*1 Pеnnsylvania COMMONWEALTH George Appellant. WILLIAMSON, E. Pennsylvania
COMMONWEALTH of GREEN, Appellant. Jr., William Pennsylvania. Superior Court of Sept. 27, 1976. *2 Packel,
John Appeals W. Asst. Public Defender, Chief, Div., Joseph Montgomery, (Court-appointed), D. III Philadelphia, appellants. Goldblatt, Appeals
Steven H. Chief, Atty., Asst. Dist. Div., appellee. Philadelphia, for WATKINS, JACOBS,
Before Judge, President and HOFFMAN, CERCONE, PRICE, der and VAN VOORT SPAETH, JJ. Judge.
PRICE, opinion separate This appeals, arising involves two joint from the trial the instant The facts appeals are identical and the raise the same issue. We appeals therefore address ourselves to both herein. August 10, 1974, On upstairs in Catherine was Chavis Philadelphia, her home 528 Fallon Street in she when at calling heard a voice came out of a below. She proceeding up room and saw two men the stairs. man, appellant first later identified as William carrying shotgun. turned, a sawed-off Ms. Chavis ran into her bedroom then and locked the door. She dropped climbed out the onto the bedroom and window roof, her bedroom on the she heard roof below. While neighbor’s being open. forced She entered her door downstairs through house a bedroom window and went outside, police. where she was met Philadelphia policemen accompanied Three Ms. Chavis guns, pocketbook, and back into her house where two her missing from the bed- certain records were to be found being both of the room. Ms. Chavis knew intruders police neighborhood. from the went with the She away house, approximately Green’s and a half block there, Hoopes Both were found Street. Subsequently, Chavis, identified Ms. and arrested. thorough made obtained a warrant half, of search, lasting approximately an hour and a Green, appellant moth- Green’s Green’s residence. *3 er, police re- the house arrived and when the throughout did not mained there the The search sеarch. any of the home missing reveal items Chavis’ Ms. police hypodermic and a but the did find used needles package containing 1,000 glassine bags. at least appellants judge, jointly
The tried before a sit- ting jury. guilty without a Both of were found carrying robbery,1 conspiracy,2 unlawfully criminal a license,3 possessing firearm without a instruments burglary.5 crime4 and appeal question presented sole in this refusing to
whether the court erred in declare below attorney prosecuting introduced mistrial when topic drug-related paraphernalia certain which was premises during discovered search of § Pa.C.S. 3701. 1. 18 §
2. 903. Pa.C.S. § 6108.
3. 18 Pa.C.S. § Pa.C.S. 907.
4. 18 § 18 Pa.C.S. 3502. where the were found. This matter was first during broached of Mrs. who was an alibi witness for the stated that both She Green during and Williamson had been at hеr house robbery. time place following exchange took during the prose- cross-examination Mrs. Green cuting attorney:
Q. you go Did they with the officers when searched your you go house; throughout did with the house them?
A. Yes.
Q. you Did see them search rafters ? Yes, they gave A. took a I mirror. them a mirror. They big flashlight got this, you took a like' have put they it panel, look underneath the сould up this, they my like turned over trash.
Q. they did find in the What rafters ? nothing
A. Nothing, but a baseball bat. Q. They nothing? didn’t find No, nothing. A. no guns, no Q. you they large Are sure find amount of didn’t glassine bags? Objection.
MR. MONTGOMERY: THE COURT: Overruled. No,
THE I think so. don’t WITNESS: BY MR. CARPENTER:
Q. you hypodermic they any Are sure find didn’t . needles? Objection.
MR. MONTGOMERY: THE COURT: Overruled. they didn’t. I don’t think so because
THE WITNESS: something would have said about it. I BY MR. CARPENTER:
Q. you But were there? I Yes, A. it had but was than one officer. more everyone.6 20, and I couldn’t watch about present rebuttal, police the testi- In officer at search prosecuting attorney the The fied for Commonwealth. following conducted the examination.
BY MR. CARPENTER:
Q. you participate premises? the of the Did search A. That’s correct.
Q. you Did search the rafters in the basement? part Yes, sir, participated
A. I in that of the search. Q. you anything And what if had recovered from thеre? Objection. HANFORD:
MR.
THE COURT: Overruled.
