*1 438 Garnett, v. 115 258 at
extend. Commonwealth
Pa.Super.
(1978).
n.
711 at 712
6
6, n.
A.2d
118
392
his motion to
properly
did not
submit
appellant
While
his
This is
did not waive
claim here.
because
dismiss, he
method a defend-
only
dismiss is not the
filing a motion to
an extension.
challenge
grant
ant has to
or
1100(f)
Rule
Thus he must either
file motion under
extend,
that by
so
petition
the Commonwealth’s
contest
and
the facts
issues come before
or the other
one method
Otherwise, his Rule 1100 claim will be waived.
the court.
208,
Davis,
204
395
v.
Pa.Super.
261
at
Commonwealth
also,
(1978)
supplied). See
(emphasis
A.2d 1388 at 1390
McFadden,
299
v.
Commonwealth
hearing,
did
At the
COMMONWEALTH of CHANNELL, Appellant. John Pennsylvania. Superior Court 2,May 1984. Submitted Nov. 1984. Filed *4 Wilkes-Barre, Defender, Blum, Assistant Public Jonathan appellant. for Wilkes-Barre, Giebus, Attorney, District Assistant
Joseph Commonwealth, appellee. and BROSKY and SPAETH, Judge, President Before BECK, JJ.
BROSKY, Judge: imposed sentence subse- is from appeal judgment This Assault by jury Aggravated in a trial to conviction quent
443 Appellant and Recklessly Endangering Another Person. First, raises three issues. he that the court contends trial in refusing erred to instruct the on the lesser included jury simple Second, argues offense of assault. he that a mistrial granted. Third, should have been he raises the alleged excessiveness of his sentence. of sentence is Judgment on the aggravated endanger- vacated assault and reckless Appellant ment and new trial. convictions remanded a does not on the and the prevail second issue third issue is not at reviewable this time.
Appellant first argues the trial court in erred charging the jury the crime of simple assault.1 He contends that there was of which, record if believed, would justified have a of verdict not guilty of aggravated assault or of endangerment reckless but guilty of simple assault. The point dispute is whether appellant used a knife in the altercation in question.2
The testimony for prosecution is accurately summa- rized in the trial court opinion. Commonwealth, first witness for the Samuel Wither-
spoon,
he
testified that
was an inmate at
the State
Dallas;
Correctional
at
Institution
and that on November
23, 1981, he was
Defendant.
According
stabbed
Witherspoon,
Witherspoon
“looking
Defendant accused
of
and,
wrong” Defendant,
despite Witherspoon’s efforts
conflict,
punched”
avoid
“sucker
Witherspoon. With-
erspoon,
fight,
fist
expecting a
turned toward Defendant
knife
surprised
pulled
when Defendant
a
from
1.
preserved by
timely
We note
objection.
that this issue was
a
See Common
Rineer,
Pa.Super.
(1983).
wealth v.
The third was Correction witness testimony given by verified the Officer Carpin Officer the knife taken from Defend- Demian and also identified ant. witness, the Health Care Carriglitto,
The fourth Robert Institution, at Dallas Correctional verified Administrator 23, 1981, for treated on Witherspoon that was November explained left hand and a of his puncture wound the records of the given according of treatment nature dispensary. George Trooper State Nowakowski
Finally, Pennsylvania in incident and investigated stabbing testified that he Nowakow- Trooper interviewed Defendant. process stabbing only Defendant admitted not ski stated that Witherspoon. to kill wanting but also Witherspoon testimony is sufficient the above-summarized Certainly the crime of as- guilt Defendant’s prove a reasonable doubt. battery beyond sault and had testimony There is an abundance is not knife on the But this and used a victim. appellant testified separate points At four uncontradicted. inmate, in fracas. Another not a knife that he have did
445 a of appellant’s, friend corroborated this testifying knife in appellant’s he had seen a on the possession in question. occasion appeal whether, us on question given before the trial court testimony, required give
above
on the crime of
Simple Assault.
summary
A
of the
applicable
useful
law this area was
Wilds,
Commonwealth v.
presented
at
287-8,
(1976) (Hoffman, J.)
