Com. v. English

• Decision Date: 28 December 1995
• Citation: 446 Pa.Super. 569,667 A.2d 1123
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Samuel ENGLISH, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Samuel ENGLISH, Appellant.
• Court: Pennsylvania Superior Court

Page 1123

667 A.2d 1123

446 Pa.Super. 569

COMMONWEALTH of Pennsylvania, Appellant, v. Samuel ENGLISH, Appellee.

COMMONWEALTH of Pennsylvania, Appellee, v. Samuel ENGLISH, Appellant.

Superior Court of Pennsylvania.

Argued June 15, 1995.

Filed Oct. 19, 1995.

Reargument Denied Dec. 28, 1995.

Gregory A. Stuck, Assistant District Attorney, Sunbury, for Commonwealth.

Jeffrey J. Crossland, Lewisburg, for Samuel English.

Before POPOVICH, JOHNSON and HOFFMAN, JJ.

POPOVICH, Judge.

This case involves cross-appeals from the order of the Court of Common Pleas of Northumberland County granting a motion for a new trial and denying an arrest of judgment. ¹ We reverse in part and affirm in part.

The facts establish that on the 8th day of March, 1991, Sabrina Miller was phoned by her estranged husband that he would be picking up their son for visitation at 7:00 p.m. To avoid any conflict, Ms. Miller asked the appellant, who had fathered her second son (Ryan, aged 2 months) out of wedlock, to remove himself from the premises until after Mr. Miller's departure. The appellant agreed and occupied himself at a neighborhood bar until a phone call was received to return at 8:00 p.m.

While at the bar, the appellant consumed 3-5 beers and some whiskey before leaving with two six packs of beer. Upon the appellant's return, the minor-child Ryan was asleep on the couch. Ms. Miller had placed two blankets over one of the cushions and the child was resting there.

During the course of the evening, Ms. Miller consumed 1-2 beers and was awakened by Ryan's crying at 3:00 a.m. The mother bathed, changed and fed the child before the two watched television and played. At approximately 5:00 a.m., Ms. Miller fell asleep on a reclining chair with Ryan fast asleep on top of her. At some point during the early morning hours of March 9th, Ms. Miller felt the child being lifted from her chest. The next thing she recalled was being startled by a phone ringing. Ms. Miller answered the phone and observed the appellant sleeping on the couch, face down and fully extended, so that his head was at one end and his legs (shins) were over the child's quilt and angled up so that his feet were over the right armrest.

When Ms. Miller informed the appellant that the call was for him, he sat to the left of the couch and spoke to the caller. Ms. Miller asked where Ryan was located and was told by the appellant the baby was on the couch. The child was not visible to Ms. Miller until she removed the bed quilt on the couch. Ryan was lying on his stomach in the center of the cushion with his head facing away from the back of the couch--this was next to the right armrest and on the opposite side of the appellant's resting place.

With Ryan's failure to respond to his mother's kiss, she became frightened and screamed that he was not breathing. The appellant gave the child "mouth to mouth" resuscitation while Ms. Miller dialed "911". Within minutes, an emergency medical technician arrived, followed close behind by an ambulance. Cardiopulmonary resuscitation was continued by the technician before transporting the child to the hospital. The attending emergency room physician treated the child for one-half hour before pronouncing the child dead. The parents were advised that the physician attributed the cause of death to SIDS. ²

An autopsy was performed and a corner's inquest was conducted in which the medical examiner believed that the death should be pursued as a criminal homicide--an "intentional" killing. A police investigation led to the appellant being charged with the homicide, but the District Attorney listed the offense as involuntary manslaughter--a "grossly negligent or reckless" killing. A two-day jury trial resulted in the appellant's conviction as charged. With the filing of post-trial motions, the court ordered a new trial on the ground that the "cumulative effect" of alleged errors committed by the Commonwealth prejudiced the appellant, but the request for an arrest of judgment was denied. Cross-appeals were filed challenging the order entered.

Initially, we examine whether the court below abused its discretion in granting a new trial on grounds that the Commonwealth asserts were waived by English. The court believed that the "interests of justice" required the grant of a new trial with the "cumulative effect of errors" committed during the course of trial.

