*1 A.2d 719 Pennsylvania COMMONWEALTH of (two cases). Miguel RIVERA, Appellant Supreme Pennsylvania. Court of
Argued Nov. 1975.
Decided Nov. 1976.
Rehearing Denied Jan. *2 Simone, Philadelphia, appellant. Robert F. for F. Fitzpatrick, Atty., Emmett H. Dist. Steven Gold- blatt, Appeals Atty., Div., Asst. Dist. De- Chief, Frank Simone, Atty., Carolyn Temin, Asst. Dist. E. Philadel- phia, appellee. EAGEN, O’BRIEN, POMEROY, ROBERTS,
Before NIX MANDERINO, JJ. *3 THE COURT
OPINION OF POMEROY, Justice.
Miguel appellant Rivera, a the was convicted rape degree, of the of first and offenses murder of the motions, conspiracy. post-verdict of After the denial appellant imprisonment on the mur- was sentenced to life year charge twenty der im- to a concurrent ten to and prisonment rape. conspiracy convic- Sentence on the suspended. appeal tion was This followed.1 that Rivera trial was evidence at The Commonwealth’s early of June morning hours men in was one of the six girl rape young and participated of 27, in the 1973 who reflecting pool in drowning boyfriend in her the the of neces Philadelphia is not Art Museum. It front the judgment for murder was taken appeal of sentence 1. The of the Appellate pursuant Jurisdiction directly Act, to the Court to this Court II, Art. sec. No. July P.L. Act of judgment of appeal (Supp.1975-76). The P.S. 211.202 Superior rape Court the to this sentence for certified were related. the two crimes Court because re the of these sary that we recount here sordid details reviewing volting crimes; the say suffice it to that after record,2 sufficient we evidence was are satisfied that permit beyond to doubt a reasonable conclude appellant participant rape murder. was a in assignments proceed error We thus to consider by appellant prayer for a new of his made in Finding merit, we will affirm. trial. to be without them Appellant court erred first contends that failing grant motion mistrial. The a motion for a during came the course of the re-direct examination witness, appellant’s principal co-de Commonwealth cross-examination, fendant, defense On Juan Garcia. credibility of attempted impeach counsel Gar had by questioning cia him about inconsistencies various police concerning the given statements he to the Garcia, apparent attempt In crimes. rehabilitate an began from one of attorney to read assistant district those statements. “ I park days incident in ‘About three after the know I guy ran into Mike whom defendant] [the I Now, is the statement 17th at & Greene.’ m, referring you on the gave a. am to that at 7:15 morning July from quoting I’m the words Now junkie . .’” statement. ‘He . point for a objected Defense moved counsel at this objection the motion mistrial. The was overruled and Appellant him as denied. asserts that *4 “junkie” prejudicial permit- it improper because previously ted involved to infer he been activity in criminal of some sort. “the general
The rule is that and well-known prosecution may of the evidence defend- not introduce 1870, 15, 2,19 15, § § February 2. of P.S. 1187. Act P.L. previously and