(citations
“It is well settled that an for a particular indictment crime, may the defendant be a convicted of lesser offense included within it..It is also clear an is that offense a included offense if lesser each and of the every element lesser offense is an of necessarily greater. element the error, however, It is ... not for judge a to refuse to jury instruct the on the lesser-included offense unless the evidence could a support conviction on the lesser offense. is no on judge “There a trial duty charge upon to law presented which has no If applicability to facts. ... ”. trial, under the evidence at must jury the either convict greater the accused of the offense or him it not acquit is to error refuse an on a instruction lesser-included offense. it Conversely, ... if is rational the to render a jury of not of guilty greater verdict the guilty offense but lesser, the it is upon incumbent to instruct the judge jury on law related to the if so constituent offense requested by emphasized, counsel. ... “It should be how- ever, that a of- charge before on ... lesser-included [a evidence, is there required, thus must some fense] source, from whatever which would permit jury such return a verdict.” it
At the outset must noted is Simple that Assault a Aggravated lesser included offense of Assault and Cavanaugh, Endangerment. Reckless Commonwealth 542 at A.2d 674 at 676 Thus charge for the necessary requested the first element here. present functioning precepts
The simultaneous two of basic here, a of our since it was enquiry is the focus quoted above the error interplay spawned of that which misapprehension evidence, state that is it consistent to “some below. How lesser suffice to mandate a from source” will whatever hand, and, the other to make charge offense included rationality of the of a appraisal reference to the court’s of those facts? The trial potential interpretation jury’s that, despite testimony concluded apparently court here find, as jury it not be rational for contrary, would fact, by appellant. that a knife was not used a matter of holding our require An here would affirmance in- can find certain evidence criminal trial the court jury unbelievable, credible, that the does have so it if charge on a lesser would opportunity to convict —as them.3 were believed that evidence does “rationality” principle do not so hold. We lesser on the determining a role in whether have principle, given; included offense should be but over the “some applied, primacy does not have properly *8 concepts A of these two will review principle. evidence” this apparent. make in a Circuit Court presented
These are principles two Case.4 Appeals of for a lesser request a denying prerequisites
Two [to that there no seem vital: included offense instruction] only to the finding contrary and that a dispute factual irrational. on the issue would be evidence court, Certainly permissible would for the trial this case if this were a role 3. proper application. quite present It is understandable that the situation for its a be, simply, by appellant to the absence of a knife wielded trial court would find beyond rational belief. herein, This, binding non-Pennsylvania are not on us in cases cited 4. and other law, However, Pennsylvania the common we as statements of law matter. guidance they provide. the welcome
447 U.S., Driscoll v. (1st 1966) 356 324 Cir., F.2d at 327 Comer, quoted, added, with brackets U.S. 421 F.2d (D.C.Cir., 1970). 1149 at 1154
Some Evidence5
Our examination of the first
of
two rules under
consideration will start
a
Supreme
with United States
Court
case. “A lesser-included offense
proper
instruction is only
charged greater
where the
requires
offense
find
a disputed factual element
required
which is not
for convic-
U.S.,
tion of the
lesser-included offense.” Sansone v.
380
350,
U.S. 343
1004
at
S.Ct.
at
It
presence
any quantum
is the
of
coun
evidence
tering the
for
prosecution’s which will activate the need
offense;
charge on
lesser
included
“no matter how
improbable” that
be. Commonwealth v.
may
evidence
Frank,
(1979)
Other have come to the same conclusion. if, It upon has been written that view of repeatedly any facts, guilty a defendant could be found of a properly crime, lesser or an degree judge included trial must heading rebutting 5. A more “Some accurate would be evidence complete greater evidence an offense, of an element which element is not element heading, of the lesser offense." Due to the cumbersome of such a it is quality here in note. placed Of course, order for “some evidence" of this to be an addi- type necessary tional offense, on the lesser there must be evidence of the elements of the greater offense. The burden that account falls on the proof prosecution. seen, 6. As will be this is one of the two alternative infra, only circumstances *9 charge necessitating a on the lesser included offense. Even in the absence of countering direct evidence if a to any effect rational inference prosecution’s, charge evidence, could be drawn from the then the will also be required. 448 it does how such offense. And not matter
submit
lower
charged
of
strongly
points
guilt
the evidence
to
the crime
be,
indictment, or how
it
as a
in the
unreasonable
would
evidence,
acquit
of the
to
may appraise
weight
court
convict
the less serious.
of that crime and
of
Mussenden, 308
558,
v.