The first alleged error, discernible from a reading of the court's opinion as contributing cumulatively to prejudicing the appellant's right to a fair trial, is a conversation overhead by Ms. Miller on the first floor of the courthouse during a recess in which two females purportedly engaged in the following; to-wit:

... one lady had said that she recognized [the defendant] from being in the paper with his charge that he's serving for now. And the other woman had said that, yes, that she was just thinking about that.

N.T. 231. When Ms. Miller was asked if the two women were jurors, she "assumed" they were but she was not one hundred percent sure. In fact, she stated it was "possible" the two ladies were just observers in the courtroom because she did not recall whether either one wore an identifying juror button.

Out of an abundance of caution, the court offered the appellant the opportunity to voir dire the jury concerning the alleged communication and its knowledge of such an exchange. ³ The defendant, after consulting with counsel, opted to forego any formal inquiry of the jurors and "proceed just as is," notwithstanding the court's admonition that the matter would be waived if not pursued at that stage of the case. The defendant, with "certainty," asked to "proceed forward." The court did so only to have the issue raised in post-verdict motions under the banner of prosecutorial misconduct "when this information was not made known to Defendant until almost 24 hours later, and after closing arguments...." to the prejudice of the defendant. See Paragraph 21.

It is axiomatic in this jurisdiction since Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) and its progeny that one must object to errors, improprieties or irregularities at the earliest possible stage of the criminal or civil adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter. ⁴

Here, the defendant was given every opportunity to inquire into the sum and substance of the alleged out-of-court communication as either real or fanciful, substantive or baseless, but he elected to give up the occasion to delve into the subject in favor of proceeding to verdict. ⁵ His choice having been made to forego inquiry of any possible jury taint cannot be resurrected in either the post-verdict or appellate format. Dilliplaine, supra; see also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Disenchantment with or gambling on the jury's verdict may not be cloaked in the guise of "prosecutorial misconduct" to avoid the rigors of the issue-preclusion rule of Dilliplaine, supra. Accordingly, the circumvention of the issue preservation rule mandates that the present issue of prosecutorial misconduct in not disclosing sooner possible jury taint be deemed waived for appellate purposes. ⁶

The second prong to the court's finding of "cumulative effect of errors" fares no better. Specifically, the court holds that, in tandem with the waived voir dire of jury issue, "the potential prejudicial effect of the expert testimony offered by the Commonwealth ... require[s] that the Defendant be granted a new trial" to effectuate justice.

At trial, the Commonwealth's expert (Dr. Wayne Ross) testified that the cause of death was cardio-pulmonary arrest due to complications of asphyxia. The expert also offered that bleeding on the lungs (petechial hemorrhages) and the thymus gland in the chest were indicative of insufficient oxygen brought on by a compression of the chest from a hand pushing down on the back and head. This prompted Dr. Ross to opine that the child died with its face down, brought on by a combination of chest compression and suffocation not found in SIDS cases.

Moreover, the expert remarked on cross-examination that, as to the manner and method of death, "somebody ... probably put their hand over the back, put their hands on the back of the head, not in the front of the face, and took the face and put it in between the two cushions, and in that way suffocated [the baby] compressing the nose down in between and on one of the cushions." N.T. 187. The Commonwealth objected to such testimony and at sidebar noted that the defendant was not indicted for the commission of an "intentional" killing, but the defense was leading the witness to that point. The court overruled the objection and permitted the defense to rebut testimony describing an intentional killing by the Commonwealth's expert on direct examination. In the course of doing so, however, the expert opined that "somebody intentionally killed the child." N.T. 190. He believed so even though he was aware that the defendant had been charged with only involuntary manslaughter.

The defendant requested that the expert's testimony be stricken. The court took the matter under advisement and, prior to closing arguments, granted the request in so far as it struck the doctor's opinion that the child's death was an intentional act and the jury would be instructed accordingly. Nonetheless, after the court's ruling but before instructing the jury, the defendant moved for a mistrial claiming that the jury's exposure to such testimony was prejudicial, even though during trial the objection sought relief in the form of striking the testimony and not a mistrial. The court advised the defendant to consult with counsel before choosing to withdraw the mistrial motion. The defendant did so and informed the court that he did not wish to have his motion for mistrial consid...