*1 1123 227.1(a). 227.1(b) ¶25 Pa.R.C.P. pro- Rule Accordingly, may while there vides: question some as to whether to reference during order cross-examination (b) may Post-trial grant- relief not be introducing amounted to defendant evi- therefore, grounds ed unless the thereby implicated dence Pa.R.C.P. (1) available, if then were raised 230.1, implication we need not discuss its pre-trial motion, proceedings by or ob- because the issue is waived for failure to
jection, point charge, request for raise it at first opportunity. After law, fact findings of or conclusions nonsuit, Appellee made Ap- the motion proof offer of or appropriate other meth- pellant responded to the motion but did trial; od at not raise the issue presently before the Pa.R.C.P. 227.1. The note to this section Court.
provides:
¶
reasons,
26 For these
affirm
we
made,
If
objection
Note:
no
error
of nonsuit and the denial
which could have been corrected in pre-
of the motion to remove the nonsuit.
trial proceedings
during
by
or
time-
¶ 27 Order affirmed.
ly objection may
ground
not constitute a
post-trial
relief.
Judge
28
KELLY
dissenting
files a
227.1(b)
Pa.R.C.P.
note.
statement.
¶ 24 In
preserve
order to
KELLY, J., dissenting:
review,
for appellate
issue
party
must
¶ 1 I respectfully depart
my
from
es-
a timely
specific
make
objection at the
colleagues,
teemed
agree
as do not
that
appropriate stage of
proceedings
be
Appellant waived her Rule 230.1 issue for
Hill,
fore the trial court. Fillmore v.
445
purposes
appeal.
of this
I refer to the
324,
Pa.Super.
514,
(1995),
665 A.2d
515
Bonnell,
Cagnoli
199,
case of
v.
531 Pa.
denied,
appeal
609,
544 Pa.
of that issue. Id. at citing Dilliplaine Lehigh Co.,
v. Valley 255, Trust 457 114,
322 A.2d appeal On Superior Court will not consider a claim Pennsylvania, COMMONWEALTH of which was not called the trial court’s Appellee, attention at a time error com v. mitted could have been corrected. Id. In jurisdiction DYE, Appellant. Dilliplaine since its Lawrence Edward progeny, errors, one object must impro Superior Pennsylvania. Court of prieties irregularities the earliest possible stage process of the adjudicatory 29, Argued March 2000. jurist
to afford the hearing the case Filed Dec. 2000. first occasion to remedy the wrong and Reargument Denied Feb. possibly appeal avoid an unnecessary complain of the matter.
English, Pa.Super. 667 A.2d (1995).8 Bonnell, Cagnoli oral, usually 611 A.2d These are on the record motions prior deals with motions filed argued Cagnoli and are at that time. involved trial and not compulsory with a motion for presented prior written motions to com- which, nature, very non-suit its is made mencement of trial. plaintiff's trial at the end of the case. *2 Franklin, Cassady, appel- L. for
Gerald lant. Carbone, Atty., Dist.
James Asst. Com., (submitted). Franklin, for appellee SOLE, DEL ORIE MELVIN Before BECK, and JJ. SOLE,
DEL J.: ¶ 1 multiple was with Appellant charged that he subsequent allegations crimes sexually had victim who abused female Appellant with his wife as a living and Appellant foster child. convicted at a jury rape, trial of one count of four counts intercourse, involuntary of deviate sexual aggravated three of indecent as- counts sault, assault, statutory one count of sexual corruption one count of of minors jury three counts of indecent assault. acquitted Appellant rape of of one count statutory rape. Appel- of one count aggregate lant to an term was sentenced (15) (6) imprisonment of of six to fifteen fol- years’ imprisonment. appeal This lowed.
