Petition — McKendrick v. Pennsylvania

Office-Supreme Court, US. —

FILED

FEB 18 1983

ALEXANDER L. STEVAS,

CLERK

82-1656

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

CAROLYN MC KENDRICK

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA

Respondent

PETITION FOR WRIT OF CERTIORARI ON

APPEAL FROM THE SUPREME COURT OF

PENNSYLVANIA

Stephen H. Serotu, Esquire

Suite 400

21 S. 12th Street

Phila., PA 19107

564-5959

QUESTIONS PRESENTED

Whether reference made numerous times

‘during direct testimony of a Prosecution

witness to his taking a lie detector test

and the results of said test in the absence

of a proper curative instruction by the

trial judge, is violative of the Petitioner's

Sixth Amendment right to be confronted with

the witnesses against him.

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Question Presented

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Ceritificate of Service

Page

Appendix

2

TABLE OF CITATIONS

Page

California v. Green, 299 U.S. 149 10-11

90 S. Ct. 1930 (1970)

Commonwealth v. Banmiller, 194 Pa. 8

Super 448, 169 A.2d 347 (1961)

Commonwealth v. Cain, 471 Pa. 140, 8

369 A.2d 1234 (1977)

8

Commonwealth v. Camm, 443 Pa. 253

277 A.2d 325 (1971)

Commonwealth v. Gee, 467 Pa. 123, 4

354 A.2d 875 (1976)

Commonwealth v. Johnson, 441 Pa. 237, 13

272 A.2d 467 (1971)

Commonwealth v. McKinley, 181 Pa. Super 8

610, 123 A.2d 735 (1956)

Commonwealth v. Pfender, Pa. > 484-5

A.2d 791 (1980)

Davis v. Alaska, » 94 §.Ct. 1105 12

(1974)

Frye v. United States, 544 App. D.C. 8

46, 293 F. 1013 (1923)

.

TABLE OF CITATIONS, continued

Marks v. United States, 260 F.2d 377

(10th Cir. 1958)

People v. Baney, 28 lll. 2d 505, 192

N.E. 2d 920 (1963)

Pointer v. Texas, 380 U.S.

1065 (1965)

400, 85 S. Ct.

Sodavy v. Fay, 189 F. Supp 150 (SD.N.Y. 1960)

State v. Temple, 485 P.2d

93 (1971)

United States v. Jorgenson, 451 F.2d 516

(10th Cir. 1971) cert.

United States v. Ridling,

(E.D. Mich. 1972)

A434.

den. 405 U.S.

350 F. Supp. 90,95

13

12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

CAROLYN MC KENDRICK

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA |

Respondent

PETITION FOR WRIT OF CERTIORARI ON

APPEAL FROM THE SUPREME COURT OF

PENNSYLVANIA

THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES, AND THE ASSOCIATE

JUSTICES OF THE UNITED STATES SUPREME

COURT:

The Petitioner, CAROLYN MC KENDRICK,

prays that a Writ of Certiorari issue to

review the judgment of the Supreme Court

of Pennsylvania entered in the above en-

titled case on December 20, 1982.

CITATION TO OPINIONS BELOW

The opinion of the Court of Common

Pleas appears in the appendix, and is un-

reported. There is no opinion of the

Supreme Court of Pennsylvania but its

judgment order appears in the Appendix

and is unreported.

JURISDICTION

The judgment of the Supreme Court

of Pennsylvania was entered on December

20, 1982. The jursidction of this Court

is invoked under 28 U.S.C. section 1257 (3).

QUESTIONS PRESENTED

Whether reference made numerous times

during direct testimony of a Prosecution

witness to his taking a lie detector test

ard the results of said test in the absence

of a proper curative instruction by the

trial judge, is violative of the Petitioner's

Sixth Amendment right to be confronted with

the witnesses against him.

2.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United

States Constitution: In all criminal

prosecutions, the accused shall enjoy

the right to a speedy and public trial,

by an impartial jury of the state and

district. Wherein the crime shall have

been committed, which district shall

have been previously ascertained by law,

and to be informed of the nature and

cause of the accusation, to be con-

fronted with the witnesses against him,

to have compulsory process for obtaining

witnesses in his favor, and to have the

Assistance of Counsel for his defense.

STATEMENT OF THE CASE

The Petitioner in this case is Carolyn

Mc Kendrick. The Respondent is the Common-

wealth of Pennsylvania.

