Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, No. 860, in case of Commonwealth of Pennsylvania v. Leroy Beach.
Carl M. Mazzocone, with him Frank Carano, for appellant.
Peter S. Greenberg, Assistant District Attorney, Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result. Mr. Justice Jones took no part in the consideration or decision of this case.
This case has been the subject of three jury trials; the first ended in a mistrial, the second resulted in a conviction of murder in the second degree which was subsequently overturned by this Court, Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970), and the third trial culminated in another conviction of appellant of second degree murder. Post-trial motions were denied and this appeal was taken from the judgment of sentence of five to twenty years imprisonment.
The prosecution of appellant resulted from the fatal stabbing of one Clyde Griffin on November 20, 1965, following an argument in a small restaurant located in Philadelphia. The Commonwealth's evidence consisted primarily of the testimony of the proprietor of the restaurant, the proprietor's wife, and two customers, all of whom were present at the time of the incident.
Appellant makes several assignments of error, none of which we find meritorious.
First, it is contended that the trial judge erred in refusing to grant a mistrial upon the timely motion of defense counsel after the following question and answer in the course of cross-examination of a Commonwealth witness: "Q. Do you remember testifying in a trial against Mr. Beach on either February 25th or 26th of last year? A. Which one? The one in which he was convicted?"
Although the trial court denied the mistrial motion, it ordered the witness' response stricken from the record, and admonished the jury to disregard it. Appellant asserts, nevertheless, that this disclosure of his conviction in a previous trial, made in the presence of the jury, caused him such irreparable harm that it could not be cured by the court's admonition and that the refusal to grant a motion for mistrial was an abuse of discretion. We cannot agree. Viewing the record in its entirety, we are persuaded that the prompt and explicit statement by the trial judge to the jury minimized any prejudice which might otherwise have resulted. Moreover, we cannot ignore the fact that defense counsel used the notes of testimony from the prior trial of February, 1969, on numerous occasions throughout the later trial in attempts to impeach the credibility of Commonwealth witnesses. Certainly, the repeated use of this tactic by the defense could not have escaped the awareness of the jury; it could not help
but know that the defendant had undergone at least one prior trial, and the inference that there may have been a reversed conviction was there for any juror to draw. All the response complained of did was to make explicit that which was already implicit. Having chosen the trial tactic of attempted impeachment through the use of testimony at a prior trial, the defendant cannot be heard ...