Commonwealth v. Vazquez

CERCONE, Judge,

dissenting.

My esteemed colleagues in the majority conclude that Trooper Stone’s remark was irreparably prejudicial and that a new trial is therefore required. I cannot agree.

The record shows that following the testimony to which appellant objects, the court immediately held a brief sidebar conference during which counsel for appellant requested a mistrial or cautionary instructions. The lower court denied the request for a mistrial, but forthwith gave the jury the following instruction:

THE COURT: Members of the jury, defense counsel has been asking a lot of questions to Trooper Stone about how they go about their investigations, and what information they used, and Trooper Stone told you they use a computer thing of people they suspect or know.

And I’m going to ask you to disregard the last statement that on their computer he showed up as a known drug dealer. There is—we don’t know how that information got in the computer. It certainly is not evidence that the Commonwealth can use.

You have taken an oath to decide the case on the evidence you hear in court today and the Court instructs you to disregard that statement of the Trooper in your deliberations.

After this instruction was given, defense counsel thanked the court and trial proceeded. No further mention was made at trial of Trooper Stone’s remark.

When viewed in the context of the whole trial, I am of the opinion that the lower court’s cautionary instruction was adequate. The improper testimony was quickly stricken by the *190 court and an instruction to disregard the statement was promptly issued. Thereafter, there was no further mention of the witness’ remark. Furthermore, Trooper Stone’s improper statement was not elicited by the Commonwealth, but by defense counsel. The Commonwealth made no attempt to exploit the remark.

Unlike the majority, I would not characterize the evidence against appellant at trial as minimal. The evidence was direct that the trooper personally purchased drugs from appellant on two separate occasions. After the purchases, the trooper testified that he placed the contraband in clearly marked envelopes which remained in his possession until the purchased substances were verified as illegal drugs. I cannot characterize such explicit and direct evidence of appellant’s guilt as minimal, despite the fact that it was given by only one witness.

In Commonwealth v. Yates, 531 Pa. 373 , 613 A.2d 542 (1992), the Pennsylvania Supreme Court held that the testimony of a police officer that he had been notified by an informant that appellant had been “dealing drugs” at a certain location was prejudicial error requiring a new trial. The court held thus despite the fact that the lower court had given the jury a cautionary instruction to the effect that Yates was not before them on a charge of drug dealing, and that the officer’s testimony was admitted only to explain why the police had gone to the location where they arrested Yates.

The instant case differs from Yates in several significant aspects. Here, the lower court did not permit the offensive testimony to be admitted for any reason, but immediately struck it from the record and provided the jury with an unmistakable instruction that they were not to consider the unfortunate remark for any purpose in their deliberations. In addition, the properly admitted evidence of guilt in the present case was far more incriminating than was the evidence against the defendant in Yates . In Yates , the police converged on the site of Yates’ arrest in response to a phone call from an informant that a “large black male” had been “dealing drugs” at the location. When the police arrived at the scene, they *191 saw Yates, a man who matched the informant’s description, carrying a large brown bag. Yates began to run when he saw the unmarked police car. The police did not observe Yates engage in any drug transaction; thus, the hearsay statement of the informant that he saw Yates “dealing drugs” could have served to supply the jury with an additional piece of evidence which would have filled in the missing element in the body of circumstantial evidence which the Commonwealth had assembled against Yates.

In contrast, the evidence in the instant case was that Trooper Stone had personally engaged in two separate drug transactions with appellant, and in both of those instances, appellant himself had sold the trooper illegal drugs. In the face of such direct and explicit evidence of appellant’s identity and guilt, the improper remark of Trooper Stone did not possess the quantum of prejudice that the statement of the policeman did in Yates . Trooper Stone’s reference to the police computer files did not serve to supply the jury with any additional information which it needed to fill in the gaps in the Commonwealth’s evidence, as there were no such missing elements here. As such, and in light of the immediate corrective response of the lower court, Trooper Stone’s improper reference constituted harmless, curable error.

The taint resulting from an improper reference to prior criminal activity may, in an appropriate case, be removed by a cautionary instruction without resort to the extreme remedy of aborting an otherwise fair trial. Commonwealth v. Richardson, 496 Pa. 521 , 437 A.2d 1162 (1981); Commonwealth v. Povisk, 479 Pa. 179 , 387 A.2d 1282 (1978). I would find, as did the lower court in its well-reasoned opinion, that the cautionary instruction provided immediately after Trooper Stone’s remark was sufficient to cure the prejudice which may have inured to appellant. Especially in light of the overwhelming evidence of his guilt, accordingly, I deem it unnecessary to grant appellant a new trial, and would affirm the judgment of sentence.