Commonwealth v. Elmore , 241 Pa. Super. 470 ( 1976 )

HOFFMAN, Judge:

Appellant contends that the trial court erred in conducting vigorous direct examination of one of the Commonwealth’s witnesses which led to the introduction of prejudicial testimony.

On August 23, 1974, the Bucks County Grand Jury returned indictment number 1514 charging appellant with a March 4, 1974 burglary. After the court denied appellant’s motion to suppress, a jury was selected on November 7, 1974. On November 11, 1974, the jury found appellant guilty as charged. Post-trial motions were denied on February 11, 1975. On April 11, 1975, appellant was sentenced to a term of imprisonment of three to twenty-three months.

At trial, the following facts were developed. One witness, who was unable to make an identification at any point during the proceedings, testified that she returned home on March 4, 1974, and discovered that her apartment was being burglarized. She left her apartment and told Mrs. Keyes, a neighbor who was in the hallway of the apartment building, that “I’m being robbed.” Mrs. Keyes saw two men running from the rear of the building; she gave chase, during which time she viewed the suspects. The only other Commonwealth witness was the arresting officer, who testified that the police dusted for fingerprints but found only smudges, indicating that the burglars wore gloves. The only testimony elicited by the prosecutor from the officer on the subject of the witness’s identification was the following: “Q. Detective, did you also interview the witness?

“A. Yes, I did.

“Q. What information did she give you?

“A. Mrs. Keyes was there and both me and Haldman were there at the interview.

“She gave a description of two men she chased out of the parking lot.

“Q. Did the description that she gave fit anybody that is in this courtroom?

“A. Yes, one did.

“Q. Who is that?

“A. Subject number one fits the defendant.

“Q. Based upon your investigation, did you arrest anyone in the courtroom as a result?

“A. Yes.

“Q. Who was that?

“A. [Appellant].”

After appellant’s counsel had cross-examined the police officer, the court conducted the following examination of the witness:

“THE COURT: Is there anything else?

“[THE ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.

“THE COURT: Excuse me. There is something missing here, it seems to me.

“Detective, during some part of your investigation you came and you arrested this man on a certain date, is that correct?

“THE WITNESS: Yes.

“THE COURT: As a result of certain information?

“THE WITNESS: Yes.

“THE COURT: You said Mrs. Keyes identified the person.

“Did she have anything to do with the fact of your arrest of this man?

“[APPELLANT’S COUNSEL]: I object, Your Hon- or.

“THE COURT: The objection is overruled. You may answer.

“THE WITNESS: Basically.

“THE COURT: In what way?

“[APPELLANT’S COUNSEL]: Your Honor, may we approach the bench?

“THE COURT: What was Mrs. Keyes’ part in your arresting the defendant?

“[APPELLANT’S COUNSEL]: Objection, Your Honor.

“THE COURT: The objection is overruled. You may answer.

“THE WITNESS: Mrs. Keyes was involved in the fact that she had identified a photograph of the defendant.

“[APPELLANT’S COUNSEL]: Your Honor, I will move for a mistrial.

“THE COURT: The motion is denied. Your answer was what?

“THE WITNESS: She identified a photograph of the defendant, Your Honor.

“THE COURT: This was exhibited to her by whom?

“THE WITNESS: It was made up by me and exhibited by Detective Hildesheim to her.

“THE COURT: Just how was the photograph exhibited,?

“THE WITNESS: She was shown approximately thirty-eight hundred pictures in the beginning, and then through my information and investigation it led to [appellant], and a photograph of him was obtained and it was put in with five other photographs basically fitting his description.

“It was showed to Mrs. Keyes, and she immediately picked out the defendant as one of the men she had seen that night.”

The examination of the witness by the court raises two separate grounds which should compel this Court to reverse appellant’s conviction: first, the officer’s testimony concerning the photographic array allowed the jury reasonably to infer that appellant had engaged in prior criminal activity and second, the court overstepped its authority in conducting the examination of the witness.

In Commonwealth v. Turner, 454 Pa. 439, 442, 311 A.2d 899, 900 (1973), the Supreme Court summarized the settled principles of law concerning the introduction of evidence of prior crimes committed by an accused: “In Pennsylvania, the law is clear that if a testimonial reference to a photograph indicates to the jury the accused has been involved in prior criminal activity, reversible error is committed. This rule is based on the principle that evidence of distinct crimes may not be introduced against a defendant who is being tried for another crime, except under certain limited circumstances, not relevant here. See Commonwealth v. Groce, 452 Pa. 15, 308 A.2d 917 (1973); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).” See also, Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973); Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973); Commonwealth v. DeMarco, 225 Pa.Super. 130, 310 A.2d 341 (1973); Commonwealth v. Harding, 225 Pa.Super. 84, 310 A.2d 326 (1973).

The problem of reference to prior crimes frequently arises when the police testify concerning pre-arrest photographic identification. See Commonwealth v. Turner, supra; Commonwealth v. Allen, supra; Commonwealth v. Harding, supra. Obviously, if the officer testifies that he exhibited “mug” shots, photographs from the “rogues gallery”, or photographs from police “robbery” files, the jury naturally concludes that the accused had committed prior criminal acts. The issue becomes more complex if the reference to photographs may raise the inference that a defendant has a prior record. Commonwealth v. Allen, supra, however, stated that “[w]e hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; so too, where it appears on the face of the record that there is an explanation of the police possession of the photograph unrelated to any inference of prior criminal activity.” 448 Pa. at 181, 292 A.2d at 375.

Applying the test articulated in Allen, we believe that the jury could reach but one conclusion: the photograph selected by Mrs. Keyes was drawn from a police photograph file. The sheer number of photographs— over 3,800 — leads only to that conclusion. The police possess such an extensive file for only one conceivable purpose; thus, it would have been reasonable for the jury to conclude that appellant had committed prior crimes. Furthermore, the record on its face contains no explanation of possession of the photograph unrelated to prior criminal activity. Cf. Commonwealth v. Shantz, 236 Pa.Super. 46, 344 A.2d 717 (1975). It was undoubtedly for this reason that the prosecuting attorney did not examine the arresting officer on that subject, and chose instead to rest on the witness’s in-court identification. The evidence elicited at trial by the court below bolstered the Commonwealth’s case, but inadmissable evidence was introduced as a result.

Further, appellant contends that the lower court erred in examining the arresting officer on the subject of the photographs.

Initially, we agree with the general rule that “[a] judge in a jury trial has a right to interrogate witnesses. It sometimes becomes his duty to do so, even to the point of recalling a witness to supply an omission of proof on a material point.” Commonwealth v. Myma, 278 Pa. 505, 507, 123 A. 486, 487 (1924). See also, Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971); Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952). A trial court must, however, be aware of the following caveat: “ . . . [A] judge may so conduct an examination as to make it an abuse of discretion, requiring a new trial.

“Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; .... The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. ... To depart from the clear line of duty through questions, expressions, or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence.” Commonwealth v. Myma, 278 Pa. at 508, 123 A. at 487.

A discussion of appellant’s first contention makes clear that the trial court aggressively pursued the issue of the witness’ photographic identification of appellant. The contested examination by the court did not supply “an omission of proof on a material point”; it was protracted; and it was a clear substitution of the trial court’s judgment of how the case should have been tried. Thus, the examination went well beyond the court’s limited role and placed the court in the role of an advocate.

Therefore, we reverse and remand for a new trial.

PRICE, J., files a dissenting opinion in which WATKINS, President Judge, and VAN der VOORT, J., join.