Opinion

Commonwealth v. Viera

  • 442 Pa. Super. 348
  • 659 A.2d 1024
  • 1995 Pa. Super. LEXIS 1536
Court
Superior Court of Pennsylvania
Filed
Jun 1, 1995
Status
Published
Author
Hudock
On the bench
Popovich, Hudock and Hester
Cited by
16 cases
Authority
More cited than 10.3%

The opinion

HUDOCK, Judge,

dissenting:

I am unable to concur with the majority’s conclusion that reversible error did not occur as a result of the testimony of the Commonwealth’s rebuttal witness that he was a probation officer. Thus, I dissent. I would vacate the judgment of sentence and remand for a new trial.

In this drug case, the Commonwealth offered the testimony of Brian Bray in rebuttal. Mr. Bray stated that he was employed by the Pennsylvania Board of Probation and Parole and that he knew Appellant. Thereafter, the following testimony was elicited from Mr. Bray:

[District Attorney]. Calling your attention to January of 1993, did you have occasion to meet with [Appellant] in January of 1993?

*362 [Mr. Bray]. Yes, I did.

Q. If I may sir, calling your attention to January of 1993, did you have an occasion to meet with [Appellant] during that month?

A. Yes, I did.

Q. Would you please indicate on what dates in the month of January you met with [Appellant]?

A. The following dates ...

Q. I’m sorry, before I proceed, sir, where would you have met with him?

A. I had met with him at 1416 Upland Street, Chester, Pennsylvania, State Board of Parole Office, Chester District office.

Q. Would that meeting have been face to face?

A. Yes, it would.

Q. Okay, would you please resort to your record, sir, and indicate what dates in January of 1993 you met with [Appellant]?

A. Personally, I met with him on the following dates: 1-4 of ’93, 1-11 of ’93, 1-19 of ’93, and 1-25 of ’93.

Q. Did you speak with him on the other dates during the course of that month?

A. I believe I spoke with him on the sixth over the phone.

* * * * * *

Q. I’m showing you, sir, what’s been marked Commonwealth Exhibit “C7”. Can you identify this document, sir, for the record?

A Yes, this document is our District Office Travel Permission, written travel permission.

Q. What is that? What is that?

A. Whenever a client under our supervision wishes to leave the district that we supervise which is Delaware and *363 Chester County, they must get written permission for us in the form of our own Travel Permission Form.

N.T., 3/24/94, at pp. 185-89.

I would find this exchange prejudicial to Appellant in that it clearly refers to prior criminal activity by Appellant and therefore denied him a fair and impartial trial. In Commonwealth v. Carpenter, 511 Pa. 429 , 515 A2d 531 (1986), our Supreme Court explained:

In Commonwealth v. Clark, 453 Pa. 449 , 309 A.2d 589 (1973) this court said: “It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge____ ‘The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.’ ” Id. at 452 , 309 A.2d at 590 (quoting Commonwealth v. Allen, 448 Pa. 177, 181-182 , 292 A.2d 373, 375 (1972)). In Clark we stated that a police officer’s statement that the defendant had previously served time “in prison” implied a prior conviction for a serious offense, thus was prejudicial in that it permitted the jury to infer that the defendant had a prior criminal record. To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense. In the case at bar the mere passing reference to the appellant’s confinement did not supply a sufficient basis for a reasonable inference of prior criminal activity in view of the numerous crimes for which he was then on trial. The reference did not either expressly or by reasonable implication convey the fact of a prior criminal offense unrelated to the criminal episode for which he was then on trial.

Id. 515 A.2d at 535 (quoting Commonwealth v. Banks, 454 Pa, 401, 410-11, 311 A.2d 576, 581 (1973)) (emphasis in original).

In Carpenter , as in the present case, the appellant argued that his trial was tainted by the testimony of a Commonwealth witness employed by the Pennsylvania Board of Parole. The *364 agent, stating his occupation and affirming that he knew the appellant, “was called by the Commonwealth to testify as to a conversation he had with appellant in August, 1983 regarding his broken jaw, and his reluctance to identify his attacker to the police.” Id. 511 Pa. at 436 , 515 A.2d at 534 . Despite the fact that the jury was told of the agent’s occupation and that he knew the appellant, the Court held that such testimony “did not convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense or record[,]” since the jury was never told that the agent was actually the appellant’s own parole officer. Id. 511 Pa. at 437 , 515 A.2d at 535 . The Court, in reaching this conclusion, stressed that there are many ways that the appellant may have come to know the parole officer. Thus, the Court concluded that little prejudice was caused by the agent’s passing reference to his job as a parole officer.

In the case herein, like Carpenter , Mr. Bray did not actually state that he was Appellant’s parole officer, but Mr. Bray’s testimony ineluctably leads to the conclusion that Appellant had a prior criminal record. Mr. Bray stated that he actually met with Appellant at parole headquarters. Further, Mr. Bray explained that Appellant filled out a Travel Permission Form which is required to be filled out by every person under the parole board’s supervision before a supervised person may travel. Clearly, a jury, by reasonable implication, could have found from these statements that Appellant had a prior criminal record. Thus, I would vacate the judgment of sentence and remand for a new trial.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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