Commonwealth v. Mayfield
| Decision Date | 28 December 1978 |
| Citation | 262 Pa.Super. 96,396 A.2d 662 |
| Parties | COMMONWEALTH of Pennsylvania v. Ronald MAYFIELD, a/k/a Johnson, Appellant. |
| Court | Pennsylvania Superior Court |
Argued April 14, 1978. [Copyrighted Material Omitted]
Michael J. Veshecco, Erie, for appellant.
Robert H. Chase, Dist. Atty., Erie, submitted a brief for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
The six Judges who decided this appeal being equally divided the judgment of sentence is affirmed.
HESTER, J files an opinion in support of affirmance in which PRICE and VAN der VOORT, JJ., join.
CERCONE, J files an opinion in support of reversal.
SPAETH, J., files an opinion in support of reversal in which JACOBS, President Judge, joins.
HOFFMAN, J., did not participate in the consideration or decision of this case.
Presently before the Court is Appellant's appeal from the judgment of sentence from Appellant's conviction for violations of "The Controlled Substance, Drug, Device and Cosmetic Act" [1] to-wit, Possession of Heroin and Possession of Heroin with Intent to Deliver, and Criminal Conspiracy (18 Pa.C.S.A. 903).
Following Appellant's conviction by a jury, his Motions for New Trial and/or in Arrest of Judgment, were timely filed, argued and subsequently denied.
On August 4, 1977, Appellant was sentenced to a term of imprisonment of 4 to 8 years. Thereafter, this timely Appeal.
Appellant posits four arguments in support of the present appeal.
We are of the considered opinion that all of the Appellant's contentions are without merit and therefore we affirm the judgment and sentence of the lower court.
Appellant first posits that the search warrant or affidavit of probable cause was defective in two material respects: (a) that the description of the place to be searched lacked the requisite specificity, and (b) the allegations contained therein were "stale".
We do not agree. The search warrant describes the premises to be searched as (Emphasis added). It was in this downstairs unit that the contraband was seized and Appellant arrested.
Pennsylvania Rule of Criminal Procedure 2005(c) requires:
Each search warrant shall:
(c) name or describe with particularity the person or place to be searched.
Moreover, when faced with a comparable situation in Commonwealth v. Kaplan, 234 Pa.Super. 102, 339 A.2d 86, 87, 88 (1975), we stated:
We find that in the instant case the description of the place to be searched was sufficiently specific and satisfied the standards set forth in Pennsylvania Rule of Criminal Procedure 2005(c) and Fiorini (supra) and Kaplan (supra).
We similarly conclude that the affidavit of probable cause was not founded on "stale" information as Appellant alleges, nor was the information contained in said affidavit legally insufficient so as not to justify the issuance of said warrant.
Neither Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973), nor any other case cited by Appellant or known to this Court has held that information supplied by a reliable informant becomes "stale" with 72 hours.
Similarly, we find that the information supplied by two independent informants was sufficient to constitute probable cause for the issuance of said warrant.
In U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Supreme Court indicated that an affidavit must contain the underlying "facts and circumstances" from which the issuing authorities could find "probable cause". As in the instant case, when the information is hearsay and is received from police informants, four factors should be considered: 1) accurate information previously given by the informant, 2) corroboration of the informant's story by other sources, 3) personal and recent observations of the informant which amount to a declaration against interest, and 4) the reputation of the defendant with the police if supported by prior events within the affiant's own knowledge. Harris, supra at 581, 91 S.Ct. 2075. See also Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125.
The affidavit of probable cause clearly satisfies the minimum requirements of reliability set forth above.
Next, Appellant claims that the lower court erred in permitting certain Commonwealth cross examination of a defense witness who had earlier testified as to Appellant's character. On direct examination, Mrs. Jessie Kelly testified:
"Q. OK, how long have you known Mr. Mayfield, Ma'am?
A. For two years.
Q. Two years?
A. Um-hum.
Q. Have you ever talked to any people about Mr. Mayfield?
A. Yes, several people.
Q. Could you estimate for us the number of people that you have talked to about Mr. Mayfield?
A. Five, six, or maybe more.
Q. From talking to these people about Mr. Mayfield over a period of two years have you been able to gather an opinion as to what Mr. Mayfield's reputation in which he works or lives is as to being a peaceful truthful, law-abiding citizen?
A. Yes.
Q. And is that reputation for being a peaceful, truthful, law-abiding citizen good or is it bad?
A. It's good."
(T. p. 132).
Thereafter, on cross the following dialogue took place:
"Q. Now, you said you discussed Mr. Mayfield's reputation for peacefulness, truthfulness and being law-abiding with other people in the community?
A. Yes.
Q. Do you recall the names of those people? A. Yes, Mr. Hank Washington, personnel director for Massey-Ferguson, where I am employed, Reverend Hall, he was a friend of the family's, and Mrs. Maxine Tompkins.
Q. When did these discussions take place?
A. At various times.
Q. Did these take place before or after he was arrested on these charges?
A. Oh, that was before.
Q. Do you recall how the subject of his honesty happened to come up?
A. On one occasion, talking to Hank Washington, I was telling him about the business that we had gone into and everything and he was, you know he gave me his opinion of Ron, he thought that he was a very nice person and everything; after all, he had been employed there and he just, you know, gave special attention to him.
Q. During any of the times when you were having these conversations with other people regarding his law-abidedness and his peacefulness did any of them mention the fact that he had been convicted of attempted armed robbery?
A. Did anyone ever discuss that with me?
Q. Yes.
A. No, because probably if I had known it, you know, we would never have gone into business together, you know.
Q. And did anyone ever discuss the fact that he received a bad conduct discharge from the Army in 1965?
The decisional law of the Commonwealth is quite clear that the Commonwealth may introduce in rebuttal, evidence of prior convictions to attack the credibility of a defendant Who has elected to testify in his own behalf. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).
In the instant case, Appellant contends that the lower court erred in allowing into evidence knowledge of Appellant's prior criminal record as a trial tactic in cross-examining a defense witness who had earlier testified that Appellant had a reputation as a "peaceful, truthful, law-abiding citizen".
Neither Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1977), nor Commonwealth v. Werner, 444 Pa. 458, 282 A.2d 258 (1971), is dispositive.
Appellant had "opened the door" to this line of inquiry by placing his reputation at issue vis a vis the testimony of his own witness.
Thereafter, we conclude that the lower court did not abuse its discretion when it permitted the aforequoted cross examination.
As is artfully stated in Pennsylvania Evidence by Henry, Ch. 4, Sec. 164, page 203:
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