Com. v. Jean, J., 2959 EDA 2015

On December 4, 2012, Officer Branyan observed apparent hand-to-hand marijuana transactions on Arrott Street and later identified Joshua Jean as a participant; police recovered marijuana from two purchasers and a bag in an alley. Jean and another man (Sullivan) were arrested at the scene.
Jean was tried by a jury on charges of possession with intent to deliver (PWID) and simple possession; he was convicted of both and sentenced to three years’ probation for PWID.
During trial, defense suggested Sullivan resembled Jean to attack the officer’s identification. On re-direct, the prosecutor asked whether the officer had "prior contact" with Jean.
Officer Branyan replied, "I believe we locked him up," referencing a prior 2008 arrest; the trial court sustained defense objection and struck the answer.
Defense moved for a mistrial; the court denied the motion and offered a curative instruction. Defense counsel declined the court’s proposed instruction and also declined to submit an alternate; the court instead gave only general jury instructions about presumption of innocence.
On appeal Jean argued the single remark improperly injected unrelated prior criminal activity and required a mistrial; the Superior Court affirmed, holding defense counsel’s tactical refusal of a curative instruction precluded an appellate claim of prejudice.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Jean)	Held
Whether a mistrial was required after a witness mentioned defendant’s prior arrest	Questioning about "prior contact" was meant to show the officer could distinguish Jean from Sullivan; any reference was inadvertent and curable	The prosecutor should have foreseen the risk of eliciting the prior arrest and thus either intentionally or negligently injected inadmissible prior-bad-act evidence requiring a mistrial	No mistrial; remark was inadvertent, and defense counsel’s tactical refusal of a curative instruction waived the right to claim uncured prejudice on appeal

Commonwealth v. Hogentogler, 53 A.3d 866 (Pa. Super. 2012) (standard of review and purpose of mistrial)
Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super. 2007) (other-crimes evidence inadmissible; passing references may not require reversal absent demonstrated prejudice)
Commonwealth v. Hudson, 955 A.2d 1031 (Pa. Super. 2008) (curative instruction can cure inadvertent testimony about prior bad acts)
Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014) (discussing when curative instruction is appropriate and review of mistrial denials)
Commonwealth v. Miller, 481 A.2d 1221 (Pa. Super. 1984) (defense counsel’s refusal of offered curative instruction waives appellate claim of prejudice from improper prior-act testimony)
Commonwealth v. Durant, 407 A.2d 1311 (Pa. Super. 1979) (curative instruction may be inadequate when testimonial reference is especially prejudicial)
Commonwealth v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984) (prosecutor assumes risk when question can elicit prior-bad-act response)
Commonwealth v. Norman, 549 A.2d 981 (Pa. Super. 1988) (en banc) (reiterating Miller on waiver by refusing curative instruction)
Commonwealth v. Quartman, 385 A.2d 429 (Pa. Super. 1978) (trial tactics, including refusing curative instructions, generally bind defendant on appeal)
Commonwealth v. Laughman, 452 A.2d 548 (Pa. Super. 1982) (discussed in connection with curative instructions following inadvertent prior-act comments)