NO. 480 PHILADELPHIA, 1981, NO. 728 PHILADELPHIA, 1981, m the judgments of sentence of the Court of Common Pleas of Clinton County, Criminal Division, at Nos. 260, 261, 318 of 1979 and 258, 259, 320 of 1979.
Charles R. Rosamilia, Jr., Public Defender, Lock Haven, for appellants.
Richard Saxton, Sp. Prosecutor, Lock Haven, submitted a brief on behalf of Commonwealth, appellee.
Spaeth, Beck and Lipez, JJ. Lipez, J., filed a dissenting opinion.
[ 311 Pa. Super. Page 346]
Appellants, Stevenson Evans Sample and Oscar Leroy Heaton, were tried together for three counts of burglary, two counts of criminal conspiracy and one count of criminal mischief. A jury found each defendant guilty on all counts. After the denial of post-trial motions, appellant-Sample was sentenced to three concurrent terms of from five to fifteen years incarceration; appellant-Heaton was sentenced to three concurrent terms of from seven to fifteen years. Appellants, although represented by separate attorneys at trial, were both represented on appeal by appellant-Heaton's trial counsel, and they allege identical claims on appeal.
Appellants argue initially that an inference of prior criminal behavior was improperly raised at trial and that the trial court erred in refusing to grant their motions for a mistrial. Finding that claim to be meritorious, we reverse judgments of sentence and remand for a new trial.*fn1
[ 311 Pa. Super. Page 347]
According to appellants, the first time an inference of prior criminal activity was raised occurred when appellant-Heaton's trial counsel was cross-examining Chief Conklin of the Castanea Police Department about the absence of physical evidence linking appellants to the first of the three burglaries:
Q. Did you find anything at all on the premises which would tie in either the Defendant Sample or the Defendant Heaton with this crime?
A. You mean by physical evidence?
Q. Any kind of physical evidence; any fingerprints; anything?
A. If I may state, I called in a State Trooper Hunter from Montoursville. He is a Crime Lab man. He brought up a portable crime lab. He took prints. The prints turned out that there was gloves used. We didn't come up with any prints.
Q. You mean there was some prints on the premises with gloves?
Q. Do you have any knowledge if the person using those gloves was the person that burglarized that building or not? It could have been a patron in there with a pair of gloves on, in other words, somebody in the fire hall?
A. It's kind of hard to say, one way or the other.
Q. Do you have any personal knowledge yourself at this point that anything you found in your investigation of these premises that would tie these two defendants in with this crime?
Q. There were no prints, I take it, right?
[ 311 Pa. Super. Page 348]
Q. Was there any other evidence? Were there clothes found? Were there things like that?
A. No, except for the defecation which is a sign of a person, almost like a painter when he signed it. A person gets excited, he can't help ...