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COMMONWEALTH PENNSYLVANIA v. ALBERT HAILEY (08/17/84)

filed: August 17, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT HAILEY, APPELLANT



No. 720 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, No. 2144-2146 August Term, 1980.

COUNSEL

Arnold L. New, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Montgomery and Cercone, JJ. Montgomery, J. filed a concurring and dissenting opinion.

Author: Brosky

[ 332 Pa. Super. Page 169]

This appeal is from judgment of sentence imposed subsequent to conviction of robbery, conspiracy and theft. Appellant raises seven issues on appeal. First, that trial counsel was ineffective in not raising in post-trial motions

[ 332 Pa. Super. Page 170]

    the testimony of the alleged victim and investigating detective regarding the prearrest photographic identification as the jury could have inferred prior criminal activity of appellant. Second, that trial counsel was ineffective for eliciting during cross-examination that appellant was incarcerated as the same inference could have been drawn. Third, that trial counsel was ineffective for not introducing at the hearing on Suppression of Identification by the alleged victim evidence that she had stated at the Preliminary Hearing that she was unable to identify appellant. Fourth, that trial counsel was ineffective for not making any opening statement to the jury. Fifth, that the categorization of appellant by the District Attorney as a "Career Criminal" thereby placing him before one of three designated judges deny appellant his right to due process and a fair trial; the classification was incorrectly applied to appellant since he did not have two prior convictions; and the classification violates appellant's right to equal protection under the United States and Pennsylvania Constitutions as it is vaguely drafted and violates his right to due process since it allows for arbitrary and capricious application and enforcement. Sixth, that the trial court erred in charging the jury that evidence of flight could be considered as an indication of guilt. Seventh, that the sentencing court improperly considered a prior conviction overturned on constitutional grounds.

Appellant raises numerous assignments of error, several of which are framed in terms of trial counsel's ineffectiveness. Since appellant is now represented, for the first time, by counsel other than trial counsel, these issues are properly before us. Commonwealth v. Lewis, 463 Pa. 180, 344 A.2d 483 (1975).

The instant charges arose out of the armed robbery of the Jet Bar by two men who wore stocking masks and a third man identified as appellant by the barmaid Shardell Thompson. Appellant first argues that it was error to permit the barmaid and a police officer to testify regarding a photographic identification. We disagree. In making a

[ 332 Pa. Super. Page 171]

    determination as to what constitutes error when reference is made to photographs of the accused, the controlling question is whether or not a juror could reasonably infer from such reference that the accused had engaged in prior criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The facts in the instant case reveal that the witness was shown approximately eight photographs during a police interview at the witness's home. There was no reference to the photographs as "mug shots" or any other indication that the photographs came from police files. The photographs themselves were not displayed to the jury or introduced into evidence. The only connection to the police is the fact that a police officer showed the photographs to the witness. This is insufficient to raise an inference of prior criminal activity. Commonwealth v. Reiss, No. 105 E.D. 1982 (Pa. Oct. 27, 1983).

Appellant next contends that trial counsel was ineffective when he elicited, during cross-examination, that appellant was incarcerated. This occurred during testimony regarding a lineup held in connection with the instant case and in which all lineup participants wore prison garb. Assuming the references to institutional clothing did imply that appellant was incarcerated, this would not be grounds for relief. The rule is that references to past criminal conduct is prohibited. The fact that an accused is incarcerated on ...


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