This Petition for certiorari arises out

of the conviction of Petitioner, Carolyn

Mc Kendrick, for third degree murder and a

related weapons offense following a jury trial

in the Court of Common Pleas, Philadelphia

County, the Honorable Robert A. Latrone,

presiding.

The facts surrounding this conviction

begin on May 26, 1977. On that date, a

shooting occurred at 2710 Federal Street,

Philadelphia, Pennsylvania, the petitioner's

residence. The decedent, Tyrone Everett, who

was the defendant's boyfriend, was a part-time

resident at her house. They had been "going

together" for approximately 1 1/2 years at the

time of his death. Their relationship had been

fraught with beatings and violencé and several

witnesses, both Commonwealth and defense, testi-

fied as to the severity of the prior beatings

of defendant by decedent. Ms. McKendrick who

admitted shooting decedent, pled self-defense

to the killing.

In addition to decedent, two other persons

eyewitnessed the actual event; Tyrone Price, a

Commonwealth witness, and the Petitioner, Carolyn

McKendrick who testified in her own defense.

as

The issue presented before Your Honorable

Court arose during the course of Mr. Price's

direct testimony after Mr. Price had told

the jury his version of the shooting, which

was very damaging to the Petitioner's plea for

self defense. The eyewitness testimony was

obviously very damaging to Ms. McKendrick's

plea of self-defense and whether the jury be-

lieved Mr. Price or Ms. McKendrick was crucial

to the outcome of the trial.

After the damaging testimony, the Com-

monwealth questioned its witness with regard

to several inconsistent prior statements.

Although Mr. Price had admitted being present

and witnessing the shooting at trial, the

Commonwealth read a statement taken on May 27,

1977, approximately six months prior to the

trial, whereby Mr. Price denied any knowledge

of how the death of decedent had occurrea.

When asked by the Commonwealth if the state-

ment was true, Mr. Price replied "The machine

says I wasn't telling the truth". An objection

and motion for mistrial were made by the de-

fendant and thereafter denied by the Court.

Thereafter, the prosecutor asked Mr. Price

to identify Exhibit C-35 and the witness stated

that the statement was "the second test I

took". Again an objection was made and de-

fense counsel requested that the testimony

be stricken. Although the objection was

sustained the jury was not instructed to

strike it from their memory. The third in-

consistent statement was then read to the

jury. In this statement the witness ad-

mitted being present at the time of the

shooting, but denied knowledge of drugs on

the premises when asked if the statement was

S|

true, the witness replied "No. The machine

said it was untrue". Once again, the Court

denied defense counsel's request for a mis-

trial and the Court sua sponte instructed

the jury as follows.

"The obvious reference - obviously

the machine would be a lie detector

test. Your are to disregard any

reference to a lie-detector test.

You judge this witness' credibility

or believability or lack of believa-

bility, which is in your sole dis-

cretion, from what you are hearing

and watching as he is testifying.

You are the truth determiners, not

any testing.

As to the reference by the witness,

the witness doesn't know the ad-

missible from the inadmissible.

The witness is as you all are, a

layman. Don't derive any preju-

dicial reference as the result of

his testimony."

After the close of the Commonwealth's

case, Ms. McKendrick took the stand and told

her version of what had transpired. After

hearing both versions, defendant was con-

victed of third degree murder and there-

after sentenced to 5-10 years imprisonment

to run concurrently with a lesser weapons

offense. Post-trial motions involving this

issue presented for writ of certiorari were

rasied and denied by the Lower Court. An

appeal was taken to the Supreme Court of

Pennsylvania. Said appeal was denied on

December 20, 1982.

6.

REASONS FOR GRANTING THE WRIT

It is submitted before Your Honorable

Court that the trial Court erred in denying

the Petitioner's motions for mistrial and

in informing the jury that the test Mr.

Price referred to was, in fact, a polygraph

examination. Once informed that Mr. Price's

version of what had transpired has been scru-

tinized by a lie detector test, the jury

should have been withdrawn, at defendant's

request.

The trial judge's sua sponte instruction

was ineffective to cure the prejudicial error

that had resulted and moreover, served to

buttress this error. The judge's sua sponte

instruction succeeded in bringing home to

the jury the nature of "this machine" and its

purpose. As a "lie detector", something a

layman juror probably would not have compre-

hended but for this instruction. The instruc-

tion noted the purpose and function of the

machine, and further noted that the jury

should not have heard such testimony. Most

importantly, however the instruction failed

to mention why such results were and sti

are inadmissible in evidence.

