May 27, 1986
COMMONWEALTH OF PENNSYLVANIA
JAMES LEE WOLVERTON, APPELLANT
Appeal from the Judgment of Sentence of January 6, 1984 in the Court of Common Pleas of York County, Criminal, No. 632 C.A. 1983.
Before: McEWEN, Montemuro and Cercone, JJ.
Judgment of sentence reversed. Case remanded for new trial. Jurisdiction is relinquished.
Cercone, J. files a Dissenting Memorandum.
ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of York County is reversed and case remanded. Jurisdiction is relinquished.
Reversed and remanded.
ING MEMORANDUM BY CERCONE, J.
Because any error which may have occurred at appellant's trial was promptly remedied by the court upon counsel's objection I feel that appellant's right to a fair trial was not prejudiced and, therefore, I respectfully dissent.
The right to a fair trial is not, it has been said, the right to a perfect trial. Commonwealth v. McQuaid, 273 Pa. Superior Ct. 600, 417 A.2d 1210 (1980). In almost every trial, error will occur, and it would be intolerable to require that a trial be repeated, and re-repeated, until no error occurred. Commonwealth v. Pittman, 320 Pa. Superior Ct. 166, 177, A.2d (1983). Accordingly, the question is not whether there was error, but whether the error was so serious as to deprive the defendant of his right to a fair trial. See, e.g., Commonwealth v. Snopek, 200 Pa. Superior Ct. 455, 190 A.2d 161, cert. denied, 375 U.S. 933, 84 S.Ct. 338, 11 L.Ed.2d 265 (1963).
Appellant asks this court to find that the cumulative effect of three trial errors, which admittedly occurred, was so prejudicial as to deny him his right to a fair trial before an unbiased jury. In each instance, as clearly noted in the memorandum by my colleagues, the error was promptly objected to by appellant's counsel and, after due deliberation, the trial court thoroughly and accurately cautioned the jury to disregard the improper testimony and, in the case of its own improper comment, the court cured that error with further cautionary instructions.
While the excluded testimony by Ms. Swords, to the effect that the victim was fearful for her life, may have had a prejudicial impact on the jury, the jurors are expected under the principles of law to diligently follow the court's instruction to disregard such statements. See Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978) (cautionary instruction cured prosecutor's improper question which shifted burden of proof to defendant); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978)(cautionary instruction cured prejudice of prosecutor's remark implying that defendant threatened witness). Further, another Commonwealth witness, Ms. Haapala, testified defendant had told her that if he ever caught the victim fooling around that he'd kill her. Because of this properly admitted evidence, I would find that the court's curative instructions were sufficient to prevent any undue prejudice to appellant by Ms. Sword's testimony.
Finally, the guiding principle on reviewing an allegedly erroneous jury instruction is that the charge is to be read in its entirety. Commonwealth v. Zettlemoyer, Pa. , , 454 A.2d 937, 953, cert. denied, Zettlemoyer v. Pennsylvania, 103 S.Ct. 2444, U.S. (1982). Clearly here the court corrected its charge promptly and sincerely. For these reasons, I must dissent.
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