Appeal, No. 189, Jan. T., 1955, from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of Delaware County, March T., 1954, No. 543, in case of Commonwealth of Pennsylvania v. Estelle Viola Hales. Judgment reversed.
Francis R. Lord, with him James A. McGoldrick, for appellant.
John R. Graham, Assistant District Attorney, with him Raymond R. Start, District Attorney, and Joseph E. Pappano, First Assistant District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The Commonwealth in this case charged the defendant, unmarried Viola Hales, 18 years of age, with having killed and murdered her 6-weeks-old baby by immersing it in a basin of water. She was convicted of first degree murder with recommendation of life imprisonment. She seeks a new trial because of trial errors.
While on the witness stand, the assistant district attorney questioned defendant as to the whereabouts of her aunt, a person who was in no way connected with the crime. When the objection raised by defense counsel was overruled, she replied: "In prison." The district attorney then asked: "What is whe in there for?" After defendant's objection was overruled, she answered: "Murder." The district attorney then brought out that defendant had seen her aunt every day since she was in prison. When the district attorney asked "What is she in there for," defendant objected. "Your honor, I am objecting on the record. This line of questioning ... is irrelevant to start with, it is prejudicial, inflammatory, trying to imply something that isn't even in the case."
We agree with defendant that this evidence was not only irrelevant, but highly prejudicial and was not and could not be cured by the Judge's later statement in his charge that the jury should dismiss the testimony from their minds since it has nothing to do with defendant's
guilt or innocence. This was reversible error for which a new trial must be granted.
When the defendant Hales was arrested, she signed a written confession at the request of the police authorities. In cross examining the chief of county detectives who had obtained this statement, defendant asked whether he, the detective, had gotten the defendant to initial the sheets on which she had made corrections in her statement. The Judge then said: "THE COURT: Just a minute, I would like to interrupt. Are you intimating that the chief county detective and the county detectives deliberately planted mistakes in these kind of statements in order to trick the defendant, is that what you are intimating? MR. LORD: Well, their testimony, your honor is not exactly in accordance with what we understand. THE COURT: What you understand, but you are saying now by your cross examination that they deliberately plant mistakes in these statements so they call the defendant's attention to it and have ti corrected, is that right? MR. LORD: No, sir. THE COURT: What are you trying to do? I would like to know. MR. LORD: We are asking him how this mistake got into this transcript? THE COURT: Yes, but your question was a strong intimation that he deliberately or somebody else for him planted this mistake in this, or these series of mistakes in this statement; did you mean that? MR. LORD: I did not mean that intimation, your honor. THE COURT: All right, as long as it is straight. The answer of the witness was to the effect that he understood what you meant. We are not going to permit that in this court room by innuendo, that these police officers and these county detectives deliberately try to trick any defendant in that manner."
The last statement of the Court was improper.
Judgment and sentence reversed and new trial granted.
CONCURRING OPINION BY MR. JUSTICE MUSMANNO:
I concur in the decision of the Court that a new trial is imperative because the presiding judge allowed the trial assistant district attorney to put questions to the girl-defendant on the subject of her aunt's conviction for murder, which certainly had nothing to do with the issue before the Court and jury. Much has been said lately about guilt by association, but here the district attorney was attempting to suggest guilt by kinship, raising a possible inference that the defendant came from a family of murderers, for whom homicide was common occupation and killing a routine. The aunt's domicile, her habits and difficulties with the law had no possible association with the defendant's case, and all questions appertaining to them should have been excluded by the judge. Just as it is the duty of a pilot to guide a vessel through the safe channels of navigability, steering clear of all submarine hazards, so is it the responsibility of the trial judge to hold the helm of relevancy firm, in order to avoid the banks of irrelevancy on one side and the shoals of prejudice on the other.
The trial judge had had ample warning of the rocks of prejudicial irrelevancy in the offing, but he declined to consider the damage they might inflict to the fairness of the trial. When the district attorney first questioned the defendant about her aunt, and the judge overruled defense counsel's objections, defense counsel inquired of the Court: "What relation has it, Sir?" Instead of calling for an offer at side bar, the trial judge said: "It might have a lot. I don't know. Go ahead."
When one is travelling in uncharted waters, it is advisable first to find out into what one is going before going ahead.
In his opinion refusing a new trial the trial court sought to justify the excursion into the aunt's criminal record by stating that defense counsel had already made reference to the aunt. A study of the record reveals that this reference was of little or no significance, so far as the issue of murder was concerned. Defense counsel had asked one Commonwealth witness where the defendant had lived prior to the homicide, and the witness had replied "with her aunt." On another occasion defense counsel had asked a Commonwealth witness if he had not made certain remarks to the defendant about the aunt and the witness replied that he had not.
The trial judge is also of the impression that if he erred with regard to allowing evidence on the aunt's conviction of murder, he corrected the error by telling the jury to disregard the evidence. The attempt to sterilize tainted testimony is not always successful. The germ of prejudice may have taken such root in the minds of the jury that no instruction can extirpate it, no admonition deaden it. It would appear that the Judge's remarks to the jury, in this case, instead of Killing the germ, watered and nurtured it. He said: "'And then it came out that she has an Aunt in the same prison and she sees her every day. The aunt is in there for murder. And she has talked to her about her case, but the defendant said not to any great extent ... Now with reference to the aunt in prison, while that is a fact, you should dismiss that from your minds entirely as far as the consideration of this case is concerned. It is a fact that she is there, but you do not decide the guilt or innocence of this girl upon the fact she has an aunt in prison who is serving time in Broadmeadows for murder, it has nothing to do with the defendant in the case as far as the guilt or innocence is concerned.'"
It will be noted that while the trial judge tells the jury to dismiss from their minds the fact that the defendant's aunt is in prison, he declares four times that it is a fact that the aunt is in prison. Nor does he leave any possibility for doubt in the jury's mind that the aunt is in prison "serving time ... for murder." After an emphasis of this character, it was utterly useless to tell the jury that the aunt's homicidal tendencies had nothing to do with the charge against the defendant.
In the case of Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 169, a police officer, referring to a photograph of the defendant, explained that it was a "penitentiary photograph," thereby quite clearly informing the jury that the defendant was already a convicted felon. Commenting on this testimony the Superior Court said: "It was incompetent and highly prejudicial testimony, and although the court in its opinion denying a new trial reports that the case was tried in an ideal atmosphere, without altercation of feeling between appellant's counsel and the district attorney, we are of opinion that its instructions did not and could not eradicate the effects of the statement ... The testimony must have left a deep and lasting impression of truth, and, for reasons presently to be developed, we cannot confidently assert that the instructions wholly abstracted it from the interplay of impressions and convictions which generated the jury's ultimate conclusion ... It is not an unwarrantable assumption that it [the jury] experienced trouble in arriving at a conclusion, and we cannot be certain that appellant's criminal record was not placed ...