The
Court of another sister
Supreme
high
New York’s
court.
“Whether
the evidence
echoes
degrees
of the offense
support
tended to
lower
[which]
unsatisfactory;
to be
to the court
weak
appears
upon request
entitled
to have
accused
nevertheless
of
to the
and the effect
the evidence
issue
submitted
Cunningham,
v.
430,
120 Kan.
Rationality
interpreted
prerequisite
trial
this second
court
it to
charge
allowing
included offense
as
giving
lesser
greater
nothing
supporting
acquittal
an
on the
is worth
that this evidence
7.
It
supplied
any part
degree can be
"from
and a
on the lesser
conviction
rejected
proof.”
accepted
not "be
or
The defense evidence need
either
the total
Asan,
entirety.” People
at
239
N.Y.2d
As the above “some not conflict with the evidence” prerequisite does is the test is not rationality This because prerequisite. if on the any disputed greater there is evidence applied disputed no evidence offense. when there is Only should Further, test. that test does rationality the court the apply evidence; rath undisputed not look to the of the credibility er, could rationality it examines the of inferences which from the drawn evidence. disputed in the instant case there was
Since offense, trial court greater on the included offense. obliged give charge on lesser situation, In not come into rationality test does was, thus, It error the trial to have utilized play. court consequent that test in the situation it. The decision before simple Ac charge not to on assault was reversible error. on assault cordingly, judgment sentence endangerment charges and reckless and the case vacated If, before, remanded for a new trial. evidence it, is to simple given. assault justifies also should contends a mistrial have Appellant incurable effect of granted prejudicial been due A prior activity appellant. criminal testimony regarding made and denied and a timely motion for mistrial was given. transcript instruction recorded cautionary following exchanges:8
MR. CARMODY: Do you know what that is? MR. WITHERSPOON: Homemade ice pick.
MR. you CARMODY: Did ever see it before? *11 MR. WITHERSPOON: Yeah.
MR. CARMODY: Where?
MR. WITHERSPOON: On Channell when he was stab- me. bing
MR. CARMODY: Did you anything do to provoke Mr. Channell to do this?
MR. No. WITHERSPOON: Unless —it I was said that interferred from him killing another The guy. guy that he was there standing talking to.9 MR. BLUM: Objection.
THE COURT: Sustained. Honor,
MR. BLUM: Your I think that we should move for a mistrial point. at this THE Step COURT: up, please.
(Whereupon, the following place discussion took at side bar:) case, Carmody Attorney prosecuting
8. Mr.
was the Assistant District
Mr.
Witherspoon
alleged
question
was the
victim of the crimes in
and Mr. Blum was
Public
Assistant
Defender on the case.
concurring opinion
prior
9. The
concludes that this reference is not to a
crime
one,
interpretation
plausible
but to a concurrent event. While this
is a
it is not
will, therefore,
prior
clear that the reference was
to a
not
event. The issue
treated on its merits.
concurring
goes
opinion
on the correct
on to advise the future trial court
argument
disposition
hearsay grounds. This
is not contained
of the
on
by
appeal.
Harper,
v.
not be treated
us on
Commonwealth
in the brief and should
192,
(1981).
Pa.Super.
THE I If Wither- you COURT: would let cross-examine. Defendant and the spoon he stabbed this says was him, was, I think provoke did he do to question anything if this is question nothing wrong that there is with happened. what give, you
If there is instruction want any cautionary it, have to tell me what happy give you I’ll be but cautionary you instruction want. is cautionary I see where a instruction
MR. BLUM: don’t at this going helpful point. to be I’ll tell jury. I to tell the THE COURT: don’t know what it’s providing legally ask me to jury you whatever hand, cautionary instruc- only correct. the other On statement insofar disregard tion I think is to another —this interferring, preventing he whether But, all else. if this is killing somebody from Defendant them, subject this is the between transpiring that’s been matter this assault.
MR. BLUM: The I only cautionary instruction that would give ask the Court to is to jury jury instruct the Channell is on trial for assault recklessly and endangering another and not on trial for— THE I’ll to do happy COURT: that.
MR. —murder or something BLUM: like that.
