The court in Rucker noted its approval of the admission of evidence of prior crimes for the limited purpose of attacking the credibility of a defendant who has testified. 311 F.2d at 314-315. In Scoleri the jury was asked to perform what the court called, 'psychological wizardry' (310 F.2d at 725): To consider the evidence they had heard of twenty-five convictions or pleas of guilty of violent robbery only after they determined that the defendant was guilty of the charged crime. The court went on to emphasize it was deciding only that under all the circumstances of that case the introduction of evidence of prior crimes needlessly prejudiced the defendant's trial. The court said:
'* * * every case which involves the delicate balance of comity between the courts of a state and those of the federal system must be considered and decided on its own precise facts. In the case at bar we did not lay down a rule of evidence for the Pennsylvania state tribunals. We handed down a judgment as to the fundamental fairness or unfairness of what was done in this particular case. * * *' 310 F.2d 720, at 736.
The present case is clearly not within the confines or import of Scoleri. This relator was given a fair trial and there is no reason to conclude that the trial judge was prejudiced in any respect. In assessing the fairness of relator's trial, it is helpful to point out the differences between the operative facts in Scoleri and the present case.
The trier of fact in relator's trial was an experienced judge, not a jury of laymen. Despite language in Scoleri indicating that judges might have difficulty applying the instructions given the jury limiting the use of Scoleri's prior convictions,
it is perfectly clear that the trial judge in relator's trial was able to and did avoid considering the complained of statement in determining the question of relator's guilt.
We start with the presumption that a trial judge sitting without a jury is presumed to act only upon the competent evidence in the case before him. Dove v. Peyton, 343 F.2d 210, 214 (C.A.4, 1965). Cf. Stevens v. Vowell, 343 F.2d 374, 380 (C.A.10, 1965). A judge, from the time of law school, is trained in disregarding irrelevant facts in reaching any conclusion. His experience as a lawyer and a judge further reinforces this discipline.
In the present case we do not have the situation as in Scoleri in which the mind of each juror was asked to set aside and ignore inflammatory evidence while masticating on one question and afterward retrieve that evidence and consider it in connection with another question. Evidence of charges of participation in other crimes is not admissible as substantive evidence for any purpose in Pennsylvania. This is hornbook law
and the record is clear that the trial judge did not weigh the statement in his determination of guilt. The judge voiced his realization that the content of the statement now complained of was irrelevant immediately upon reading it.
Then in an opinion treating relator's motion for an order to have the waiver of trial by jury withdrawn (which motion was filed after the verdict was announced) the trial judge made it abundantly clear that prejudice or knowledge of defendant's other activities played no part in his determination.
Further contrasting this petition with that of the facts in Scoleri, we note that in Scoleri the evidence introduced to a jury of laymen was of twenty-five convictions of robbery with violence. In the present case, a fairly innocuous statement that perhaps recalled to the judge publicity of relator's other trouble with the law was read by a judge. Focusing upon the nature of the evidence in question in each case it cannot be gainsaid that the evidence of convictions and pleas of guilty of twenty-five robberies with violence is significantly more prejudicial than the statement involved in the present case.
We have already noted that Scoleri exhorts a test of fundamental fairness, not an absolute application of a broad rule of evidence. My Brother Judge Higginbotham reading United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (C.A. 3, 1962) and United States ex rel. Rucker v. Myers, 311 F.2d 311 (C.A.3, 1962) together, announced:
'* * * I read these two decisions as adopting a factual case-by-case approach to determine whether the introduction of a defendant's prior record under the Parker Rule may be prejudicial. Only where there is no realistic probability of serious prejudice, as in Rucker, should a conviction based upon the Parker Rule be permitted to stand. * * *' United States ex rel. Johnson v. Rundle, 243 F.Supp. 695, D.C., E.D.Pa., September 30, 1964.
The conclusion is inescapable that there is no realistic possibility of any prejudice in relator's trial and the petition will therefore be denied.