In Pennsylvania, it is well established

that the result of a lie detector test are

inadmissible when offered into evidence for

the purpose of establishing the guilt or inno-

cence of one accused of a crime, regardless

of whether the accused or the prosecutor seeks

7 .

its introduction. Commonwealth v. McKinley,

181, Pa. Super 610, 123 A.2d 735 (1956).

The rationale for this exclusion is that

the lie detector has not yet attained scien-

tific acceptance as a reliable and accurate

means of ascertaining truth or deception.

McKinley, supra, Commonwealth v. Pfender,

Pa. , 421 A.2d 791 (1980),

Commonwealth v. Gee, 467 Pa. 123, 354 A.2d

875 (1976). Thus the Courts of this Common-

wealth have consistently refused to recognize

the scientific accuracy or validity of such

a test. Commonwealth v. Cain, 471 Pa. 140,

369 A.2d 1234 (1977).

If the results of a lie detector test

are admitted into evidence, reversible error

is committed and a new trial must be granted.

Commonwealth v. Banmiller, 194 Pa. Super. 448,

° . Even if the results of

a lie detector test are impliedly conveyed to

the jury, the damage cannot be cured by a

cautionary instruction. Commonwealth v. Camm,

443 Pa. 253, 277 A.2d 325 (1971).

The Commonwealth of Pennsylvania is not

alone in its decision to exclude references

to polygraph examinations at trial. See

Marks v. United States, 260 F.2d 377 (10th

Cir. 1958). Frye v. United States, 544 App.

D.C. 46, 293 F.1013 (1923), v

189 F. Supp. 150 (S.D.N.Y. 1960), People v.

Baney, 28 111.2d 505, 192 N.E. 2d 920 (1963),

State v. Bohner, 210 Wisc. 651, 246 N.W. 314

(1933). A Court must always be alert to pre-

vent the use of evidence that has marginal

8.

utility in the process of truth seeking if

it is of such a nature as to impress the

jury. United States v. Ridling, 350, F. Supp.

90, 95 (E.D. Mich. 1972)

Thus, in the case at bar, grave prejudice

to the Petitioner resulted when the jury, know-

ing it was privileged to hear something it

shouldn't have, was never informed that the

test's unreliability was what should have

kept those results from them. The obvious

implication to the jury that the witness

failed the tests was that eventially he

told the truth, passed the tests, and gave

consistent statements which were also admitted

over defendant's objection on redirect. Of

course, these later statements were consistent

with the witness' testimony at trial.

It is Petitioner's contention that the

inadmissible reference to the results of “he

lie detector test by the Commonwealth's

only eyewitness was violativeof the confrontation

clause of the Sixth Amendment. The Sixth Amend-

ment provides in pertinent part that:

"In all criminal prosecutions the

accused shall enjoy the right....

to be confronted with the witness

against him."

This right was first made applicable

to the States in the case of Pointer v.

Texas, 380 U.S. 400, 85 S.Ct. 1065 (1965).

Although the intended purpose of this right

is not entirely clear, the Supreme Court

9.

opinion in the case of California vs. Green,

399 U.S. 149, 90 S.Ct.1930 (1970) sheds

some light on the purpose behind the adoption

of this protection. In Green, the Court

wrote :

"The particular vice which gave im-

petus to the confrontation [clause]

was the practive of trying defendant

on ‘evidence’ which consisted solely

of ex parte affidavits or depositions

secured by the examining magistrates,

thus denying the defendant the oppor-

tunity to challenge his accuser in a

face-to-face encounter in front of the

trier of fact." Id. 90 S.Ct. at 1934.

The Supreme Court in Green went on to

state that the right of confrontation serves

three purposes. First, it insures that state-

ments made by the witnesses are under oath.

Secondly, it forces the witness to submit to

cross-examination. Lastly, it permits the

jury to observe the demeanor of the witness

which presumably will and in assessing

credibility. Id.

In the case currently presented for

Writ of Certiorari, the Petitioner submits

that she denied an opportunity to effectively

"confront" the witness against her at her trial

Insofar as the trial judge denied all of de-

fense counsel's motionf for a mistrial fol-

lowing damaging references by the chief pro-

secution witness to polygraph examinations,

as well as the fact that the Lower Court

10.

issued a cautionary instruction to disregard

the eyewitness' testimony sua sponte to the

jury which clarified the purpose and function

of the lie detector machine, Petitioner

was estopped from fully cross-examining the

witness.

