Commonwealth v. McEachin

*205CIRILLO, President Judge,

dissenting:

I disagree with the majority’s assertion that the testimony of D.R.’s mother that her child had been molested resulted in no prejudice to McEachin because a curative instruction had been given by the trial judge. For this reason, I respectfully dissent.

In the instant case, the mother of a child whom the trial court had declared to be incompetent was to testify on rebuttal that she had taken over a teacher’s classroom for a period of time. That teacher had testified that she had never left her classroom with anyone else, and that she had never allowed McEachin to accompany the children to the bathroom. Although the prosecutor did not intentionally elicit the response, the mother stated on direct examination that her child had been molested at the school. At that point, the trial judge called both counsel into his chambers, determined that the prosecutor did not ask intentionally for that response, and then issued an instruction to the jury that they were to disregard all of the testimony of that witness.

The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court. Its decision will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Thomas, 346 Pa.Super. 11, 17, 498 A.2d 1345, 1348 (1985). The majority holds that because the prosecution did not deliberately elicit the statement, and because the trial judge instructed the jury to disregard the statements of the mother, no prejudice inured to McEachin, and the trial court therefore did not abuse its discretion in refusing to grant a mistrial. Regardless of the fact that the prosecution did not elicit the testimony purposefully, or that an attempt was made by the trial court to give curative instructions, I would find that the prejudice that arose under the circumstances was too great to be cured by the instructions of the trial court.

The majority quotes Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374 (1986), at some length in setting out the standards by which we may measure the trial court’s grant *206or denial of a mistrial. While I agree that no per se rule exists which requires a new trial for a defendant every time a prior criminal offense is mentioned by a witness, and that an immediate curative instruction may remove the necessity for a new trial, id., 513 Pa. at 176, 519 A.2d at 377, I do not find that to be the case here.

The supreme court in Morris recognized that whether the admission of improper evidence can be cured involves a consideration of all the circumstances under which the evidence has been offered. Id. (quoting Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981)). In Commonwealth v. Richardson, supra, the supreme court held that “whether the admission of irrelevant evidence can be cured by an instruction to disregard it ‘involves a consideration of the circumstances under which the irrelevant evidence was given and its probable effect on the jury.’ ” Id. (citations omitted). In Richardson, the court found that the remark made by a witness that the appellant had not been on the scene he burglarized in a case involving murder, burglary, and robbery it did not require a mistrial. The court held that a proper curative instruction had been given considering the nature of the reference, and that the remark was not intentionally elicited by the Commonwealth. Id. In Morris, the supreme court reached the same result, stating that “[possession of a firearm without a permit is not the type of crime, the nature of which is likely to cause a jury to lose sight of the ultimate question before them— whether appellee shot the victim.” Morris, 513 Pa. at 177, 519 A.2d at 378.

In cases where the crime is likely to cause the jury to lose sight of the ultimate question, however, a curative instruction would be ineffectual, and a mistrial should be granted. Where the evidence presented to the jury is unduly inflammatory, or where such evidence, if presented at trial, would so compromise the fact finder that it would be unable to remain impartial, a curative instruction cannot provide a defendant with a fair trial:

*207It should be noted that the nature of the improper reference is critical in a decision as to whether prompt curative instructions may be adequate. We can conceive of specific reference to prior unrelated criminal conduct which would be so offensive as to mandate a mistrial. In such a situation, immediate curative instructions would obviously be inadequate.

Commonwealth v. Williams, 470 Pa. 172, 179 n. 4, 368 A.2d 249, 252 n. 4 (1977). See also Commonwealth v. Dean, 300 Pa.Super. 86, 91, 445 A.2d 1311, 1313 (1982); Commonwealth v. Green, 287 Pa.Super. 220, 227, 429 A.2d 1180, 1183 (1981). Such evidence can only be said to strip a defendant of the presumption of innocence that is fundamental to our concept of a fair trial. Commonwealth v. Laughman, 306 Pa.Super. 269, 272, 452 A.2d 548, 549 (1982).

Consideration of the facts and evidence surrounding the instant case lead me to conclude that this is a case involving an alleged crime which would cause the jury to lose sight of the question before it — whether McEachin was guilty of the molestation of three other children. In the instant case, McEachin was accused of child molestation. From the witness stand, an obviously distraught mother announced that her son was molested at the school at which McEachin worked, and where the charges of molestation for which he was convicted arose. The clear inference for the jury was that McEachin had also molested her son. I fail to see how, in such an emotionally charged situation, any instruction from the trial judge could dissipate the aura of guilt that is bound to rise from those charges and envelop the appellant. In the climate which surrounds child abuse and molestation today, I would be hard pressed to accept the argument that any defendant could have been acquitted after such a statement. The similarity of the crime complained of by D.R.’s mother to the actual crimes for which appellant was tried was too inflammatory for its prejudicial effect to be cured by any instruction from the trial judge.

*208Further, I echo this court’s concerns in Commonwealth v. Durant, 268 Pa.Super. 191, 407 A.2d 1311 (1979). In that case, a witness for the Commonwealth stated on cross-examination that appellant had been in jail before. The court found this to be prejudicial, and held that curative instructions from the trial judge could have in no way alleviated that prejudice. As in the instant case, the guilt or innocence of the appellant rested on his credibility; the statement of the witness destroyed that credibility and exhausted his conviction. Id., 268 Pa.Superior Ct. at 194, 407 A.2d 1312. I also note that the Durant court found that the response of the witness could only have arisen from her desire to convict the appellant:

The conduct of a fair trial cannot permit such testimony by a Commonwealth witness. It demonstrated her animosity towards the appellant. This is understandable, as the witness was the mother of the four-year old girl involved. However, the reference to appellant’s prior criminal record is prejudicial to the presumption of innocence. We note that this case is distinguishable from Commonwealth v. Whitman ... and Commonwealth v. Cannon. The defense witnesses in those cases had no motive for intentionally testifying unresponsively and contra to the defendant’s interests.

Durant, 268 Pa.Super. at 194, 407 A.2d at 1312 (citations omitted). I do not see that the reference to the prior conviction in that case could be any more prejudicial than the denunciation of McEachin by the mother of a small child here, although no mention was made of any prior conviction. Obviously the mother involved had a motive for making the statement in question. While the desire of a mother to aid in the conviction of a man she believes is responsible for the molestation of her child and other children is at least understandable, it is also, however, inimical to appellant’s right to a fair trial.

In my opinion, appellant hot only did not receive a perfect trial, he received far from a fair one. For this reason, I would grant appellant a new trial.