Com. v. Nolen

• Decision Date: 22 December 1989
• Parties: COMMONWEALTH of Pennsylvania v. Christopher NOLEN, Appellant.
• Court: Pennsylvania Superior Court

Page 686

568 A.2d 686

390 Pa.Super. 346

COMMONWEALTH of Pennsylvania v. Christopher NOLEN, Appellant.

Superior Court of Pennsylvania.

Submitted July 3, 1989.

Decided Dec. 22, 1989.

George Shultz, Asst. Public Defender, Harrisburg, for appellant.

Julia A. Merl, Asst. Dist. Atty., Harrisburg, for Com.

Before WIEAND, MONTEMURO and CERCONE, JJ.

MONTEMURO, Judge:

Appellant, Christopher Nolen, appeals from a judgment of sentence imposed following a jury verdict finding him guilty of second degree murder, ¹ criminal conspiracy ² and robbery. ³ The trial court denied and dismissed appellant's timely post-trial motions. On appeal, appellant challenges: (1) the admissibility of evidence of appellant's involvement in two burglaries which were not the offenses charged in this case; (2) the trial court's denial of appellant's motion for a mistrial after the Commonwealth made reference to appellant's silence during his first trial and preliminary hearing; (3) the trial court's refusal to permit appellant to cross-examine a Commonwealth witness on whether the witness received favorable treatment in exchange for his testimony at trial; and (4) the trial court's denial of appellant's motion for a mistrial after the Commonwealth indirectly referred to appellant's first trial during its opening statement. For the following reasons, we affirm.

Appellant's convictions arose out of the fatal shooting of Carroll Ritchie during the robbery of Ritchie's tavern in Londonderry Township, Pennsylvania. During the evening of November 21, 1981, two masked men armed with handguns entered Ritchie's bar; one threatened, "Don't move or I'll shoot." When Ritchie came out from behind the bar and ordered them to leave, each of the robbers fired his gun, then one fired a third shot which hit and killed Ritchie. The gunmen fled.

While investigating the incident, the police found one .38 caliber bullet and one .32 caliber bullet in the walls of the tavern; the third bullet, .38 caliber, was removed from Ritchie's body.

The driver of the getaway car, David Crater, confessed to his role in the incident and revealed the identity of the two gunmen as Christopher Nolen, the appellant, and Dauntel Evans. During the trial, Crater testified to the following facts. At about 6:00 p.m. on November 21, 1981, Crater met up with appellant and Evans to carry out the robbery they had planned a few days earlier. When they arrived at Ritchie's bar, Crater went in, checked the place out, and then returned to the car. Appellant and Evans concealed their faces with clothing and, armed with guns, entered Ritchie's establishment. Crater waited in the car. Shortly thereafter he heard three gunshots. Appellant and Evans ran back to the car. After driving to their hometown, appellant gave his gun to Crater who later threw it into a nearby creek.

The police recovered the gun from the creek. A ballistics expert identified it as the weapon which had fired the .38 caliber bullet removed from Ritchie's body.

The first issue before us in this appeal concerns evidence admitted by the trial court of appellant's participation in two burglaries connected to the Ritchie robbery and shooting. Both appellant and Crater testified that on November 12, 1981, they and two other men burglarized the home of Warren Brubaker. The murder weapon retrieved from the creek after the Ritchie robbery was later identified as a handgun taken during the Brubaker burglary. Crater and appellant also testified that on November 19, 1981, Evans, Crater and appellant burglarized the home of Earl Herring. A handgun was taken during this burglary. An expert testified that the .32 caliber projectile recovered from the wall of Ritchie's tavern and a .32 caliber cartridge found in the getaway car matched ammunition left behind in the Herring burglary. He also testified that these projectiles could have been used in the type of firearm stolen during the Herring burglary. Appellant argues that the trial court erred in admitting evidence of the Brubaker and Herring burglaries.

As a general rule, evidence of distinct crimes is inadmissible against a defendant who is being tried for another crime if it is admitted merely to show the defendant's criminal disposition. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988); Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17 (1987), certiorari denied 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Evidence of other crimes may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to show the defendant's bad character and propensity for committing criminal acts. Id. at 349-50, 521 A.2d at 17. Under the "same transaction" exception, evidence of other crimes may be admissible where the evidence forms part of the chain or sequence of events which is part of the history of the case and it enhances the natural development of the facts. Commonwealth v. Lark, supra 518 Pa. at 303, 543 A.2d at 497; Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975); Commonwealth v. Murphy, 346 Pa.Super. 438, 443, 499 A.2d 1080, 1082 (1985).

