The opinion
*455 POPOVICH, Judge,
dissenting:
Today, the majority serves notice on all defense attorneys that failure to interpose, at the very least, an objection to any remark by a prosecutor merely associating a defendant with someone of a different race is tantamount to being ineffective. In particular, the majority states that because “the prosecutor had appealed to the possible racial prejudice of the jurors” by making “improper reference” to appellant’s wife’s race, “[trial] counsel was ineffective in not at least having made objection to the prosecutor’s tactics[.]” (Majority Opinion at 698) I cannot subscribe to such a view. Here, disclosure of appellant’s “association” with a member of a different race (in the context of a common law marriage) is not so prejudicial, e.g., as the commission of a crime, that its mere mention at trial warrants entry of an objection by counsel, the absence of which renders counsel ineffective. See, e.g., Commonwealth v. Truitt, 369 Pa. 72 , 85 A.2d 425 (1951) (Justice Stern’s Concurring Opinion).
More importantly, however, I take issue with the majority’s conclusionary statement that because the prosecution’s identification of the common law wife (who is white) of the appellant (who is black) during the course of the trial leads inexorably to the creation of an atmosphere “which ... could be embarrassing and prejudicial to appellant and would divert the jury’s attention away from their duty of weighing the evidence impartially[,]” a new trial is necessary. (Majority Opinion at 698)
The fact that counsel fails to object to an irrelevant remark made at trial, regardless of the source, does not justify the enunciation of what this writer considers in the instant case to be a per se rule by the majority granting a new trial in what it considers to be “racially sensitive” circumstances. The reason being, I do not agree that such is the case here. Cf. United States v. Swinehart, 617 F.2d 336 (3d Cir.1980) (new trial awarded if the defendant shows that he was prejudiced by the prosecutor’s comments). As was stated by our own Supreme Court:
*456 “... [W]here the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its ‘unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ The effect of such remarks depends upon the atmosphere of the trial, and the proper action to be taken is within the discretion of the trial court.” (Emphasis added) (Citations omitted) Commonwealth v. Jarvis, 482 Pa. 598, 605 , 394 A.2d 483, 487 (1978), quoting Commonwealth v. Stolzfus, 462 Pa. 43, 61 , 337 A.2d 873, 882 (1975). Accord Commonwealth v. Olivencia, 265 Pa.Super. 439 , 402 A.2d 519 (1979) (SPAETH, J., dissenting on other grounds).
In the instant case, no such prejudice existed. To so find would be an acknowledgement of a deep-seated tendency on the part of the jury “to punish, not because [the appellant] is guilty this time, but because he is a bad man [for having an interracial (marriage) relationship] and may as well be condemned now that he is caught____” Commonwealth v. Truitt, supra, 369 Pa. at 81 , 85 A.2d at 429 .
Although the series of questions initiated by the prosecutor attendant to the identification of the appellant’s wife in-court may have had no probative value, I cannot agree with the majority that “in our society today there are those in whom interracial relationships arouse extreme prejudicial feelings,” such that “the improper reference to appellant’s wife ... [converted] a racially neutral case[ ]” into one which was racially sensitive. (Majority Opinion at 697 & 698); see Rosales-Lopez v. United States, 451 U.S. 182, 190 , 101 S.Ct. 1629, 1635 , 68 L.Ed.2d 22, 29 (1981) (“There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups.”). If such were not the case, carrying such reasoning to its logical end, we would have to find that in those situations in which information was produced at trial linking the accused with a religious, political or ethnic group would per se transpose *457 the case “from one of [religious, political or ethnic] neutrality to one which was [religiously, politically or ethnically] sensitive.” Ergo, if counsel failed to interject an objection to such information he would be labelled ineffective, and to remedy the misfeasance, if conviction occurred, a new trial would have to be granted. With such result, I cannot agree. See Ristaino v. Ross, 424 U.S. 589 , 596 n. 8, 96 S.Ct. 1017 , 1021 n. 8, 47 L.Ed.2d 258 , 264 n. 8 (1976) (“In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption—as a per se rule—that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion. See Connors v. United States, 158 U.S. 408, 415 , 15 S.Ct. 951, 953 , 39 L.Ed. 1033 (1895).”).
When examining the factual circumstances instantly, this case is truly sui generis. For example, cases have been categorized as racially sensitive where: 1) the remark attributed a general characteristic to a sector of the population without regard to the individual circumstances presented in a given case, Commonwealth v. Tirado, 473 Pa. 468 , 375 A.2d 336 (1977); or 2) the potentially prejudicial impact of the affiliation was central to the criminal episode, i.e., both the accused and the victim were of different races and the sexual nature of the crime involved would have been emphasized unduly by high-lighting this fact at trial. See Commonwealth v. Christian, 480 Pa. 131 , 389 A.2d 545 (1978) and Commonwealth v. Brown, 464 Pa. 625 , 347 A.2d 716 (1975). To the contrary, the facts involved in the case before us are the antithesis of those found in the preceding cases, e.g.:
1) The prosecution’s remark did not ascribe to appellant any general characteristic peculiar to a certain ethnic, racial, or religious background; and
2) Both appellant and the victim were of the same race, and any racial differences concerned matters which were not germane to the evidence surrounding the criminal episode.
*458 This jurist finds that the prosecutor’s probing of the accused on his marital status was not so egregious that its “ ‘unavoidable effect [was] ... to prejudice the jury, forming in their minds fixed bias and hostility toward the [appellant], so that they could not weigh the evidence and render a true verdict.’ ” Commonwealth v. Jarvis, supra, 482 Pa. at 605 , 394 A.2d at 487 . Thus, I cannot agree that a new trial is warranted to rectify the prosecution’s actions. Moreover, the inquiry was not, in this writer’s mind, equivalent to those remarks which have been condemned traditionally as “blatantly appealing to the prejudice, bias, and passions of the jury.” Commonwealth v. Olivencia, supra, 265 Pa.Super. at 451 , 402 A.2d at 525 . Accordingly, appellant’s trial counsel was not ineffective for failing to object to the prosecutor’s line of questioning. Hence, based on the particular facts of this case, I must register my dissent to the awarding of a new trial.
HESTER, J., joins in this dissenting opinion.
McEWEN, J., concurs in dissenting opinion.