3. The as had been marked exhibits statements later were introduced into evidence.
135 of evidence prior as substantive ant’s criminal conduct 4 Al charge.” v. guilt present Commonwealth (footnote (1972) 373, len, 177, 181, 292 A.2d 448 Pa. Fortune, omitted). 464 Pa. also Commonwealth See 367, therein. cited A.2d and cases drug dictionary, according is “a ad- “junkie”,
A House dict, The Random esp. heroin.” one addicted to (Coll.Ed.1968). In English Language Dictionary of the regular user of argot, simply street denotes word point, drugs. disagree this parties The do not un- opinion purposes assume that we will is meaning. question derstood the to have word activity by drug whether use connotes user. use, not a use,
By drug itself even habitual 5 prohibits the un law crime in this statute State. Our manufacture, possession, distribution sale and authorized marijuana. heroin and controlled substances such as offense however, is not an drugs, The mere such drug may addic law,6 mere status of under the nor offense. punished constitutionally tion as a criminal be 1417, L. 8 California, 660, 82 Robinson v. U.S. S.Ct. conclusive, however, of Ed.2d 758 is not This by a defendant conduct whether the idea of criminal is iden conveyed jury when the defendant would to a be drugs. person tified as who uses rule, course, example are, exceptions as for to this 4. There sought be admitted crime when the evidence of the other prove scheme, or mo- design or intent to establish a common McCormick, Evidence, (Clearly § ed. 190 at 448-451 tive. See exceptions. The Common- 1972) complete listing of the for a applicable exceptions is argue any of these wealth does not here. Act, Substance, Drug, Act Device and Cosmetic 5. Controlled amended, 1, 1972, 233, 64, P. 14, seq., as April et P.L. No. i seq. §S. et 780-101 Act, Sep- Act of Drug, Cosmetic Device and 4 of the 6. section Cf. amended, 4, 780-4(r), § P.S. § as P.L. tember 14, 1972, April No. repealed, P.L. Act of *5 Superior question with similar Court was faced Pa.Super. in Quarles, the v. case of Commonwealth here, Quarles, it 231, as was A.2d 640 In drugs improperly the claimed the reference to that permitted en- had the to infer that the defendant gaged for in criminal than those which activities other being he case, tried. In that between the date physical appearance of crime and the time of trial changed respects, with the the defendant had in several eyewitness of his result that unsure an to the crime was to bol- In order identification the defendant at trial. testimony, ster the Commonwealth identification arresting officer, called to the testified stand the who appellant’s his hairstyle that that had been altered and general by the physical improved. Asked condition had change explanation the defend- for an in appearance, ant’s replied, the time [of the detective “[a]t heavily very dependent he was on narcotics incident] his condition He had scabs had deteriorated. appear arms which don’t there now.” be impression Noting first that this was an issue of Quarles in Pennsylvania, that such in stated Court inference, testimony aas “cannot be said to raise an law, matter of that is evidence addiction to narcotics at 641.7 criminal conduct.” Id. at 326 A.2d any agree refer We and therefore decline hold possibility ence to the of a defendant’s addiction prejudicial a new use of narcotics is to warrant so as supra, Allen, As in Commonwealth v. we said trial. photo- police where had been made from identification be as dictum because In one this statement can viewed sense preserved purposes. properly appeal the issue not been had however, predated in Com Quarles, our decision The trial in abolishing Clair, A.2d 272 monwealth cases, error” criminal and fundamental “doctrine basic Superior course of was made and the Court’s statement the error applicability of doctrine to consideration of alleged error was complained concluded that of. Court not basic and fundamental. “ from photographs passing graph, mere [a] activity prior inference of which a reasonable pro- properly not invalidate drawn does cannot be *6 prejudice result as a ceedings no since there has been at 181, 292 A.2d . .” Pa. at the reference . 448 Carlos, 341 462 also Commonwealth 375. See Groce, 452 Pa. (1975); A.2d Commonwealth v. 71 like considera- that A.2d believe We simple, present regard in to the tions in the case obtained by that the defendant witness unadorned statement a “junkie”. was a part Rivera activity on the
To infer challenged jury have reference, the would from the in conjecture drug prone commit crimes user that a in fact support basis drug order his Whatever habit. general proposition, see supposition may such a a have as Pa.Super. compare Williams, 230 and Commonwealth v. unwilling (1974), to conclude are 327 A.2d we in possibility speculation and the so attenuated that of a sufficiently itself, appellant way is, no this related to prejudicial granting of new trial. to warrant a present in case to
Additional reasons are only “junkie” our mentioned conclusion. The word was single (the attorney stat- later time8 assistant district inadvertent). More- reading ed that his of it been had drugs over, appellant been use fact that did brought jury’s to the before Juan Garcia’s attention statement direct and cross- was read to them. both On objection that examination without Garcia had testified smoking Miguel Rivera, among others, he had observed immediately rape murder. marihuana before attorney 8. At the close of all the evidence the assistant district requested cautionary judge give instruc- the trial drugs by any tion to the effect that reference to the determining his defendant was not to be considered them willing- expressed guilt or innocence. While the trial charge, rejected offer on ness so defense counsel ground proceeding stage of the that such a statement at drug factor. only jury’s would to the serve to call the attention therefore, “junkie” been the term could have The use of thought by thought by jury (and in fact so marihuana, appellant’s fact al- judge) to refer to use ready in evidence. prejudice hence no error no we find
While opportunity observe bar, the case take at we drug use, like other bad any that evidence of evidence except defendant, di habit of a should be when avoided rectly issue See relevant to an before fact-finder. supra, Pa.Super. Quarles, at 235- Commonwealth v. 640; Evid., McCormick, 326 A.2d Law of (1954).9 assignments
Two of error in the court’s charge to the Rivera remain to be considered: *7 stating claims, first, that the erred in to the Court opinion voluntary manslaughter that in “the crime of his was not in this case.” It is contended that involved expression opinion part rendered on the the Court illusory right charge voluntary appellant’s man slaughter. agree. do not We Gaddy,
Only recently, in
the case
Commonwealth v.
