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filed: March 1, 1985.


No. 00007 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal, at Nos. 1904-80, 2656-80.


Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Del Sole, Montemuro and Hoffman, JJ.

Author: Montemuro

[ 340 Pa. Super. Page 61]

Appellant was found guilty by a jury of first degree murder,*fn1 third degree murder,*fn2 and possessing an instrument of crime generally.*fn3 Post-trial motions were timely filed, argued and denied by the trial judge, the Honorable Robert A. Wright, of the Court of Common Pleas of Delaware County.

On December 22, 1982, appellant was sentenced to life imprisonment for his conviction of first degree murder, with concurrent sentences of seven (7) to fourteen (14) years for third degree murder and one (1) to three (3) years for possessing an instrument of crime generally.

Appellant's direct appeal from the judgment of sentence is now before us for review.

The court below has correctly summarized the events leading to appellant's arrest:

At approximately 4:50 p.m. on May 21, 1980, John Larkins arrived home from work to his house in Upper Providence Township Delaware County, Pennsylvania. He turned on a tape recording device which he had installed on his telephone two days before and he listened to a telephone conversation that had taken place earlier in the day between his wife, Gale Larkins, and Alfred Huweart.

From listening to the tape, Larkins learned that his wife had gone to Len's Place, a bar and restaurant located in Lima, Pennsylvania, to meet Mr. Huweart. Larkins drove to Len's Place with a shotgun in his car, arriving at approximately 5:00 p.m. When he arrived at the bar he circled the parking lot and upon locating his wife and Huweart sitting in Huweart's truck, Larkins parked his vehicle near the truck, and proceeded towards the truck carrying the shotgun. Larkins smashed in the window on the passengers side of the truck with the butt of the gun and pointed the shotgun inside the cab. He fired once, hitting his wife in the lower back. Alfred

[ 340 Pa. Super. Page 62]

Huweart exited from the truck on the driver's side and Defendant [appellant] went around the truck and shot Huweart twice, once in the arm and once in the back of his leg. John Larkins then returned to his vehicle and drove away.

Police arrived on the scene shortly thereafter and found both victims outside the truck bleeding profusely. Gale Larkins was pronounced dead upon arrival at Riddle Memorial Hospital and Alfred Huweart died on May 27th as a result of the injuries he sustained in the attack.

Following the shooting, Larkins drove to Delaware, where he called a friend and after a series of telephone conversations with different individuals, Larkins and his friend, Nicholas Bradley, discussed the procedure whereby Larkins would surrender to the police in Glassboro, New Jersey, which did occur at approximately 3:00 a.m. on May 22, 1980.

Lower Court Opinion at 3-5.

Appellant sets forth six claims of trial error and one general claim of trial counsel's ineffectiveness, which we shall discuss in seriatim fashion.

Appellant's first two claims of error are that the trial court erred in refusing to grant a mistrial where: (1) the prosecutor asked questions concerning the alleged taping by appellant of telephone conversations on occasions prior to the commission of the crime since the prosecutor did not thereafter produce legally competent evidence to substantiate the allegations; and (2) the prosecutor did not present evidence concerning the appellant's relationship with his father.

Preliminarily, it must be said that appellant never denied killing his wife or her alleged paramour; rather his sole defense was that because of a diminished mental capacity, he was unable to form the necessary intent to commit the crime of murder.

In both instances, the challenged questions were directed by the prosecutor, as of cross-examination, to Theodore J. Barry, M.D., appellant's psychiatric witness.

[ 340 Pa. Super. Page 63]

There is little question that it is improper for the prosecutor to ask questions which imply the existence of a factual predicate and which attempt to create impressions of guilt through innuendo. Commonwealth v. Smith, 457 Pa. 638, 644, 326 A.2d 60, 62 (1974).

At the same time, "[t]he test to be applied at motion for mistrial is whether improper evidence was admitted at trial, such as would so compromise the fact-finder that it would be unable to remain impartial, thereby prejudicing appellant beyond a reasonable doubt. Commonwealth v. Farrell, 265 Pa. Super. 41, 401 A.2d 790 (1979)." Commonwealth v. Dean, 300 Pa. Super. 86, 91, 445 A.2d 1311, 1313 (1982). "The grant or refusal of a motion for a mistrial generally rests within the sound discretion of the trial court and will not be reversed on appeal in the absence of a flagrant abuse of that discretion." Commonwealth v. Fields, 317 Pa. Super. 387, 400, 464 A.2d 375, 382 (1983). "In determining whether to grant a request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, 'that is [whether] it is such a nature . . . that it may reasonably be said to have deprived the defendant of a fair and impartial trial.'" Commonwealth v. Farrell, supra, 265 Pa. Super., at 53, 401 A.2d at 796, quoting Commonwealth v. Phillips, 183 Pa. Super. 377, 382, 132 A.2d 733, 736 (1957).

We have reviewed the challenged questions as well as the answers given thereto by Dr. Barry. In every instance, Dr. Barry's answers were helpful to appellant's theory of diminished mental capacity and therefore we find no prejudice. Furthermore, the trial judge cautioned the jury that the evidence in the case came from witnesses and not from the attorneys; the mere fact that a question is asked is not evidence whatsoever of anything and the only evidence is the answer.

We also note that with reference to the prosecutor's reference to a taping of certain conversations over a period of years, the ...

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