No. 66 E.D. Appeal Docket, 1983, Petition for Allowance of Appeal from the Judgment of the Superior Court of Pennsylvania, Docket Numbers 480, Philadelphia 1981, and 728 Philadelphia, 1981 reversing the Judgments of Sentences of the Court of Common Pleas of Clinton County as of Numbers 258-79, 259-79 and 320-79; and Numbers 260-79, 261-79 and 318-79, Pa. Super. ;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
Appellees, Oscar Leroy Heaton and Stevenson Evans Sample, were tried together in the Court of Common Pleas of Clinton County and convicted, by a jury, of three counts of burglary, two counts of criminal conspiracy and one count of criminal mischief. On direct appeal, appellees
argued, and Superior Court agreed, that an inference of other criminal activity was improperly raised at trial and that the trial court's refusal to grant a mistrial was error. Thus, a three judge panel of Superior Court, 311 Pa. Super. 344, 457 A.2d 918, reversed and granted a new trial. We granted the Commonwealth's petition for allowance of appeal and reverse.
There was no direct evidence at trial from any source which explicitly proved that either appellant had actually been involved in other burglaries where human excrement was found. Apparently, however, the police were aware that at least one of the appellees had been involved in other burglaries where human defecation was found at the scene, for twice during the trial, as discussed, infra, officers' testimony indicated the police made a logical connection between the presence of human feces at the scene of a burglary and appellees' criminal activities. It is the evidence of this apparent logical connection which forms the basis for appellees' complaint.
Chief Conklin of the Castanea Police Department testified on direct examination about his finding fecal matter on the floor of the Castanea Fire Hall on the morning after the burglary. Later, on cross-examination appellee Heaton's counsel engaged Chief Conklin in the following discourse:
[BY MR. ROSAMILIA]: 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. [T]here was gloves used. We didn't come up ...