¶ 2 presents questions six (1) trial court our review: whether the allowing erred present testimony psychologist of provide Christopher Goff when it failed to report prior expert defense with Goffs (2) trial; court erred whether the trial sustaining in not to strike (3) cause; trial court whether the Appellant’s petition to denying erred in past of sex- the victim’s introduce history ual and sexual another assault (4) male; adult failing a mistrial on erred (5) misconduct; prosecutorial basis of allowing whether the trial erred wit- testimony of two Commonwealth hearsay testimony; provided nesses in not the trial court erred H25 granting his numerous motions judg- chal- DEFENSE COUNSEL: would acquittal. ment of lenge, that’s kind close. THE COURT: I don’t know. The ar- first, will We address Issue as our resting officer in this case is Tanner.
disposition on this issue makes discussion *3 probably He would be Tanner’s immedi- 1, 3, Issues and 5 In unnecessary. supervisor, ate wouldn’t he or would he? 2, Appellant Issue argues that the trial unit, Tanner I would be the crime in not sustaining challenge erred his suppose? juror a juror, strike for cause.1 The McGee, Maria Delgado revealed Yes, A: he is. voir dire that she Pennsyl- was married to rate, THE Okay. any COURT: At do vania State Douglas McGee. you you case, can fairly feel decide this Trooper McGee was the super- immediate though trooper even the who is involved Tanner, visor of the offi- may in your fact be one of husband’s case, cer this who also testified at trial. subordinates? jurors When the court asked potential the A: I believe I can it. do they personally whether were acquainted Tanner, with or related to Trooper Mrs. THE Okay. COURT: respond. N.T., McGee did not Jury Selec- DEFENSE COUNSEL: I’d still renew tion, 3/9/98, However, at 11. following Honor, my challenge, Your for the rec- exchange place upon took defense coun- ord. sel’s questioning potential jurors about THE COURT: On what basis? they whether member of their im- family mediate engaged any type of Well, DEFENSE COUNSEL: I’m go- law enforcement: ing cross-examining to be the subor- dinate of her husband. Yes,
DEFENSE COUNSEL: ... ma’am, your name and number? THE You can again, COURT: ask but she tells us that she can decide this case McGee, A: Maria Delgado fairly —. DEFENSE COUNSEL: And who be,
would that Mrs. DEFENSE COUNSEL: But I think —. McGee? MyA: husband is a trooper. state THE inquire COURT: You are free to if you further want to. DEFENSE COUNSEL: Is that Seneca barracks? DEFENSE COUNSEL: There’s noth- ing inquire, already A: answered Yes. your question, she thinks she can be DEFENSE COUNSEL: Would this again, my fair. But dilemma is that I’m your hinder ability to decide this case going to be cross-examining her hus- fairly? subordinate, somebody band’s her hus- A: No. supervises, band and that’s a little too DEFENSE COUNSEL: Thank you, close, think, disregard for her to ev- Mrs. McGee. erything going happen that’s in this McGee, THE just COURT: Mrs. so courtroom. clear, Jeff, your
we’re is that husband’s Okay. Gillespie THE COURT: Mr. do name is Jeff? you position have a on this? No, A: Douglas McGee. oppose COMMONWEALTH: THE sergeant? COURT: He’s a excusing upon her for cause based her A: Yes. answer. However, judge
1. We note that the trial was not the case. the trial court concurred in judge presided jury deny over selection in the decision to for cause. been removed Motion denied. that she should have THE COURT: cause. The failure to do so constitutes 3/9/98, N.T., Selection, Jury at 24-26. abuse of discretion court. ¶ Appellant asserts the trial court sustaining in not defense counsel’s erred un argues he Mrs. challenge for cause on McGee. jury from Mrs. McGee able remove pro- determining test for per ran out of panel “simply because he disqualified spective should challenges.” Appellant’s Brief emptory willing he is and able to elimi- are to ascertain from While we unable any scruples the influence of nate exactly point Appellant at what the record to the evi- according render verdict it peremptory challenges, exhausted dence, and to be this is determined *4 challenge so. a appears he did When of to and questions the basis answers party is a improperly cause overruled after It must determined demeanor.... be challenges, peremptory has exhausted his prejudices or can be whether biases it the of a new trial for necessitates put of proper aside on instruction the Romeri, Appellant. v. 504 Commonwealth A for cause should court.... 