No. 342 March Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, Criminal Division, at No. 368 C.D. 1976.
Arthur K. Dils, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price and Spaeth, JJ., concur in the result. Jacobs, Former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 263 Pa. Super. Page 114]
Appellant, Robert Lee Harris, was found guilty by a jury of unlawful possession of a controlled substance with intent to deliver*fn1 and unlawful possession.*fn2 Following the denial of post-verdict motions for a new trial and arrest of judgment, appellant was sentenced to imprisonment for not less than two and one-half nor more than five years. This appeal followed.
The facts are essentially as set forth in the opinion of the lower court. On January 15, 1976, Trooper George Wynn of the Pennsylvania State Police was conducting surveillance on a home located at 2217 Penn Street, Harrisburg, Pennsylvania. The residence located at 2217 Penn Street is owned by the appellant who is a paraplegic from the waist down. During the course of his surveillance Trooper Wynn observed a man, not the appellant, on the third floor of 2217 Penn Street open a front window and place on the ledge of
[ 263 Pa. Super. Page 115]
the adjacent home (2215 Penn Street) two packages. Trooper Wynn immediately contacted the owner of the adjacent home at 2215 Penn Street which was vacant and asked permission to enter the premises. Permission was received from the property owner and upon going to the third floor of the 2215 Penn Street residence Trooper Wynn removed two aluminum foil wrapped packages that were located on the windowsill. Upon examination of the substances contained in the packages, Trooper Wynn concluded that the packages contained controlled substances -- heroin and another unknown white powder substance. Trooper Wynn directed a fellow trooper to remain at the scene while he took the package to Pennsylvania State Police headquarters. There a latent fingerprint was removed from one of the packages. The latent fingerprint was then compared with rolled ink impressions of appellant and an identification of his fingerprint was made. A search warrant and an arrest warrant were obtained and Trooper Wynn returned to 2217 Penn Street that same day. Trooper Wynn entered 2217 Penn Street and found appellant in his second floor bedroom where drug paraphernalia including syringes, bottle cap cookers with residue, and empty glassine packets, similar in size to the packets found on the adjacent ledge, were also discovered. Trooper Wynn then arrested the appellant for possession with intent to manufacture or deliver a controlled substance. Other persons were in the home at 2217 Penn Street at the time of the search, but the unidentified male who placed the two packages on the ledge of the adjacent building was not found to be present.
On appeal, appellant contends that at trial the prosecutor elicited testimony implying that appellant had engaged in criminal activity other than those offenses charged in the indictment, that the introduction of evidence of drug paraphernalia was irrelevant and prejudicial and that the Commonwealth failed to meet its burden of proving each element of the offenses charged beyond a reasonable doubt. These contentions are without merit and for the reasons stated below, we affirm the order of the lower court denying a new trial.
[ 263 Pa. Super. Page 116]
Appellant first argues that testimony about the latent fingerprint lifted from the aluminum foil package containing the controlled substance and the comparison of this latent fingerprint with the rolled ink impression of his fingerprint indicated to the jury that the accused had a prior criminal record. The law is well settled in Pennsylvania that the prosecution may not introduce evidence of defendant's prior criminal conduct as substantive evidence of his guilt of the present charge. Commonwealth v. Rivers, 238 Pa. Super. 319, 357 A.2d 553 (1976). The purpose of this rule is "to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more liable to commit the crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty and thus effectively to strip him of the presumption of innocence." Commonwealth v. Allen, 448 Pa. 177, 182, 292 A.2d 373, 375 (1972), quoting Commonwealth v. Trowery, 211 Pa. Super. 171, 173-74, 235 A.2d 171 (1967).
The test of whether evidence which indicates that the accused has a prior criminal record is admissible does not depend on a balancing technique weighing the prejudicial effect against the probative value, but rather on the fact that Pennsylvania law has specifically limited the admission of such evidence to certain limited exceptions. Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973). For example, evidence of a different crime may be introduced to prove a common scheme, motive or design between two or more crimes. Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). It is also permissible in some circumstances to impeach the defendant's credibility by proof of a prior criminal record. Commonwealth v. ...