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decided: March 31, 1977.


No. 1494 October Term, 1975 Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 429-433 March Term, 1974.


Richard P. Hunter, Jr., Philadelphia, for appellant.

John M. DiDonato, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., concurs in the result. Hoffman, J., files a dissenting opinion in which Price, J., joins.

Author: Cercone

[ 247 Pa. Super. Page 144]

This is an appeal from appellant's judgment of sentence, for robbery and various weapons offenses, to a term of imprisonment of not less than five years nor more than ten years in a state correctional institution.

The Commonwealth's evidence established that in the early evening of February 6, 1974 appellant and a co-defendant robbed P. & J. Enterprises in Philadelphia. The owner, Patrick Jurado, and an associate present at the time of the robbery, Edgar Hildalgo, gave the police a complete description of the two men. On February 8, 1974, Lt. Benson of the Philadelphia Police Department returned to P. & J. Enterprises and displayed six photographs to the victim and his associate. They identified appellant and a criminal complaint was issued on the same day with appellant being arrested five days later. Appellant's motion to suppress was heard and later denied. On December 9, 1974, appellant's motion to dismiss pursuant to Pa.R.Crim.P. 1100 was denied. Trial commenced on December 13, 1974, and a jury returned a verdict of guilty on all counts. Post-trial motions were filed and denied by the trial judge and appellant was sentenced.

Appellant first contends that the testimony of both Lt. Benson and Mr. Jurado referring to appellant's identification from photographs in the possession of the police improperly

[ 247 Pa. Super. Page 145]

    introduced evidence of appellant's prior criminal activity.

In Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972), our Supreme Court articulated the standard which governs a review of testimony related to a photographic display:

"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 . . . ."

Thus, the seminal question when there has been a reference to photos is whether or not a juror could reasonably infer that the accused had engaged in prior criminal activity. See also Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973).

In the instant case, the first reference to photographs was elicited by appellant on cross-examination of the complaining witness. Counsel for the co-defendant of appellant also elicited the fact that the witness had identified appellant's picture from a group of photographs. Lt. Benson then briefly mentioned the photos on direct examination and appellant objected. Putting all three references together, it is possible that a juror could reasonably infer prior criminal activity on the part of appellant. However, in light of the fact that appellant initially questioned the complainant concerning the photographic display and that appellant did not object to co-defendant's counsel's question concerning the identification of appellant, we conclude that appellant is not in a position to object at this time, because any error committed through the initial questioning was waived by appellant. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Thus, the subsequent reference to the photos by

[ 247 Pa. Super. Page 146]

Lt. Benson was harmless. Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968).

Appellant next contends that the lower court committed reversible error in ruling that appellant's prior burglary conviction could be used to impeach him if he took the stand, asserting that this erroneous ruling prevented appellant from testifying and, thus, denied him a fair trial. In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) our Supreme Court adopted the approach of Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965) and established that a balancing test is to be used in determining when prior convictions could be used to impeach a defendant's credibility and that this test was within the exercise of judicial discretion. The Luck court stressed this proposition when it stated, "[t]he matter is, we reiterate, one for the exercise of discretion; and, as is generally in accord with sound judicial administration, that discretion is to be accorded a respect appropriately reflective of the inescapable remoteness of appellate review." 348 F.2d at 769. However, neither Luck nor Bighum grant the trial court absolute discretion in determining when prior convictions can be used to impeach a defendant's credibility, but rather the trial court's exercise of discretion is reviewable by an appellate court within certain considerations. Some of the considerations noted in Bighum include the age and nature of the prior crimes, the length of the criminal record and the age and circumstances of the defendant. 452 Pa. at 567, 307 A.2d at 263. Probably the most important consideration or, as the Bighum court said, the factor "of critical importance" is "the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction." 452 Pa. at 567, 307 A.2d at 263. See also Luck v. United States, 348 F.2d at 769. In the instant case appellant was an adult offender who had recently pleaded guilty to a crime of a type generally admissible for impeachment,*fn1 and appellant

[ 247 Pa. Super. Page 147]

    had four alibi witnesses who were called, thus presenting his version of the facts to the jury. Therefore, we hold that the lower court's exercise of its discretion was proper and we find this assignment of error to be without merit.

Third, appellant argues that the lower court erred in limiting his right to cross-examine the complainant as to: a) prior inconsistent statements; b) complainant's prior record; and c) complainant's insurance coverage. Initially, it should be noted that although cross-examination is a matter of right, the bounds of proper cross-examination are within the sound discretion of the trial judge. Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973); Commonwealth v. Butler, 232 Pa. Super. 283, 331 A.2d 678 (1974). At trial, the complainant testified that he was shown photographs twice, while at the suppression hearing he had testified that he had been shown photographs only once. The lower court made the following ruling with regard to appellant's cross-examination of the complainant:

"You may interrogate him as to whether he saw any photographs on another occasion. You may confront him with the fact that he testified previously whatever it was that he did testify to, but you are to abstain from any questions pertaining to what kind of photographs were shown, whether they were at that point identified in any fashion. . . . As to the contradiction of testimony, you have every right to interrogate him and confront him."

Thus, the restriction imposed by the court was designed to prevent appellant's counsel from eliciting testimony about the identification itself. Since this was a joint trial the court was obviously correct in its caution because, although the photographic identification of appellant was not suppressed, the photographic identification of appellant's co-defendant had been ordered suppressed. Thus, the trial judge

[ 247 Pa. Super. Page 148]

    was avoiding the danger that the complainant would explain that he identified the co-defendant at the suppressed photographic identification. Cross-examination was otherwise complete. Therefore, the record indicates that the trial court was correct in its limitation, and we find this assignment of error to be without merit.

As to the complaining witness' prior criminal record, a review of the record in this case indicates that on cross-examination the complainant testified to pleading guilty to a federal charge. The record indicates that the following exchange took place within the hearing of the jury.

"Q. [Counsel for appellant] Have you ever been convicted of a crime, Mr. Jurado?

A. [The complainant] Well, I have been convicted of acknowledging false documents, yes.

Q. Where is that at? In the Federal Court?

A. Federal Court . . .

Q. What was that concerning?

A. It was concerning some statements that some clients had made in my office, and which later turned out to be false, and I was indicted in the Federal Court concerning that particular -- those particular statements, and in Federal Court I chose to plead guilty to the charge, and I was charged with acknowledging false documents.

Q. Why did you plead guilty? Were you guilty?

A. I chose not to fight the case, because it was rather circumstantial, and it is personal. . . .

THE COURT: May we have a date of that particular matter? What was the date? . . .

[Counsel for appellant]: It was September the 11th, 1974, before Judge Fullem.

THE COURT: Thank you. That is sufficient. . . ."

The lower court then sustained objections to the questions:

"Were you guilty?"

"Did you plead to receiving $800 for falsifying marriage certificates to smuggle ...

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