Appeal from judgment of sentence of Court of Common Pleas of Washington County, Oct. T., 1972, No. 285, in case of Commonwealth of Pennsylvania v. Lawrence Chandler.
E. J. Julian, Thomas B. Kostolansky, Assistant Public Defenders, and John P. Liekar, Public Defender, for appellant.
Paul M. Petro, Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Price and Spaeth, JJ., join in this dissenting opinion.
[ 237 Pa. Super. Page 21]
Appellant Lawrence Chandler was convicted following a jury trial on four counts stemming from the alleged sale of heroin in violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 In this appeal he argues that the lower court erred in admitting evidence of a prior criminal record which was not properly identified to appellant and in refusing to declare a mistrial due to prejudicial comments and an improper question propounded by the prosecution. For the reasons set forth below, we will affirm the judgment of sentence.
At his jury trial in February, 1974, the appellant took the witness stand to testify in his own behalf. His testimony that he was never involved in any drug transactions, contradicted that of the Commonwealth's chief witness, narcotics agent Ernest Fullerton. The agent testified that appellant had sold him heroin on various occasions, always using an intermediary to transfer the money and the drugs. To attack appellant Chandler's credibility, the Commonwealth introduced the criminal record of Lawrence A. Chandler, also known as Bubba Chandler, showing a guilty plea to charges of forgery
[ 237 Pa. Super. Page 22]
entered in the United States District Court, Western District of Pennsylvania. The record was introduced by the clerk of court for the district court who testified that he could not say that the Lawrence A. "Bubba" Chandler on the record was the same person as the appellant, and that the record showed a Washington, Pennsylvania address. Appellant Chandler had testified that he lived at various addresses in and around Washington all his life.
Appellant argues that the Commonwealth failed to prove affirmatively that the record was that of the Lawrence Chandler with whom this case is concerned. He further argues that the judge's decision to submit the question of identity to the jury, with the instruction that the record could only be considered to impeach the appellant's credibility if the jury found that the record was indeed that of the appellant, was improper. It is beyond question that in this Commonwealth the mere similarity of names, even in the absence of contradiction, is insufficient to prove that the record in question belongs to the individual on trial. Commonwealth v. King, 455 Pa. 363, 316 A.2d 878 (1974); Commonwealth v. Young, 418 Pa. 359, 211 A.2d 440 (1965). In Commonwealth v. Young, supra, at 362, 211 A.2d at 441, the Pennsylvania Supreme Court stated that "it appears to us that the identity of the person should be established by something more than mere similarity in name. The name Young is not uncommon; in fact, a perusal of the current Philadelphia City Telephone Directory manifests fifteen listings for 'Thomas Young.' Under the circumstances, we conclude that it was prejudicial and reversible error to permit the jury to make such an important finding on the basis of inconclusive evidence."
In the present case, somewhat more than identity with a common name in an area the size of Philadelphia was shown. The name Lawrence Chandler is less likely to be repeated in the area of Washington, Pennsylvania,
[ 237 Pa. Super. Page 23]
than the name of Thomas Young is in Philadelphia.*fn2 Also, the Lawrence A. Chandler in the federal court's record had a Washington address and the appellant had testified that he lived in the Washington area all his life. Most convincing, however, is the fact that the Lawrence Chandler with the criminal record was also known as "Bubba" Chandler. At trial the appellant regularly referred to himself as "Bubby." The coincidence of the name Lawrence Chandler, the Washington address at the time of the prior crime, and the unusual nickname is not so inconclusive of identity as to preclude the jury's consideration of the issue.
Furthermore, we see no error in the trial judge's instructions to the jury to disregard the evidence of a prior crime if it is decided that the criminal record was not that of appellant. Young requires that the judge make an initial determination that there is sufficient evidence of identity as a matter of law before admitting the criminal record. No harm can arise to the appellant if, after having admitted the ...