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COMMONWEALTH PENNSYLVANIA v. THOMAS CLAFFEY (03/23/79)

decided: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS CLAFFEY, APPELLANT



No. 1172 October Term, 1977, Appeal from the Judgment of Sentence entered in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, before the Honorable William R. Toal, Jr., under No. 1213A of 1976.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Media, for appellant.

D. Michael Emuryan, Assistant District Attorney, Chief, Law Unit, for Commonwealth, appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Spaeth, J., files a dissenting opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 264 Pa. Super. Page 454]

A jury found appellant, Thomas Claffey, guilty of burglary.*fn1 Post-verdict motions were denied and a sentence of one to four years imprisonment was imposed. On this direct appeal it is asserted the trial court erred in refusing to grant a mistrial after the Commonwealth elicited testimony which allegedly implied that appellant had engaged in prior criminal activity.*fn2 We are not persuaded and, therefore, affirm.

The record reveals that on November 25, 1975, the residence of Richard Jacobs, 1107 Brookwood Road, Secane, Pennsylvania was burglarized. Entry to the house was gained via a second story bathroom window. Detective Grazel, of the Upper Darby Police Department, was called to the scene and obtained several latent fingerprints from the entry area. The events giving rise to appellant's allegation of error occurred during the direct examination of Detective Grazel, who testified as follows:

"By Mr. Coll: [Assistant District Attorney]

Q. Detective Grazel, did you ultimately send the lifts which, which you had taken from the window, to Washington?

A. That's correct.

Q. When did you send them to Washington?

A. I believe on February 3rd.

Q. 1976?

[ 264 Pa. Super. Page 455]

A. That's correct.

Q. And, where did you send them in Washington?

A. To the Federal Bureau of Investigation, Fingerprint Division.

Q. For what purpose?

A. To be compared.

MR. FOLEY: [Defense Attorney] Objection, Your Honor. I renew the motion.

THE COURT: Motion denied.

BY MR. COLL:

Q. Did you also send with the lifts inked fingerprints of the defendant, Thomas Claffey?

A. Yes.

MR. FOLEY: Objection, Your Honor. He is leading this witness.

THE COURT: Well, I think it is leading, Mr. Coll. Will you kindly rephrase your question?

MR. COLL: I will do that, Your Honor.

BY MR. COLL:

Q. Along with the lifts that you sent to Washington, did you also send --

What else did you send, if anything?

A. I sent a fingerprint card taken at our ...


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