498, (1983), 124, A.2d 504 cert. Pa. 470 juror the granted prospective be when denied, 1922, 80 466 U.S. 104 S.Ct. familial, relationship, a has such close (1984). Accordingly, we re L.Ed.2d 469 situational, financial, parties, or with the mand trial. for a new counsel, victims, or witnesses that the presume preju- a of court will likelihood ¶ Appel find Although 7 we that a or likelihood of dice demonstrates involving the lant’s claim above-described prejudice by or her conduct an- relief, juror him we are none entitles to decision on questions.... swers to The chal theless to address his constrained disqualify is within the dis- the as sufficiency of lenge the the will not cretion of trial and be in precluded the event a retrial would palpable in a the absence of reversed Commonwealth this issue has merit. of discretion.... abuse Palmer, (Pa.Super.2000); A.2d 227 751 Koehler, Commonwealth v. 558 Brachbill, (1999) (citation omitted). 737 225 A.2d a thor Following 555 84 A.2d ¶ that, in response to the 5 We first note record, the of the ough of the briefs review did questioning, Mrs. McGee not law, and well- relevant the parties, the state she would be able to unequivocally court, find of trial we opinion crafted the Instead, fairly. the issues when decide properly concluded that the trial court by the court if she could she was asked evidence to convict there was sufficient case, “I responded fairly decide the for which he was Appellant of the crimes N.T., Selection, Jury I do believe can it.” Consequently, finding no error convicted. 3/9/98, However, of a irrespective at 25. court, deter the of the tri?T and part on ques- potential juror’s answers to dire voir opinion art ade mining that the trial tions, relationships certain or situations disposes Appel quately accurately and of striking juror cause. One of compel claim, adopt we the trial court’s lant’s case, in this these situations occurred order on opinion our own and affirm the as supervi- juror’s the where a husband was its basis. police officer who investigating sor of the ¶ of vacated. Judgment 8 sentenced to, did, testify anticipated fact relin- granted. New Jurisdiction at trial. Thus Mrs. for the Commonwealth quished. response, coupled with equivocal McGee’s relationship the close situational created ¶ MELVIN files arresting Judge ORIE Mrs. McGee
between
officer,
inescapable
opinion.
dissenting
to the
conclusion
leads
MELVIN, J.,
ORIE
dissenting:
relationship
Appel-
ated familial
with the
Upon questioning by
lant’s co-defendant.
¶ 1 I
separately
express
write
my
court,
juror responded
disagreement
Majority’s
with the
resolu-
relationship
ability
would not affect her
Appellant’s
tion of the
second issue raised
juror.
impartial
Despite
be a fair and
appeal.
Because
believe the trial
request,
defense counsel’s
court properly
Appellant’s
denied the
chal-
juror
refused to remove the
for cause. On
cause,
lenge
juror
to remove a
re-
appeal,
Supreme
our
Court found the trial
spectfully dissent.
court did not abuse
discretion in
its
refus-
¶ 2
juror
question,
Delgado
Maria
juror.
ing to remove the
It reasoned the
McGee,
Pennsylvania
was married to
State
position
trial court was in the best
to as-
Trooper Douglas
im-
McGee
was the
juror
credibility
sess the
of the
and refuse
Tanner,
supervisor
mediate
to excuse the
it
believed she
During
officer
this case.
Koehler,
be fair
impartial.
voir dire proceedings, the Court asked the
359-360,
(citations
Pa. at
tion Mrs. cause. remove McGee for Accord-
ingly, dissent. PAVES, Appellee,
Sidonie Corson, Barry CORSON,
Dr. Carol (at 412).
Appellants (at Paves, 478),
Sidonie Corson,
Barry Corson, Appellees. Carol
Superior Pennsylvania. Court of
Argued July
Filed Dec. *6 Denied Feb.
Reargument