By the trial judge instructing the jury

to disre¢rrd any reference to a lie-detector

test, he closed the door to any further ques-

tioning by the Petitioner of the witness'

testimony. Consequently, the Petitioner

did not receive the protection of the con-

frontation clause enunciated in California

v. Green. The trial judge, in his cautionary

instruction to the jury, essentially forbade

any further examination into the area concern-

ing Mr. Price's polygraph examination. Thus,

no opportunity was afforded the Petitioner

at trial to ascertain whether the polygraph

was taken by Mr. Price under any oath. No

cross-examination could thus be conducted as

to the actual lie detector testing conditions,

where it was done, by whom it was conducted,

and the certification of results. Moreover

the jury as layman probably reasoned that if

Mr. Price failed the polygraph test, prior to

trial when he gave different statements than

those proffered into evidence at trial, then

especially, his statements at trial were the

truth. Due to the inability of defense counsel

to question him on this alleged polygraph ex-

amination, the jury was denied an opportunity

to observe the demeanor of the witness and

assess his credibility as to the veracity of

his allegations regarding the lie detector

test.

ll.

Cross-examination is the principal means

by which the believability of a witness and

the truth of his testimony are tested. Davis

v. Alaska, U.S. , 94 S.Ct. 1105 (1974)

-++-{The] cross-examiner is permitted to delve

into the witness' story to test the witness'

perceptions and memory.

Pennsylvania case law mandated that the

trial judge grant a new trial once reference

was made to the polygraph machine insofar as

an inference was made that an actual test

certified the truth of testimony implicating

the accused, when in fact that evidence

was unreliable. (See Commonwealth v. Johnson,

441 Pa. 237, 272 A.2d 467 (1971).

However, in denying the motion for mistrial

and giving a cautionary instruction, the

Trial Judge erroneously limited the scope of

Petitioner's cross-examination, denying her

a valuable Sixth Amendment right, despite

the fact that the prosecution had ‘bpened the

door" on direct for such cross-examination.

The case law is clear that a limitation which

prevents cross-examination in an area, which

is properly subject to cross-examination,

does constitute reversible error. United

States v. Jorgenson, 451 F.2d 516, 519-20

(10th Cir. 1971), cert den. 405 U.S. 922

92 S. Ct. 959. The characteristic feature in

this situation to the complete denial of

access to an area which is properly the

subject of cross-examination. Id. Unless

an accused is afforded reasonable latitude

in examining witnesses against him, he is

a7.

effectively denied his right of confronta-

tion. State v. Temple, 485, P.2d 93,96

(1971).

Ms. Mc Kendrick was thus denied her

Sixth Amendment right to confront all wit-

nesses against her, insofar as she was com-

pletely denied the opportunity to cross-

examine Tyrone Price as to his polygraph

examination; this examination was a proper

subject for inquiry because the Prosecution

had “opened the door" for said inquiry on

direct examination. She was most assuredly

prejudiced by this denial as Mr. Price was

the only other eyewitness to the crime,

besides herself.

i

CONCLUSION

For these reasons, a Writ of Certiorari

should issue to review the judgment of the

Supreme Court of Pennsylvania.

Respectfully submitted,

. “

— ie

‘

Fae é . .

/

4? ben OY at er

ee ht MR + EE

STEPHEN H. SEROTA, Esquire

Counsel for Petitioner

14.

CERTIFICATE OF SERVICE

I hereby certify that on this day of

February, 1983, three copies of the

Petition for Writ of Certiorari were hand-

delivered to the Honorable Robert A. Latrone

and all other parties that are required to

be served.

| /

Yl A --

tint H. “Serota, Esquire

Suite 400

21S. 12th Street

Phila., PA 19107

Fenruary 18, 1983

15.

oo ee ee ee — ee we

Tt’! THE COURT OF CHK’? PLES '

FIRST JNDICIAL NISTNTC’’ CF PrINSYLVAIIA

PILANELPUTA COIMITY

TPTAL OTIVISTON © CREA S8CFIN:

COMMONVEALTH OF PEINISYLVANISL SUYREME COUR. NO, 256

Vv. JN UARY, 1979

/

CAPOLY'! McKENDRICK Apoesls from the Judgnents of

Hentence ot the Court uf

common Pleas of Fhiladelonia

June Term, 1977, Nos. 1206, 1208

SIITTERED: June 26, 1979

OPINION

LATROHE, J. FILED: JANUARY 18, 1982

Caroly: Mchendrick, the defendant, wou charged with a

criminal homicide and related veapons offenses resulting from her

“loveenest" shooting of Tyrone Fverett, a South Philadclphia

pugilist of national renown, in the seeand floor rront bedroon cf

her residence at 2710 Federal Street here in Philadelphia at abouc

11:00 w'clock a.m. on May 26, 1977. followiny a trial before this

Court sitting with a jury, 'MeKendrick was convicted of murder «cf

the third degree and possecsion of an tnstrument of crime. A fury

verdict of not guilty was returned un a separate criminal informe

tion charging possession of a controlled substance with intent to

manufacture or deliver which resulted from police confiscation of

tue bundles of heroin at the Heaundrick masidence shortly efter

_the fatal shooting. Prior to trinl, without vcbjection from

ole

defense counsel, the Commonwealth elected not to proceed on a

fourth and last criminal information covering the charge of in-

voluntary manslaughter. Since this Court nol prossed this charge

of involuntary manslaughter on the Commonwealth's motion follow-

ing the trial, it is now reminded that it is forever barred from

future prosecution of this charge which arose from the same con-

duct or resulted from the identical criminal episode or transact-

ion. Commonwealth v. Campana, 452 Pa. 232, 304 A.2d 432 (1973)

(Campana I) and Canpana II, 455 Pa. 622, 314 A.2d 854 (1974);

Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976);

Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978);

Commonwealth v. Edwards, 264 Pa. Super. 223, 399 A.2d 747 (1979);

Section 110 of the Crimes Code, 18 Pa.C.S.A. 6110 (effective

June 6, 1973).

Posteverdict motions were filed, argucd, and denied.

This Court imposed concurrent sentcnces of 5 to 10 years and

2-1/2 to 5 years for MNcKendrick's convictions of murder of the

third degree and possession of an instrument of crime. The

instant appeals are from these judgments of sentence. In compli-

ance with the requirements of Pa.R.A.P. 906(2), this Court has

received copies of. ilotices of Appeal from these sentences to both

the Supreme and Superior Courts of Pennsylvania. It is assumed

that defense counsel subsequently effected a consolidation of

such appeals. See, Pa.R.A.P. 513; Appellate Court Jurisdiction

Act, Act of July 31, 1970, P.L. 673, No. 223, Act. V, §503(c),

17 P.S. 6211.503(c) (1979-1980 Pocket Part.)

Despite the fact that McKendrick's attorney filed tie

required written posteverdict motions, it is submitted that only

the following designnted grounds have been presi rved for appellate

consideration by the Pennsylvania Supreme Court:

(1) that the trial Court erred in its dental of n

derense motion for a mistrial when Doris @verett, deceened's wotlher,

Lesiified ar a Connonwerelth wilness that Yiceardae ieXendrick, dufere=

daunt's husband, had made contractual agrcenents with third persens

to have the decensed killed;

(2) that che trial Vourt erred tm its denial of n

defense motion for a mistrial when Doriu Everett, deceased's

mother, also testified as a Uommonv.cal th witness that Ricardo

McKendrick, defendant's husband, had previously been incarcerated

for his conviction of criminal acts;

(3) that the trial Court erred in denying defense motions

for mistrial when Teri Price, a Commonwealth vitness, made testi-

monial references to having been administered lie detector tests

by the police during his period of custodial interrogation;

(4) that the Court committed reversible error in

allowing the Common.ealth Lo introduce cvidence of prior consist-

ent statements tade by Teri Price, % Cummonwealth witness 1°:

its case-inechie!t, -in order tu rehabilitate his credibllity 94 a

witness;

- (5S) that the trial Court erred in its denial of a

motion for mistrirl when a court cler, then presented as a

rebuttal witness for the purpose of introduction ov impenachrunt

“26

evidence concerning defendant's prior conviction for relevant

criminal acts, erroneously testified from an extract of criminal

record that the defendant had a prior conviction for the charge

of possession of a firearm with a defaced serial number;

(6) that the trial Court erred in admitting evidence of

defendant's prior convictions of the charge of recciving/stolen

goods in order to impeach her credibility as a witness;

(7) that the trial Court erred in its ruling that a .30

caliber Ruger six shooter was admissible as relevant physical

evidence, although it was not identified as the identical murder

weapon;

