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submitted: June 27, 1984.


No. 1860 Philadelphia 1982, Appeal from the Judgment of Sentence of June 11, 1982, by the Court of Common Pleas of Montgomery County, Criminal Division, No. 1879-81.


Nino V. Tinari, Philadelphia, for appellant.

Stephen G. Heckman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Olszewski, Popovich and Cercone, JJ.

Author: Olszewski

[ 333 Pa. Super. Page 283]

Appellant was convicted by jury of two counts of second-degree murder, burglary, and criminal attempt-robbery on December 29, 1981. Following oral argument, post-verdict motions were denied. Appellant was sentenced to two concurrent terms of life imprisonment on the second-degree murder charges, ten to twenty years' imprisonment on the burglary charge and five to ten years' imprisonment on the criminal attempt-robbery charge. The burglary and criminal-attempt sentences were to run concurrently with each other but consecutively to the two life sentences.

On September 28, 1974, appellant, Robert Tome, Sigisfredo Ortiz, and a man named Santiago entered the residence and place of business of Doris and Jean Maiale, planning to steal a large amount of cash which they believed to be on the premises. While subduing the Maiale sisters, Tome shot them each in the head. Panicked and before even taking the money they came to steal, the would-be robbers fled to Philadelphia. Roberto Tome was tried and convicted of the murders and related crimes in 1975.*fn1 Sigisfredo Ortiz entered a plea of guilty to attempted robbery and testified for the Commonwealth at both the Tome and Fernandez trials. Santiago died before being brought to trial. Appellant, Fernandez, was apprehended by the police in Puerto Rico in 1981.

Five issues are raised in this appeal. First, appellant argues that his constitutional right to protection against self-incrimination and his presumption of innocence were abridged by the lower court's grant of a pretrial motion to have appellant shave his beard. The purpose of the order was to facilitate identification of appellant by a Commonwealth

[ 333 Pa. Super. Page 284]

    witness. We hold that the order did not violate appellant's constitutional rights.

Although this is an issue of first-impression for us,*fn2 there is a plethora of case law available from other jurisdictions.*fn3 At the outset, we recognize that Article I, Section 9 of the Pennsylvania Constitution, providing that an accused "cannot be compelled to give evidence against himself," does not expand the protection against self-incrimination afforded by the Fifth Amendment to the United States Constitution and made applicable to the states by virtue of the Fourteenth Amendment. Commonwealth v. Moss, 233 Pa. Super. 541, 334 A.2d 777 (1975). The Fifth Amendment has consistently been held to exclude only evidence which is testimonial in nature. United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (held, extraction of blood is demonstrative physical evidence). Justice Holmes recognized this distinction many years ago when he wrote that "the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910).*fn4

[ 333 Pa. Super. Page 285]

We recognize that compelling appellant to shave his beard represents an extra-ordinary intrusion of the Commonwealth's police power into the respect which it must accord to the dignity and integrity of its citizens.*fn5 Nevertheless, we are persuaded that the order served the interests of justice in obtaining demonstrative evidence of appellant's appearance, at the time of the murders, for the jury as finder of fact.*fn6 Appellant was not compelled to communicate protected knowledge by the order, nor does a careful barbering shock the conscience as a method of discovery "too close to the rack and screw."*fn7 We reject appellant's argument that the order reflected a predetermination of appellant's guilt.*fn8 Appellant contends that the order to shave implied the court's acceptance of the Commonwealth's identification of the perpetrator. We disagree. The order served the Commonwealth's interest in pursuing the effective enforcement of criminal law through the discouragement of dissemblance or disguise.

[ 333 Pa. Super. Page 286]

Appellant next alleges error in the lower court's refusal to declare a mistrial after the Commonwealth's chief witness, Ortiz, alluded to appellant's subsequent illicit drug activities. We hold that the lower court properly refused to declare a mistrial.

At trial, the following exchange occurred during the Commonwealth's direct examination of Ortiz:

"Q. Anyway, after you last saw Fernandez that day, that's September 28, did you ever see him again after then?

"A. Fernandez, I seen him on the street before Seventh, on Cambria (the remainder of the witness' answer was unintelligible.)

"MR. TINARI: I object and move for a mistrial."

N.T., Volume I, December 18, 1981, p. 367.

At sidebar, defense counsel contended that Ortiz had said that he had met Fernandez at Cambria and he was "copping dope." The trial judge denied the motion for a mistrial, but issued a cautionary instruction and proceeded to voir dire the jury to ascertain what they had heard. Two jurors among the fourteen empaneled had heard Ortiz testify that he saw Fernandez engaged in drug dealing activity. Both jurors indicated that their verdict would not be influenced by Ortiz' comment.*fn9

The decision to grant a mistrial lies within the sound discretion of the trial court and will be reversed only where there is a manifest abuse of that discretion. Commonwealth v. Seigrist, 253 Pa. Super. 411, 385 A.2d 405 (1978). It is settled that evidence of a distinct crime, not charged in the information, cannot be introduced against a defendant due to its prejudicial impact. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Nevertheless, the extreme remedy of a mistrial is not automatically required if it is determined that the inference of prior criminality was innocuous and that effective curative instructions were immediately

[ 333 Pa. Super. Page 287]

    given. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977).

