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decided: September 23, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, No. 1536, in case of Commonwealth of Pennsylvania v. James C. Williams.


John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

John H. Isom 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 Cercone, J. Concurring Opinion by Spaeth, J. Watkins, P. J., and Jacobs, J., join in this opinion. Dissenting Opinion by Hoffman, J.

Author: Cercone

[ 230 Pa. Super. Page 74]

This appeal arises from the judgment of sentence of the court below after the jury returned a verdict of guilty of larceny and burglary. The appellant does not question the sufficiency of the evidence in this case, which was overwhelming, but argues that a remark made by the prosecutrix was so highly prejudicial that the lower court erred in refusing to grant the appellant's timely motion for a mistrial. The record indicates that during the redirect examination of the prosecutrix, the following dialogue transpired: "Q. Were you able to identify the defendant at the preliminary hearing without anybody pointing to him or pointing him out? A. I was able to identify him, although he did look different. Q. In what way? A. His hair was different and his face had begun to fill. Q. What do you mean by that? A. The first time I saw him he had a gloss on his hair and when I saw him in the court-room, preliminary hearing, he didn't have a gloss. Q. What do you mean by his face had begun to fill? A. Shall I really tell you what I meant? Q. Yes. A. Well, if a man is without drugs for nine days he may gain a little weight. Mr. Penneys: Objection. The Court: Objection sustained. The Witness: I asked him if I could say it. The Court: I say you cannot." After denying the appellant's mistrial motion at side bar, the court instructed the jury as follows: "The Court: Members of the jury, this lady has been talking to you about something she thinks happened, that he used narcotics. There is nothing in this case about that. That is something in her mind and we try cases on

[ 230 Pa. Super. Page 75]

    facts and the fact she had a theory as to why, to her, this man's face changed has nothing whatsoever to do with this case. Therefore, members of the jury, if as and when you are sent to the jury room you are to totally disregard that answer and not use it in any way in determining the final conclusion in this case. Strike out what this witness said about drugs. You may proceed."

The appellant argues that despite the court's instruction the prosecutrix' remark concerning his use of drugs was tantamount to an improper introduction of evidence of prior criminal conduct by the Commonwealth, and so prejudiced the jury as to deprive him of a fair trial. See Commonwealth v. Groce, 452 Pa. 15 (1973); Commonwealth v. Allen, 448 Pa. 177 (1972). Thus, the appellant contends that, because Allen and Groce both suggest that improper references to prior criminal conduct constitute reversible error, instructing the jury to disregard such evidence does not adequately remove its taint from the minds of the jurors.

At the outset we note that this court has most recently rejected the argument that a reference to the drug addiction of the accused necessarily carries with it the inference that the accused has engaged in prior criminal conduct. Commonwealth v. Quarles, 230 Pa. Superior Ct. 231 (1974). That decision alone would be dispositive of the appellant's argument that drug addiction and prior criminal conduct are necessarily inferentially connected. However, on the facts in this case, we need not rely solely on the Quarles case in affirming the judgment of sentence of the court below.

First, as the quoted portion of the record above indicates, in the instant case the lower court sustained the appellant's objection, struck the testimony and vigorously admonished the jury to disregard it. This case, therefore, is similar to the United States Supreme Court's decision in Spencer v. Texas, 385 U.S. 554

[ 230 Pa. Super. Page 76]

(1967). Therein the High Court confronted a Texas recidivist statute which allowed the jury to enhance the punishment provided for a crime if the accused had a record of previous criminal convictions. The special problem with the Texas statute was that the jury was informed of the previous crimes before it determined the guilt or innocence of the accused. In such a situation the Texas trial court customarily instructed the jury that testimony concerning prior crimes was not to be taken into account in assessing the defendant's guilt or innocence, but should only be used to determine the proper punishment. Thus, the issue of the sufficiency of a limiting charge by the court on the matter of prior criminal conduct was squarely before the Supreme Court. As Mr. Justice Harlan stated the question in writing for the majority: "The common and sole constitutional claim made in these cases is that Texas' use of prior convictions in the current criminal trial of each petitioner was so egregiously unfair upon the issue of guilt or innocence as to offend the provisions of the Fourteenth Amendment. . . ." Id. at 559.

The Court in Spencer directly confronted the question of whether the law can reasonably expect that a jury will follow the trial court's instruction to limit the use of inflammatory or potentially prejudicial evidence to its proper purpose. The Court concluded: "It would be extravagant in the extreme to take Jackson [v. Denno, 378 U.S. 368 (1964)]*fn1 as evincing a general distrust on the part of this Court of the ability

[ 230 Pa. Super. Page 77]

    of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose." Id. at 565.

A fortiori, the rationale of Spencer precludes our finding here that the prosecutrix' reference to the appellant's drug use required, ipso facto, that the trial court grant the appellant a new trial.*fn2 The instruction by the court herein did not merely inform the jury that the remark should be disregarded, but that it was "something in her mind" -- only the "theory" of the prosecutrix and not a fact.

The dissent's reliance, in the instant case, on Commonwealth v. Rivers, 218 Pa. Superior Ct. 184 (1971), does not affect our conclusion. Rivers involved a co-defendant who testified at his trial against his accomplices, even though he had not pleaded guilty to two of the three offenses with which he had been jointly charged. During the Commonwealth's direct examination of that co-defendant, Rivers, he admitted that he had a record of prior convictions of various crimes, some of which were not admissible for impeachment purposes. He also admitted that a murder charge was currently pending against him. There were no objections to this testimony. At the close of trial, the lower court indicated that it thought Rivers had entered a plea of guilty to all three charges. The Commonwealth corrected the court's misconception and reminded it again of the

[ 230 Pa. Super. Page 78]

    pending murder charge. The court then found Rivers guilty of the two offenses to which he had entered pleas of not guilty.

It is obvious that Rivers has absolutely nothing to do with the question of the efficacy of limiting or exclusionary instructions by a jury. In that case the prejudicial testimony came into evidence without objection, was repeatedly pressed to the court's attention by the Commonwealth and, in the context of that case, was obviously relied upon by the court in reaching its decision on Rivers' guilt of the two unrelated offenses with which he stood charged -- a determination which the trial court did not even conceive it was required to make when it received the evidence. As our Court concluded in that case: "Had the judge been aware that he was still trying appellant on two bills [of indictment], we are certain that he would have excluded the irrelevant and prejudicial testimony." Id. at 188. That statement clearly refutes what the dissent in the instant case considers Rivers as holding. The Rivers case suggests that if the trial court had excluded the irrelevant and prejudicial testimony, the law would not presume that by merely hearing the evidence the court was irremediably prejudiced against the defendant.*fn3

Second, even if we were to determine that the testimony concerning the defendant's drug addiction was tantamount to testimony of prior criminal conduct, and that limiting instructions would not purge the taint of such testimony, we would still not ...

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