*1 H89 Id., 14-18, development. emotional or Pennsylvania, of discharge COMMONWEALTH Morgan At no time did Id., Appellee Child.
any parental regarding duties sign permission did not (Morgan v. trips.). Mor- school field slips for Child’s PADILLA, Jr., Appellant. Johnny determining the gan was not involved Child, whenever discipline manner to Pennsylvania. Superior Id., at necessary. 22, 2007. Submitted Jan. ¶ Further, cannot person 8, 2007. May Filed in defi parentis to a child stand in loco parent’s natural wishes and ance of the relationship. Gradwell
parent/child 999,
Strausser, Pa.Super. case, In present Morgan to assume permit did not
Weisers discharge parental
parental status special In motion for re Morgan’s
duties.
lief, limit he noted the Weisers’ wishes to “[The Weisers’]
his contact with Child. opposition to exercise
long-standing [his] been hos rights [ toward have [Child] ] They aggressively
tile absolute. have every deny [Morgan] con
made effort to
tact, custody of [Child]. visitation and believes, and therefore
[Morgan] further
avers, interference with Weisers’] that [the extends to relationship with [Child] disparagement purpose for the
extensive with, or making uncomfortable [Child] of, Special [Morgan].”
afraid Motion of
Relief, at 11. sum, though Morgan In even ie., Child, partial
unsupervised visits with babysit-
custody, these visits were akin to caretaking Morgan as did
ting and and did not dis- parental
assume status Gradwell, 416
charge any parental duties. Accordingly,
Pa.Super.
we parentis stand in loco Child
did not
therefore, standing partial did not have
custody or visitation. affirmed. 16 Order *2 Reading, appellant. Taylor,
Eric J. Kurland, Atty., H. Asst. Dist. Jonathan Com., appellee. Reading, for ELLIOTT, P.J., and BEFORE: FORD POPOVICH, JJ. HUDOCK and Ms. jacket, and left the house. HUDOCK, grabbed BY J.: OPINION police. then contacted Butler judgment appeals from the (Officer convicted ¶4 entered after a of sentence Christopher Bealer Officer inter- involuntary him deviate sexual Bealer) City Depart- Police Reading of the *3 assault, course, statutory aggravat- sexual approx- at 342 Pear Street ment arrived assault, assault, and indecent ed indecent But- with Ms. spoke a.m. He imately 2:30 sen- corruption Appellant of minors.1 was victim. with the privately and then ler a term of not to incarceration for tenced Bealer that she told Officer The victim years to no than five and one-half less having relations had been sexual Appellant years, years five plus more than fourteen they were months and for about two regis- and to special probation, consecutive consensual. pursuant to Me- reporting ter for lifetime ¶ old twenty-one years was Appellant 5 II, 42 9791- gan’s Law Pa.C.S.A. sections the victim. relationship with during a mo- Appellant post-sentence filed 99.7. her, and he was married to He was not trial, the trial court tion for a new which age. aware of her Thereafter, filed a Appellant denied. as directed timely appeal notice of presents the appeal, Appellant 6 On 1925(b) court, a Rule statement. following questions: four 1925(a) opinion. trial filed a Rule The where the trial court erred A. Whether of thorough After careful and review the mistrial motion Appellant’s it denied record, and remand for a new we reverse witness testi- after Commonwealth’s trial. recently re- Appellant was fied stated, 2 the facts of this case Simply the court prison, from where leased February January follows: In are as motion granted Appellant’s Street, 2005, Appellant lived at 342 Pear limine precluding Commonwealth Pennsylvania. Reading, County, Berks any per- evidence presenting from in the house were Katrina But- living Also incar- Appellant’s prior taining (Ms. Butler), fifteen-year- Butler’s ler Ms. ceration? (the victim), Ms. Butler’s daughter old trial court erred B. Whether Jennifer, Appel- who was also step-sister for a request denying Appellant’s (Jennifer), and Ms. But- girlfriend lant’s Taylor, where Charlene continuance boyfriend. lived in Appellant ler’s While Appellant necessary a witness for house, engaged in sexual relations this he two of the Common- impeach Jennifer, the victim. Ms. Butler and witnesses, unavailable? wealth’s Febru- early morning 3 In the hours of trial court erred C. Whether 23, 2005, ary Appel- Ms. Butler discovered complainant questioning Ms. Butler lant and the victim bed. diagnosis health her mental about victim’s covers and observed the lifted the as irrelevant? knees; underwear below her pants and against were D. the verdicts Whether enough were low pants sweat in that weight of the hair. Ms. Butler became expose pubic testimony Appellant’s wit- hitting yelling and very angry; she started than the more credible nesses was im- Appellant. the victim and witnesses? bedroom, Commonwealth’s mediately from the victim’s ran 3122.1, 3123(a)(7), tively. §§ 1. 18 Pa.C.S.A. 6301(a)(1), 3125(a)(8), 3126(a)(8) respec- on,
Appellant’s Brief at (capitalization upset, yelling carrying practical- omit- ted). me, ly mad at but she started to tell me everybody how was downstairs. She
¶ Appellant’s
first
issue chal
picked
guy
went and
up
[Appellant].