THE In the course of the WITNESS: search couple rafters, hypodermic we found a of used needles package, more like a con- and a cardboard container 1,000 glassine bags— taining least officer, testimony by After the counsel this mistrial, appellants joined the motion for which in a was refusal denied. We hold that lower court’s proper judg- declare a mistrial we affirm the ment of sentence entered below. that a mistrial should have assertion hy- regarding
been granted, on the based podermic envelopes glassine found on needles and separate premises, arguments. searched rests on two appellant objected ques- Only Green above counsel for cross-examination, tions, regarding on to Mrs. Green directed bags. analysis hypodermic glassine needles and which fol- body opinion, focusing lows on rebuttal testimo- this Commonwealth, ny dispositive any offered is also objection quoted to the For of Mrs. cross-examination Green. unnecessary it reason we deem to discuss waiver doctrines might preclude appellant raising which Williamson this is- appeal. sue on *5 First, alleged it that the on is Commonwealth’s evidence topic fact, not, testimony this did in rebut the of the de- witness, Citing fendant’s alibi the well-es- Mrs. Green. proposition impeached tablished that a witness cannot be matter, appellants on a collateral insist that this testimo- ny improperly was second admitted. ar- gument drug-related that the of intrоduction prosecution in separate is, regardless for a of offense relevance, overwhelmingly prejudicial so require a as to case, or, mistrial in this of reversal a conviction. analysis applicable of frame to the instant case is suggested Quarles, in Commonwealth v. drug Referring A.2d 640 to evidence of robbery,
addiction in introduced a trial court permits stated that “before the court such testi [trial] mony objection, inherently over it should consider prejudicial nature testimony carefully of such deter probative sufficiently mine its whether value and need is 235-36, strong justify its admission.” 230 A.2d at 642. must, therefore, weigh probative We of the value disputed testimony against possibility prejudice of testify- witness, an Green was alibi ing appеllants were at her house at the time robbery credibility when the occurred. Her was thus a major accuracy matter importance at trial. The observations, particu- witness’ her awareness day transpired lar events which in her house that ability her to recall If the such were all events relevant. witness was incorrect her stated conclusion that nothing bat, thе found but rafters a baseball might wrong finder of fact also infer that she been had in her belief that the had been the house at robbery. the time of the that she Mrs. Green testified present when the rafters searched and nothing particularity was found a baseball bat. The but impaired by her not her on this matter was *6 everyone.” later she “couldn’t watch caveat that that if the fact finder chose believe Further, knowledge re- of the attested Green lied when she denied might lie to search, possibility she the that sults ap- provide be her friend would an alibi for son and his weight could, least, the ac- parent very affect at the factors, testimony. Considering we these corded to her clearly challenged testimony relevant. find the to be anаlogy in attempt the Appellants an between to draw principle common law the stant facts and fundamental activity prior criminal of a defendant’s evidence guilt of evidence cannot substantive be introduced as inapplicable, reasoning how present charge. is the This argu rejected “the ever, specifically this court as has of the аc drug to the ment that addiction a reference necessarily inference it the cused carries with Com prior conduct. engaged in criminal accused has Pa.Super. 231, Quarles, 326 A.2d monwealth 72, Williams, (1974).” Commonwealth v. the use 367, as to (1974). No evidence 327 A.2d appellants, other either of or sale of narcotics trial. introduced disputed testimony, was than the trial, nonjury especially in circumstances, these Under legitimate testimony, for a offered equate we such cannot prior conduct. purpose, criminal evidence of with testimony was questioned Concluding that require reversal prejudicial toas was not so relevant and prejudice, fact, inured per se, what we must determine support judge, in his appellants. Here the trial to these of such not opinion, ing states that “such decision the Court’s prejudicial to influence nature as perceive We guilt innocence of defendant.” to the or us, to doubt reason, before the record no on' conclusion.7 testimony to have instant case been if we found Even not, still allowed, would admission its we do improperly which which is sоmewhat inquiry,
Our the result of final discussion, preceding is whether foreshadowed refusing the motion trial court abused its discretion grant a mistrial “The mistrial. decision whether to ground initially on the within the sound court.” Commonwealth discretion of trial (1972). It Koch, 288 A.2d mistrial, the situa- that, require often has been held must in the mind tion such as to raise a fixed bias be preclude objective a fair and the fact finder and thus to Carlos, 462 Pa. verdict. See Commonwealth v. (1975); McNeal, 456 Pa. A.2d 71 tes- that the 319 A.2d court found trial *7 prejudice or timony create involved herein did not such otherwise influence its verdict. is af- judgment of of the lower court sentence
firmed. concurring opinion.
