No. 521 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lyncoming County, No. 78-10-430
John P. Campana, Williamsport, for appellant.
Robert F. Banks, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Cercone, President Judge, and Hester and Wieand, JJ. Cercone, President Judge, concurs in the result.
[ 302 Pa. Super. Page 229]
Richard McGuire was tried by jury and convicted of indecent assault*fn1 and corruption of minors.*fn2 On direct appeal, after post trial motions were denied and sentence imposed,*fn3 McGuire contends that the trial court erred (1) when it allowed the Commonwealth to introduce evidence of "drinking" by appellant; (2) when it refused a motion for mistrial after the prosecution had cross-examined appellant's wife concerning an unrelated assault in which appellant had allegedly broken his wife's finger; and (3) that the trial court erred by refusing to allow appellant to make a record of closing remarks, alleged to be prejudicial, made by the prosecuting attorney. There is merit in the first two of these contentions; and, therefore, we reverse and remand for a new trial.
Testimony during trial disclosed that Tanya, a nine year old child, came to visit the McGuire home sometime between 11:00 o'clock, A.M., and 12:30 o'clock, P.M. on May 20, 1978. When she arrived, appellant was target shooting on the back porch and drinking a glass of beer. Tanya spoke with appellant, entered the home, found Mrs. McGuire resting, and returned to the back porch. According to Tanya's testimony, appellant then moved his hand under her shorts and patted her buttocks.
This testimony was denied by appellant. He was asked, on cross-examination, if he had been drinking that day and responded: "I had one drink while Tanya was there,
[ 302 Pa. Super. Page 230]
yes, and the first drink I had that day, I may add." He also denied having experienced lapses of memory. Mrs. McGuire testified as a defense witness to what she had overheard while Tanya and appellant were talking on the back porch. On cross-examination, the prosecuting attorney, over objection, exceeded the scope of direct examination and questioned Mrs. McGuire regarding appellant's alleged prior lapses of memory. When Mrs. McGuire denied knowledge of any memory lapses, the prosecuting attorney asked: "Did you ever tell anyone that your husband had broken your finger and the next day he didn't even remember about it?" After an objection had been overruled and a motion for mistrial denied, the witness answered that she didn't recall ever telling anyone of such an event. Still later, the District Attorney asked her if she had told a policeman that appellant had come home at 9:30 "and started drinking whiskey and kept drinking the rest of the day." There followed a series of questions, not supported factually by any evidence, which assumed that appellant had been drinking whiskey, that he had had a bottle and that he had been drinking all day.
On rebuttal, the Commonwealth called a witness who testified, over objection, that Mrs. McGuire had told her that appellant "had been drinking all day," and a policeman who testified that Mrs. McGuire told him that appellant "drank heavy all day."
Although the prosecuting attorney neither offered to prove nor proved that appellant had been intoxicated and despite counsel's contention at the time of offering the evidence that appellant's drinking was relevant solely to attack appellant's credibility, the trial court instructed the jury as follows:
Now, I must say this to you, this man is not being tried for drinking. Some of you may have a built-in objection to the use of intoxicating liquor, you will have to put that aside. The only reason I permitted the evidence of drinking to come in is to what extent it may have ...