Appeal from the Order of the Superior Court of of Pennsylvania, filed May 3, 1986 at No. 1218 Philadelphia 1984 reversing the judgment entered on March 14, 1984 in the Court of Common Pleas of Bucks County, Criminal Division, at No. 2759 of 1983. Pa. Super. 496 A.2d 853.
Alan M. Rubenstein, Dist. Atty., Rea B. Mabon, Asst. Dist. Atty., Doylestown, Stephen B. Harris, Warrington, for appellant.
Donald Nasshorn, Doylestown, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a concurring opinion.
The issue presented for our consideration is whether a single, unanswered question alluding to alleged unrelated criminal activity*fn1 warrants the granting of a new trial despite the fact that an immediate cautionary instruction and a proper direction in the charge was given to the jury.
On May 6, 1983, at approximately 1:30 a.m. Allan Joseph Nowicki was shot, in the back, with a .38 caliber handgun at his residence in Tinicum Township, Pennsylvania. Stephen Quintin Morris (appellee) was arrested on May 13, 1983 and charged with attempted homicide, aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime.
Appellee was found guilty on all charges and filed a Motion In Arrest of Judgment and For A New Trial, alleging, inter alia, that the trial court erred in allowing the Commonwealth to cross-examine him concerning an alleged unrelated crime. Appellee's motion was denied. The basis for the denial of the motion was that the curative instruction given to the jury eradicated any taint of prejudice and thus assured appellee of a fair trial. The trial court also found that "the offense alluded to in questioning, carrying a weapon without a permit, is not, as a general matter, of such a heinous nature as to highly inflame the passion or prejudice of the jury." Slip opinion at 4. Appellee was sentenced to 5 to 10 years imprisonment on the attempted homicide and aggravated assault charges; 1 to 2 years imprisonment, to be served concurrently, on the recklessly endangering charge and 1 to 5 years imprisonment, to be served consecutively, on the possession of an instrument of crime charge.
Appellee then appealed to Superior Court.*fn2 By memorandum opinion filed May 3, 1985, appellee's judgment of sentence was vacated and the case remanded for a new trial. Commonwealth v. Morris, 345 Pa. Super. 619, 496 A.2d 853 (1985) [table].*fn3 The Superior Court found the
reference to alleged unrelated criminal activity engaged in by appellee to be prejudicial and that, "there is no doubt that the offensive testimony was elicited deliberately. The curative instructions, although prompt, could not overcome the prejudice." Mem. op. at 5. This Court granted the Commonwealth's petition for allowance of appeal and we now reverse.
During cross-examination of appellee, appellee testified that he had "all types of guns,"*fn4 that he was a gun collector and that all of his guns were in the Bahamas. Upon further questioning, appellee admitted that he owned approximately six .38 caliber guns (the caliber used to shoot the victim), that he did, in fact, have approximately three different guns in the United States -- a .38, a .44, and a .41 Magnum and, that he had a gun "for protection" at the liquor store, where he worked, in New Jersey. During the course of cross-examination of appellee, the following exchange, which is the focus of this case, took place:
BY MR. GOLDMAN [for the Commonwealth]:
Q Are you licensed in the United States to ...