stating that “[t]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are [] factors to be considered in determining whether a mistrial is necessary.”
How later courts described this case
- stating that “[t]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are [] factors to be considered in determining whether a mistrial is necessary.”
- stating the “nature of the reference and whether the remark was intentionally elicited by the - 28 - J-A03006-21 & J-A03007-21 Commonwealth are [] factors to be considered in determining whether a mistrial is necessary.” (citation omitted)
- stating that “an immediate curative instruction to the jury may alleviate the harm which would otherwise result from reference to prior criminal conduct.”
- reversing conviction for conspiracy to commit third degree murder and conspiracy to commit aggravated assault in the absence of evidence that co-felon shared criminal intent to commit violent attack
Written by the judges who cited it.
The opinion
*448 WIEAND, Judge,
concurring:
I concur. In my judgment, however, the intention of the legislature in adopting 18 Pa.C.S. § 6104 was clear. The trial court was of the same opinion. Despite expressed misgivings, the trial court in this case charged the jury almost precisely as the legislature had provided.
I agree with the majority, for the reasons which it has so well expressed, that the trial court’s jury instruction deprived appellant of a fair trial. Having wrestled with and tried to understand the statutory provision on this and numerous prior occasions, however, I am persuaded that to the extent it supports a jury instruction such as was given in this case, the statute is arbitrary, irrational and unconstitutional. Therefore, I would so hold. By taking this step, we might well be able to prevent trial courts in the future from falling into the same error which the statute caused in this case.