Appeal from the Judgments of Sentence of the Court of Common Pleas of Franklin County, Criminal Division at Nos. 872-1994 & 150-1995. Before WALKER, J.
Before: Cirillo, P.j.e., Popovich and Hester, JJ. Opinion BY Popovich, J.
The opinion of the court was delivered by: Popovich
This is an appeal from the judgments of sentence of the Court of Common Pleas of Franklin County. Appellant was sentenced for two counts of interference with the custody of children. In a separate criminal action, appellant was sentenced for criminal trespass, simple assault and burglary. We affirm the judgment of sentence for the interference with custody convictions. However, we vacate the judgment of sentence for the criminal trespass, simple assault and burglary convictions, and we remand for an evidentiary hearing.
The record reveals the following pertinent factual and procedural history: During the evening of December 25, 1994, appellant went to the home of his wife, Robin Benchoff, and two children, Brian and Brooke. At that time, a Protection from Abuse order was in effect which prohibited appellant from having any contact with his wife or children. The order was entered following an incident which occurred on October 4, 1994. At that time, appellant kidnapped the children from their schools, and he threatened to kill himself and the children. As a result of that incident, appellant was charged with two counts of interference with the custody of children. *fn1
After appellant arrived at Mrs. Benchoff's house, he forced his way into the house and tackled Mrs. Benchoff. N.T., 8/14/95, p. 19. Appellant shocked Mrs. Benchoff with a stun gun, and he threatened to kill her. N.T., 8/14/95, p. 21. Mrs. Benchoff sustained a laceration to her head. Brian entered the room and saw appellant threaten Mrs. Benchoff with a knife. N.T., 8/14/95, p. 22. N.T., 8/14/95, p. 23. Mrs. Benchoff attempted to call the police at two different times, but appellant prevented her from using the phone. *fn2 Brian left the house to seek help, but appellant followed him and forced him to return to the house.
Mrs. Benchoff's mother, Marie Hilton, lived on the same street as Mrs. Benchoff. At some point during the altercation, Mrs. Benchoff and Brian escaped and ran to Marie Hilton's house. N.T., 8/14/95, p. 25. Appellant forced his way into the Hilton's house. Appellant shot Mrs. Benchoff's sister, Donna Hilton, with the stun gun. N.T., 8/14/95, p. 68. After making numerous threats to Mrs. Benchoff and her family, appellant returned to Mrs. Benchoff's house. Appellant carried Brooke out of the house. At that point, the police arrested appellant.
Appellant was charged with criminal trespass, burglary, attempted aggravated assault, aggravated assault and two counts of simple assault. *fn3 On August 14, 1995, a jury trial was held before the Honorable John R. Walker. During the trial, the Commonwealth presented evidence that after the December, 1994, incident, Mrs. Benchoff discovered a shotgun in Brooke's bedroom. Mrs. Benchoff testified that she believed appellant had "planted" the shotgun in the house. N.T., 8/14/95, p. 33. Appellant admitted that he violated the protection order and that he "zapped" Mrs. Benchoff with the stun gun and tackled her. N.T., 8/14/95, pp. 157, 183. Brian Benchoff testified that appellant had physically abused him on six or seven occasions. N.T., 8/14/95, p. 61.
The jury found appellant guilty of burglary, criminal trespass and one count of simple assault. *fn4 At the time of the jury trial, appellant also pleaded guilty to the interference with custody charges. Following appellant's convictions, a local newspaper, Public Opinion, published an article about the Benchoffs and the series of abusive events which preceded appellant's trial. The article discussed the crimes with which appellant was charged as well as the resulting convictions and acquittals. The article stated that many people believe there is a bias against abused women in domestic cases. In response to a legal scholar's claim that the courts favor abusive men, Judge Walker was quoted as stating: "That doesn't even dignify a comment from me. That's garbage. Everybody comes into court and we Judge them on credibility." Love/Hate, Public Opinion, August 26, 1995, at 6A.
The sentencing hearing was held on December 13, 1995. Appellant was sentenced by Judge Walker to an aggregate prison term of six to thirty-four years and nine years of probation. The sentence included two consecutive terms of imprisonment of one to six years for each of the interference with custody charges. Judge Walker also sentenced appellant to four to twenty years on the burglary charge. Judge Walker made the burglary sentence consecutive to the interference with custody sentences. In addition, appellant was sentenced to seven years probation for the criminal trespass conviction and two years probation for the simple assault conviction.
On December 22, 1995, appellant filed post-sentence motions. Appellant claimed that (1) the sentence was unlawful; (2) the lower court committed reversible error; (3) Judge Walker erred in failing to recuse itself; and (4) trial counsel was ineffective. The motion contained a Discussion of each of the alleged errors. In his Discussion of his counsel's ineffectiveness, appellant listed several individuals whom he claimed his counsel failed to call to testify as well as several potential witnesses whom he claimed his counsel failed to interview. Appellant also provided a brief description of the potential witnesses' testimony. After offering support for his other allegations of ineffectiveness, appellant requested an evidentiary hearing on the ineffectiveness claims. In addition, appellant requested leave of court to supplement his post-sentence motion after he received a copy of the trial and sentencing transcripts.
On December 28, 1995, Judge Walker entered an order which granted appellant leave of court to supplement his post-sentence motion within fifteen days of receipt of the transcripts. In his order, Judge Walker stated "at that time counsel may petition for a hearing."
Appellant received the transcripts on March 2, 1996. On March 18, 1996, appellant filed a supplemental post-sentence motion in which he expanded on his claims of ineffectiveness of counsel. In the supplemental motion, appellant again ...