Commonwealth v. Claffey

CERCONE, President Judge:

A jury found appellant, Thomas Claffey, guilty of burglary.¹ Post-verdict motions were denied and a sentence of one to four years imprisonment was imposed. On this direct appeal it is asserted the trial court erred in refusing to grant a mistrial after the Commonwealth elicited testimony which allegedly implied that appellant had engaged in prior criminal activity.² We are not persuaded and, therefore, affirm.

The record reveals that on November 25, 1975, the residence of Richard Jacobs, 1107 Brookwood Road, Secane, Pennsylvania was burglarized. Entry to the house was gained via a second story bathroom window. Detective Grazel, of the Upper Darby Police Department, was called to the scene and obtained several latent fingerprints from the entry area. The events giving rise to appellant’s allegation of error occurred during the direct examination of Detective Grazel, who testified as follows:

“By Mr. Coll: [Assistant District Attorney]

Q. Detective Grazel, did you ultimately send the lifts which, which you had taken from the window, to Washington?

A. That’s correct.

Q. When did you send them to Washington?

A. I believe on February 3rd.

Q. 1976?

A. That’s correct.

Q. And, where did you send them in Washington?

A. To the Federal Bureau of Investigation, Fingerprint Division.

Q. For what purpose?

A. To be compared.

MR. FOLEY: [Defense Attorney] Objection, Your Hon- or. I renew the motion.

THE COURT: Motion denied.

BY MR. COLL:

Q. Did you also send with the lifts inked fingerprints of the defendant, Thomas Claffey?

A. Yes.

MR. FOLEY: Objection, Your Honor. He is leading this witness.

THE COURT: Well, I think it is leading, Mr. Coll. Will you kindly rephrase your question?

MR. COLL: I will do that, Your Honor.

BY MR. COLL:

Q. Along with the lifts that you sent to Washington, did you also send—

What else did you send, if anything?

A. I sent a fingerprint card taken at our department.”

“It is the appellant’s position that the testimony above referred to could reasonably lead a jury to infer that the appellant’s fingerprints were on file both at the Federal Bureau of Investigation in Washington, D. C., and also the Upper Darby Police Department and that they were so recorded as the result of prior criminal activity on the part of the appellant.” [Appellant’s Brief at 6], We disagree.

It is axiomatic that the Commonwealth cannot introduce, except under circumstances not here applicable, evidence of different crimes against a defendant in a prosecution for a separate offense. Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). In determining whether this fundamental precept has been transgressed, “the operative question is whether the jury ‘could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.’ ” Commonwealth v. Groce, supra, 452 Pa. at 19-20, 303 A.2d at 919 (Emphasis added), quoting from Commonwealth v. Allen, supra, 448 Pa. at 181, 292 A.2d 373. Instantly, we are of the opinion that the complained of testimony was not such that the jury could reasonably infer that appellant had a prior criminal record.

The record simply does not support appellant’s position that Detective Grazel’s testimony gave rise to an inference that appellant’s fingerprints were on file both at the F.B.I. and the Upper Darby Police Department as a result of prior criminal activity. In the first place, neither the detective nor any other witness suggested that appellant’s fingerprints were already in the possession of the F.B.I. In essence, Detective Grazel merely testified that latent fingerprints lifted from the scene of the crime along with inked fingerprints known to be appellant’s, were forwarded to the F.B.I. for comparison. Most significantly, the trial testimony is absolutely devoid of any mention of the date when appellant was arrested for the instant burglary. Thus, although the jury knew that the fingerprint comparison was made several months after the burglary was committed, they were never informed that appellant was arrested after the comparison proved positive. Had the jury been apprised of both the date of appellant’s arrest and the date of the comparison, then the detective’s reference to a fingerprint card would have indeed given rise to a reasonable inference of a prior criminal offense on appellant’s part.³ Absent this critical testimony, however, we believe the only reasonable inference to be drawn was that the F.B.I. was requested to compare latent fingerprints found at the scene of the crime with those taken when appellant was arrested on the present burglary charge. In other words, as the prosecutor stated during a side bar conference regarding this issue: “I think if the jury simply knows they were taken subsequent to the crime in this case, there is no prejudicial implication involved there.” N.T. 34. Indeed, in Commonwealth v. Danzy, 234 Pa.Super. 633, 340 A.2d 494 (1975), allocatur denied September 18, 1975, we implicitly recognized the lack of prejudice in these circumstances so long as the testimony merely reflected that the date of the fingerprint comparison was subsequent to the time of arrest.

In sum, as we most recently observed: “Because the testifying police officer did not state a specific date as to when the fingerprints were taken, no reasonable inference could be drawn by the jury that the fingerprints were taken as a consequence of prior criminal activity.” Commonwealth v. Harris, 263 Pa.Super. 110, at 117-118, 397 A.2d 424, at 428 (1979).

Judgment of sentence affirmed.

PRICE, J., concurs in the result. SPAETH, J., files a dissenting opinion. JACOBS and WATKINS, former President Judges, and HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3502.

2 . Appellant further argues that the lower court erred in permitting an employee of the Federal Bureau of Investigation to testify as an expert witness regarding comparison of fingerprints lifted from the scene of the crime and those known to be appellant’s. We have examined this contention and conclude that the trial judge did not abuse his discretion in finding the witness qualified to testify as an expert. See Commonwealth v. Bennett, 471 Pa. 41, 370 A.2d 373 (1977).

3 . In this situation, the Commonwealth would have been obliged to offer a reasonable explanation as to how the police were already in possession of appellant’s fingerprints other than as a result of his prior criminal activity. See Commonwealth v. McFadden, 464 Pa. 265, 346 A.2d 550 (1975); Commonwealth v. Allen, supra; Commonwealth v. Taylor, 460 Pa. 616, 334 A.2d 261 (1975).