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COMMONWEALTH PENNSYLVANIA v. CALVIN EARLE EWELL (04/27/83)

submitted: April 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CALVIN EARLE EWELL, APPELLANT



No. 1047 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 2375 of 1979.

COUNSEL

John F. Pyfer, Jr., Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Rowley, Wieand and Popovich, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 318 Pa. Super. Page 398]

If, during a jury trial on a charge of driving while under the influence of alcohol, the prosecuting attorney deliberately elicits from a Commonwealth witness an extra-judicial statement attributed to the defendant "that he had an incident before for drunken driving," can the prejudice be removed by an instruction from the court that the statement can be used to show the defendant's state of mind or the state of his condition but that, in fact, "[t]here is nothing in the record available for the prosecution or defense

[ 318 Pa. Super. Page 399]

. . . that the defendant was arrested or prosecuted for drunken driving or for any other drinking while driving related offense"? We conclude that the prosecuting attorney's conduct deprived the defendant of a fair trial and that the prejudice was not repaired by the trial court's instruction. Therefore, we reverse the judgment of sentence and remand for a new trial.

Calvin Earle Ewell was arrested and charged with driving while under the influence of alcohol after his pickup truck overturned at night along Millersville Road in Lancaster County. One of the first persons to arrive at the scene was Arthur Shenberger, who was called as a Commonwealth witness at trial and testified in part as follows:

Q. Now, did you have any other discussions with this person?

A. Well, he asked me if I would pull his pickup over so he could leave.

Q. All right.

He asked you to assist him in moving ...


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