(Whereupon, the discussion at side bar was concluded following court:) took place open questions. MR. CARMODY: No further THE gentlemen COURT: Ladies and I’m jury, going you disregard to direct that the last statement concerning interference with an or attempted killing something of that kind. The fact of the matter is that the Defendant, case, Channell, Mr. charged with aggravated assault and battery that’s the you. that’s The incident that Mr. Witherspoon before nothing referred to has to do this particular with case and disregard it. Okay.
MR. you, CARMODY: Thank Your Honor. Cross-examine, THE please. COURT: MR. you, BLUM: Thank Your Honor.
In suggested its the trial court that the mistrial opinion issue was waived. This response by Witherspoon prejudicial,
... was so claims, Defendant that a mistrial was mandated. with, argument This lacks merit. To the Trial begin Judge promptly asked Defense Counsel if he wished a (N.T. 16). instruction re- cautionary Defense Counsel such an instruction and the contents quested suggested (N.T. 16-17). of same then complied Court with request, disregard Defense Counsel’s and told the Witherspoon’s interfering statement about with Defend- *13 (N.T. 17). in- “attempted killing” ant’s The Court also jury structed the that the assault the that the battery only charge jury, was before the incident referred to had to do by Witherspoon nothing with the case and that the to jury, before was (N.T. 17). was Certainly it this instruction disregard might have arisen. any prejudice to correct sufficient request to or object any Defense Counsel did not Indeed silence cautionary instruction. Such elaboration on efficacy as satisfaction with the interpreted can well be instruction, the failure of Defense Counsel to as can so, the being his motion for a mistrial. That renew waived Defendant. might matter well have been find, to the did not contrary, We First, mistrial issue. his motion for a mistrial waive the That, along made and denied. with its inclusion timely motions, preserved in the issue for our review. post-verdict in cautionary the formulation of a participation Counsel’s so does not invalidate his motion. This would be instruction in cooperation design his of the instruction was whether or, here, only grudgingly offered ob enthusiastically statement, “I cautionary after the don’t see where a tained going helpful point.” is to at this Counsel instruction be, and, hold, not, in put position we should below, grant my the court “If do not motion saying you to mistrial, I a for a curative suggestion for a will not make gambling stance is tantamount to with instruction.” Such a For, if appeal client’s interests. on it is held that the his mistrial, at trial foregone error did not a he will have justify effect of the curative instruction. beneficial motion for point The critical is that counsel made his it nor did he expressly a mistrial and neither withdrew withdrawing it. Nor was by impliedly mislead the court obligation under his motion after the any counsel renew vigilant It is counsel’s advocate duty instruction. contumacious pest. not a us, it
Having properly determined that this issue is before if it. He does not. appellant prevails remains to be seen First, favor, appellant’s ques Second, this appears prior activity. tion to refer to criminal motive, exception is relevant to show an evidence Ter- general against admissibility. rule Commonwealth v. *14 454
rell,
Pa.Super. 325,
However,
234
(1975).
[E]ven motive the must exception, court balance the for the need evidence its against potential prejudice order deter- mine its admissibility. v. 259 Commonwealth Wright, 293, 393 833 Pa.Super. (1978). A.2d must court balance on the one side the actual need the evidence of other crimes in of the light issues and the other evidence the prosecution, convincingness available the of the evidence that the other crimes were committed by accused, strength the or of the weakness other crimes issue, evidence in supporting side, and on the other the degree to which the will probably be prejudiced by Id., Pa.Superior 299, evidence. 259 atCt. 393 A.2d at 836. Mitchell, 367, v. 314
Commonwealth 364 at 460 (1983). A.2d 1182 at 1184
Assuming, arguendo, balancing that the test here results in the inadmissible, conclusion that evidence as the held, trial court itself one question more must be answered. Can, instance, in this the curative instruction overcome of the prejudicial testimony? effect inadmissible The question remains because curative instructions not, do exception, without cure.
In
case,
a criminal
possible
of a
prejudicial effect
to prior
witness’s reference
criminal conduct of the de-
circumstances,
fendant
under
may,
certain
by
removed
an immediate
instruction
cautionary
Com-
jury.
Povish,
monwealth
Pa.
A.2d
387
1282
Williams,
In
supra
Commonwealth v.
