Commonwealth v. Taylor

Opinion by

Watkins, J.,

Appellant, Milton Taylor, was tried by a jury on October 10, 1969, and found guilty of aggravated robbery. A motion for a new trial was filed, argued and denied. On June 18,1970, Milton Taylor was sentenced to a term of not less than 4 nor more than 10 years. This appeal to the Superior Court followed.

The prosecuting witness, Morris Katz, testified that on July 12, 1968, he drove to the Provident National Bank at 5th and Spring Garden Streets, Philadelphia, to make a deposit in the bank. He parked the car and while walking to the bank from the parking lot with the deposit package containing about $2,000.00 in cash and checks, he was grabbed and assaulted by three men in an attempt to rob him of the deposit. Mr. Katz identified Milton Taylor as one of the three men involved in the assault.

Captain Alphonso Giordano of the Philadelphia Police Department testified that he was cruising in the vicinity of the bank at the time in an unmarked police car and saw the attempted robbery. He was able to capture one of the attackers and identified Milton Taylor as one of the other two men who fled in a tan Pontiac automobile.

Captain Giordano testified that following the incident, he conducted an investigation and traced the Pontiac automobile to a Milton Taylor. He then testified that he sent for all of the “mug shots” of every Milton Taylor.

Counsel for appellant, Milton Taylor, objected to the reference to “mug shots” and made a motion for a mistrial, which was denied. The refusal of the trial judge to grant a mistrial was the subject of appellant’s motion for a new trial and is the principle issue involved in this appeal.

Appellant contends that the mere reference to “mug shots” of every Milton Taylor in the Police Chief’s testimony, tended to show that this appellant , was guilty of the commission of other crimes and offenses at other times and, therefore, a new trial must be granted.

No mug shots were offered into evidence, in fact it was never stated that mug shots of appellant were in existence or viewed to identify or apprehend appellant. The.trial court instructed the jury to disregard any testimony regarding mug shots.

This case can be distinguished from those relied upon by appellant, i.e.: Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A. 2d 171 (1967), where mug shots were introduced into evidence; Commonwealth v. Free, 214 Pa. Superior Ct. 492, 259 A. 2d 195 (1969), where the name of the defendant was tried for two different crimes during the same term by the same panel of jurors; Commonwealth v. Jamison, 215 Pa. Superior Ct. 379, 258 A. 2d 529 (1969), where police photographs were used at trial by victim for identification; Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A. 2d 666 (1969), where a witness testified she identified defendant from police photographs of him; Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A. 2d 901 (1968), where a witness testified the defendant was identified from a “mug shot”; Commonwealth v. Bonnano, 216 Pa. Superior Ct. 201, 263 A. 2d 913 (1970), where a policeman testified he arrested the defendant while he (Bonnano) was in Federal Prison.

We quote with approval the following portion of the able opinion of Judge Klein of the court below:

“When a defendant takes the witness stand in his own defense, he assumes the same status as that of any witness and his credibility is placed in issue. The Commonwealth may therefore, by way of rebuttal evidence, introduce testimony as to his prior record of convictions of felonies or misdemeanors in the nature of crimen falsi for the limited purpose of affecting his credibility: Commonwealth v. Scoleri, 432 Pa. 571 (1968) ; Commonwealth v. Peterman, 430 Pa. 627 (1968); Com. ex rel. Sprangle v. Maroney, 423 Pa. 589 (1967).

“The defendant knew that his record of previous arrests would be admissible in evidence if he took the witness stand in his own behalf. In spite of this, he elected to testify. By so doing, whatever inferences may have been drawn by the jury from the inadvertent reference to ‘mug shots’ became unimportant because his previous criminal record was properly made part of the record of the trial. Moreover, it is quite clear in the present case that the defendant took the witness stand, not to explain away previous encounters with the law, but to make a complete denial of his participation in the crime with which he was charged (N.T. p. 142). At no point in the course of his testimony does he refer to his prior record. We believe his failure to do so takes this case outside the scope of Commonwealth v. Trowery, supra.

“With the ever-increasing crime rate in the metropolitan areas of the United States and the ever-growing back-log of criminal cases, the administration of criminal law is becoming a matter of extreme concern to our citizens. The prompt disposition of criminal cases is of crucial importance. Although the rights of defendants must be zealously guarded, mistrials should not be declared lightly. In the present case, had the defendant not taken the witness stand the reference by Captain Giordano to ‘mug shots’ may well have been the basis for granting a new trial. However, the decision to take the witness stand was the defendant’s and having testified, his demand for a new trial must be denied.

“The evidence against the defendant was overwhelming and a study of the record discloses clearly that the error was harmless beyond a reasonable doubt and did not taint, the trial to constitute prejudice to the defendant. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967). For an interesting discussion of the subject generally, see ‘Basic and Fundamental Error’ by Richard Dean Winters, 43 Temple Law Quarterly 228.”

Judgment affirmed.

Jacobs, J., concurs in the result.