Commonwealth v. Morris
Commonwealth v. Morris
Opinion of the Court
OPINION OF THE COURT
The issue presented for our consideration is whether a single, unanswered question alluding to alleged unrelated criminal activity
On May 6, 1983, at approximately 1:30 a.m. Allan Joseph Nowicki was shot, in the back, with a .38 caliber handgun at his residence in Tinicum Township, Pennsylvania. Stephen Quintín Morris (appellee) was arrested on May 13, 1983 and charged with attempted homicide, aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime.
Appellee then appealed to Superior Court.
During cross-examination of appellee, appellee testified that he had “all types of guns,”
BY MR. GOLDMAN [for the Commonwealth]:
*174 Q Are you licensed in the United States to carry a firearm?
A Yes.
Q You are?
A Yes, permit.
Q Where did you obtain that permit?
A Miami, Florida.
Q For just Florida?
A Yes.
Q Do you have that permit in your possession now? A No.
Q Did you have it in your possession when you were arrested?
A No.
Q Did you have a permit to carry a possessive firearm in New Jersey?
A No.
Q But yet, in violation of the law, you possess this firearm in New Jersey ?
BY MR. NASSHORN [counsel for appellee]: Objection. THE COURT: Sustained.
Members of the jury, that is not an issue in this case and it’s not to be considered.
This case to be decided based on the evidence presented as to whether or not you believe beyond a reasonable doubt that the Commonwealth has sufficient evidence to convict the defendant of some or all of the charges involved. You are not to consider anything like that.
Transcript at p. 198-99. (emphasis supplied) In the charge to the jury, the trial court provided further curative instructions.
There has been some reference in this case, although a passing reference, to whether or not the defendant had a gun permit____ You’re not to try, to speculate as to whether the defendant in fact committed other crimes. You are to zero in on what occurred in the early morning*175 hours of May 6, 1983, and of course the other facts in the case.
Transcript at 251-52.
Appellee argues that reference to his alleged prior criminal activity was prejudicial and stripped him of the presumption of innocence. The Commonwealth argues that the line of questioning was to impeach appellee and to show that appellee had access to firearms previously purchased by him and that any prejudice that may have resulted from the one question was cured by the immediate cautionary instruction given to the jury. We agree.
Our review of the grant or denial of a new trial is limited to determining whether the trial court abused its discretion or committed an error of law. Commonwealth v. White, 482 Pa. 197, 393 A.2d 447 (1978). The trial court, in the instant case, was correct in denying appellee’s motion for a new trial.
As a general rule, evidence of crimes unrelated to the charge for which the defendant is being tried, is inadmissible. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973).
However, it is possible to eradicate any prejudice resulting from reference to prior criminal activity by the defendant.
Our decisions have indicated that there are situations where the taint, resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial. It is suggested that our decisions in Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973) and Commonwealth v. Allen, supra [448 Pa. 177, 292 A.2d 373 (1972) ] would indicate otherwise. We do not agree. In Groce, supra and Allen, supra, the challenged references to prior and unrelated criminal activities were permitted by the trial court for the jury’s consideration. In the instant action, the testimony was stricken and the jury immediately cautioned.
Commonwealth v. Williams, 470 Pa. at 178, 368 A.2d at 252. An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct. See, Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) (jury was instructed to disregard a witness’s testimony that he had previously seen defendant “work people over”); Common
“[Wjhether the exposure of the jury to improper evidence can be cured by an instruction depends upon a consideration of all the circumstances.” Commonwealth v. Richardson, supra, 496 Pa. at 526, 437 A.2d at 1165. One of the circumstances to be considered is the nature of the crime. The instant case presents us with a single, unanswered question asked of appellee alluding to his alleged violation of the law of New Jersey by possessing a firearm without a permit. There is no doubt that the Commonwealth’s question was improper. This could have conveyed to the jury, with possible resultant prejudice to appellee, the existence of prior criminal activity. However, we agree with the trial court that the alleged offense alluded to, carrying a firearm in New Jersey without a permit, is not of such a heinous nature as to highly inflame a jury. Possession of a firearm without a permit is not the type of crime, the nature of which is likely to cause a jury to be so incensed as to lose sight of the ultimate question before them — whether appellee shot the victim.
An additional circumstance to be considered is whether or not the trial court gave cautionary instructions to the jury. After an inference of unrelated criminal activity has been conveyed to a jury, minimally, cautionary instructions must be given. In the instant case, immediately after the question was asked, and prior to any answer being elicited from appellee, the trial court sustained the objection of
A defendant is entitled to receive a fair trial but not a perfect trial. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). A review of the record as a whole reveals that appellee did receive a fair trial. The Commonwealth’s error was cured by the cautionary instruction and the trial court was correct in its denial of the motion for new trial.
The order of Superior Court vacating appellee’s judgment of sentence and remanding the case for new trial is reversed and appellee’s judgment of sentence is reinstated.
. Although appellee refers to the matter as unrelated criminal activity, from the record, we do not know if possession of a firearm without a license is indeed a crime in New Jersey; hence we shall refer to the matter as alleged criminal activity.
. Appellee’s trial counsel is also serving as his appellate counsel.
. It appears appellee attempted, in his appeal to Superior Court, to frame the issue surrounding the introduction of alleged unrelated criminal activity as grounds for a mistrial. The Superior Court stated, “appellant [appellee herein] contends the lower court erred in failing to order a mistrial after the Commonwealth’s attorney elicited testimony on unrelated criminal acts from him on cross-examination. He requests discharge or a new trial." Mem. op. at 1. We note that this statement was the first indication that appellee attempted to raise the issue of a mistrial surrounding this particular event. Rule 1118(b), Pa.R.Crim.P. states, “When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.” Rule 1118, Pa.R.Crim.P. Examples of manifest necessity allowing the trial judge to declare a mistrial are contained in Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974) (during a murder trial, the court learned that the father of the victim was the tipstaff who was attending the jurors); Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876
However, Superior Court framed the question on appeal as "whether the Commonwealth attorney’s actions warrant a new trial.” Mem. op. at 1. We will address that issue.
. Appellee testified “I have had 38’s. I have had 44’s. I have had 41’s. You name it I have had it.” Transcript at 193.
. There are exceptions to this general rule.
[E]vidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial-in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.
Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973). This Court created another exception in Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985) where we held, "when there is evidence that a statement about prior criminal activity was made by the defendant in order to threaten and intimidate his victim, and when force or threat of harm is an element of the crime for which the defendant is being tried, such evidence is admissible.” 508 Pa. at 205, 495 A.2d at 179.
Concurring Opinion
concurring.
I concur in the result. As the majority implies in footnote 3, at 172-173 n. 3, appellant waived the only issue in this case by failing to move for a mistrial at trial. Thus, I would simply hold that since the issue was not raised below it is waived.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Stephen Quintin MORRIS, Appellee
- Cited By
- 48 cases
- Status
- Published