Pa.
at
[470
172]
368 A.2d
[249]
[(1977)],
Court stated:
have never
to the
improper
ascribed
view
all
[W]e
prior
references to
criminal
necessarily
activities
re-
quire the award of a new trial
the only
effective
decisions have
remedy. Our
indicated that there are
taint,
situations
from an
resulting
where
improper
act,
ex-
may
criminal
to an unrelated
reference
of abort-
remedy
resort to the extreme
without
punged
trial____
fair
ing an otherwise
the remark was
reference and whether
The nature of the
are considera-
the Commonwealth
intentionally
elicited
*15
mistrial
of whether a
the determination
relevant to
tions
n. 4.
Id. at
required.
526-7, 437
Richardson,
On hand, other On the testimony. elicited this intentionally had not so that reference” was severe “nature of the ineffective. would have been curative instruction determination to be that the sort of acknowledge We How can to verification. subject here is not made impact certain prejudicial sort of ascertain what truly Court of curative ability much less the jury, has on a testimony we are left with undo that harm? At best instructions to conclusions, experience, conscience on our uncertain based independent- judges of our fellow and the collective wisdom reviewing the same material. ly thought process in has critical our consideration been
One
was made.
disputed
in
remark
here—the context which the
already
in
jury
came
was
At the time the
prison
in a
incarcerated
state
that
was
aware
engaged
stabbing
allegedly having
on trial for
not conclude
background
we do
another inmate. Given
so
homicide would
attempted
reference to an
that the brief
not,
a curative
given
could
they
inflame
them.
instruction,
testimony before
focus on the admissible
from the situa-
distinguished,
example,
for
This is to be
Walentoski, 300 Pa.Su-
Commonwealth
present
tion
theft,
(1982), where, in a trial for
559,
Therefore, we conclude that appellant is not entitled on the basis of this issue to a trial new on the reckless endangerment charge.10
Appellant finally contends that his sentence is excessive. doWe not reach this argument since appellant’s sentence both assault and reckless endangerment has charges been vacated and remanded for a new trial. Judgment of sentence vacated on the aggravated assault and reckless endangerment charges and remanded for a new trial consistent opinion. with this Jurisdiction relin- quished.
SPAETH, President Judge, files a concurring statement. *16 SPAETH, Judge, President concurring: I agree with the majority that appellant was entitled to have the jury charged simple assault it is a because lesser included offense of both aggravated assault and endangerment. reckless I agree also that the sentences for aggravated assault and reckless endangerment must there- fore be vacated and the case remanded for a trial new on all charges. I separately write I because believe that we should appellant’s argument address regarding the victim’s as to testimony why appellant attacked him. The victim testified, being after asked whether he had done anything provoke attack, was said that I interferred “[I]t [sic ] from him killing another guy. The that he guy was stand- ing there to.” talking (Emphasis added.) Appellant argues that the trial court erred in admitting this testimony into evidence with a cautionary instruction. This issue will almost surely again arise at the new trial that we have ordered, and in my opinion we should offer the trial court some guidance regarding it. has, however, granted
10. A new endangerment charge trial been on the reckless faulty charge. on the basis of the I agree cannot with majority challenged should testimony analyzed be as a reference to —,1 crimi- prior nal activity. Majority op. at It was a reference to appellant’s activity time of the attack and was such, relevant to appellant’s establish intent. As its admis- at the sibility depend upon who, new trial will if anyone, said that appellant witness interfered killing with third If it person. bystander is established that a made the victim, then statement the trial court will have to consider whether the is inadmissible In hearsay. if regard, witness, this made it to the it would be but admissible under the admissions hearsay exception to hearsay may prove rule. It that no one may actually witness, anything have said to the and that the witness’s rather abstract phrasing may only opinion regarding his him. If why appellant proves case, attacked the statement will have to be as an analyzed opinion aby witness, lay upon observation, based first-hand but with great potential for prejudicial effect.
Submitted Feb. 1984.
Filed Nov. 1984. *17 Appeal May Petition for Allowance of Denied 1985. argues testimony 1. Nor do I believe so contends. He that the highly prejudicial “either irrelevant or so that a mistrial should have been granted.” Appellant’s by arguing Brief at 4. He elaborates on this that the referring “independent” was inadmissible as a statement to an and crime, also, analyzed by applying unrelated that the statement should be balancing involving prior it "a similar test the introduction of [to that] crimes.” Appellant’s brief at 8-9.