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decided: March 9, 1979.


No. 282 October Term, 1978, Criminal Action - Appeal from Judgment of Sentence of the Court of Common Pleas, Montgomery County, entered October 6, 1977 at No. 4560-76 through 4560.2-76


Richard M. Meltzer, Philadelphia, for appellant.

Lois Sherman Hagarty, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, Spaeth and Lipez JJ. Cercone, President Judge, concurs in the result.

Author: Lipez

[ 264 Pa. Super. Page 201]

Defendant was convicted in a trial by jury of Theft of Movable Property, Theft by Deception, Criminal Conspiracy and Receiving Stolen Property. Post verdict motions were denied and she was sentenced to a term of imprisonment of not less than four months nor more than five years, a fine and costs and directed to make restitution. In her appeal to this court she alleges numerous errors. However, in view of the disposition we make, we consider only one.

The evidence may be summarized as follows:

On Sunday morning, October 17, 1976, defendant reported to the Haverford Township Police that her credit cards, including one issued by Bonwit Teller Department Store, had been stolen from the glove compartment of her car the previous night. On October 18, defendant and another woman made purchases at Bonwit Teller. A credit card issued to the defendant was used for each purchase. On Tuesday, October 19, the defendant called Bonwit Teller and reported that her credit card had been stolen on October 16.

[ 264 Pa. Super. Page 202]

That same day, the store management discovered the sales charged to that card on the 18th and notified the police. After investigation by the police the defendant was arrested on the foregoing charges. At the trial 5 Bonwit Teller saleswomen identified the defendant as having been in the store on the 18th, four of whom testified they had transacted credit sales with her on that date.

Defense counsel cross-examined two of the Commonwealth witnesses, Sandra Cohen and Jennie Levin, as to a photo array one week after the events. They testified that they were unable to identify the defendant's photo, which was included in the array. No such questions were asked of the other three witnesses. The Commonwealth then called Detective Metz who had conducted the array a week after the occurrence, and over defense objection was permitted to testify that Sandra Cohen and Jennie Levin did not identify the defendant, but that the other three witnesses did.*fn1 We think this was reversible error.

[ 264 Pa. Super. Page 203]

Ordinarily a witness' prior statement is not admissible to corroborate or substantiate present testimony. However, as an exception to the hearsay rule it is admissible as a prior consonant statement if it is alleged the present testimony is recently fabricated or that the witness is testifying from corrupt motives. Com. v. Ravenell, 448 Pa. 162, 169, 292 A.2d 365 (1972). It is admissible not as to the truth of the stated facts, but solely to bolster credibility. Com v. Martin, 124 Pa. Super. 293, 188 A. 407 (1936). The prior consonant rule is not only applicable to statements, but to identification testimony as well. Com. v. Westwood, 324 Pa. 289, 306, 188 A. 304, 311 (1936). The testimony of the detective as to the acts of identification by the witnesses at the photo array is, we think, "on a parity . . . with any purely verbal statements." See McCormick on Evidence 2nd Ed. 596. Therefore at least as to the three witnesses who had not been cross-examined as to the prior photo-identification, the admission of the detective's testimony was error.

The Commonwealth argues that the admission of such evidence, if hearsay, was harmless because testimony concerning the photo-identification was cumulative and its impact was de minimis. An error, whether it involves state or constitutional law, can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. The burden of establishing that error rests with the Commonwealth. Commonwealth v. Story, 476 Pa. 391, 405-406, 383 A.2d 155, 162 (1978). It is harmless only if it could not have contributed to the verdict. Whenever there is a "reasonable possibility" that an error might have contributed to the conviction, the error is not harmless. Story, supra, 476 Pa. at 409, 383 A.2d at 164. Having set forth the general principles, we now consider their application in the light of a number of specific holdings by our

[ 264 Pa. Super. Page 204]

Supreme Court (all of which were reviewed in Story) and the circumstances disclosed here.

The determination that the error did not affect the jury's verdict may be reached as a result of a finding that the impact of the challenged evidence is de minimis. Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977); or that the improperly admitted evidence in no way advanced the Commonwealth's case, Commonwealth v. London, 461 Pa. 566, 576, 337 A.2d 549, 554 (1975), or that it benefited the defense, Commonwealth v. Carr, 459 Pa. 262, 266, 328 A.2d 512, 513 (1974). Even where improperly admitted evidence has been found prejudicial it has been held harmless where its impact is insignificant, such as when the erroneously admitted evidence was only remotely connected with the material issues in the case. Commonwealth v. Rogers, 463 Pa. 399, 407, 344 A.2d 892, 896 (1975).

Detective Metz's testimony concerning the two witnesses who failed to identify defendant at the photo spread helped the defendant and hence was harmless. Carr, supra. However, his testimony as to the three witnesses who identified defendant from the photo spread was clearly prejudicial inasmuch as its effect was to corroborate and buttress their in-court identifications, the most material element in linking the defendant to the crime.

Even where the impact of the erroneously admitted evidence is not de minimis its admission may still constitute harmless error if it was merely cumulative of properly admitted evidence. Commonwealth v. Story, supra; Commonwealth v. Laws, supra.

In Laws, supra, 474 Pa. at 329, 378 A.2d at 817 it was suggested that three requirements must be met before a court may conclude that improperly admitted evidence was merely cumulative of other evidence presented and therefore did not affect the jury verdict:

(1) There should be a substantial similarity, in the type of evidence and the incriminating factual details between the tainted evidence and the untainted evidence of which it is

[ 264 Pa. Super. Page 205]

"cumulative." (2) The untainted evidence should be indisputable, either because the facts are in some way affirmatively accepted by the defendant or for other reasons. (3) Care should be taken that the "untainted" evidence in no way derives from the tainted evidence.*fn2

We think it fails to meet the first requirement.*fn3 While the incriminating factual details are the same in both the pre-trial photo identification and in-court identification, this does not suffice. To find the "substantial similarity" between the untainted evidence and the tainted evidence, the former must have probative value equal to or superior to the latter. Field, supra, at 44. Here the erroneously admitted photo-identifications occurring only one week after the crime undoubtedly had greater impact and hence superior probative value than the in-court identifications made six months after the crime. See Com. v. Saunders, 386 Pa. 149, 155, 125 A.2d 442 (1956). It was, therefore, not merely cumulative of the other evidence. The Commonwealth having failed to meet its burden of proving that the error did not affect the jury verdict, a new trial must be granted.

Judgment of sentence reversed and a new trial granted.*fn4

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