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COMMONWEALTH v. MCGONIGLE (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
MCGONIGLE, APPELLANT



Appeals from judgments of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, Nos. 1631-1633, in case of Commonwealth of Pennsylvania v. Gerrard McGonigle.

COUNSEL

Ellen Q. Suria, for appellant.

Bonnie Brigance Leadbetter and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 228 Pa. Super. Page 347]

This is an appeal from judgments of sentence imposed in a case in which a jury found the appellant guilty of burglary,*fn1 aggravated robbery,*fn2 and carrying a firearm upon a public street or upon public property without a license in Philadelphia.*fn3 Commonwealth testimony at trial was to the effect that appellant, while armed and in the company of accomplices, had entered a Philadelphia jewelry shop on March 26, 1971, had robbed the proprietress, whose wrists were taped during the course of the crime, and had escaped thereafter.

[ 228 Pa. Super. Page 348]

The case presents three issues on appeal: whether the lower court erred in refusing to grant a mistrial when the proprietress testified that she had seen appellant's picture "in the books"; whether the lower court erred in not declaring a mistrial on the ground that members of the jury had, on two occasions, seen the appellant in manacles outside of the courtroom; and whether the lower court committed reversible error in refusing to permit appellant, at a suppression hearing, to be seated with persons of similar appearance. Because we believe that no error was committed, we affirm the judgments of sentence.

With respect to the first issue mentioned above, involving a reference to appellant's picture "in the books," a brief review of the applicable law and an examination of the context of the reference must preface a resolution of the matter. In Pennsylvania, it is the rule that an accused is not to be convicted of one crime by the use of evidence of other unrelated crimes; an inference of the commission of a crime at issue from the commission of such other crimes is proscribed. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). In accordance with this rule, the Pennsylvania Supreme Court has held that "after . . . reference to a photograph [of a defendant occurs at trial] the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Id. at 181, 292 A.2d at 375. See Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). Determination of the reasonableness of such an inference of prior criminal activity necessitates an analysis of a number of factors, including the sustained or passing nature of the reference,*fn4 the degree of suggestiveness of a police-file source for the

[ 228 Pa. Super. Page 349]

    photograph,*fn5 the clarity or ambiguity with which the photograph is related to the defendant,*fn6 and the apparent thrust and purpose of the reference.*fn7

It is also the rule in Pennsylvania that "[w]here a question is put to a witness which cannot be answered as put, without including in the answer a statement of fact as explanation, complaint cannot be made that the witness added the necessary explanation . . . ." Commonwealth v. Dalton, 199 Pa. Superior Ct. 388, 393-94, 185 A.2d 653, 656, allocatur refused, 200 Pa. Superior xxxi (1962) (testimony of police officer on cross-examination that he had received a police report from defendant's home city held invited, and hence not ground for complaint, by defense attorney's question as to whether he had checked out defendant's claim of residency).

The above-stated principles must be applied to the following facts: At a suppression hearing in the case at bar, which appellant's trial counsel participated in, the proprietress testified that on the night of the crime she had been shown pictures, pasted in a book, at a detention center, and had picked out that of the appellant. In contrast to the testimony of a police witness, she stated that she had not picked the appellant's ...


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