Com. v. Parks
| Court | Superior Court of Pennsylvania |
| Citation | 273 Pa.Super. 506,417 A.2d 1163 |
| Parties | COMMONWEALTH of Pennsylvania v. Jerome PARKS, Appellant. |
| Decision Date | 21 December 1979 |
Page 1163
v.
Jerome PARKS, Appellant.
Filed Dec. 21, 1979.
[273 Pa.Super. 510]
Page 1165
John W. Packel, Asst. Public Defender, Philadelphia, for appellant.Eric B. Henson, Asst. Dist. Atty., Philadelphia, submitted a brief on behalf of the Commonwealth, appellee.
Before PRICE, SPAETH and LIPEZ, JJ.
SPAETH, Judge:
This is an appeal from judgment of sentence for burglary, 1 conspiracy, 2 and four counts of robbery. 3 Appellant has assigned three trial errors, which we shall consider in a somewhat different order than he presents them.
-1-
On September 27, 1976, a robbery occurred at the house of Gladys Drayton at 806 South 13th Street in Philadelphia. Deborah Battles testified that while watching television in the front room of the house, she saw four men, including appellant, enter the house and proceed to the dining room. She also testified that two of the men remained in the dining room during commission of the robbery, but that appellant was not one of the two. (N.T. 244-50) In the initial part of her testimony, Ms. Battles said that she had seen all four of the men before the date of the robbery:
Q: In fact, had you ever seen these persons before?
A: Out on the street.
Q: You had seen them?
A: Yes. (N.T. 244)
Later in her testimony, Ms. Battles said that she had never seen appellant before the date of the robbery. (N.T. 254)
[273 Pa.Super. 511] Appellant was tried with two other defendants Steven A. Johnson and Van S. McWhorter. When counsel for co-defendant Johnson cross-examined Ms. Battles regarding the apparent inconsistency in her testimony as to when she had first seen appellant, the following occurred:
BY MISS DUFFY (counsel for co-defendant Johnson):
Q. Miss Battles, did you testify at the last hearing we had, last time you were in this courtroom testifying, that you knew all four of them because you've seen all four men around?
A. I said I knew them, or did I say I seen them?
Q. You said you saw all four of them. Now, is it my understanding that today you're admitting that you did not see Parks (appellant) before?
A. Yeah.
Q. So that you weren't telling the truth when you testified at the last hearing, were you, Miss Battles?
A. It could be that I don't want to testify, period.
Q. Well, now, you indicated that
MR. SNEE (counsel for appellant): Objection, Your Honor.
MR. DIVITO (counsel for co-defendant McWhorter): Objection, Your Honor. Can we see you at sidebar?
(A conference was held at sidebar as follows:)
MR. DIVITO: Your Honor, I think under the circumstances that perhaps a colloquy should be conducted of this witness at this time to further explore what she means by the statement that
Page 1166
she doesn't "It could be that I don't want to testify." Certainly, this could be done out of the presence of the jury, and I think under the circumstances we should explore precisely what this means, and then, after that, determine a further course as to what instruction may be necessary to the jury.THE COURT: If your objection is a request to colloquy this witness, it is overruled. That's what I understand your objection to be.
[273 Pa.Super. 512] MISS DUFFY: But, Your Honor, she has identified everybody in our case. Why is she the only reason she would be reluctant to testify is because she's worried about she's committed herself to the Commonwealth and is now afraid to go back on it.
MR. KITROSSER (the assistant district attorney): Then explore it.
THE COURT: Are you objecting, Miss Duffy?
MISS DUFFY: Am I objecting? Yes, of course.
THE COURT: And is your objection in the nature of a request that I colloquy this witness at this time?
MISS DUFFY: Outside the presence of the jury.
THE COURT: It is overruled.
MR. SNEE: My objection, Your Honor, is that she implies my man is the only one that she's changed her testimony. She says maybe because she doesn't want to testify. It's a clear implication against my man that she may have been threatened. He's the only one in regard to which she's changed her testimony. And, therefore, unless there's clarification of this matter, I would move for a mistrial.
MR. DIVITO: I join in that motion.
MISS DUFFY: I join in that motion.
THE COURT: Three motions for mistrial are denied.
(Sidebar conference ended.) (N.T. 271-73)
Appellant argues that the trial judge erred in denying his motion for a mistrial. In support of his argument, appellant cites Commonwealth v. Markle, 239 Pa.Super. 505, 361 A.2d 826 (1976). In Markle, a police witness testified that as a result of cooperating with the police in the prosecution of the defendant, a co-conspirator had received threats to his life. The trial judge sustained the defendant's objection to the testimony but denied his request for an offer of proof, and also his motion for a mistrial. Judge HOFFMAN, in an opinion joined by President Judge WATKINS, found reversible[273 Pa.Super. 513] error in this denial of the requested offer of proof. 4 They held that the court should have granted the requested offer, and then have determined whether the probative value of the evidence outweighed its prejudicial impact, going on to say that if it developed that the Commonwealth could not prove that the defendant had indeed threatened the co-conspirator, a mistrial should have been declared. Id. at 516-17, 361 A.2d at 831. In a concurring opinion, in which I joined, Judge CERCONE held that any error had been cured by the trial judge's instruction to the jury to disregard the testimony and to refrain from interpreting it as evidence against the defendant. 5
Appellant's reliance on Markle is misplaced for several reasons. First, appellant did not request an offer of proof by the Commonwealth, as did defense counsel in Markle. Second, appellant complains that no curative instructions were given, as in Markle ; but he never requested them. Finally, the level of prejudice inherent in the testimony does not rise to the level in Markle. In Markle, the challenged testimony was as follows:
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Q. Do you know whether or not Mr. Hendricks, as a result of his cooperation with the police, has ever had any threats made upon his life?
A. He has.
239 Pa.Super. at 513, 361 A.2d at 829.
It was an obvious inference from this testimony that the threats had been made by the defendant. The danger of prejudicing the jury was...
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