Com. v. Holloman

• Decision Date: 22 March 1993
• Citation: 621 A.2d 1046,424 Pa.Super. 73
• Parties: COMMONWEALTH of Pennsylvania v. William HOLLOMAN, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 1046

621 A.2d 1046

424 Pa.Super. 73

COMMONWEALTH of Pennsylvania v. William HOLLOMAN, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 29, 1992.

Filed March 22, 1993.

Louis Lipschitz, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

WIEAND, Judge.

William Holloman, Jr. was tried by jury and was found guilty of robbery, aggravated assault, theft by receiving stolen property, possession of an instrument of crime and criminal conspiracy. ¹ Post-trial and supplemental post-trial motions were denied, and Holloman was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. ² On direct appeal from the judgment of sentence, Holloman argues that a combination of trial court errors and improper conduct by the prosecuting attorney entitles him to a new trial.

On July 3, 1989, at or about 10:15 p.m., according to the Commonwealth's evidence, appellant and Michael Rouse gained access to an office maintained by Rachael Thomas in an apartment building owned by her at 4240 Old York Road, Philadelphia. Rouse had been employed as a maintenance man by Thomas and apparently had a key by which entrance was effected. Appellant found Thomas in an adjacent bathroom, where he held a gun to her head while Rouse removed cash and jewelry. When Thomas began to struggle with appellant, he punched her in the face and jaw, and the gun was discharged. At that point, Rouse shouted, "Come on, man, let's go, we got enough." His voice was recognized by Thomas. Thereafter, the robbers fled the building.

Although Thomas called the police after the robbers had fled, she did not disclose immediately that she had recognized Rouse's voice. Instead, by speaking with Rouse's wife, she was able to obtain a return of some of the property which had been taken. Included in the laundry bag by which the property was returned to her was identification belonging to appellant. Subsequently, Thomas told police that she had recognized Rouse as one of the robbers and was able to identify appellant from a photograph as the second robber. A search of appellant's apartment produced a gun which had been removed from Thomas's office, cash in the amount of $375.00, and jewelry which had been taken in the robbery. During the search, police also found sixty (60) vials of crack cocaine and various items of drug paraphernalia. Following the search of his apartment, appellant was placed under arrest.

During direct examination at trial of Detective John Romana, a Commonwealth witness, the prosecuting attorney asked about statements made by appellant following his arrest. The following occurred:

Q. Did you have occasion after arresting Mr. Holloman to speak with him?

A. Yes, ma'am, I did.

Q. And what if anything did he tell you?

MR. LIPSCHITZ: Objected to.

THE COURT: Objection overruled.

BY MS. WEINER:

Q. Go ahead.

A. I warned Mr. Holloman of his Constitutional Rights as per police card 75-Misc-3. He would not talk to me about anything concerning the robbery, but he did lay claim to the drugs that were found.

In response to defense objections to this testimony, the trial court instructed the jury as follows:

THE COURT: Members of the Jury, the witness indicated that Mr. Holloman refused to make any statement when he was arrested. He doesn't have to say anything, he has a perfect right not to say anything and to keep quiet if he wishes to and under the law that cannot be used against him. You will ignore that comment.

All right, continue.

"It is a clear violation of the accused's constitutional right against self-incrimination to make a reference at trial to his silence while in police custody." Commonwealth v. Gbur, 327 Pa.Super. 18, 23, 474 A.2d 1151, 1154 (1984). See also: Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). In some instances, however, a prompt cautionary instruction may be sufficient to overcome an improper reference to a defendant's post-arrest silence which might otherwise result in reversible error. Commonwealth v. Anderjack, 271 Pa.Super. 334, 341-344, 413 A.2d 693, 697-698 (1979). See also: Commonwealth v. Maloney, 469 Pa. 342, 349, 365 A.2d 1237, 1241 (1976); Commonwealth v. Gbur, supra 327 Pa.Super. at 24, 474 A.2d at 1154; Commonwealth v. Williams, 252 Pa.Super. 435, 446, 381 A.2d 1285, 1291 (1977). Instantly, the witness's remark about appellant's post-arrest silence was brief. It does not appear that the remark was intentionally solicited by the prosecuting attorney, nor did the prosecutor make any attempt to exploit the remark. We conclude, therefore, that the reference to appellant's silence following arrest does not require a new trial.

Appellant also complains that it was error for the trial court, over defense objection, to allow evidence that drugs were found in his apartment. ³ The law pertaining to evidence of criminal conduct other than that for which a defendant is being tried was summarized by the Pennsylvania Supreme Court in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:

Evidence of a defendant's distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant's distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant's distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant's prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called "res gestae" exception). See Commonwealth v. Lark, supra, 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

Id. 521 Pa. at 177, 555 A.2d at 840. See also: Commonwealth v. Tedford, 523 Pa. 305, 329, 567 A.2d 610, 621 (1989); Commonwealth v. Donahue, 519 Pa. 532, 539-541, 549 A.2d 121, 125-126 (1988). However,

[e]ven if a particular exception applies, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984), appeal after remand, 343 Pa.Super. 189, 494 A.2d 420 (1985) overruled on other grounds by Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988). A trial court's decision to admit evidence of other crimes committed by a defendant will not be reversed on appeal unless the trial court abused its discretion. Commonwealth v. Green, 351 Pa.Super. 170, 505 A.2d 321 (1986).

Commonwealth v. Nelson, 389 Pa.Super. 417, 425, 567 A.2d 673, 677 (1989). See also: Commonwealth v. Billa, supra 521 Pa. at 177-178, 555 A.2d at 840; Commonwealth v. Lark, 518 Pa. 290, 310, 543 A.2d 491, 501 (1988).

The Commonwealth contends that the presence of drugs and drug paraphernalia in appellant's apartment was relevant to show the history of the events on trial. In this regard, the Supreme Court has observed:

Another "special circumstance" where evidence of other crimes may be relevant and admissible is where such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080, 1082 (1985), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). This special circumstance, sometimes referred to as the "res gestae" exception to the general proscription against evidence of other crimes, is also known as the "complete story" rationale, i.e., evidence of other criminal acts is admissible "to complete the story of the crime on trial by proving its immediate context of happenings near in time and place." McCormick, Evidence, § 190 (1972 2d ed.); Carter v. United States, 549 F.2d 77 (8th Cir.1977); United States v. Weeks, 716 F.2d 830 (11th Cir.1983); see also Commonwealth v. Coyle, 415 Pa. 379, 389-91, 203 A.2d 782, 787 (1964) (evidence of other crimes admissible as these crimes were interwoven with crimes for which defendant was being prosecuted).

Commonwealth v. Lark, supra, 518 Pa. at 303-304, 543 A.2d at 497. See also: Commonwealth v. Brown, 462 Pa. 578, 590-591, 342 A.2d 84, 90 (1975); Commonwealth v. Nolen, 390 Pa.Super. 346, 352-353, 568 A.2d 686, 689-690 (1989), allocatur granted, 525 Pa. 644, 581 A.2d 570 (1990); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985).

The evidence in the instant case failed to establish that the sixty (60) vials of crack cocaine and drug paraphernalia found in appellant's apartment during the search by police had any connection with or relevance to...