No. 543 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, entered on February 2, 1977 at Nos. 7607823 and 7607805.
Lester G. Nauhaus, Asst. Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Spaeth, J., files a concurring and dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 104]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Allegheny County, Criminal Division, by the defendant-appellant, Paul Jones, after conviction in a non-jury trial of theft by deception and violation of the Controlled Drug Device and Cosmetic Act -- Delivery; and from the denial of post-trial motions.
The facts are as follows: On June 2, 1976 an undercover narcotics officer contracted with the defendant to purchase four "half spoons" of heroin for $96.00. This was delivered. Two weeks later he contracted for the same quantity of heroin at the same price but instead of delivering heroin he delivered a substance that proved negative as to the drug. The investigation was completed August 5, 1976 and the defendant was arrested on October 5, 1976. After conviction he was sentenced to a term of not less than one year
[ 259 Pa. Super. Page 105]
less two days, and not greater than two years less one day, on the delivery conviction. Sentence was suspended and the defendant placed on two years probation. Sentence was suspended on the theft charge.
The principal issue raised in this appeal is that the trial judge erred in refusing to disqualify himself in a non-jury trial after he had heard prejudicial and inflammatory evidence in the form of a prior conviction in a pre-trial motion to quash the indictment.
In Commonwealth v. Paquette, 451 Pa. 250, at page 258, 301 A.2d 837 at page 841 (1973), the court said: "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. Corbin, 447 Pa. 463, 291 A.2d 307 (1972)".
In Paquette, no request was made by the defendant for the disqualification of the trial judge so the Supreme Court held that proceeding to trial before the same judge was a matter of trial strategy and he was in no position to complain of the result. However, in the instant case, the evidence of a prior conviction on similar charges had been introduced at the hearing on the motion to quash the indictment and the request was made prior to trial that the judge disqualify himself.
In Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) the defendant was convicted of possession. In that case, evidence of a prior conviction was brought out at a pre-trial hearing. The defendant elected to go to trial non-jury and requested that the Suppression Judge disqualify himself in the non-jury trial. The judge refused and after conviction the defendant appealed. ...