Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Somerset County at No. 100 of 1981.
L. Edward Glass, Johnstown, for appellant.
David Flower, Assistant District Attorney, Somerset, for Com., appellee.
Rowley, Popovich and Johnson, JJ.
[ 361 Pa. Super. Page 403]
This case is on remand from the Pennsylvania Supreme Court to resolve the remaining issues left open by this panel's initial decision to suppress a warrant for "staleness", a decision which was reversed on appeal. Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986).
The first issue we shall address concerns Baker's contention that the court below erred in hearing the testimony of an individual (Agent Todoric), other than the affiant on the search warrant, in considering whether probable cause for its issuance existed. This testimony, argues the defendant, "was so exhaustive as to sufficiently taint [sic] the entire proceeding[.]" And, albeit not articulated by the defendant, this would necessitate a suppression of the evidence consisting of forty items of drugs and related paraphernalia as reflected in the receipt/inventory of seized property form. We disagree.
To start with, notwithstanding the testimony of Agent Todoric, the two affiants whose names appear on the face of the application for the search warrant, i.e., Detective Berkebile and Agent Lemon, testified before the court below to supplying the magistrate with all of the information contained in the warrant and affidavit. Their accounting,
[ 361 Pa. Super. Page 404]
in and of itself, would be sufficient to establish the sufficiency of information presented to the magistrate to uphold the validity of the warrant. As for the claim by the defendant that the proceedings before the suppression court were somehow infected with the testimony of one not an affiant to the warrant, and not appearing before the magistrate, is unconvincing when analogized to the law relating to the treatment of prejudicial evidence heard by a judge presiding over a criminal case.
In this Commonwealth, the courts have treated such a claim of prejudice by first examining the judge's remarks as to any disclaimer, e.g., "he disregarded the defendant's prior criminal record in reaching a conclusion as to guilt." See Commonwealth v. Brown, 328 Pa. Super. 215, 476 A.2d 969 (1984). The reason is that a judge, as a factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence in making his decision. Commonwealth v. Glover, 266 Pa. Super. 531, 405 A.2d 945 (1979); McCormick on Evidence § 60 (2d Ed.1972). Thus, we have held that a trial court's express statement at a post-verdict motions hearing negating any affect the evidence of the appellant's arrests may have had on the verdict was sufficient to purge the taint of the questioned evidence. See Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983); Brown, supra.
A fortiori, we see no reason not to extend the same rationale to a defendant's claim of error occurring during the course of a suppression hearing.
Instantly, the court below specifically discounted the testimony of Agent Todoric as a factor in reaching its conclusion in finding the warrant valid and the evidence seized as a result thereof admissible at ...