"since [appellant] failed to do anything more than object and request to the striking of testimony in some instances, he received all the relief requested and cannot now seek further relief."
How later courts described this case
- "since [appellant] failed to do anything more than object and request to the striking of testimony in some instances, he received all the relief requested and cannot now seek further relief."
- "since [appellant] failed to do anything *1011more than object and request to the striking of testimony in some instances, he received all the relief requested and cannot now seek further relief."
- “since [appellant] failed to do anything more than object and request the striking of testimony in some instances, he received all the relief requested and cannot now seek further relief.”
Written by the judges who cited it.
The opinion
NIX, Justice,
concurring and dissenting.
I agree with the majority’s disposition of appellant’s sufficiency of the evidence claim and join in the conclusion that the evidence does not support a conviction of possessing prohibited offensive weapons as defined in 18 Pa.C.S.A. § 908. I do not share the view of my brethren that a new trial should be allowed on those charges for which the *557 Commonwealth did provide sufficient evidence to establish guilt.
The specific reason assigned for the reversal was a series of questions by the assistant district attorney addressed to the defendant relating to an individual by the name of Robert Blair. 1 Robert Blair was allegedly a romantic partner of Rene Williams, the alibi witness for the defense. Ms. Williams was the sister of the victim, thus her testimony for the defense, on its face, could have been most compelling. It was therefore incumbent upon the prosecution to establish a basis for challenging her credibility. While the Commonwealth’s attorney’s attempt to attack this witness’s testimony may have been inartfully done, I do not believe it constituted the type of grievous error that would necessitate a new trial.
The prosecuting attorney asked the witness, “And you know that Robert Blair is in the drug business, don’t you? Don’t you?” In response the appellant replied, “No, I don’t.” Although I would agree that it was naive for counsel to believe that he could establish this fact from that witness in this manner, any purported harm was negated by the court’s ruling sustaining the objection to the question and instructing the jury to disregard the question and answer. 2 Under the circumstances, I do not believe that this series of ques *558 tions and responses had the “unavoidable effect” of prejudicing the jury and preventing an objective verdict based upon the properly admitted evidence. See Commonwealth v. Joyner, 469 Pa. 333 , 365 A.2d 1233 (1976); Commonwealth v. Goosby, 450 Pa. 609 , 301 A.2d 673 (1973); Commonwealth v. Simon, 432 Pa. 386 , 248 A.2d 289 (1968).
Recognizing the weakness of it’s position, the Majority attempts to bolster its view by suggesting that the references to appellant’s religious affiliations should be considered in weighing the prejudice of this testimony. Any person in this state and in this nation is constitutionally guaranteed the freedom of selecting the religious belief of his or her choice. See U.S.C.A.Const., Amend. 1; Pa.Const., art. 1, § 3. This is a fundamental tenet of this nation and any attempt to undermine it cannot be condoned. Thus when one requests that a mistrial should be declared where the prosecution improperly uses a religious affiliation as a basis for attacking the credibility of a witness who is a member of the particular faith or sect identified, that request should be granted. Commonwealth v. Mimms, 477 Pa. 553 , 385 A.2d 334 (1978). 3
However, unlike the situation presented in Mimms , here the court sustained the objections to this questioning and the defense’s request to strike the testimony was granted. There was no application for the withdrawal of a juror in reference to this complaint, therefore appellant is not entitled to a relief which he did not seek. Commonwealth v. Hill, 479 Pa. 346 , 388 A.2d 689 (1978); Commonwealth v. Brown, 467 Pa. 512 , 359 A.2d 393 (1976); Commonwealth v. Maloney, 469 Pa. 342 , 365 A.2d 1237 (1976); Commonwealth v. Glenn, 459 Pa. 545 , 330 A.2d 535 (1974). Nor should the unrequested relief be given under the subterfuge of evaluating an unrelated claim by finding a cumulative effect which requires reversal. I therefore dissent from that part of the mandate which reverses the judgment of conviction of mur *559 der of the first degree, possessing instruments of crime— generally, and criminal conspiracy and awards a new trial.
. The majority opinion seeks an unwarranted inference from the fact that these inquiries were posed as “leading questions”. It is entirely proper for questions on cross-examination to be so framed. Accordingly, it is well settled that on cross-examination of an opponent’s witness, ordinarily no question can be improper as “leading”. III Wigmore, Evidence, § 773 (3d ed. 1940). See Fed.R.Ev. 611(c). Cf. Rogan Estate, 404 Pa. 205, 214, 171 A.2d 177, 181 (1961) (civil case; leading questions may be asked of opponent’s witness on cross-examination).
. The majority emphasizes that the prosecution had not established as a motive for the killing “drug trafficking” in their case in chief. Here the majority exposes its naivete in failing to comprehend the difficulty in establishing such a fact. According to the Commonwealth, this was a planned execution and therefore there was a reason for the decision that the victim should have been killed. Under our law the prosecution need not establish motive, yet this fact does not prevent it from introducing motive from whatever source it can do so.
. In the Mimms case this writer was the first to identify the Commonwealth’s error in referring to the defendant’s Muslim faith. Commonwealth v. Mimms, 471 Pa. 546, 553 ; 370 A.2d 1157, 1161 (1977) (concurring opinion of Nix, J., joined by O’Brien, J.)