(8) that the trial Court erred in its ruling that Police

Officer Maroney could not offer testimony pertaining to alleged

beatings inflicted upon Christine Smalls by Tyrone Everctt, the

deceased, in order to establish that the instant killing was per-

petrated by the defendant in self-defense of her person;

(9) that the trial Court erred in ruling as inadmissible p

certain portions of defendant's hospital records which explained

her treatment for relevant personal injuries, but which likewise

contained hearsay statements to the attending physician explain-

ing how she had been injured;

(10) that the trial Court erred in denying a defense

motion for mistrial made in response to the District Attorney's

prejudicial and inflammatory comments in closing argument, "That's

no plaything. Remember the good times," since such statements

deprived the defendant of a fair and impartial trial;

(11) the trial Court erred in denial of motions for mis-

trial at various trial junctures at which the District Attorney

made prejudicial and inflammatory refcrences to defendant's well-

furnished home, wearing apparel, possession of large quantities

of clothing and shoes, and adultcrous relationship with the

deceased;

(12) that the record contained insufficient evidence to

support the defendant's convictions of the charge of murder of

the third degree and possession of an instrument of crime.?

Immediately hereafter, each of these twelve assignments

of error will be addressed and analyzed seriatim, and since all

of them are meritless, it is submitted that this Court properly

entered its Order denying post-verdict motions.

1. AS required under Pa.R.Crim.P. 1123(a), defense counsel

filed formal written post-verdict motions within the required ten-

day period aftcr jury verdict. The first three paragraphs of these

original written motions consisted of "boiler-plate” allegations

amounting to a sufficiency challenge to the evidence supporting

MNcKendrick's convictions; in toto, these motions also contained

sixteen grounds in addition to this sufficiency challenge. Thus,

the original motions contained allegations in nineteen paragraphs.

As is the common and acceptable practice here in the First Judicial

District, the closing paragraphs of these initial written motions

contained a recital that the defendant reserves the right to file

additional reasons after receipt of a copy of the notes of trial

testimony. In fact, after receiving a2 copy of the transcript of

trial testimony, defense counsel submitted "Additional Motions

For New Trial And An Arrest Of Judgment" wnich added seven additional

reasons to those already set forth in his initial written motions.

It is important to note that only twelve of the reasons

included in original and additional written post-verdict motions

were briefed and advanced by defense counsel at the time of sub-

sequently conducted oral argument. Exclusive of the cleven grounds

which were neither argued nor bricfod before it at the posteverdict

juncture, this Court considered and evaluated the remaining twelve

grounds sct forth above which had been filed in written form of

post-verdict motions. It is submitted that this Court's considcra-

tion of the remaining twelve reasons which are set forth above,

(Footnote No. 1 is continued on Page 6.)

-5-

|

ee ee ee me _-——- +e oe seen ee

I.

McKendrick's first assignment of error pertains to this

Court's refusal to grant motions for mistrial in two separate

instances in which Doris Everett, deceased's mother, while

(Footnote No.lis continued.)

exclusive of the cleven grounds wiileh were neither bricfed nor

aryued, preserves thom tor appellate review. See ,enerall

Curmonwealth v. “lair, 460 Pa. 31, 331 A.2d 213 (1975);

Cunmonwealth v. Tilton, 461 Pa. 93, 334 A.2d 643 (1975);

Commonwealth v. Terry, 462 ta. 595, 342 A.ed 92 (1975);

Cummonrwal tv ~ Fortune, 464 Pa, 367, 346 A.2d 7823 (1975);

2 seportiiv 474 Pa. 63, 376 A.2d 635 (1977);

74 Pa. 559, 379 \.2d 96 (1977);

476 Pa. 445, 393 4.%1 183 (1978);

477 Pa. 379, 333 A.2d 1257 (1978);

Somen-aa th v. Valers, 477 Pa. 490, 384 \.2d 234 (1973);

Commonwealth v. Jones, 473 Pa. 172, 386 A.2d 495 (1978);

Commonwealth v Allen, 473 Pa. 342, 336 A.2d 965 (1973);

Connenseal env. V. llitson, 482 Pu. 404, 393 A.2d 1169 (1978);

ommonvwealth v. ©, 483 Pa. 215, 395 A.2d 570 (1978);

85 Pa. 418, 402 A.2d 1032 (1979);

Twires, 485 Pa. 481, 402 A.2d 1374 (1979);

th v. tlenness 485 Pa. 647, 403 A.2d 575 (1979);

Travel 496 Pa. 194, 404 A.2d.1296 (1979);

Commonvealth v. 1 Aithardt, 269 Pa. Super. 95, 409 A.2d BL (1979);

Commonwealth Vv. ue, 360 Pa. Super. 334, 4U9 A.2d 916 (1979).

