Joel Harvey Slomsky, Edward Reif, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, James Garrett, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., files a concurring opinion. Roberts, J., concurs in the result. Manderino, J., dissents.
The appellant, Francis McFadden, was convicted by a jury of murder in the second degree and assault and battery with intent to murder. His post-trial motions were denied and consecutive sentences of six to twenty years imprisonment for murder and three and one-half to seven years imprisonment for assault were imposed. This appeal followed.*fn1
Although at trial appellant's defense was that of mistaken identity, it is now conceded in his brief that the Commonwealth's evidence was sufficient to convict him. In brief, that evidence was that the appellant, without any apparent provocation, stabbed two men who had been drinking together in the Phone Booth Bar in the City of Philadelphia. One of the men died, but the other survived and at trial positively identified appellant as his assailant and as the killer of his friend.
Appellant McFadden has raised two issues, neither of which, in our opinion, merits a new trial. We will, accordingly, affirm.
The first issue presented is whether a particular answer given by an investigating detective to a question asked was so prejudicial that it deprived appellant of a fair trial. The testimony complained of occurred at the end of the following colloquy: "Q. [by the assistant district attorney] And when had your attempts to arrest Mr. McFadden commenced? A. [by Detective White] Started with the night of the incident when our interview led us to believe that he was a suspect in a homicide, we attempted to locate him at several addresses we had for him. Q. How many different addresses did you check in attempting to find him? A. I believe about three, sir. Q. And what basis were you using to locate Mr. McFadden, A. Addresses from our records." (emphasis added). Defense counsel objected at this point and the last answer was stricken from the record. The court, however, refused to grant a mistrial. Appellant earnestly argues that the reference to "records" could only have been interpreted by the jury to mean that he had a previous criminal record; and that such testimony was prejudicial because it could be taken by the jury to be substantive evidence of appellant's guilt of the crimes for which he was then being tried. We are not persuaded of the validity of this argument when the stricken answer is viewed in its proper factual and legal context.
In Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), this Court set down the basic guidelines for dealing with situations like the present one. Allen involved a case where several Commonwealth witnesses made references to the fact that eyewitnesses had been shown photographs of the defendant by the police. The argument was made, as here, that the reference to such photographs permitted the jury to infer that the defendant had a prior criminal record. Although in that case we held the references to have been improper and prejudicial, thus warranting a new trial, we noted the following caveats:
"The suggestion that any reference to a defendant's photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph 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. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; so too, where it appears on the face of the ...