No. 519 Philadelphia, 1980, No. 520 Philadelphia, 1980, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, Bucks County, at No. 239 of 1979.
John F. Meehan, Assistant Public Defender, Doylestown, for appellants.
Michael Kane, District Attorney, Doylestown, for Commonwealth, appellee.
Cavanaugh, Montemuro and Popovich, JJ. Cavanaugh, J., concurs in the result.
[ 301 Pa. Super. Page 314]
After a jury trial, appellants, Hoffman and Schmidt, were found guilty of simple assault.*fn1 Post-trial motions were denied, and they were sentenced to one (1) year probation and ordered to pay a fine of $250.00 and costs.
Appellants contend that the trial judge erred in not granting their motion for a mistrial after several prejudicial questions posed by the prosecutor on cross-examination. In order to understand the statements in the context of the proceedings, a summary of the facts is necessary.
On November 27, 1978, appellants were both members of the Morrisville Borough Police Department however on that day they were off duty and were engaged as deputy sheriffs for Bucks County to be stationed at the site of a strike at
[ 301 Pa. Super. Page 315]
the United States Steel plant in Fairless Hills. They were to be picked up at approximately 8:00 a. m. at the Morrisville Borough Police Headquarters. As they were waiting for their ride at the station, John Horlowski was being escorted from the Morrisville Borough Police Department lockup to the Bucks County Prison. He had been arrested earlier that morning in Morrisville and had been unable to post bail. It was the contention of the Commonwealth that as Horlowski was being escorted from the borough hall in handcuffs by a constable, he was beaten by the appellants. Hoffman allegedly punched Horlowski in the stomach and then Schmidt kneed him twice in the head. At trial, the Commonwealth introduced the testimony of Horlowski and the constable and various other witnesses who testified concerning admissions by appellants after the episode. Appellants admitted their presence at the scene but denied striking Horlowski.
During the cross examination of appellant Hoffman, the District Attorney asked, "Sir, isn't it a fact that you and Officer Schmidt were very proud of the fact that the kids in Morrisville were very afraid of you?" Defense counsel's objection was sustained, a motion for mistrial was denied, and a cautionary instruction given.
The District Attorney later questioned, "as a police officer, during the time when you were a police officer, wasn't it your practice to brag generally about how tough you were and how the kids were so afraid of you?" Defense counsel's objection was sustained but his motion for mistrial was denied with no cautionary instruction.
Appellant Schmidt testified on direct that he had a brown belt in karate and taught martial arts to young people in the community. He testified that he could not have struck Horlowski as alleged because if he had, Horlowski would have sustained serious injuries. The District Attorney asked Schmidt on cross, "Mr. Schmidt, you've told us that you've had . . . physical contact with your students. Is there a cemetery somewhere full of your karate students?" ...