February 5, 1982
COMMONWEALTH OF PENNSYLVANIA
DAVID P. CUNNINGHAM, APPELLANT
No. 1929 PHILA., 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division of Schuylkill County at No. 519 of 1979.
Before Cercone, P.j., Spaeth and Cavanaugh, JJ.
This is an appeal from judgments of sentence for criminal trespass, simple assault, and attempt to commit rape. Appellant argues that during the trial the lower court committed several errors, and he requests a new trial. We find appellant's arguments without merit, and therefore affirm.
The site of the crimes charged was the Belaire Motel in Frackville, Schuylkill County. The motel is a one story structure, divided into an office and ten bedroom units.On August 20, 1980, Room Number 9 was occupied by the victim and her two year old son. The area outside the door to the room was lit by a 100 watt globe that shone into the room when the door was open. At 2:30 a.m. the victim was awakened by a light shining in her face. Looking up, she saw appellant silhouetted in the doorway. He entered the room, pushed her onto the bed, jumped on top of her, and put his hand into her pants. After a struggle, the victim freed herself and ran to the manager's office, screaming "rape." She was able to give the police a fairly detailed description of her assailant, and several days later, appellant was arrested.
Appellant first argues that the lower court committed error "in not declaring a mistrial where, in summation, the Assistant District Attorney called the Defendant a 'liar' and stated that the Defendant has a reason to lie". Appellant's Brief at 6. Although the summations were not transcribed, the gist of the objectionable remarks is of record:
MR. WALSH: I object to his characterizing the Defendant as a liar. It is beyond the scope of appropriate summation.
THE COURT: The Jury will please disregard that. Please do not refer to the Defendant in such a manner.
From this it appears that the prosecutor's remarks were improper. However, appellant did not move for a mistrial, as is required by Pa.R.Crim.P. 1118(b).*fn1 As this court explained in Commonwealth v. Meekins, Pa. Superior Ct. , 403 A.2d 591 (1979):
When an event prejudicial to a defendant occurs at trial he may either object, requesting curative instructions, or move for a mistrial. If he chooses the former, and does not object to the adequacy of the instructions his rights are protected and a later claim for a mistrial is untimely.
Appellant next argues that the lower court committed error "in admitting, over Defendant's objections, a statement by the victim on direct testimony that he 'tried to rape me', which statement resulted in prejudice against the Defendant." Appellant's Brief at 2. The testimony in question was:
Q. After you got to the manager's office did you say anything to him?
[Victim]: Yes, I did, I said somebody broke into my room and tried to rape me.
Mr. Walsh: Object to that, Your Honor.
The trial judge sustained appellant's objection. Again, however, appellant failed to request curative instructions, or move for a mistrial. His argument now that he should be granted a mistrial is therefore without merit. Commonwealth v. Meekins, supra.
Appellant next argues that the lower court committed error in admitting photographs depicting the front of the Belaire Motel and Room Number 9, because "they were taken approximately 19 days after the date of the incident, and were not an accurate depiction of the scene." Appellant's Brief at 3. "The admission of photographs in a criminal case is within the discretion of the trial court, and will not afford grounds for reversal absent an abuse of that discretion." Commonwealth v. Arizini, Pa. Superior Ct. , 419 A.2d 643 (1980). There was no abuse of discretion in this case. Three witnesses -- the victim, the Belaire night clerk, and the police photographer -- testified that the conditions depicted in the photographs were substantially similar to those the night of the assault. N.T. 36-37, 89-94, 102-105. The mere passage of time will not render photographs inadmissible. Commonwealth v. Garrison, Pa. Superior Ct. , A.2d (1981). Since the photographs did not misrepresent the scene, and were supportive of the victim's testimony, they were properly admitted.
Appellant next argues that the lower court committed error by not granting a motion for a mistrial when the assistant district attorney was permitted to elicit from appellant that he was incarcerated at the time of trial. The contested exchange occurred when the assistant district attorney asked appellant, "Are you employed?", to which appellant responded, "I'm in Schuylkill County Prison." N.T. 129. It is not clear that this question represented an improper attempt to show that appellant was incarcerated. Appellant had lived in the area of the motel for 21 years N.T. 134, and testified that he knew the night clerk at the motel and on at least one occasion had moved furniture there N.T. 128. In light of the victim's testimony that she had locked the door before retiring, the assistant district attorney's question may have been part of an attempt to show that appellant had at one time been given an employee's pass key. In any event, we find no prejudice to appellant, for in its charge to the jury, the lower court said:
Members of the jury, you heard the defendant say that he's presently in the Schuylkill County Prison. We ask that you disregard that remark and attempt to judge this case without considering the fact that he made that remark. So you are hereby directed to disregard the remark of the defendant in reply to the question asked by counsel.
...Now members of the jury with the approvel of counsel I want to tell you that even though the defendant blurted out that he is presently in prison the reason he is in prison is because when someone is arrested they have to post bail and if they don't have the money and don't post the bail they are held in prison until trial. That's why he is in prison. So this is customary and there is no reflection upon him so as far as you are concerned the fact that he is in prison has nothing to do with your determination of the guilt or innocense in this case. Do you understand that?
Appellant's final argument is that the lower court committed error "in refusing the Defendant's Motion for a mistrial where the Trial Court elicited that the police officers took the witness to a police station for photographic identification of the Defendant..." Appellant's Brief at 4. Appellant's formulation of the issue misstates the facts. The issue of photographic identification was first raised when appellant's counsel moved for a due process hearing. The jury was excused and a hearing held. N.T. 10-32 At the conclusion of the hearing, the assistant district attorney stated that he would rely on in-court identification. Nevertheless, appellant's counsel raised the issue on cross-examination of the victim:
Mr. Walsh: Q Had anyone told you anything about the defendant other than his name?
[The victim] A No.
Mr. Walsh: Q So the first time you identified the defendant was at this hearing in front of Squire Weyman, wasn't it?
[The victim] A I picked him out of the photos before that.
Mr. Walsh: Q Elaborate, please.
(Prosecution) Mr. Miller: Objection.
THE COURT: Objection overruled, and note an exception. She can tell how she identified him from the photograph.
Mr. Miller: If that's what the question is, I'll withdraw my objection.
Mr. Walsh: Q Tell us how you identified...
THE COURT: You can tell the full procedure of how you were presented the photos.
[The victim] A The police called me up, and they asked me would I come and pick pictures out.
N.T. 64 (emphasis added).
Appellant now objects to this line of questioning, citing Commonwealth v. Dickerson, Pa. Superior Ct. , 406 A.2d 1149 (19 ), for the proposition that it improperly suggested to the jury that the source of the photographs was a prior incarceration. In Dickerson, however, the district attorney elicited the prejudicial testimony. Here, defense counsel did. Having done so, he may not now complain.