I agree with the Majority’s conclusion that, where the prosecutor had elicited testimony regarding Appellant’s prior arrest (or incarceration), defense counsel’s decision to forego a curative instruction waived Appellant’s ability to plead prejudice on appeal. See Commonwealth v. Norman , 549 A.2d 981, 986 (Pa. Super. 1988) ( en banc ) (citing Commonwealth v. Miller , 481 A.2d 1221 (Pa. Super. 1221 (Pa. Super. 1984), and concluding that, “[w]hen counsel chooses to refuse appropriate curative instructions for [a] legitimate tactical reason, the defense may not plead prejudice on appeal.”). I write separately to express my disagreement with the conclusions reached by this Court in Norman and Miller .

A trial court may grant a mistrial “only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing *2 J-A21014-16

and rendering a true verdict.” Commonwealth v. Cash , 137 A.3d 1262, 1273 (Pa. 2016) (citation omitted). However, our Supreme Court has concluded that “‘[a] mistrial is not necessary where cautionary instructions are adequate to overcome prejudice.’” Id. (quoting Commonwealth v. Chamberlain , 30 A.3d 381, 422 (Pa. 2011)).

Absent a defendant’s confession, nothing can be more damaging and prejudicial to a defendant than testimony regarding a defendant’s prior arrest or conviction. In my 35 years of judicial experience, once a jury learns of a defendant’s prior conviction, the presumption of innocence, in reality, disappears. The impact of such testimony is immediate, and prevents the jury “from weighing and rendering a true verdict.” See Cash , 137 A.3d at 1273. The remedy of a “curative” instruction is illusory, as it cannot overcome the impact of such testimony on a jury.

Judge Dubow joins this concurring statement.

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