Commonwealth v. Rivera
Commonwealth v. Rivera
Opinion of the Court
OPINION OF THE COURT
Miguel Rivera, the appellant was convicted by a jury of the offenses of murder of the first degree, rape and conspiracy. After the denial of his post-verdict motions, appellant was sentenced to life imprisonment on the murder charge and to a concurrent ten to twenty year imprisonment for rape. Sentence on the conspiracy conviction was suspended. This appeal followed.
The Commonwealth’s evidence at trial was that Rivera was one of six men in the early morning hours of June 27, 1973 who participated in the rape of a young girl and the drowning of her boyfriend in the reflecting pool in front of the Philadelphia Art Museum. It is not neces
Appellant first contends that the trial court erred in failing to grant a motion for a mistrial. The motion came during the course of the re-direct examination of the principal Commonwealth witness, appellant’s co-defendant, Juan Garcia. On cross-examination, defense counsel had attempted to impeach the credibility of Garcia by questioning him about inconsistencies in various statements he had given to the police concerning the crimes. In an apparent attempt to rehabilitate Garcia, the assistant district attorney began to read from one of those statements.
“ ‘About three days after the incident in the park I ran into this guy Mike [the defendant] whom I know at 17th & Greene.’ Now, this is the statement that I am referring to that you gave at 7:15 a. m, on the morning of July 7. Now I’m quoting the words from the statement. ‘He is a junkie . . .’”
Defense counsel objected at this point and moved for a mistrial. The objection was overruled and the motion denied. Appellant asserts that reference to him as a “junkie” was improper and prejudicial because it permitted the jury to infer that he had previously been involved in criminal activity of some sort.
The general and well-known rule is that “the prosecution may not introduce evidence of the defend
A “junkie”, according to the dictionary, is “a drug addict, esp. one addicted to heroin.” The Random House Dictionary of the English Language (Coll.Ed. 1968). In street argot, the word simply denotes a regular user of drugs. The parties do not disagree on this point, and for purposes of this opinion we will assume that the jury understood the word to have this meaning. The question is whether drug use connotes prior criminal activity by the user.
By itself drug use, even habitual use, is not a crime in this State. Our statute law
Noting that this was an issue of first impression in Pennsylvania, the Court in Quarles stated that such testimony “cannot be said to raise an inference, as a matter of law, that addiction to narcotics is evidence of prior criminal conduct.” Id. at 234, 326 A.2d at 641.
To infer prior criminal activity on the part of Rivera from the challenged reference, the jury would have to conjecture that a drug user is prone to commit crimes in order to support his drug habit. Whatever basis in fact such a supposition may have as a general proposition, see and compare Commonwealth v. Williams, 230 Pa.Super. 72, 327 A.2d 367 (1974), we are unwilling to conclude that the possibility of a speculation so attenuated and in no way related to this appellant is, by itself, sufficiently prejudicial to warrant the granting of a new trial.
Additional reasons are present in this case to support our conclusion. The word “junkie” was mentioned only a single time
While we find no prejudice and hence no error in the case at bar, we take this opportunity to observe that evidence of drug use, like evidence of any other bad habit of a defendant, should be avoided except when directly relevant to an issue before the fact-finder. See Commonwealth v. Quarles, supra, 230 Pa.Super. at 235-36, 326 A.2d 640; McCormick, Law of Evid., 99, § 45 (1954).
Two assignments of error in the trial court’s charge to the jury remain to be considered: Rivera claims, first, that the Court erred in stating to the jury that in his opinion “the crime of voluntary manslaughter was not involved in this case.” It is contended that this expression of opinion on the part of the Court rendered illusory appellant’s right to a charge on voluntary manslaughter. We do not agree.
Only recently, in the case of Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976) we reiterated the rule that, under certain carefully circumscribed conditions, it is not error for a trial court to comment as to whether there is any evidence to support a verdict of voluntary manslaughter. Those conditions were met here. First, the judge stated his opinion only after he had first fully instructed the jury concerning the elements of voluntary manslaughter and told them that it was a permis
Appellant’s other objection to the charge is that the court expressed its personal opinion as to Rivera’s guilt. This objection was not made at trial, however, and consideration of it on appeal is precluded. Pa.R.Cr. P. 1119(b); Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478, 483 (1975). This is so notwithstanding that the point, although not included in the new trial motion, was apparently advanced at argument on that motion.