We accept the conclusion of the court below that the statement, under the circumstances, was innocuous, and agree that it was unintentionally elicited by the prosecutor and not responsive to the question. Further, the Commonwealth did not exploit the reference to drugs. Finally, the lower court's prompt and thorough response purged the comment of any prejudice to appellant.

Appellant next alleges error in the lower court's refusal to grant a mistrial following Ortiz' testimony concerning identification of appellant from photographs supplied by the police. During appellant's cross-examination of Ortiz, the following exchange occurred:

"Q. You do recall telling police authorities here in Montgomery County about a description of the person whom you say was Chiggie (appellant's nickname), is that correct?

"A. Actually I was shown some pictures and I picked it out of the pictures."

N.T., Volume II, December 21, 1981, p. 182.

Appellant argues that this testimony permitted a reasonable inference by the jury of appellant's prior criminal activity, thereby constituting reversible error. We disagree and hold that the reference did not reasonably allow such an inference. Absent prejudice resulting from the reference, appellant's motion for mistrial was properly denied. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); compare Commonwealth v. Krasner, 285 Pa. Super. 389, 427 A.2d 1169 (1981) (no error where witness testified she was shown a few pictures by police officer); Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974) (passing references not prejudicial).*fn10

[ 333 Pa. Super. Page 288]

Appellant next argues that the court below erred in refusing to allow the introduction of alibi testimony from one Carlos Santiago who would have testified that appellant was with him on the day of the murders.*fn11 The lower court ruled that the testimony was precluded due to appellant's failure to give notice of intent to present an alibi defense under Pa.R.Crim.P., Rule 305 C, 42 Pa.C.S.*fn12 Rule 305 C requires that notice must be given at the time of filing of the omnibus pretrial motion, within thirty days after arraignment. Pa.R.Crim.P., Rules 305-307, 42 Pa.C.S.

In this issue of first impression, appellant argues that Rule 305 violated his right to present a defense under the Sixth Amendment to the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution. We disagree and hold that the court below properly refused to allow the introduction of alibi testimony.

Rule 305 addresses the delicate balance between the interest of the accused in presenting a full and complete defense and the interest of the Commonwealth in avoiding fabricated alibis, unfair surprise, and the inevitable delay of justice wrought by an "eleventh-hour defense." See Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 1895-1896, 26 L.Ed.2d 446 (1983). Appellant's argument is all the

[ 333 Pa. Super. Page 289]

    more poignant where he faces life sentences for his murder convictions.

The Supreme Court of the United States has expressly reserved the question of the constitutionality of the preclusion of witness alibi testimony for noncompliance with notice provisions. Wardius v. Oregon, 412 U.S. 470, at 472 n. 4, 93 S.Ct. 2208, at 2211 n. 4, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399 U.S. at 83 n. 14, 90 S.Ct. at 1897 n. 14, 26 L.Ed.2d 446 (1970). Williams is of particular interest to us. There, the Court held that a Florida statute requiring advance notice of an alibi defense was valid on its face. The Court reasoned that there is ample room in the adversary system for a rule "designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." 399 U.S. at 82, 90 S.Ct. at 1896. Rule 305 C serves this same pursuit of justice and is constitutional on its face.*fn13

Appellant also argues that Rule 305 C is unconstitutional as applied to the facts of this case. This argument lacks merit. Rule 305 C(1)(d) gives a trial court three options when a defendant fails to file and serve notice of an alibi defense: (1) the court may exclude entirely any evidence offered by the defendant in the form of alibi witnesses other than defendant himself; (2) the court may grant a

[ 333 Pa. Super. Page 290]

    continuance for the purpose of further investigation by the Commonwealth; or (3) the court may make such other order as the interests of justice require.

As the lower court points out, appellant had ample time to serve notice of his alibi defense from his arraignment on September 2, 1981, through several continuances and up to the beginning of trial on December 17, 1981. It was not until the middle of the sixth day of trial, after the Commonwealth had presented its case-in-chief and after the defense had presented the testimony of two witnesses, that counsel for appellant proffered the alibi testimony.

Under these circumstances, the interests of justice demand that the alibi testimony be excluded. The Commonwealth had no prior notice of the existence of an alibi witness. Compare Commonwealth v. Vecchiolli, supra. Appellant delayed giving notice. Further, he failed to justify that delay. Introduction of the testimony at that stage of the proceedings would clearly have prejudiced the Commonwealth's ability to prove its case. See United States ex rel. Snyder v. Mack, 372 F.Supp. 1077 (E.D.Pa. 1974). These same factors persuade us that a continuance would have been inappropriate. The incident was seven years old. Appellant had ample opportunity to prepare an alibi defense. To have stayed proceedings after six days of testimony, long enough for the Commonwealth to prepare a rebuttal to the proposed alibi, would have diminished the jurors' recollection of the prior testimony. Rule 305 C(1)(d) is designed to avoid this potential chaos.*fn14

Finally, appellant argues that his trial before a death-qualified jury violated his right to equal protection of the law and of due process. Although appellant raised this issue in his post-verdict brief, we agree with the court below that this issue was abandoned at the time of post-trial

[ 333 Pa. Super. Page 291]

    argument and therefore waived for purposes of our review. Lower court opinion at 29; see Commonwealth v. Urbina, 290 Pa. Super. 117, 434 A.2d 157 (1981).

The judgment of sentence is affirmed.

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