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COMMONWEALTH PENNSYLVANIA v. ALVIN MILLER (09/18/81)

filed: September 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ALVIN MILLER, APPELLANT



No. 1006 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Pennsylvania, Criminal Division, No. 79-10,291

COUNSEL

Kevin H. Way, Assistant Public Defender, Williamsport, for appellant.

William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.

Cavanaugh, DiSalle and Montemuro, JJ.

Author: Disalle

[ 290 Pa. Super. Page 555]

Appellant, Alvin Miller, was found guilty in a jury trial of kidnapping, unlawful restraint, false imprisonment, simple assault, terroristic threats, and theft. The jury rejected appellant's contention that he was not guilty by reason of insanity. On April 14, 1980, appellant was sentenced to be imprisoned for a minimum of four years and a maximum of ten years. This appeal follows the denial of his post-trial motions.

Appellant's first contention is that the lower court erred in not declaring a mistrial when the prosecution asked Dr. Brickhouse, a psychiatrist appearing on behalf of appellant,

[ 290 Pa. Super. Page 556]

    whether he was aware that appellant had been "found sane in Florida."*fn1 We disagree.

In reviewing a mistrial motion on appeal we are initially guided by the rule that trial courts are granted discretionary powers, . . . and their rulings "will not be reversed unless there is a flagrant abuse of discretion." . . . In determining whether to grant the request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, "that is, [whether] it is of such a nature . . . that it may reasonably be said to have deprived the defendant of a fair and impartial trial."

(citations omitted). Commonwealth v. Farrell, 265 Pa. Super. 41, 52-53, 401 A.2d 790, 796 (1979).

Here, the offending question, taken in context, and followed, as it was, by the prosecution's clarifying statement to the jury and the lower court's curative instruction to the jury*fn2 was not so prejudicial as to require a mistrial. The lower court, therefore, did not abuse its discretion in denying appellant's motion. Id.

Appellant's second contention is that the lower court erred in not permitting Dr. Patterson, another psychiatrist appearing on behalf of appellant, to testify as to the probable length of appellant's treatment if he was adjudicated insane and committed to an institution. Appellant argues that such information is a ...


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