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COMMONWEALTH PENNSYLVANIA v. GERALD NICHOLS (05/01/79)

decided: May 1, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GERALD NICHOLS, A/K/A GERALD NICHOLAS, APPELLANT



Nos. 110 and 293 January Term 1977, Appeals from Judgments of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division at Nos. 379-382 August Term 1972.

COUNSEL

A. Jay Molluso, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., James Garrett, Asst. Dist. Attys., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., filed a concurring opinion.

Author: Eagen

[ 485 Pa. Page 3]

OPINION OF THE COURT

On April 9, 1974, Gerald Nichols, appellant, was convicted by a jury of murder of the second degree, burglary, aggravated robbery, and other related offenses.*fn1 After a denial of Nichols' motions for a new trial and in arrest of judgment, judgments of sentence totaling twenty to forty years imprisonment were imposed.

No appeals were then entered. However, in 1976, post-conviction relief proceedings were instituted, and, after finding Nichols had not effectively waived his right to appeal from the judgments of sentence, the court entered an order permitting these appeals nunc pro tunc.*fn2

Nichols seeks a new trial and, in part, complains the trial testimony of a Commonwealth police witness as to Nichols' obstreperous conduct during a police lineup conducted in connection with a totally unrelated crime indicated to the jury he had been engaged in other criminal activity and thus prejudiced his right to a fair verdict of his guilt or innocence of the charges on trial.*fn3

[ 485 Pa. Page 4]

"In Pennsylvania, the law is clear that if a testimonial reference[, absent specific circumstances,] . . . indicates to the jury the accused has been involved in prior criminal activity, reversible error has been committed." Commonwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973). This is not to say, however, that all references which may indicate prior criminal activity warrant reversal. For example, under certain circumstances, a defendant's testimony may be impeached by showing prior convictions of felonies in the nature of crimen falsi, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and references to related criminal activity are allowable under certain circumstances.*fn4 Further, "passing references" to prior criminal activity do not necessarily warrant reversal. See e. g., Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977); Commonwealth v. McFadden, 464 Pa. 265, 346 A.2d 550 (1975); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972). Rather, the record must illustrate that prejudice results from the reference. Prejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense. Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978); Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973).

The record discloses these relevant facts:

The crimes here involved occurred on March 23, 1972. The lineup referred to was conducted on March 30, 1972. According to a Commonwealth police trial witness, Nichols refused to cooperate, was forcibly placed in the lineup "with other inmates" by "prison guards," threw himself ...


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