Judgments of sentence affirmed.
. The appeal of the judgment of sentence for murder was taken directly to this Court pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Art. II, sec. 202, 17 P.S. § 211.202 (Supp.1975-76). The appeal of the judgment of sentence for rape was certified to this Court by the Superior Court because the two crimes were related.
. Act of February 15, 1870, P.L. 15, § 2,19 P.S. § 1187.
. The statements had been marked as exhibits previously and were later introduced into evidence.
. There are, of course, exceptions to this rule, as for example when the evidence of the other crime is sought to be admitted to prove a common design or scheme, or to establish intent or motive. See McCormick, Evidence, § 190 at 448-451 (Clearly ed. 1972) for a complete listing of the exceptions. The Commonwealth does not argue that any of these exceptions is applicable here.
. The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, i 1, et seq., as amended, 35 P. S. § 780-101 et seq.
. Cf. section 4 of the Drug, Device and Cosmetic Act, Act of September 26, 1961, P.L. 1664, § 4, as amended, 35 P.S. § 780-4(r), repealed, Act of April 14, 1972, P.L. 233, No. 64, § 43.
. In one sense this statement can be viewed as dictum because the issue had not been properly preserved for appeal purposes. The trial in Quarles, however, had predated our decision in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) abolishing the “doctrine of basic and fundamental error” in criminal cases, and the Superior Court’s statement was made in the course of its consideration of the applicability of that doctrine to the error complained of. The Court concluded that the alleged error was not basic and fundamental.
. At the close of all the evidence the assistant district attorney requested that the trial judge give the jury a cautionary instruction to the effect that any reference to the use of drugs by the defendant was not to be considered by them in determining his guilt or innocence. While the trial judge expressed his willingness so to charge, defense counsel rejected the offer on the ground that such a statement at that stage of the proceeding would only serve to call the jury’s attention to the drug factor.
. Appellant also argues that the “junkie” reference in the Garcia statement was reversible error because its introduction into the case by the assistant district attorney constituted prosecutorial misconduct. If, as we have held, the word was not prejudicial, it is difficult to see how its introduction could amount to misconduct. However that may be, the reason now advanced was not the basis for the objection in the trial court, and will not be considered for the first time on appeal. Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974) and cases cited therein.
. The court charged:
“But you have the power, which is within your power, reserved to you, to determine whether or not the defendant is guilty of voluntary manslaughter. So I make that as clear as I can.”
Dissenting Opinion
(dissenting).
I dissent. The majority asserts that because drug use is not a crime, to infer that appellant engaged in prior criminal activity from the remark naming appellant as a “junkie,” “the jury would have to conjecture that a drug
The majority’s logic also misses the mark by concluding that the possibility of the jury assuming that a heroin addict is more likely to commit a crime is too “attenuated” to require reversal. I believe that the likelihood of such speculation by the jury is quite high — regardless of the “basis in fact such a supposition may have as a general proposition” — and this likelihood of prejudice is in itself sufficient to warrant the grant of a new trial.
Moreover, the unobjected-to reference regarding appellant’s alleged use of mar juana in no way justifies referring to him as being a “junkie”. The foundation of the majority’s conclusion is its misconception of the meaning of the word “junkie”. The word is derived from “junk”, a synonym for heroin. A “junkie”, therefore, is one who regularly uses “junk”, i. e., heroin. As commonly understood, however, the work connotes much more. The name itself frequently conjures up images of the popular stereotype of the heroin addict, namely, a lost soul, physically and mentally deteriorating from dependence upon drugs, who manages to survive only by stealing enough to support a drug addiction costing perhaps hundreds of dollars a day. Such an image is likely to be implanted in
Additionally, I must express my dissent to the majority’s approval of the trial court’s statement that, in its opinion “the crime of voluntary manslaughter was not involved in this case.” The unavoidable effect of such a statement is to direct a verdict as to the voluntary manslaughter issue. The trial court’s statement, made in response to defense objections, that the jury had the “power” to return a voluntary manslaughter verdict despite the trial court’s opinion, adds to rather than reduces the prejudicial effect of the initial remark. The clear impression left by the exchange between the judge and defense counsel is that the jury would be wrong if it returned a voluntary manslaughter verdict. Such comment by the trial judge has been condemned by the court since Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972)
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Miguel RIVERA, Appellant (Two Cases)
- Cited By
- 28 cases
- Status
- Published