Commonwealth v. Heaton

457 A.2d 918, 311 Pa. Super. 344, 1983 Pa. Super. LEXIS 2642

• Court: Superior Court of Pennsylvania
• Decided: February 25, 1983
• Docket: Nos. 480 and 728
• Status: Published

Opinions

BECK, Judge:

Appellants, Stevenson Evans Sample and Oscar Leroy Heaton, were tried together for three counts of burglary, two counts of criminal conspiracy and one count of criminal mischief. A jury found each defendant guilty on all counts. After the denial of post-trial motions, appellant-Sample was sentenced to three concurrent terms of from five to fifteen years incarceration; appellant-Heaton was sentenced to three concurrent terms of from seven to fifteen years. Appellants, although represented by separate attorneys at trial, were both represented on appeal by appellant-Heaton’s trial counsel, and they allege identical claims on appeal.

Appellants argue initially that an inference of prior criminal behavior was improperly raised at trial and that the trial court erred in refusing to grant their motions for a mistrial. Finding that claim to be meritorious, we reverse judgments of sentence and remand for a new trial.¹

According to appellants, the first time an inference of prior criminal activity was raised occurred when appellant-Heaton’s trial counsel was cross-examining Chief Conklin of the Castanea Police Department about the absence of physical evidence linking appellants to the first of the three burglaries:

Q. Did you find anything at all on the premises which would tie in either the Defendant Sample or the Defendant Heaton with this crime?

A. No.

Q. You did not?

A. You mean by physical evidence?

Q. Any kind of physical evidence; any fingerprints; anything?

A. If I may state, I called in a State Trooper Hunter from Montoursville. He is a Crime Lab man. He brought up a portable crime lab. He took prints. The prints turned out that there was gloves used. We didn’t come up with any prints.

Q. You mean there was some prints on the premises with gloves?

A. Yes, gloves.

Q. Do you have any knowledge if the person using those gloves was the person that burglarized that building or not? It could have been a patron in there with a pair of gloves on, in other words, somebody in the fire hall?

A. It’s kind of hard to say, one way or the other.

Q. You do not know?

A. I don’t know.

Q. Do you have any personal knowledge yourself at this point that anything you found in your investigation of these premises that would tie these two defendants in with this crime?

A. (No response.)

Q. There were no prints, I take it, right?

A. Right.

Q. Was there any other evidence? Were there clothes found? Were there things like that?

A. No, except for the defecation which is a sign of a person, almost like a painter when he signed it. A person gets excited, he can’t help himself and has to go relieve himself.

Q. You are saying that is a sign of something?

A. That’s a sign of something that’s been found at a couple other of the burglaries that —

MR. ROSAMILIA: Your Honor, I would object to this testimony.[²] I would ask that we approach the Bench at this point.

THE COURT: No, you have asked the question, and you have to go- with whatever—I do not see what effect it would have. I will instruct the witness not to discuss any other offense.

THE WITNESS: Okay. Sorry, your Honor.

THE COURT: You opened the door with your question. BY MR. ROSAMILIA:

Q. Did you find any hard evidence, any hard and fast evidence, anything to tie these two gentlemen in?

A. Just what I stated.

Notes of Testimony (“N.T.”) at 28-30 (emphasis added). Appellants also point to later redirect examination of another police officer by the prosecutor in this case which they argue further raised the implication of prior criminal activity by appellants. The prosecutor asked Police Officer Walakavage of the Lock Haven Police Department why he told Detective Eichenlaub of his Department that he had observed appellants in a bar on the morning of September 14, 1979—the morning the burglaries allegedly occurred:

BY MR. SAXTON:

Q. Officer, Mr. Roberts asked you why you told Detective Eichenlaub the next day that you had seen them in there the day before. Why did you tell him?

A. Because Detective Eichenlaub told me of the burglary at the Castanea Fire House and the defecation they found on the floor, and I stated that I seen Oscar Heaton and Steven Sample —

MR. ROSAMILIA: Objection, your Honor.

MR. ROBERTS: Objection. I do not see what relevance that has.

THE COURT: I do not know why you are asking the question. We are going to sustain the objection and instruct the jury to disregard the answer.

MR. SAXTON: He asked him why he told him.

THE COURT: I know, but I do not think you can pursue it and the Court be allowed to admit it into evidence.

MR. SAXTON: That is all.

N.T. at 72-73 (emphasis added).

Defense motion for a mistrial was denied.

Appellants acknowledge that no further inquiry along these lines was permitted, but argue that the inference of prior criminal behavior had been raised. Appellants cite Commonwealth v. Washington, 488 Pa. 133, 138, 411 A.2d 490, 492 (1979), reargument denied, March 3, 1980, for the proposition that “in determining if the introduction of the challenged testimony constitutes reversible error, the controlling question is whether the jury could reasonably infer therefrom that the accused had engaged in other unrelated criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (197[2]).”

We are convinced that the jury reasonably could have construed the allusions to the feces left at the scene of the crime as linking appellants to another crime or crimes. We are confident that the jury grasped the implication of the above quoted testimony that in prior incidents either one or both of the appellants had left similar evidence at a crime scene or scenes.- This we condemn for it raises a serious doubt in our minds as to an improper basis for the jury’s verdicts.³ This Court stated in Commonwealth v. Boulden, 179 Pa.Super. 328, 332, 116 A.2d 867, 869 (1955) the general rule for the admissibility of evidence of prior criminal conduct:

The general rule is that “on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.” 22 C.J.S. Criminal Law § 682. Shaffner v. Commonwealth, 72 Pa. 60 (1872); Snyder v. Commonwealth, 85 Pa. 519 (1877); Swan v. Commonwealth, 104 Pa. 218 (1883); Commonwealth v. Saulsbury, 152 Pa. 554, 25 A. 610 (1893); Commonwealth v. House, 223 Pa. 487, 492, 72 A. 804 (1909); Commonwealth v. Shanor, 29 Pa.Superior Ct. 358, 362 (1905).

