Opinion
September 4, 1970.
Criminal Law — Practice — PCHA proceeding — Hearing judge who prosecuted petitioner before he became a Judge — Disqualification.
1. A hearing judge in a PCHA proceeding, who was associated with either the prosecution or the defense in the trial which resulted in the conviction of the petitioner, should disqualify himself. [500]
2. In this PCHA proceeding, in which it appeared that the assistant district attorney who prosecuted petitioner in the proceedings which resulted in his conviction, after a plea of guilty, for burglary, larceny and receiving stolen goods, sat as the hearing judge and denied relief, it was Held that the order of the court of common pleas should be vacated and the case remanded for a new hearing.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal, No. 654, Jan. T., 1970, from order of Superior Court, Oct. T., 1970, No. 175, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1956, Nos. 743 and 744, in case of Commonwealth v. Lacey Young. Allocatur granted; order of Superior Court reversed, order of Court of Common Pleas, Trial Division, of Philadelphia, vacated, and case remanded for a new hearing.
Same case in Superior Court: 216 Pa. Super. 857.
Petition for post-conviction relief. Before SMITH, JR., J.
Order entered dismissing petition after hearing. Petitioner appealed to the Superior Court, which affirmed the order of the court below. Petition for allocatur filed with Supreme Court.
Mary Bell Hammerman, for appellant.
Richard Max Bockol, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
This is a collateral attack on petitioner's 1956 conviction, after a plea of guilty, for burglary, larceny and receiving stolen goods. Relief was denied by the hearing court, after an evidentiary hearing with counsel, and the Superior Court affirmed per curiam without opinion. We now grant the allocatur, reverse the order of the Superior Court, vacate the order of the court of common pleas, and remand for a new hearing.
It appears that the assistant district attorney who prosecuted petitioner in the 1956 proceedings which petitioner now attacks sat as the hearing judge in the instant PCHA proceedings. In Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 600, 189 A.2d 261, 262 (1963), where the hearing judge had been the district attorney at the time the relator's indictment was returned, we stated: "Despite the complete impartiality exercised by the hearing judge and the total absence of any element of unfairness, we are nevertheless of the opinion that it is more desirable to have such petitions heard by a judge who, prior to ascending the bench, had no association with either the prosecution or the defense in the trial of the case." Accordingly, we vacated the order of the court, and remanded the case for disposition by "a member of the court below who had no association with either the prosecution or defense at the time of appellant's trial." Id. at 601, 189 A.2d at 262.
Since, under Allen, the hearing judge should have disqualified himself, but did not, petitioner must be granted a new hearing. The order of the Superior Court is reversed, the order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia is vacated, and the case remanded for a new hearing.