SPAETH, J., files a opinion J., dissenting in which JA- files a HOFFMAN, J., COBS, joins. Judge
SPAETH, (concurring): accept majority’s that I conclusion cannot subsequent “re- and Mrs. Green cross-examination of by the Common- testimony thus elicited of the buttal” applying Nonetheless, the criteria proper. were wealth Conti, by v. 236 in Commonwealth this court formulated 238, (1975), 501, 245 I con- Pa.Super. 488, A.2d have 345 testimony in improper reception of the cluded that appellants, prejudicial and non-jury not trial was this judgments agree of sentence should I therefore that be affirmed. necessarily error. The verdict of a a reversible constitute not merely jury, not be judge, sitting nullified without a need exposure consequence prejudicial evidence. Commonwealth (1975); also Pa. A.2d 682 see Common v. 464 347 Williams, 340, 294 (1972). A.2d
wealth v.
I
majority
acknowledges
contention that
impeached
improperly
Mrs. Green was
on a collateral
matter,
pretermits
and, rely
but
discussion of
issue
ing upon
Quarles,
Commonwealth
(1974), proceeds immediately
I may present to con tradict elicited own cross-examination his of a Hickman, witness. Commonwealth v. 453 Pa. presup However,
poses propriety If cross-examination. a wit improperly concerning ness is cross-examined a collateral matter, the examiner is bound the witness’s answers may Commonwealth, not contradict them. Hester v. (1878); Curran, Pa. 139 Hildeburn (1870); Henry, Pennsylvania 2 G. Evidence § Quarles provides support analytical scant for the framework en *8 First, by majority. Quarles dorsed the explicitly the in court de probative to against prejudicial clined balance value effect since trial, objection “no was made at propriety of the post-trial was not attacked in the defendant’s motions.” Pa. 230 235, Super. Second, 326 A.2d at expressed the court grave misgivings about the admission drug of of evidence addic “ ” tion, observing that such is ‘pregnant prejudice.’ evidence with Finally, testimony concerning the drug the defendant’s addiction Quarles in discrepancy relevant to the in the defendant’s physical appearance trial, bеtween arrest and while in the instant case concerning the hypodermic the glassine needles and envelopes is irrelevant to the offenses appellants with which were charged. Quarles kept should be distinct from a case with an identical name that deals with issues presented unrelated to by those the instant case. Quarles, Commonwealth Pa.Super. 363, 229 324 (1974). 452 A.2d
148 (4th 1953). applicable 258 ed. rule is to This cross-ex case, designed, amination to as in instant affect credibility Graham, of a witness. Commonwealth v. 170 343, 347, Pa.Super. 632, (1952). A.2d 634 85 inquired The test of whether a matter into on cross-ex examining party amination is collateral whether the is prove could Com matter as of his own part case. Fisher, 413, 262, monwealth v. 405, Pa. 290 A.2d 267 447 (1972); v. Zervas, 510, 514, Commonwealth 302 Pa. 153 445, Appeal, 767, (1931); A. 768 Farms 216 451, (1970). A.2d The can Commonwealth not, cross-examination, of on violate rules evidence that presentation e., case-in-chief, restrict its it i. can indirectly directly. not do it Common could not what do Burkett, wealth 235 A.2d light principles, apparent Viewed of these is it cross-examination Green concerned a collat- Mrs. discovery eral hypo- matter. evidence of the dermic glassine bags permitted needles and have could fact-finder engaged infer drug-related activity. majority’s assertion to the contrary g., See, refuted decisional law. e. 358-59, Young, Pa.Super. 355, Commonwealth v. (1972) (circumstances, which included purchase by glassine of one thousand enve- defendant lopes stamp shop, repletе from “were with facts which suggested that defendant was with the illicit associated drug trade”). Thus, through the cross-examination Commonwealth was able introduce ev- activity appellants’ part. idence of other criminal on Since it presented could not have evidence in such its case-in-chief, see, g., Burdell, e. 43, 47, (1955), 110 A.2d the Commonwealth denials, was bound Mrs. Green’s and should have been precluded presenting Officer Burke’s evi- rebuttal dence.