lenges the trial
denying
court’s order
Apparently
he
family
He’s a
friend.
following
testimony
mistrial
of Officer
just got
jail,
out
and so she was doing
Bealer.
“The denial of a motion for a
him a favor.
mistrial
is
appellate
assessed on
review
according to an abuse of discretion stan N.T., 1/24-25/06,
(emphasis supplied).
at 89
Sanchez,
dard.” Commonwealth v.
immediately requested
Defense counsel
Pa.
It
mistrial,
side bar and moved for a
to which
primarily within
court’s discretion
responded:
the trial court
“I am
going
*4
to determine whether
prej
defendant was
Id. The
grant
prosecutor
have to
it.”
by
challenged
ap
udiced
the
conduct. On
challenged
ruling,
then
the trial court’s
as
therefore,
peal,
this Court determines
by
following exchange:
evidenced
whether the trial court abused that discre
Well, I
think
[PROSECUTOR]:
don’t
Savage,
Commonwealth v.
tion.
529 Pa.
you
I
give
so.
think
can
a curative
(1992) (citation
309,
602 A.2d
omit
problem.
instruction to solve the
ted). “An abuse of discretion is not mere
Well, they
THE
know now.
COURT:
rather,
ly
judgment;
an error of
discretion
they put
jail
did
him in
for?
What
is abused when the law is overridden or
He was directed to in-
[DEFENSE]:
misapplied, or
judgment
exercised is
struct his
not
bring
up.
witnesses
this
manifestly unreasonable, or the result of
try
THE COURT: You can
it.
bias,
ill-will,
partiality, prejudice,
as
by
shown
the evidence or the record.”
I
guys
[PROSECUTOR]:
did. This
Kriner,
Commonwealth v.
asleep right
half
now.
[sic]
(internal
(Pa.Super.2007)
When there found —I was met state- by very by at the door the mother who ments made this and then we witness Note a for a mistrial. motion tomorrow defense’s it looks like will see what of it to them because specific exception morning. go back. go back and and then we will you. Fine. Thank [PROSECUTOR]: is so (The honesty, the case law conclud- In all sidebar conference was ed.) sides, I have to your will packed on both way I see it. call it the going I’m to instruct
THE COURT: disregard the jury at this time to Rule N.T., 1/24-25/06, In its at 101-102. at this remarks made this witness 1925(a) further ex- the trial court opinion, I re- time. will let counsel particular decision, as follows: plained its that, questioning, their and with phrase Appel- reference The inadvertent ahead. go re- passing prior jail time was lant’s Bealer finished his Id. at 90-91. Officer by the mark, intentionally elicited not adjourned testimony, and the trial The witness did Commonwealth. day. for the prison. The why Appellant was say trial resumed the next 9 Before to take attempt did not presented morning, the Commonwealth advantage of the remark. While authority sup the trial court with case was unfor- made the witness remark *5 that a trial was not port position of its new tunate, nature and circum- given the curative instruction necessary, because the occurred, think it we in which stance to prevent any prejudice to was sufficient instruction was suffi- that the curative asked de The trial court then Appellant. result- any prejudice cient to eradicate way had in the of fense counsel what she jury was this reference. The ing from grant of a new authority support to re- disregard the witness’ directed to “I have responded: trial. Defense counsel they that presume can marks and we motions in policy. an insurance I had filed court’s instructions. followed the they to not limine and were be instructed trial 9/11/06, at Like the Opinion, your ruling.” bring to this out. This was that court, contends the Commonwealth N.T., 1/24-25/06, at Defense counsel any “cured” cautionary instruction legal authority support in also submitted a have suffered as may harm argument by a mistrial. After further testimony. We of Officer Bealer’s result counsel, trial court denied Rather, persuaded we are agree. cannot mistrial, stating: for a motion refer- argument that by Appellant’s it