Commonwealth v. Williams

Dissenting Opinion by

Hoeeman, J.:

This appeal raises the question of whether appellant was unduly prejudiced by the prosecutrix’s reference to him as a drug user.

Appellant was tried before the Honorable Earl Chudoee 1 and a jury on August 15, 1972 in Philadel *87 phia on charges of burglary, larceny, and receiving stolen goods. The facts adduced at trial indicate that Miss Victoria Luff, on February 15, 1972 at 9:20 p.m., saw a 5'6" black man leave her house carrying a television, tape recorder, and clock radio. The appellant was apprehended for the commission of this crime. At trial, Miss Luff identified appellant as the man she saw leaving her home on the evening in question.

On redirect examination of Miss Luff, the assistant district attorney endeavored to bolster her already positive identification by pursuing the following line of questioning:

“Q. Were you able to identify the defendant at the preliminary hearing without anybody pointing to him or pointing him out?”

“A. I was able to identify him, although he did look different.”

“Q. In what way?

“A. His hair was different and his face had begun to fill.”

“Q. What do you mean by his face had begun to fill?

“A. Shall I really tell you what I meant?”

“Q. Yes.

“A. Well if a man is without drugs for nine days he may gain a little weight.”

The trial court sustained defense counsel’s immediate objection to this response, but denied defense counsel’s request for a mistrial. Instead, Judge Chudoff promptly instructed the jury to disregard Miss Luff’s reference to the appellant’s use of drugs.

In Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 173-174 , 235 A.2d 171 (1967), Judge Spaulding set forth the rationale for the court’s refusal to admit evidence of a defendant’s other criminal activity: “The purpose of this rule is to prevent the conviction of an ac *88 cused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip Mm of the presumption of innocence.”

The Pennsylvania Courts have not only recognized the potential prejudice of admitting evidence of other crimes against a defendant, but have also held the admission of such evidence to be reversible error. In Commonwealth v. Bruno, 215 Pa. Superior Ct. 407 , 258 A. 2d 666 (1969), this Court reversed a conviction because the prosecutrix identified the defendant from police mug shots and thereby related the accused to other crimes. The conviction was reversed even though the prosecutrix had made a positive identification which could not be shaken by cross examination.

In the instant case, the identifying witness referred to the appellant in a manner implying his use of drugs. By such reference, the jury was likely to be prejudiced against the appellant because of the implied use and possession of illegal drugs, a criminal offense.

In the present matter Judge Chucom? immediately instructed the jury to disregard the prosecutrix’s accusation that appellant was involved with drugs. In many instances, a curative charge is sufficient to erase prejudicial remarks made with respect to the accused. This is not such an instance. We have held that a reference to other crimes is reversible error even when the trier of fact was “an able and experienced trial judge.” Commonwealth v. Rivers, 218 Pa. Superior Ct. 184 , 279 A. 2d 766 (1971). If the evidence of other crimes is so prejudicial as to require a reversal where such evidence is submitted in a trial before a judge sitting as trier of fact, a curative charge is unlikely to *89 wipe such prejudicial information from minds of jnrors. The prosecutrix’s statement, herein, was so prejudicial that the appellant should receive a new trial.

Accordingly, the judgment of sentence should be reversed and appellant granted a new trial.

In bis opinion, Judge Chudofr cbided the trial lawyers for filing “rubber stamped” post-trial motions and for failing to comply with his requests to file briefs prior to argument on the Post Trial Motions. Such failures place undue burdens on the trial court and frequently lead to unnecessary appeals because all the facts and issues are not presented to the trial judge.