149 majority contends that offered evidence was legitimate discrediting for the purpose the alibi wit previously noted, however, barring ness. As in the rule quiry applies into collateral matters on cross-examination equal vitality upon with to an attack a witness’s credibil ity. 80, Truitt, 72, Commonwealth v. 85 A.2d 369 Pa. 425, (1951); Steinbеrg, Commonwealth 429 Pa. 189 Super. 381, 131, 385, (1959); 150 A.2d Common Graham, supra. example, Thus, appel wealth for had extrajudicial admitting lants made an statement their participation crime, the statement could have been to testimony, introduced contradict Mrs. Green’s alibi since the independently statement would be admissible an Tervalon, admission of Commonwealth v. 581, 590, Similarly, 671, (1975). Pa. 345 A.2d priоr had Green made statement to dis claiming knowledge whereabouts at crime, time of the to statement could be introduced testimony. Farrior, discredit her alibi Commonwealth v. 31, 33, 35, 684, (1971). 446 Pa. 284 A.2d See 685, 686 Pa.Super. 247, also Kettering, 252-53, (1956) (prior 119 A.2d inconsistent statement). short, In there must be a basis for admissi bility “independent of the Common contradiction.” wealth 179, 251, v. Evans, 190 154 A.2d (1959), opinion below, on the 387, 160 aff’d denied, cert. 5 L.Ed.2d U.S. 81 S.Ct. There no basis in the instant case incompetent ap concerning introduction of the pellants’ activity. other criminal
II majority attempts its conclusions buttress stating that, evidence, assuming inadmissibility of the judge, sitting jury, of a need verdict without a “[t]he exposure consequence merely not be nullified as a n. 7. evidence.” 243 at 492 *10 150 in Com- disregards our recent decision
This assertion in that Conti, supra, observation monwealth v. and our process opinion requires that that “in some instances due judicial simply rely the fiction blindside.” we not on of a Conti, In we2 345 at 245. 236 at A.2d pointed of criti- considered to “two factors will be [that] sitting import” judge, determining in a trial cal whether hearing a mistrial after fact, as trier of should declare viz., inherently incompetent prejudicial “the evidence, involved,” im- quality specific “the evidence and of portance particular to the case.” Id. of the evidence
Applying case, not think test the instant I do to judgments of sentence should be disturbed. Al- though criminal ac- of unrelated evidence impact,” tivity posed id., the risk of “emotional evi- explicitly dence, notes, and em- majority as the was not appel- phatically The evidence of linked testimony of the guilt, consisting of the lants’ detailed victim, for a considera- had known both who convincing. Therefore, period time, since ble of so vi- incompetent “so and was not pre- important tally appellant that we cannot case [s’] disregarding the in- judge] trial sume succeeded [the [in at compеtent evidence],” supra, A.2d Conti, judgments join of I affirmance sentence.3 PRICE, JJ„ dissented. and
2. JACOBS Green, (1975), A.2d does Pa. Commonwealth Conti, analysis narrow in should be not undercut this court’s suppression judge ly In found to its facts. confined trial, voluntary. non-jury ap appellant’s At confession to be his issue, permitted again pellant raised the voluntariness 323(j). judge, who was different The trial R.Crim.P. fact, judge thе confession suppression and sat as trier found disregarded adjudging involuntary, it in stated that he had degree. guilty in Mr. Justice appellant the second murder J., opinion (Manderino, Pomeroy filed majority observed in his J., Roberts, joined) two-step dissenting opinion in that which approved the United procedure contemplated by 323 was Rule Denno, U.S. 84 S.Ct. Supreme in Jackson v. Court States HOFFMAN, Judge (dissenting):
Appellants contend that the court below
erred
refus-
ing to declare a mistrial when evidence was introduced
showing
they
possession
drug-related
were in
paraphernalia
they
unrelated to the offenses with which
charged.
For reasons
stated
Commonwealth
Conti,
(1975),
This Court has required held a mistrial *11 prejudicial “when evidence is so that we cannot assume the trier of put fact will be able to the evidence aside impartial adjudication.” and arrive at an Com Conti, monwealth supra, at A. 2d at 242. possession drugs or use Thus, itself is a crime.
the introduction of this a trial for unrelated offenses clearly jury in a trial. stated As supra Conti, at 345 A.2d judges subject we cannot overlook “the fact that are to the same emotions and human frailties affect all persons, lay jurors or not.” judgment
Accordingly,
of sentence should be re-
appellants granted
versed and
trial.
a new
JACOBS, J., joins
opinion.
dissenting
in this
Pomeroy
Significantly,