out in a fashion that It came such particularly being prison ence to it inflammatory. Of course would be because in this case prejudicial Any any witness prejudicial. is remarks that “explicit an order had entered court your side an against makes that are made to must be whatsoever no reference prejudicial be going action of law is to jail.” Appellant’s time [Appellant’s] by nature. Brief at 16. could have Inflammatory. It was—it appli- pre-trial a A motion in limine is been, in such a it was not delivered but outside a trial court made cation before inflammatory and also as to be fashion a jury, requesting of a presence I and hearsay interpretation a came as pro- from the trial ruling or order attempted jury or at least also cured from refer- opposing counsel hibiting the jury to the a curative instruction give to matters offering into evidence ring to or telling happened it immediately when moving party prejudicial to highly so that rea- disregard it. And for them to allevi- cannot curative instructions that to overrule going then I am son 1194 effect, jury. an limine ... is identical in
ate
adverse effect on
The motion in
purpose of a motion in limine is two
and characterized
suppression
to a
order
1)
provide
fold:
to
the trial court with a by
finality.” Bosurgi,
identical indicia of
pre-trial opportunity
weigh carefully
A.2d at
Because “a motion in
potentially prejudicial
and
consider
effectively
the same as a motion
limine
2)
evidence;
preclude
harmful
suppress, any ruling
thereon is also
a
that
reaching
evidence from ever
‘final, conclusive,
trial,’...”
binding
at
may prove
prejudicial
to be so
that no
(citing
Metzer 634 A.2d
current
instruction could cure the harm to the
580(j)). Thus,
sup
Pa.R.Crim.P.
both a
defendant,
reducing
possibility
thus
pression motion and motion in limine
prejudicial
error could occur at trial
“settle,
trial,
regarding the
before
issues
trial
which would force the
court to ei-
exclusion or admission of evidence.” Met
ther declare a mistrial in the middle of
zer,
H95
alleged
of a mo-
activity
involving
violations
prior
criminal
cases
ing references’
the instant
necessarily
disposing
unless
require
not
reversal
tion in limine
will
Treiber, 582
definitively
prej
illustrates
that
In
v.
the record
matter.
Commonwealth
646,
(2005),
v. Satta
trial court
udice results.” Commonwealth
A.2d 26
the
Pa.
874
zahn,
597,
413,
608
Pa.Super.
631 A.2d
a 1995 arson
evidence of
precluded
(1993). “Prejudice
the testi
home,
results where
allowed a
then
defendant’s
but
the
conveys
mony
jury,
expressly
to the
either
by the defen-
threatening note authored
fact of
implication,
reasonable
the
or
Ill
dogs
that read: “Get rid of
dant
criminal
Common
offense.”
[another]
again.”
out
you
kill them and burn
[sic]
Nichols,
1281,
A.2d
485 Pa.
wealth
Treiber,
at
The defendant
31.
preju
Determining
whether
“again”
that the word
referred
argued
inquiry.
specific
dice has occurred
a fact
in other fires and contend-
his involvement
Metzer,
A.2d at
been redact-
ed that this word should have
case,
antici-
12 In this
defense counsel
that the trial
Supreme
The
Court held
ed.
prejudicial
Appellant’s
pated
impact
abuse its
in admit-
court did not
discretion
trial strate-
part
incarceration. As
of her
According
note.
to the Treiber
ting the
precautions
prevent
took
gy, she
Court,
relationship
the note had no
Appellant’s
incarceration to
disclosure
ruling
specific prior
no
in limine
because
by filing
a motion in limine.
note,
mentioned
nor was
fire was
Recognizing
such evidence “would
presented at trial that
any
there
certainly
extremely prej-
be irrelevant and
a previous
related to
fire.
was
trial,” N.T.,
udicial to
outcome of the
Edwards,
In
14 Commonwealth v.
1/24-25/06,
granted
(Pa.Super.2000), the defendant
A.2d 382
motion, thereby excluding “any
A
of this
charged
robbery.
panel
was
with
[Appellant’s]
reference to
incarceration
did not
held
trial court
Order,
Because the
parole.”
