Appeals from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, On Indictment Nos. 95-99 of September Term, 1974, Imposed March 25, 1975, and On Indictment Nos. 90-93 of September Term, 1974, Imposed March 19, 1975. Nos. 1109 and 1070 October Term, 1975.
John W. Packel, Asst. Public Defender, Chief, Appeals Div., Joseph D. Montgomery, III (Court-appointed), Philadelphia, for appellants.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., files a dissenting opinion in which Jacobs, J., joins.
[ 243 Pa. Super. Page 140]
This opinion involves two separate appeals, arising from the joint trial of the instant appellants. The facts are identical and the appeals raise the same issue. We therefore address ourselves to both appeals herein.
On August 10, 1974, Catherine Chavis was upstairs in her home at 523 Fallon Street in Philadelphia, when she heard a voice calling from below. She came out of a room and saw two men proceeding up the stairs. The first man, later identified as appellant William Green, was carrying a sawed-off shotgun. Ms. Chavis turned, ran into her bedroom and locked the door. She then climbed out the bedroom window and dropped onto the
[ 243 Pa. Super. Page 141]
roof below. While on the roof, she heard her bedroom door being forced open. She entered her neighbor's house through a bedroom window and went downstairs and outside, where she was met by the police.
Three Philadelphia policemen accompanied Ms. Chavis back into her house where two guns, her pocketbook, and certain records were found to be missing from the bedroom. Ms. Chavis knew both of the intruders as being from the neighborhood. She went with the police to Green's house, approximately a block and a half away at 4930 Hoopes Street. Both appellants were found there, identified by Ms. Chavis, and arrested. Subsequently, the police obtained a warrant and made a thorough search, lasting approximately an hour and a half, of Green's residence. Mrs. Green, appellant Green's mother, was in the house when the police arrived and remained there throughout the search. The search did not reveal any of the missing items from Ms. Chavis' home but the police did find used hypodermic needles and a package containing at least 1,000 glassine bags.
The appellants were jointly tried before a judge, sitting without a jury. Both were found guilty of robbery,*fn1 criminal conspiracy,*fn2 unlawfully carrying a firearm without a license,*fn3 possessing instruments of crime*fn4 and burglary.*fn5
The sole question presented in this appeal is whether the court below erred in refusing to declare a mistrial when the prosecuting attorney introduced the topic of certain drug-related paraphernalia which was discovered during the police search of the premises
[ 243 Pa. Super. Page 142]
where the appellants were found. This matter was first broached during the testimony of Mrs. Green, who was an alibi witness for the appellants. She stated that both Green and Williamson had been at her house during the time of the robbery. The following exchange took place during the cross-examination of Mrs. Green by the prosecuting attorney:
Q. Did you go with the officers when they searched your house; did you go throughout the house with them?
Q. Did you see them search the rafters?
A. Yes, they took a mirror. I gave them a mirror. They took a big flashlight like this, and you have got to put it underneath the panel, and they could look up like this, that they turned over my trash.
Q. What did they find in the rafters?
A. Nothing, nothing but a baseball bat.
Q. They didn't find nothing?
A. No, no guns, no nothing.
Q. Are you sure they didn't find a large amount of ...