The trial court held that evidence of the Brubaker and Herring burglaries falls within the "same transaction" exception. We agree. Appellant's participation in the Brubaker burglary links him to the murder weapon, showing that he had the opportunity for access to, and possession of, the gun. This is a critical link in the history of the case connecting appellant with the Ritchie robbery and murder. Appellant's participation in the Herring burglary, along with Evans and Crater, is evidence of other activity with the co-conspirators and thus is probative of whether or not a conspiracy existed among the three men. See Commonwealth v. Barnhart, 290 Pa.Super. 182, 186-87, 434 A.2d 191, 192 (1981) (evidence of prior crimes committed together with accomplices was admissible to explain the relationship between alleged co-conspirators); Commonwealth v. Soli, 273 Pa.Super. 158, 163, 417 A.2d 216, 220 (1979).

Once the court establishes that the "same transaction" exception applies, it must balance the prejudicial impact of the evidence against its probative value to determine admissibility. Commonwealth v. Murphy, supra 346 Pa.Super. at 444, 499 A.2d at 1083. On appeal, the trial court's determination will not be reversed absent an abuse of discretion. Id. The trial court found that the evidence of the Herring and Brubaker burglaries was "extremely" probative, particularly because none of the eye witnesses to the shooting could identify the perpetrators, and the prosecution's case rested primarily on the testimony of David Crater, a co-conspirator. The trial court minimized the prejudicial impact of the evidence by its cautionary instructions to the jury. N.T. November 17, 1986 at 499-500. See Banks, supra 513 Pa. at 351, 521 A.2d at 18; Murphy, supra 346 Pa.Super. at 446, 499 A.2d at 1084. We hold that the trial court did not err in admitting the evidence of appellant's involvement in the prior burglaries. Appellant's reliance on the line of cases concerning evidence of modus operandi is misplaced. ⁴

Appellant next claims that the trial court erred in denying his motion for a mistrial after the Commonwealth referred to appellant's failure to testify during his first trial and preliminary hearing. A reference at trial to an accused's post-arrest silence is a violation of his or her constitutional right against self-incrimination. Commonwealth v. Melvin, 378 Pa.Super. 59, 65, 548 A.2d 275, 277 (1988), appeal denied 522 Pa. 588, 561 A.2d 741 (1989); Commonwealth v. Mays, 361 Pa.Super. 554, 558, 523 A.2d 357, 359 (1987), allocatur denied 516 Pa. 613, 531 A.2d 780 (1987). "Prompt and adequate cautionary instructions by the trial judge can remove what might otherwise be reversible error." Melvin, supra 378 Pa.Super. at 65, 548 A.2d at 277, quoting Commonwealth v. Mays, supra 361 Pa.Super. at 558, 523 A.2d at 359. Four factors are examined to determine whether curative instructions can cure the error and eliminate the need for a new trial: "1) the nature of the reference to the defendant's silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction." Id. 378 Pa.Super. at 65-66, 548 A.2d at 278 (citations omitted).

While cross-examining appellant, the district attorney indirectly referred to appellant's failure to testify at the prior proceedings. The questioning went as follows:

BY MR. KLEINFELTER:

Q. Christopher, you have been present throughout the course of this trial and listened to every witness who has testified, have you not?

A. Yes, I have.

Q. And you were present at another proceeding and listened to the testimony of every witness that testified, did you not?

A. Yes, I have.

Q. And you were present at a preliminary hearing and listened to witnesses from the Commonwealth testify and heard every one of them, didn't you?

A. Yes, I have.

Q. Prior to your testimony here in this courtroom today, however you have not testified yourself, have you?

N.T. November 17, 1986 at 420.

The district attorney elicited the testimony concerning appellant's previous silence to point out appellant's advantage in having heard all of the Commonwealth witnesses' testimony and appellant's opportunity to conform his testimony to theirs. It was improper for the district attorney to question appellant on his previous failure to testify, and, thus, the questioning may have prejudiced appellant. The district attorney did not urge the jury to infer appellant's guilt from his silence at the prior proceedings, and thus did not exploit appellant's testimony.

The trial judge disallowed any further questioning on appellant's lack of participation during the prior proceedings. Defense counsel indicated that he did not want any immediate curative instructions on appellant's right not to testify...