appellant argues that had he been aware of the investigation, he would have sought and would have been entitled to the judge's recusal. As a result, appellant argues, he was denied a fair and impartial trial. We find no merit to this claim.
The trial court opinion by Judge Ivins notes that although appellant set forth the above contention in supplemental post-verdict motions, the record contains no indication that appellant obtained permission to file these supplemental motions as required by the Pennsylvania Rules of Criminal Procedure.*fn3 Judge Ivins deemed the issue waived,
[ 380 Pa. Super. Page 338]
quoting Commonwealth v. Sheaff, 365 Pa. Super. 613, 530 A.2d 480 (1987), but nevertheless, chose to entertain ...