No. 82 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7607004.
Lester G. Nauhaus, Assistant Public Defender, Chief, Appeals Division, and with him, Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, P. J., concurs in the result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 264]
Appellant was found guilty, after a jury trial, on robbery, assault and conspiracy charges. After the denial of post-trial motions, and sentencing, he appeals to this Court, raising several claims of error.
First, appellant contends that he was entitled to an order declaring a mistrial after an officer, in testifying about the comparison of a fingerprint found at the crime scene with the appellant's fingerprints, made reference to the source of the appellant's fingerprints ". . . on the BCI Rap Sheet". It is argued that such a statement imparted the inference to the jury that appellant had a record of prior criminal activity. Of course, if a comment by a witness creates such an inference for the jurors, reversal is usually required. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Not all references suggestive of criminal activity are prejudicial and require reversal, however. In Allen, the Supreme Court noted that a mere "passing reference" to an identifying matter (photographs in Allen) from which a reasonable inference of prior criminal activity cannot properly be drawn will not create the possible prejudice mandating reversal, nor will it be mandated where there is an explanation of the police possession of the identifying matter unrelated to any inference of prior criminal activity. Allen, 448 Pa. at 181, 292 A.2d at 375. Several cases exemplify those principles. See Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975); Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974); Commonwealth v. Griffin, 236 Pa. Super. 344, 344 A.2d 517 (1975).
In many cases, the reference in issue is to a so-called "mug shot" (See Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973)), a term which has attained a widespread and well-known meaning in our culture for the type of photograph which law enforcement agencies maintain of convicted felons. The term "BCI Rap Sheet" does not, however convey the same type of popular meaning. In fact, its meaning was most likely a complete puzzle to the jurors and does not impart a clear inference of prior criminal conduct.
[ 264 Pa. Super. Page 265]
Thus, the comment itself does not seem prejudicial. Moreover, a later witness, a fingerprint expert, testified tha the appellant's fingerprints, as used for the comparison with the print located at the crime scene, were first taken on the day of his arrest for the crimes charged in this case. Thus, the record shows an explanation to the jurors that the police possession of the fingerprints of appellant first occurred on the date of his arrest. This effectively rebutted any possible inference of prior police possession due to prior criminal activities by the appellant.*fn1 See Commonwealth v. McFadden, 464 Pa. 265, 346 A.2d 550 (1975). Last, we note that the lower court cautioned the jury to attach no significance to the comment in issue in their deliberations. It was not error in these circumstances for the lower court to deny the motion for mistrial.
The appellant next argues that the lower court should have granted his request for mistrial when a police officer testified concerning appellant's silence after his arrest. The comment by the witness was in response to a question from defense counsel, on recross examination of the witness:
DEFENSE COUNSEL: "You don't question someone after you arrest them?
OFFICER: "I tried to question Mr. Hall and he would not cooperate at ...