In Shaffner v. Commonwealth, supra, page 65 it was said:

“If the evidence (of an offense not charged) be so dubious that the judge does not clearly perceive the connection (with the crime charged), the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.” [⁴]

The Commonwealth counters that in evaluating appellant’s argument emphasis should be given to the fact that comments of which they complain were elicited by appellants’ counsel.⁵

In concluding that the identity of the questioner is not relevant in evaluating the prejudicial impact of a reference to prior criminal activity, Judge Spaeth has stated and we agree:

An innocent question may elicit a response so prejudicial as to deny an accused the right to a fair trial, and this is so whether the innocent question is asked by the prosecutor, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (inference of criminal activity drawn despite fact that purpose of prosecutor’s question was to show defendant had fled after murder), or by the accused’s own counsel, Commonwealth v. Wetzel, 276 Pa. Superior Ct. 445, 419 A.2d 541 (1980) (inference of criminal activity drawn despite the fact that questions asked by defense counsel and not prosecutor).

Commonwealth v. Bowermaster, 297 Pa.Super. 444, 456, 444 A.2d 115, 121 (1982) (SPAETH, J. concurring and dissenting).

The Commonwealth further argues, citing Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979), that any error in this regard was harmless. The Weakland court enunciated the test for finding error in this context to be harmless:

Where ... this Court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless. Commonwealth v. Story, 476 Pa. 391, 38[3] A.2d 155 (1978). In the instant case, although Trooper Fedin’s testimony supported an inference that appellant had previously engaged in criminal activity, that inference was innocuous in view of the great volume of other evidence presented at trial and was, therefore, harmless error.

Id., 273 Pa.Superior at 369, 417 A.2d at 694. We are not convinced that the error did not contribute to the verdict. In the instant matter, no physical evidence was introduced linking appellants to the burglaries; the only evidence that inculpated appellants was the testimony of Kathryn Lamey who testified that she had been an accomplice in the burglaries and who had been accepted into the Accelerated Rehabilitative Disposition Program contingent upon, inter alia, her offering testimony in the prosecution of appellants. The statements raising the inference of prior criminal behavior could have weighed heavily upon the minds of the jurors and contributed to their verdict.

Judgments of sentence reversed and new trial granted.

LIPEZ, J., filed a dissenting opinion.

1 . Appellants present five other allegations of error. We find the opinion of the lower court supporting the denial of post-trial motions to have adequately answered those claims, and we need not address them here.

2 . The dissenting opinion places considerable emphasis upon the timing of defense counsel’s objections both to this testimony and to the subsequent testimony which we herein find to have raised an inference of prior criminal activity. We disagree with the dissent's conclusion that these objections were not made in timely fashion, and instead conclude that in both instances counsel objected as soon as the grounds for those objections became clear. Prior to the objected to statements, it was not self-evident that the witnesses would allude to this prior criminal activity. McCormick, Evidence (1972, 2d.Ed.) § 52.

3 . Appellants contend that the two witnesses who referred to prior criminal activity should have known better since they were both police officers and Commonwealth witnesses. They analogize the instant matter to Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) where the Pennsylvania Supreme Court stated that when the witness is an investigator of the District Attorney’s office, “it is a reasonable assumption that he should have known not to make such statements [suggesting prior criminal activity].” Id., 488 Pa. at 138, 411 A.2d at 492. We find the preceding reasoning to be persuasive.

4 . It is well-settled, of course, that “evidence of ... prior criminal conduct [is] admissible to establish ... identity by showing the similarity between the two incidents. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975).” Commonwealth v. Shively, 492 Pa. 411, 414, 424 A.2d 1257, 1258 (1981). The Shively court quoted the McCormick treatise to illustrate this exception to the above general rule:

As McCormick has stated, evidence of prior crimes is admissible: "... to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here, much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature." McCormick, Evidence, § 190 (1972 2d ed.) (Emphasis added) (Footnotes omitted).

Id., 492 Pa. at 415, 424 A.2d at 1259. We note that the Commonwealth did not contend at trial that the above testimony was admissible because it fell within this narrow exception, and there is no evidence of record which would support such an identical modus operandi between the burglaries for which appellants were charged and prior burglaries which would establish the identity of appellants as the burglars in the instant matter. Indeed, the Commonwealth introduced no evidence that appellants had committed the other burglaries.

5 . We note that while the first reference to prior criminal behavior was offered in response to a question from defense counsel, the second was offered in response to the prosecutor’s question, albeit a follow-up to a defense question on cross-examination. It appears clear that the prosecutor's question was aimed directly at eliciting the prejudicial response.

The trial judge refused to sustain a defense objection to the first reference because it was offered in response to a question from defense counsel. A defense objection was sustained, however, after the second reference to prior criminal activity. We note also that a curative instruction was provided.

While the Pennsylvania Supreme Court in Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981) held that a curative instruction may eliminate the taint arising from a reference to prior criminal conduct, the Richardson court gave great weight to the fact that the Commonwealth sought to prevent the remarks raising the inference of prejudice. In the instant matter there were no such efforts of record made by the Commonwealth to preclude the offering of these remarks by its witnesses. To the contrary, it appears clear that the Commonwealth purposefully elicited the second reference to prior criminal activity. Moreover, we find that the curative effect of the instruction in this matter was far outweighed by the prejudicial impact of the above remarks.