Commonwealth v. Elmore

362 A.2d 348, 241 Pa. Super. 470, 1976 Pa. Super. LEXIS 1993
Superior Court of Pennsylvania·Decided June 28, 1976·No. 1301·Published·Cited by 17 cases

Opinions

HOFFMAN, Judge:

Appellant contends that the trial court erred in conducting vigorous direct examination of one of the Commonwealth’s witnesses which led to the introduction of prejudicial testimony.

On August 23, 1974, the Bucks County Grand Jury returned indictment number 1514 charging appellant with a March 4, 1974 burglary. After the court denied appellant’s motion to suppress, a jury was selected on November 7, 1974. On November 11, 1974, the jury found appellant guilty as charged. Post-trial motions were denied on February 11, 1975. On April 11, 1975, appellant [472] was sentenced to a term of imprisonment of three to twenty-three months.

At trial, the following facts were developed. One witness, who was unable to make an identification at any point during the proceedings, testified that she returned home on March 4, 1974, and discovered that her apartment was being burglarized. She left her apartment and told Mrs. Keyes, a neighbor who was in the hallway of the apartment building, that “I’m being robbed.” Mrs. Keyes saw two men running from the rear of the building; she gave chase, during which time she viewed the suspects. The only other Commonwealth witness was the arresting officer, who testified that the police dusted for fingerprints but found only smudges, indicating that the burglars wore gloves. The only testimony elicited by the prosecutor from the officer on the subject of the witness’s identification was the following: “Q. Detective, did you also interview the witness?

“A. Yes, I did.
“Q. What information did she give you?
“A. Mrs. Keyes was there and both me and Haldman were there at the interview.
“She gave a description of two men she chased out of the parking lot.
“Q. Did the description that she gave fit anybody that is in this courtroom?
“A. Yes, one did.
“Q. Who is that?
“A. Subject number one fits the defendant.
“Q. Based upon your investigation, did you arrest anyone in the courtroom as a result?
“A. Yes.
“Q. Who was that?
“A. [Appellant].”

[473] After appellant’s counsel had cross-examined the police officer, the court conducted the following examination of the witness:

“THE COURT: Is there anything else?
“[THE ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.
“THE COURT: Excuse me. There is something missing here, it seems to me.
“Detective, during some part of your investigation you came and you arrested this man on a certain date, is that correct?
“THE WITNESS: Yes.
“THE COURT: As a result of certain information?
“THE WITNESS: Yes.
“THE COURT: You said Mrs. Keyes identified the person.
“Did she have anything to do with the fact of your arrest of this man?
“[APPELLANT’S COUNSEL]: I object, Your Hon- or.
“THE COURT: The objection is overruled. You may answer.
“THE WITNESS: Basically.
“THE COURT: In what way?
“[APPELLANT’S COUNSEL]: Your Honor, may we approach the bench?
“THE COURT: What was Mrs. Keyes’ part in your arresting the defendant?
“[APPELLANT’S COUNSEL]: Objection, Your Honor.
“THE COURT: The objection is overruled. You may answer.
“THE WITNESS: Mrs. Keyes was involved in the fact that she had identified a photograph of the defendant.
[474] “[APPELLANT’S COUNSEL]: Your Honor, I will move for a mistrial.
“THE COURT: The motion is denied. Your answer was what?
“THE WITNESS: She identified a photograph of the defendant, Your Honor.
“THE COURT: This was exhibited to her by whom?
“THE WITNESS: It was made up by me and exhibited by Detective Hildesheim to her.
“THE COURT: Just how was the photograph exhibited,?
“THE WITNESS: She was shown approximately thirty-eight hundred pictures in the beginning, and then through my information and investigation it led to [appellant], and a photograph of him was obtained and it was put in with five other photographs basically fitting his description.
“It was showed to Mrs. Keyes, and she immediately picked out the defendant as one of the men she had seen that night.”

The examination of the witness by the court raises two separate grounds which should compel this Court to reverse appellant’s conviction: first, the officer’s testimony concerning the photographic array allowed the jury reasonably to infer that appellant had engaged in prior criminal activity and second, the court overstepped its authority in conducting the examination of the witness.

In Commonwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973), the Supreme Court summarized the settled principles of law concerning the introduction of evidence of prior crimes committed by an accused: “In Pennsylvania, the law is clear that if a testimonial reference to a photograph indicates to the jury the accused has been involved in prior criminal activity, reversible error is committed. This rule is based on the [475] principle that evidence of distinct crimes may not be introduced against a defendant who is being tried for another crime, except under certain limited circumstances, not relevant here. See Commonwealth v. Groce, 452 Pa. 15, 308 A.2d 917 (1973); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).” See also, Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973); Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973); Commonwealth v. DeMarco, 225 Pa.Super. 130, 310 A.2d 341 (1973); Commonwealth v. Harding, 225 Pa.Super. 84, 310 A.2d 326 (1973).

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Commonwealth v. Elmore, 362 A.2d 348, 241 Pa. Super. 470, 1976 Pa. Super. LEXIS 1993 (Pa. Ct. App. 1976).

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