1/24/06.
testimony
in allowing
its discretion
abuse
did
appeal
Commonwealth
officer
manager
police
and a
store
order,
court’s
in limine
describing their encounters with the defen-
“final, conclusive,
binding
trial.”
shoplift-
dant in connection
an earlier
Metzer,
Accordingly,
634 A.2d at
The Edwards Court noted that:
ing.
“any
was required
to avoid
*7
and
testimony given by
Organ
Mr.
the
[Appellant’s]
to
incarceration
reference
carefully circum-
Pigford was
Officer
Furthermore,
no
parole.”3
and
because
by
pretrial
the Trial
In a
scribed
Court.
presented
challenge
new evidence was
to
Limine,
in
ruling on
Motion
[Edwards’]
the
limine
the trial court was
ruling,
in
that the
expressly
Trial
ruled
the
at trial.
prohibited
reversing
from
it
Id.
give any testi-
could not
Commonwealth
pre-trial
1113 The
the
in
existence of
by
directly or
mony that would establish
in
it
ruling
distinguishes
limine
this case
arrested
inference that
was
from the standard
reference-no
“passing
of the
arising
other offenses
out
and
by
parties
cases
the
prejudice”
cited
Depart-
incident at
[shoplifting]
Clover’s
by
being
as
“not
described
court
ment Store.
packed
the
helpful” because
“case law is so
Edwards,
the
A.2d at
Based on
N.T.,
[parties’]
on both
...”
sides
1/24-
evidence,
25/06,
Thus,
two
this Court concluded:
at
we consider
observation,
police
to
guys
the
in order
prosecutor’s
questions
“This
to
officer
3. The
ruling
prevent
asleep right
comply
the in
and
the
with
limine
half
now” underscores
[sic]
Appellant’s incarceration.”
specific
"any
to direct
reference
Commonwealth’s failure
inspection
testimony
Our
of the
jury
disregard
adduced
directed the
“to
the re-
by
at trial
the Commonwealth reveals
by
partic-
marks made
this witness at this
complied
N.T., 1/24-25/06,
ular
time.”
ruling
the Trial Court’s
and did not elicit
¶ 17 Based on our review of the trial
Organ
Pigford
facts from
to indicate
transcript,
find
we
the circumstances sur-
that [the
had been arrested
defendant]
rounding
ruling
troubling
the court’s
to be
charged
or
with criminal
offenses
con-
vague
and the instruction itself too
to have
shoplifting]
nection with
inci-
[the
prejudice.
cured the
The trial court had
dent-
testimony
That
did not ex-
granted Appellant’s
motion in limine
pressly
by
implication
reasonable
order,
upon violation of
agreed
its
to a
jury
communicate to the
the involvement
mistrial.
prosecutor,
Pressed
how-
[the defendant]
another criminal
ever,
trial
opted
give
court instead
offense.
cautionary instruction and await further
Edwards,
H97 disposition Appellant’s our 19 Given him a new appeal granting first issue on
trial, remaining we need not address the appeal. in this
issues raised reversed; Judgment of sentence
case remanded for a new trial. Jurisdic- relinquished.
tion ELLIOTT, P.J., files a FORD
Concurring Statement. BY
CONCURRING STATEMENT ELLIOTT,
FORD P.J.:
¶ 1 I that the inad- respectfully disagree improper
vertent and remark made regarding appellant’s prior incar-
witness
ceration alone would warrant a new trial. cautionary
I an in- appropriate believe precluded
struction would have neces-
sity of a mistrial under the circumstances However, it
of this case. is because the given by
instruction the trial court was
woefully inadequate preju- to address the agree
dice caused that I a new trial
warranted. PRYOR,
Madeline Petitioner AP-
WORKERS’ COMPENSATION (COLIN
PEAL BOARD SERVICE
SYSTEMS), Respondent. Pennsylvania.
Commonwealth Court of 16, 2006.
Submitted on Briefs Nov.
Filed Dec.
Ordered for Publication June