Appeal from the Order of Superior Court of April 20, 1988 at Nos. 44 and 45, Harrisburg, 1987, affirming the Judgment and Order of the Court of Common Pleas of Centre County of December 16, 1986 at CA 1985-551.
Douglas B. Chester, for appellant.
Ray Gricar, Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files an opinion in support of affirmance joined by McDermott and Papadakos, JJ. Papadakos, J., files a concurring opinion, joined by McDermott, J., which joins the opinion in support of affirmance. Nix, C.j., files an opinion in support of reversal, joined by Zappala, J. Flaherty, J., files an opinion in support of reversal, joined by Zappala, J.
OPINION IN SUPPORT OF AFFIRMANCE
We granted Steven A. Shawley's (appellant's) petition for allowance of appeal in order to address a single issue, namely: whether certain references made by two Commonwealth witnesses during appellant's trial reasonably implied that appellant had been involved in prior criminal activity and, if so, whether such references prejudiced appellant and deprived him of a fair trial.*fn1
The pertinent facts are as follows. At approximately 1:00 p.m. on May 18, 1985, two men robbed the Wash & Shop Laundromat in Bellefonte, Pennsylvania of over $1,200.00 in cash, including some $550.00 in quarters and $400.00 in dimes that had been placed in clear plastic bags, knotted at the top, by an employee of the Wash & Shop, John Mangino. Mr. Mangino and his girlfriend, Ms. Terry Nelson, had been cleaning the laundromat, which was closed at that
time, when a man entered and demanded money upon threat of death to Ms. Nelson. The man's face was mostly covered by a flannel shirt, but the victims saw that he was a white male with a blondish-brown mustache between twenty and thirty years old with muscular arms and wearing a grey sweatsuit and white sneakers. He had a fading tattoo on his left arm consisting of a round object with a dagger through it and something "curling" around the dagger, and he had a deep cut and/or scab on his right hand between his thumb and forefinger. The victims also noticed an odor of beer on the man's breath and believed him to be drunk. A second man, also with a shirt pulled over his head, waited outside the laundromat as a "lookout," and took one of the plastic coin bags which the "inside" man handed him.
Bellefonte police officers had observed appellant and William Shutt, his brother-in-law, in the vicinity of the laundromat shortly before the robbery. Appellant was intoxicated and was wearing a gray sweatsuit and white sneakers. Appellant also had/has a tattoo of a dagger with a serpent wrapped around it on his left forearm, and at the time of the robbery had a cut on his right hand between his thumb and forefinger.
On May 21, 1985, Bellefonte police officers searched the residence which appellant had been sharing with William Shutt and with his (appellant's) sister, Debra Shutt, who consented to a search of the residence. In the attic, police discovered a clear plastic bag knotted at the top concealed in a metal chest. A subsequent search accompanied by search warrant led to the discovery of some fifteen coins in the residence and on the grounds outside, which coins were seized and admitted into evidence.
Appellant was arrested on May 22, 1985 and charged with two counts of robbery, criminal trespass, conspiracy, theft and receiving stolen property, and was held over for trial in the Court of Common Pleas of Centre County. Several pretrial motions, including a petition for a writ of habeas corpus, a suppression motion, a motion in limine to exclude the use of appellant's prior criminal record to impeach his
credibility, and a discovery motion, were entertained and disposed of by the trial court, the Honorable David E. Grine.
A jury trial commenced on December 19, 1985, and the following day the jury returned a verdict of guilty on all counts. Trial counsel filed post-trial motions. Additionally, the court granted appellant's request to appoint new counsel who filed additional post-trial motions raising, inter alia, issues concerning the effectiveness of representation by trial counsel. An evidentiary hearing and oral argument was held on the post-trial motions before Judge Grine, who denied same. Appellant was then sentenced to four and one-half to fifteen years imprisonment on the robbery conviction and to two to five years concurrent imprisonment for criminal conspiracy. (Presumably, the remaining convictions were held to have merged for sentencing purposes, or sentencing upon same was suspended.)
Appellant filed an appeal with Superior Court, a panel of which affirmed his convictions and judgments of sentence on April 20, 1988. This Court granted allocatur in order to address the issue of whether Superior Court erred in affirming the trial court's ruling that certain references by Commonwealth witnesses were innocuous and did not reasonably imply that appellant had engaged in prior criminal conduct. Being equally divided, we now affirm.
The first reference complained of came about when the assistant district attorney was questioning arresting Officer Elton Nevling about the investigation leading to appellant's arrest. The officer had testified that the two witnesses from the laundromat had observed a tattoo on appellant's upper left arm in the shape of a dagger with something wrapped around it. The following exchange then took place:
Q: And, Officer Nevling, did you make a check during the time here that we're talking about and continuing your investigation, did you make a check on any records at the police ...