Commonwealth v. Heaton

LIPEZ, Judge,

dissenting:

It is ironic indeed that the defendants are granted new trials by reason of their own self-inflicted wounds in opening up the very area which the majority considers prejudicial. I dissent.

It is important to bear in mind that both defendants were charged with three burglaries, all of which were consolidated for trial without objection. According to the testimony of their accomplice, Kathryn Lamey, all three offenses occurred on September 14, 1979 within the time frame of about seven hours—the Castanea Fire Hall, around 2:00 a.m., the Winner Packing Plant at 3:00 a.m., and the Womeldorf cabin around 9:00 a.m. The defendants and Kathryn Lamey were seen together in a tap room around 1:30 a.m. that same morning by Officer Walakavage. Kathryn Lamey, who drove the car to all three burglaries, implicated both defendants.

Officer Conklin, a Commonwealth witness, had testified as to his physical findings at the Castanea Fire Hall. It was during the cross-examination by defendant Heaton’s trial counsel, and upon his persistent questioning in an obvious effort to obtain from the witness some exculpatory statements, that the witness spoke about the defecation as fully set forth in the majority opinion. No objection was *354made by either defense counsel. Counsel then invited an explanation as follows:

Q. Are you saying that is a sign of something?
A. That’s a sign of something that’s been found at a couple of other of the burglaries that ...

Then before the answer was completed there was. an objection by defense counsel and there was no further explanation by the witness. Undeterred, counsel continued his cross-examination as follows:

Q. Did you find any hard evidence, any hard and fast evidence, anything to tie these two gentlemen in?
A. Just what I stated.
Q. So you do not know of anything else to tie these gentlemen into the scene of the crime?
A. No.

The record clearly shows therefore that the answer by the witness as to the defecation was in response to defense counsel’s question; that there was no objection to the answer; that the witness’s explanation as to the defecation was also in response to counsel’s invitation; and that there was no request for a mistrial.

It is a fundamental proposition that the failure to assert promptly and specifically an objection is a waiver. McCormick, Evidence (Cleary, 2d Ed.) § 52. This evidence was therefore in the record and became a part of the case against the defendant, as any other evidence. Carl v. Kurtz, 255 Pa.Super.Ct. 198, 386 A.2d 577 (1978); McCormick, supra, § 54. The explanation having been given at defendant’s request, he must be held to the consequences of his choice. See Commonwealth v. Stakley, 243 Pa.Super.Ct. 426, 365 A.2d 1298 (1976). McCormick, Evidence, supra, § 57.

As to the other line of testimony referred to by the majority, Officer Walakavage had testified on direct examination, as noted above, regarding the presence of the defendants and Kathryn Lamey at a bar early in the morning prior to these burglaries. Defendant Sample’s counsel, in *355his cross-examination, developed the fact that this witness on the following day commented to Detective Eichenlaub that the defendants, Oscar Heaton and Steven Sample, and Kathryn Lamey were in the bar. Defense counsel continued his cross-examination as follows (N.T. 66):

Q. Why did you tell Detective Eichenlaub the following morning?
A. The following afternoon.
Q. Yes.
A. Because of the burglaries we had.

Thereafter, on redirect examination, the prosecutor asked the same question as to why he told Detective Eichenlaub the next day. No objection was made to the question. The witness, as noted in the majority opinion, then replied: “Because Detective Eichenlaub told me of the burglary at the Castanea Fire House and the defecation they found on the floor, and I stated that I had seen Oscar Heaton and Steven Sample____” Further answer was cut off by the objection of defense counsel, and the sustaining of the objection by the court. Defense counsel then moved for a mistrial which was refused.

Defense counsel should have moved promptly to object to the question as soon as it was asked and before the answer was given, especially because he had been forewarned about the possible nature of the answer from his own, as well as his co-counsel’s, cross-examination. Having failed to do so, it constituted a waiver. Evans v. Otis Elevator Co., 403 Pa. 13, 26-27, 168 A.2d 573, 579-80 (1961); Kohn v. Shegda, 5 D & C 3d 526 (1978); McCormick, Evidence, supra, § 52.

Nevertheless, I see nothing in this answer to raise any new implication of other or prior criminal activity. He simply reiterates what is already in the record, viz. the defecation found in the Castanea Fire Hall and the presence of the two defendants, Heaton and Sample, with Kathryn Lamey some hours before the first burglary. Nothing in the redirect examination is said about any other burglaries. Any implication of the presence of feces at the other *356burglaries (and these “other burglaries” were never clarified and could reasonably apply only to those involved in the three charges for which the defendants were on trial) arose because of the cross-examination by both defense counsels thereby opening the door to further probing by the Commonwealth. Commonwealth v. Stakley, supra. See Commonwealth v. Wright, et al., 228 Pa.Super.Ct. 251, 323 A.2d 389 (1974) (defendants charged with robberies; there was no error in refusal to grant mistrial because of admission of restitution offer by defendants, particularly where previous evidence as to admissions made by defendants during the restitution offer had been admitted without objection).

In any event, there is no per se rule requiring a new trial for every reference to prior criminal conduct. Commonwealth v. Bowermaster, 297 Pa.Super.Ct. 444, 444 A.2d 115 (1982) (majority opinion). The decision as to the grant of a mistrial rests in the sound discretion of the trial judge, and will not be reversed absent a flagrant1 abuse of discretion.2 Commonwealth v. Stokes, 279 Pa.Super.Ct. 361, 421 A.2d 240 (1980).

I conclude therefore that the references to feces was induced by the defense questioning who must bear the responsibility for its introduction into evidence; that it had at most a minimal impact on the jury; and that the trial judge’s action in refusing a mistrial was well within the limits of his sound discretion, and certainly well removed from flagrant.3

I would affirm the judgments of sentence.

. Flagrant is defined as "glaring, notorious, scandalous.” 36 A.C.J.S. p. 745; "conduct which is shocking or outrageous.” Caldwell v. England, 200 A.2d 376 (1964) (D.C.App.).

. "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion ... the judgment exercised is manifestly unreasonable—discretion is abused.” Pokrzywnicki v. Kozak, Jr., et al., 353 Pa. 5, 44 A.2d 247 (1945).

. In view of my conclusion I do not discuss the admissibility of the • controverted evidence under any other theories.