Most significantly, although the following eleven grounds were

submitted to this Court in written form as post-verdict motions,

none of them were briefed or argued before it: (1) that the trial

Court's final instructions pertaining to murder of the third dugree

and voluntary menslaughter were in error; (2) that the trial Court's

requested supplemental jury instruction’ defining malice were

incorrect; (3) that the trial Court erred in failing to specirically

charge the jury in the language sct forth in defense counsel's

subi tted points fur charge pertaining to numerous issues; (4)

thet the trial Court committed reversible errors when it sustained

the District Attorney's objections lo various renorks in de Sense

torrsel's summation to the jury; (5) that the crial Court erred

in everruling the defense demurrer to che criminal information

gerteining to the drug charges in this case; (6) that the trinl

Cvurt erred in pernitting the District Attorney Le question

Teri Price, a Commonvealth witness, concernin;; whether or met

< was ‘selling. erugs for the defendant; (7) that the testiuony of

Detective Volkmer concerning his search ai de*erdant's resideresc

nc inadmissible sitnee it arose from an irvalid search warrant

felling se alleze sufficient probable cause infornetion; (2)

thal the Court erred in allowing the District Acturney to cuecsion

the defendant ceucerning the source of her bail money in tiris

eri::inal procveding; (9) that the Court erred in allowing the

SIE

FEE

oicico

33/8

|p|

S

hy

(Tootuviea Mo. 1 is contirued on Page 7.)

-6-

testifying as a Commonwealth witness, made potentially prejudicial

references to the prior criminal record and other purported crim-

inal activity of Ricardo McKendrick, her husband.? Both of the

objected-to remarks were made during the course of Doris Everett's

direct examination by the prosecutor. [N.T. p.p. 108-114]

The first of the challenged remarks occurred when the pro-

secutor was questioning Doris Everett about her deceased son's

relationship with the defendant. The full pertinent record con-

text in which the remark was made is as follows:

"Q. And after that particular time did you

have other occasions to talk to him

about seeing Carolyn Swint McKendrick?

A. Yes, I did.

Q. Did you give him advice at that parti-

cular time about seeing Carolyn Swint

McKendrick?

A. Yes, I did.

Q. What was that advice?

(Footnote No. 1 is continued.)

District Attorney voir di questioning’ of prospective jurors

concerning capital puni ent; (10) that the admission of items

of bloodied clothing, various photographs, and the comments con-

cerning same deprived the defendant of a fair and impartial trial;

(11) that the trial Court erred in denying defense motions for

mistrial interposed to allegedly prejudicial remarks of the pros-

ecutor at various trial junctures.

Points of error which are raised in written post-verdict

motions must be briefed or argued before the trial court to be

preserved for appellate review. : ms, 476

Pa. 557, 383 A.2d e (2978); : :

389 A.2d 101 eerees & C ’ : - 576, 397

A.2d 1173 (1979); Com Mi Pa. 371, 402 A.2d 1008

(1979). Since these e even Peastae were neither briefed nor ar-

gued by defense counsel at the post-verdict stage, they are not

viable appellate issues and will not be discussed in this Opinion.

2. Although this single assignment of error, in fact, en-

compasses grounds one and two set forth at the beginning of this

Opinion as designated grounds preserved for appellate consideration,

(Footnote No. 2 continued on page 8.) -7-

A. He was going with Carol. I wouldn't

say it was two years. I would say

it was about a year and a half, not

no two years. And in between that

time I heard that her husband was in

jail.

MR. SEROTA: Objection, sir,

and move for a mistrial. ;

THE COURT: Sustain the objection.

Deny the motion. [Italics added.]"

(N.T. p. 108]

At this juncture, this Court denied defense counsel's motion

for mistrial and immediately delivered the following cautionary

instructions:

"The fact of the conviction of someone

who is not here on trial is in no way

to be a reflection on the defendant.

It is obvious that she is on trial.

You are to determine the defendant's

guilt or innocence on the basis of this

trial evidence, and do not assume the

perspective of guilt by association.

She stands here to be tried on the

merits of her own case, not because she

is related to someone that may possibly

have a criminal record. That is most

obvious to you. You are to disregard

it.”

