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COMMONWEALTH PENNSYLVANIA v. DAVID P. CUNNINGHAM (02/05/82)

February 5, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
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.

MEMORANDUM

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.

N.T. 149.

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 ...


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