Appeal from order of Superior Court, Oct. T., 1971, Nos. 254 and 255, affirming judgment of sentence of Court of Common Pleas of Luzerne County, No. 88 of 1969, in case of Commonwealth of Pennsylvania v. David Goodman and Lee Goodman.
Alan J. Davis and Stephen A. Teller, with them Wolf, Block, Schorr and Solis-Cohen, for appellants.
Paul R. Mahler, Assistant District Attorney, with him Daniel F. Daley, First Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result.
Appellants, David Goodman and Lee Goodman were tried jointly and were found guilty of unlawful possession of a narcotic drug in violation of The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, § 4(q), 35 P.S. § 780-4(q). Following the denial of all post-trial motions filed, each appellant was sentenced to a term of not less than two years nor more than five years imprisonment. The Superior Court affirmed the judgments of sentence with two judges dissenting.
On January 8, 1969, at approximately 7:50 p.m., police officers armed with a search warrant and a body warrant for appellant Lee Goodman, entered Lee's apartment located at 39 West Market Street, Wilkes-Barre. Upon their entry, they observed both David and Lee Goodman disposing of a quantity of marijuana. Both were immediately seized and arrested.
We granted allocatur to consider appellants' exceptions to the lower court's denial of the motion to disqualify and the assignment of error relating to the sentencing. We will therefore confine our discussion to
these issues being satisfied that the other issues sought to be raised*fn1 at this time were properly resolved by the trial court and a majority of the Superior Court.*fn2
The first objection relates to the failure of the trial court upon request to disqualify himself after presiding during a suppression hearing in which alleged prejudicial testimony was received. Recently this Court had occasion to observe: "The better practice in a multi-judge county would be to have the trial conducted by someone other than the judge who presided over the Suppression Proceedings particularly where there is a waiver of jury accepted." Commonwealth v. Paquette, 451 Pa. 250, 258, 301 A.2d 837, 841 (1973).
At that time we refrained from making a mandatory requirement even in a multi-judge district because we recognized the significant administrative problems with which many of our trial courts are forced to contend. We were also aware that in many instances all parties are perfectly agreeable to the same judge presiding even where the trial is non-jury. But our decision not to formulate a prophylactic rule prohibiting a judge from presiding over both pretrial and trial proceedings should not have suggested that we failed to perceive the possible difficulties that could result from such a ...