No. 192 April Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7608868
Louis R. Dadowski, Assistant Public Defender, Pittsburgh, for appellant.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Van der Voort, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.
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Appellant was convicted by a jury of recklessly endangering another person*fn1 and endangering the welfare of children.*fn2
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After her post-trial motions were denied, she was sentenced on the recklessly endangering another person conviction to one year less two days to two years less one day's imprisonment, and on the endangering welfare of a child conviction to two years probation, to commence upon the expiration of the prison term.
On Monday morning, October 11, 1976, after receiving a telephone call from appellant's mother-in-law, police went to appellant's residence and discovered appellant's nine year old son lying dead on the floor of his bedroom. The floor of the room was uncarpeted and its walls were uncovered by either paint or wallpaper. The single window in the bedroom was nailed shut and the bedroom had a boltlock on the outside. The room had no artificial lighting. A mattress and a dresser were the room's only furnishings. Although an examination of the victim's body revealed numerous bruises, abrasions, scars and contusions, the medical examiner established that the direct cause of death was interstitial pneumonia.
The victim had been sick when he arrived home from school on Friday, October 8, 1976, and his physical condition continued to deteriorate throughout the weekend. On Sunday evening, October 10, 1976, the evening before his death, the victim lay on the floor for about an hour; he became delirious and began calling for his school teacher. Appellant's husband suggested that the boy be taken to a hospital. Appellant discouraged this idea, arguing that, if he were taken to the hospital, the welfare agency would take him away from them because of the bruises on the child's body. As a result, the child was not taken to the hospital, nor given any medical treatment at all. The victim died sometime during the weekend.
Appellant raises eight assignments of error.
Appellant argues that the Court below erred in refusing to grant a mistrial when a Commonwealth witness commented
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upon appellant's assertion of her right to remain silent while being questioned by police. The Commonwealth called Officer James J. Laird of the Allegheny County Police Department, who testified as follows:
Q. At that time did you advise Mrs. Humphreys of her rights?
A. Yes, she was advised of her rights.
Q. Did she state anything to you with respect to Larry?
A. Yes she did. She told my partner and myself that Larry arrived home from school on Friday. He was in good health. We were particularly interested how he was feeling, he was in good health. Friday he became a little ill, he developed the sniffles on Saturday, we asked if he had been punished at all on Friday or Saturday that weekend, and she stated not that she remembered. She then stated that Larry became sick on Sunday, throwing up, diarrhea, that sort of thing. Would not eat. She went on in her statement at one point and stated that Larry while at the dinner table on Sunday fell from his chair. We asked her how that came about, how he happened to fall from the chair, and her answer was "I guess it was because I hit him, because he wouldn't eat." She further stated that after dinner Larry wanted to lie down. She told us that she instructed him to lie on the floor in the dining room stating that he did have diarrhea and that they did not want him running back and forth to the bathroom. At this point, Mrs. Humphreys decided to exercise her rights and refused to make any further statement unless there was an attorney present.
Defense counsel immediately moved for a mistrial on the grounds that the Commonwealth witness had testified concerning appellant's exercise of her right to remain silent. The Commonwealth responded that, because appellant intended to take the stand, the witness's testimony was not error; and that, alternatively, if the testimony were error, it could be cured by cautionary instructions to the jury. The
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court then announced that it would give the Commonwealth until the next day to research its arguments. Court was then recessed for the day because it was late in the afternoon. The following morning, at sidebar, the court denied appellant's motion for a mistrial. The court then, sua sponte, gave the jury an extensive cautionary instruction which comprises four pages of trial transcript.*fn3
It is a violation of the accused's constitutional rights against self-incrimination to make reference to his silence while in police custody. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37, 16 L.Ed.2d 694, 720 n. 37 (1966); Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978). Not every such reference, however, requires a new trial. Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). Commonwealth v. Quartman, 253 Pa. Super. 460, 385 A.2d 429 (1978). Prompt and adequate cautionary instructions can cure what might otherwise be reversible error. Commonwealth v. Williams, 252 Pa. Super. 435, 381 A.2d 1285 (1978). However, unless a defendant requests curative instructions, thereby attempting to protect himself to the maximum in his trial, he will not be heard to complain on appeal of prejudicial error. Commonwealth v. Quartman, supra, 253 Pa. Super. at 464, 385 A.2d at 432.
Appellant here argues that, because cautionary instructions were not given until the following day, they were not sufficiently prompt to obviate the prejudice caused by the foregoing remarks. Since appellant did not request cautionary instructions until the court's charge to the jury, he will not now be heard to complain that the cautionary instructions were not timely given. Commonwealth v. Quartman, supra. Appellant also argues that since the court's instructions were not given until the next day they compounded rather than obviated the error of the witness's remarks. We find this argument unpersuasive. As we said in Quartman, supra, 253 Pa. Super. at 464, 385 A.2d at 431-432, "it is clear that counsel should likewise be permitted
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to request that the court not give curative instructions sua sponte." By failing to do so, appellant has waived any challenge, on appeal, to the ...