(1976)
303,
468 Pa.
139 making the Second, immediately sible after verdict. objected to the to, comment now it clear made repeat- they opinion were and not bound they "power” to return verdict ed that had the with a voluntary manslaughter.10 circumstances Under these we no error find the court’s statement. See Common- Russell, (1974); wealth v. Pa. 326 308 A.2d Yount, Commonwealth A.2d (1974). objection charge is
Appellant’s other opinion expressed personal to Rivera’s the court as however, guilt. objection trial, This was not made at precluded. appeal Pa.R.Cr. of it on consideration 1119(b); Dukes, 460 Pa. P. Commonwealth v. notwithstanding that A.2d This is so motion, although point, in the new trial not included argument apparently motion. on that advanced at Judgments of sentence affirmed. JJ., in the result. NIX, concur
EAGEN, O’BRIEN dissenting opinion MANDERINO, in which J., filed a joins. ROBERTS, J.,
JONES, J., participate consideration not in the C. did decision of case. *8 MANDERINO, (dissenting). Justice drug use majority The that because I dissent. asserts prior appellant engaged in crime, not a to infer that is a naming appellant as activity remark criminal from the drug conjecture “junkie,” that a “the have to would charged: 10. The court your power, reserved you power, is within “But have which guilty of you, is to determine or not the defendant whether voluntary manslaughter. as clear as I can.” So I make that prone support user to commit crimes in order to is fallacy argument habit.” The of this is Al- twofold. though drug correct in its assertion that use of the her- crime, majority oin is not in itself a overlooks fact heroin, “possess” it, posses- that to use one must sion of heroin is crime in a this Commonwealth. See The Substance, Drug, Controlled Device and Cosmetic Act, April Act of seq., P.L. et No. § as amended, seq. Jury et The there- P.S. 780-101 speculate fore not all; they simply need at need draw majority, conclusion obvious to all but the that one who “uses” heroin committed the has criminal act “possessing” heroin. reference Such activity prohibited, is and its admission into evidence at appellant’s trial constituted reversible error. majority’s logic misses the also mark conclud-
ing possibility jury assuming of the that a her- likely oin addict is more to commit a crime is too “atten- require uated” to reversal. I believe the likelihood speculation such quite high regardless is — of the “basis in supposition may fact such a a have as general proposition” prejudice this likelihood of is —and in itself grant sufficient to warrant of a new trial.
Moreover, unobjected-to regarding appel- alleged lant’s juana way justifies mar in no refer- ring being “junkie”. to him as The foundation of the majority’s misconception conclusion meaning of the “junkie”. of the word “junk”, The word is derived from a synonym for “junkie”, heroin. A therefore, is one who regularly “junk”, e., uses i. commonly As heroin. under- stood, however, the work connotes much more. name itself frequently conjures up images popular of the stereotype addict, heroin namely, soul, phys- a lost ically mentally deteriorating dependence upon from drugs, manages who only by stealing survive enough drug costing perhaps addiction hundreds of day. dollars image Such an likely implanted to be *9 jury by objectionable the collective mind of the re- Marijuana hand, mark. possession, other has enjoy come to acceptance, substantial or tolerance at least, despite continuing illegal average status. juror likely ignore, marijuana far excuse, more possession, condemning strongly while at the same time heroin use. express my majori
Additionally, I must dissent to the ty’s approval that, in its of the trial court’s statement opinion voluntary manslaughter “the crime of was not involved The unavoidable effect of such a case.” voluntary statement to direct man a verdict as to slaughter statement, re issue. made in court’s sponse “pow objections, defense that the er” manslaughter despite voluntary return a verdict opinion, the trial than reduces the court’s adds rather prejudicial effect of the The clear im initial remark. pression by exchange judge left between the and de wrong if it re fense would be counsel is manslaughter voluntary com turned verdict. Such the court ment the trial has condemned been Archambault, A. since Commonwealth v. 2d 72 dissenting
ROBERTS, J., opinion. joins in this