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decided: December 22, 1978.


No. 1014 October Term 1977, Appellant from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Section, imposed on Information Nos., 1668-1671, January Sess., 1976.


Walter M. Phillips, Jr., Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 261 Pa. Super. Page 323]

Appellant was tried by a judge sitting without a jury and found guilty of two counts of robbery, two counts of possession of an instrument of crime, and criminal conspiracy.*fn1 Post verdict motions for arrest of judgment or new trial were denied. This appeal followed.

At about 10:00 a. m. on December 20, 1975, appellant and the co-defendant, one Arthur Dill, entered the Tech-Hifi store at 84th and Ogontz Avenue in Philadelphia. oth men were armed. Announcing a hold-up, they ordered two store employees and a customer to lie on the floor and bound and gagged them. They took a watch from one of the employees and a key ring containing personal and store keys from the other employee; they also took about $1,775 in cash from a desk in the store office. During this time another customer entered the store and he too was forced to lie on the floor and was bound and gagged. Appellant and Dill then began to remove stereo equipment from the display and stock rooms to an orange and white U-Haul truck, which had Maryland license plates and was parked in front of the store. When they had finished loading the truck, they locked the door of the store, using one of the keys on the key ring they had taken. One of the captives freed himself in time to see the two men drive away in the truck. The police were called.

Acting on radio information, Officers Joseph Joyce and Francis Garvin stopped an orange and white U-Haul truck

[ 261 Pa. Super. Page 324]

    near the scene of the crime. Appellant and Dill were required to get out of the truck and were searched. A gun, the watch, and money totaling $1,776 were found. A search of the front of the truck uncovered another gun and the set of keys. The back of the truck was full of stereo equipment. Appellant and Dill were taken back to the Tech-Hifi store where they were positively identified. During this time appellant made an inculpatory statement.

A motion to suppress the identifications and appellant's statement was filed. The hearing judge refused to suppress the identifications, but when no testimony was presented concerning the statement, and after the prosecutor indicated that the Commonwealth did not intend to use the statement, the judge ordered the statement suppressed.

During trial appellant testified in his own behalf, as follows. He and Dill had come to the area earlier that morning to visit his uncle. Being unfamiliar with the area, they were unable to find his uncle's house and decided to return home by bus. When the police apprehended them, they were standing on the corner waiting for the bus. He knew nothing about the U-Haul truck, the guns, or the robbery. He had not been in the Tech-Hifi store that morning.

On cross-examination, appellant was questioned as follows:

Q. Do you remember talking to the police after you got arrested?

A. Talking to them? I remember talking to them.

Q. Do you remember giving them a statement?

A. No sir.

Q. You don't remember saying to the police the morning I found out that the Tech opened at 10 o'clock?

MR. SCHUMAN: Objection, Your Honor.

THE COURT: Sustained.

MR. SCHUMAN: I respectfully move for a mistrial.

THE COURT: Motion denied.

N.T. 121.

[ 261 Pa. Super. Page 325]

It has been held that "any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf at trial." Commonwealth v. Triplett, 462 Pa. 244, 249, 341 A.2d 62, 64 (1975). See Commonwealth v. Heacock, 467 Pa. 214, 355 A.2d 828 (1976); Commonwealth v. Padgett, 428 Pa. 299, 237 A.2d 209 (1968); Commonwealth v. Smith, 250 Pa. Super. 460, 378 A.2d 1239 (1977). Thus in Commonwealth v. Heacock, supra, where the Commonwealth had stated at the suppression hearing that it would not introduce a gun found at the defendant's residence but later at trial introduced the gun and attempted to impeach him with it, the Supreme Court found reversible error. In this case, however, the attempt to impeach appellant by reference to his suppressed statement was prevented because the trial judge sustained the defense's objection.

Appellant argues that once the trial judge as trier of fact became aware that there was an inadmissible statement, he was prejudiced to such an extent that appellant was denied a fair trial. However, appellant has cited no case holding that an unsuccessful attempt to enter inadmissible evidence is by itself reversible error. In fact this court has noted that the "contention that the mere asking of these questions so prejudiced [the defendant] as to require a mistrial is a strained one." Commonwealth v. Smith, supra. Our own review of the record discloses no evidence that the attempt to introduce the statement prejudiced appellant in the eyes of the trial judge.*fn2 At most the questioning

[ 261 Pa. Super. Page 326]

    indicated that an inculpatory statement existed; the judge heard no prejudicial details of this statement.

Appellant further argues that the prosecutor's attempt alone is sufficient reason to order a new trial because the attempt amounted to a breach of the prosecutor's duty as an officer of the court. It is true that the "prosecutor is a quasijudicial officer representing the Commonwealth . . . [whose] duty is to seek justice, not just convictions." Commonwealth v. Mayberry, 479 Pa. 23, 28, 387 A.2d 815, 817 (1978); Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). Thus, where the prosecutor breaches his duty of fairness and acts in a manner that deprives the defendant of a fair trial, a mistrial should be declared. See Commonwealth v. Mayberry, supra; Commonwealth v. Starks, supra, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). The prosecutor's misconduct, however, is not alone a sufficient reason to declare a mistrial; the misconduct must cause prejudice to the defendant to the extent of depriving him of a fair trial. See Commonwealth v. Garcia, 478 Pa. 406, 420, 387 A.2d 46, 53 (1978); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). Where the conduct is not prejudicial, or the prejudice is dispelled by a curative instruction, a mistrial need not be declared. See Commonwealth v. Garcia, supra; Commonwealth v. Goosby, supra.*fn3 Here we may assume that the prosecutor's allusion

[ 261 Pa. Super. Page 327]

    to the suppressed statement was a breach of his duty. Nevertheless, it was not necessary to declare a mistrial, for as we have already discussed, the trial judge did not learn enough about the statement to result in appellant being deprived of a fair trial.


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