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COMMONWEALTH PENNSYLVANIA v. HOWARD G. KRAMER. COMMONWEALTH PENNSYLVANIA (11/28/89)

filed: November 28, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HOWARD G. KRAMER. COMMONWEALTH OF PENNSYLVANIA, V. HOWARD G. KRAMER, APPELLANT



Appeal from Order Entered Docketed November 16, 1988, in the Court of common Pleas of Montgomery County, Criminal No. 39-88.

COUNSEL

Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellant (at 3371) and appellee (at 3528).

Marc R. Steinberg, Lansdale, for appellant (at 3528) and appellee (at 3371).

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Olszewski

[ 389 Pa. Super. Page 138]

Howard Kramer was found guilty of rape, indecent assault, and simple assault. He filed post-trial motions in arrest of judgment and for new trial. The motion in arrest of judgment was denied, but the motion for new trial was granted on the ground that the cumulative effect of three of the asserted errors deprived the defendant of a fair and impartial trial. The trial court rejected Kramer's other arguments. The Commonwealth appeals the grant of new trial. Kramer cross-appeals the trial court's rejection of his other arguments. We agree with the decision of the trial court; accordingly, we affirm the judgment and deny the cross-appeal.

1. During trial of this case, several irregularities occurred. None of these incidents were so prejudicial that they could not be cured by appropriate instructions to the jury. Nevertheless, the trial court found that the cumulative

[ 389 Pa. Super. Page 139]

    effect of these errors prejudiced the jury against the defendant, thereby depriving him of a fair and impartial trial. The trial court granted a new trial on this ground.

A trial court has broad discretion in deciding whether to grant a motion for new trial, and the court's decision will not be disturbed unless the court abuses its discretion. Commonwealth v. Bowermaster, 297 Pa. Super. 444, 444 A.2d 115 (1982). In this case, the trial court's decision to grant a new trial was within its discretion.

The trial court noticed three significant events: an expert witness's statement regarding the victim's credibility, the victim's unsolicited remarks which suggested prior sexual activity between the victim and the defendant, and a prosecutor's question which violated the defendant's fifth amendment rights. The trial court denied motions for mistrial at each instance, finding that cautionary instructions would cure the error. Upon considering the defendant's motion for new trial, the court found that the cumulative effect of these three errors deprived the defendant of a fair and impartial trial.

The issue of cumulative effect of errors has not been addressed specifically by this Court. In the context of prosecutorial misconduct, this Court has found that repeated improper remarks may constitute error, even if isolated remarks do not. See, e.g., Commonwealth v. Hickman, 319 Pa. Super. 261, 466 A.2d 148 (1983); Commonwealth v. Baranyai, 296 Pa. Super. 342, 442 A.2d 800 (1982). We see no reason not to apply this rule to other types of error.

Where, as here, the trial court determines that the cumulative effect of errors during trial deprived the defendant of a fair and impartial trial, the trial court is within its discretion in ordering a new trial. The trial court was in the best position to determine whether the trial was fair. We are not inclined to dispute the ...


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