dissenting:
I cannot agree with the majority decision in this case because I do not find any abuse of discretion on the part of the trial court in denying appellant’s motion for a mistrial and therefore dissent.
While agreeing that the introduction of evidence of prior criminal conduct by the Commonwealth or the court can be highly prejudicial and may necessitate the grant of a new trial, this is not the situation presented by the instant case. Rather, the more narrow inquiry is whether defense counsel’s questioning of the witness on cross examination elicited the response received, such that he should be precluded from relying on any prejudicial effect thereof on appeal. The case of Commonwealth v. Dalton, 199 Pa.Super. 388, 185 A.2d 653 (1962), and its progeny is controlling on this issue.
In Dalton, a police officer on cross examination by defense counsel was asked whether he had verified defendant’s statements as to their place of residence, and the officer replied that he had gotten a police report from the city where they resided. The defendant then claimed that he was prejudiced by the officer’s testimony to the effect that' he had a police record. The court held the defendant’s claim to be without merit in that the witness’s answer was invited by the cross examiner. Also see Commonwealth v. McGonigle, 228 Pa.Super. 345, 323 A.2d 733 (1972).
Also, in Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870 (1975), allocatur refused, in response to questioning by defense counsel, a witness testified as follows:
*197“Q. Did you have occasion to speak with either of these gentlemen over the phone?
A. Yes, sir, I had a phone call.
Q. You had a phone call. Who was that call from?
A. He said it was Burgess.
Q. Burgess?
A. He said he was out of jail.”
In finding for the court that the motion for a mistrial had been properly denied, Judge Spaeth stated:
Appellants contend that this was an unsolicited answer that indicated that Burgess had been in jail at some time for the commission of another crime. If Molettiere’s answer had been to a question posed by the Commonwealth, the issue of mistrial would have been troublesome. However, the answer was to a question by the defense, and it is by no means clear that it was unsolicited. Molettiere might easily have understood the last question, “Burgess?”, as challenging the accuracy of his immediately preceding answer. In fact, unless counsel had not heard the answer, no other reason for asking “Burgess?” is apparent. On this understanding the witness might naturally reply by supporting his identification by quoting what the person with whom he had been talking had said.
In the instant case, the majority finds that the witness’s response merely demonstrated her animosity toward the appellant. There is no question but that the mother of the four year old victim would be hostile to appellant. Defense counsel was clearly aware of this, and should have been as cautious as reasonably possible in his questioning on cross examination as a matter of simple trial strategy. The burden is clearly on defense counsel to prove that the response received from the witness was not elicited by his question. Based on the record before us, it is conceivable that the witness’s response was solicited by the question asked in that if the appellant had been incarcerated for a period of time, his residence very likely might have changed. There was extensive cross examination of this witness and *198her testimony was being challenged, therefore, any attempt on her part to explain her responses is understandable. Unexpected or unfavorable answers given by a witness on cross-examination can not, without more, warrant the grant of a motion for a mistrial.
It is also noted that defense counsel, herein, at the time of his motion refused the court’s suggestion for curative instructions. I disagree with the majority that curative instructions would have been inadequate, and find, rather, that such a cautionary measure would have been sufficient to expunge any taint and insure appellant a fair trial. See Commonwealth v. Rhodes, 250 Pa.Super. 210, 378 A.2d 901 (1977) and Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977).
The evidence of appellant’s guilt has been otherwise unquestioned, and I therefore find the grant of a new trial by the majority unwarranted, and would affirm the judgment of sentence.