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decided: June 29, 1977.


No. 1295 October Term, 1975 Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Nos. 753 and 753a of 1974.


J. Michael Morrissey, Reading, for appellant.

Grant E. Wesner, Deputy District Attorney, Reading, for appellee.

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

Author: Watkins

[ 249 Pa. Super. Page 36]

Appellant, Joseph F. Biancone, was charged with receiving stolen property and aiding consummation of a crime. The stolen property consisted of guns and rifles. He was tried before Judge Reed, specially presiding, and a jury, and was found guilty of the charges. Appellant was sentenced to imprisonment for not less than one year nor more than two years and a fine of $2,500.00.

In this appeal, several issues are raised. Appellant's first contention is that the court below erred in denying his motion for a mistrial based on the following testimony by a state policeman who participated in a search of the appellant's premises pursuant to a search warrant.

[ 249 Pa. Super. Page 37]

"Q. Did you make a search of the entire premises of Mr. Biancone's house?

"A. Yes, sir.

"Q. Will you tell us what else you saw and did in the course of that search?

"A. During the course of the search, I had occasion to search a suspended ceiling, the new grid type of suspended ceiling, where there are metal grids suspended from the ceiling, and there are panels placed on top of those grids. I lifted up one of the panels and looked inside. In there, I found a 410 gauge shotgun pistol . . .

"Q. Was anything else up there?

"A. Yes, sir, there was.

"Q. What?

"A. There was a bag of what appeared to be marijuana."

Appellant's counsel objected to the answer, and the court sustained the objection. Appellant also moved for a mistrial on the ground that the answer was highly inflammatory. The motion was denied, and we agree that this was proper.

Appellant contends that the answer of the state policeman that he found what appeared to be marijuana was at the "insistence and request" of the Assistant District Attorney. The record does not support appellant's characterization of the answer. The state policeman also found money above the panels which belonged to the appellant, and he testified to this immediately after his testimony about the marijuana. When the prosecutor asked the police officer what else was above the panels, he might have anticipated that the officer's answer would have been that money was also above the panels. The record does not reveal a deliberate attempt by the prosecution to bring in evidence of a substance that might be marijuana.

The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed unless there is a flagrant abuse of discretion. Commonwealth v. Conti, 236 Pa. Super. 488, 345 A.2d 238

[ 249 Pa. Super. Page 38]

(1975). We do not believe that the court below abused its discretion in refusing to grant a mistrial. It must be noted that the police officer did not state that he found marijuana above the ceiling panels, but only something that "appeared to be marijuana." The appellant's objection to the answer was sustained and there was no further pursuit of the question to determine whether the substance was tested or whether the officer was qualified to give an opinion concerning the contents of the bag.

Where a reasonable inference of a prior criminal record is present in the minds of the jurors, a new trial is required. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Therefore, the issue to be decided is whether the reference to marijuana in the context of this case was tantamount to the improper introduction of evidence of a prior criminal record by the Commonwealth and so prejudiced the jury as to deprive the appellant of a fair trial. We believe that the appellant is not entitled to a new trial as the reference to the marijuana, if erroneous, was harmless error. Error may be harmless if it is clear beyond a reasonable doubt that it did not affect the result. Commonwealth v. Jones, 233 Pa. Super. 52, 335 A.2d 444 (1975). We have carefully reviewed the record in this case and find that there was sufficient evidence to sustain the conviction. A passing reference by the police officer to finding what appeared to be marijuana could not have determined the outcome of the case. We have considered the lack of cautionary instructions by ...

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