No. 107 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, at No. 1151 C.A. 1980.
Samuel K. Gates, York, for appellant.
William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.
Cavanaugh, Cirillo and Hoffman, JJ.
[ 306 Pa. Super. Page 270]
Appellant contends that the lower court erred in not declaring a mistrial when the victim testified over objection to unrelated prior criminal activity of appellant. We agree and, accordingly, reverse the judgment of sentence and grant a new trial.
On October 21, 1979, the victim received severe facial injuries in an altercation with appellant in the bathroom of a York County tavern. Appellant was subsequently found guilty of assault in a jury trial and following the denial of post-trial motions and the imposition of sentence, took this appeal.
[ 306 Pa. Super. Page 271]
Appellant contends that the lower court erred in refusing his motion for mistrial made after the following testimony:
[District Attorney]: Could you tell us how you were acquainted with [appellant]?
[Victim]: I ran into [appellant] at the Lucky Spot Restaurant, I guess about a year ago. I really don't know the time anymore. I was in there with Barbara Wagaman, who is sitting back there, and we were eating breakfast. This was after we left the Tavern about 1:00 o'clock, 2:00 o'clock and [appellant] came in with two other guys. He sat down, and I don't know what he was saying, I wasn't listening to him because it was him and two other guys. He had spit in my food and I looked down at the food and he came leaping over the table and I jumped up and we both grabbed butcher knives and we both were arrested, and he was found guilty and they left me go.
(N.T. January 22, 1980 at 7-8). Appellant immediately objected and moved for a mistrial. The Commonwealth informed the court that the testimony had been inadvertent and that the victim had in fact been told not to mention the prior record. The lower court instructed the jury to disregard the statement but refused to grant the motion for mistrial.
The decision whether to grant a mistrial is within the sound discretion of the lower court and will not be reversed absent an abuse thereof. Commonwealth v. Seigrist, 253 Pa. Superior Ct. 411, 418, 385 A.2d 405, 408 (1978). "It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances,*fn1 is ...