(N.T. Pp-P- 108-109]

Upon further questioning on direct examination by the

prosecutor, Doris Everett made the second of her challenged re-

marks which appears as follows in this record:

(Footnote No. 2 is continued.)

it will be treated as one since the claims involve the same

witness and substantially similar issues require discussion

and analysis. .

"Q. Mrs. Everett, do you know the

husband of Carolyn McKendrick,

a person by the name Ricardo

McKendrick?

A. I know of him and I had him to

my house but --

Q. When did you have him to your

house?

A. When he came home.

Q. When was that?

A. I think it was in July of '76,

somewhere around that time.

Q. And in July of '76, why did

you have him at your house?

MR. SEROTA: Objection.

THE COURT: Overruled.

A. Well, from say-so, they said

that her husband had a contract

to have ue son killed. [Italics

a e . id Note p-. 109]

At this juncture, this Court once again denied defense

counsel's motion for a mistrial and delivered the following

cautionary instructions to the jury:

“Ladies and gentlemen of the jury, I

am even hesitant to repeat the remark

because, on a practical level, when

you repeat a remark it may possibly

be prejudicial and you may be worsen-

ing the problem, but I can't impart

cautionary instructions under the law

without repeating it. Those of much

more wisdom, maybe, than I have said

that you must specifically earmark

your instructions and direct them to

the remark that you are trying to remedy.

There was some reference to a contract

out. You will recall the witness had

made reference that she had heard.

There is no direct evidence other than

the general hearsay thing that she

might have heard in the neighborhood.

That in and of itself would not be

reliable.

I had previously instructed you that

the purportedor the actual criminality

of Ricardo McKendrick, the husband, is

in no way to inflame your minds against

the defendant. In plain, everyday par-

lance, maybe some of you have had the

misfortune to have members of your

family or loved ones to be convicted of

acrime. That does not mean that the

impropriety of the association or cul-

pability of criminal character should

be imposed upon you, to give you a

concrete example from everyday life.

So you are not to infer any criminal

conduct of Carolyn McKendrick with

respect to the remark made by the

witness. It is nothing to show any

connection or complicity, if such a

contract had been made, and there is

no reliable evidence to establish it,

that the defendant was in any way

part of it and in association with it,

had knowledge of it.

So you are, in effect, to ignore the

remarks as if it had never been made,

and you are to in no way cause that

remark to inflame you in a prejudi-

cial fashion against the defendant.

You are in no way to get the hint,

the inkling, or the innuendo of any

complicity of the defendant in such

conduct, to wit, a contract to kill.

Lastly, forget that the remark was

made. Erase it from your minds.”

(N.T. Pep. 113-114]

Since both challenged reinarks are quite similar in nature

and were made in a quite close time sequence in the context of

trial, it is submitted that they can both be analyzed and dis-

cussed jointly. In each instance, it is submitted that the sua

Sponte cautionary instructions from this Court served to

-10-

eradicate and expunge the potentially prejudicial impact of such

challenged remarks upon the minds of the jury.

A trial court's use of curative instructions is an approved

and encouraged practice which is normally adequate to remove the

taint of prejudicial matters that are brought to a jury's atten-

tion. Commonwealth v. Starks, 479 Pa. Sl, 387 A.2d 829 (1978).

Generally, the standards used to determine the efficacy of cau-

tionary instructions are that they be delivered promptly, that

they be specifically tied to the potentially prejudicial fact or

event, and that they be clearly and firmly worded to advise the

jury that it must disregard the prejudicial event. Commonwealth

vs Shoemaker, 240 Pa. 255, 87 A.684 (1913); onw v

Martinolich, 456 Pa. 136, 318 A.2d 680 (1974); nwealth v.

Talley, 456 Pa. 574, 318 A.2d 922 (1974); Commonwealth v. Wiggins,

231 Pa. Super. 71, 328 A.2d 520 (1974). Upon a fair appraisal in

the trial context, it is submitted that each of the cautionary

instructions delivered by this Court, at the time of each of the

challenged remarks, fully met these standards of efficacy, and

consequently, they removed the taint of prejudice from the minds

of this jury.

Further, the delivery of immediate and effective curative

instructions has been held to be an efficacious remedy to cure

the impact of sundry and various types of potentially prejudicial

events; for example, Commonwealth v. Fugmann, 330 Pa. 4, 198 A.99

(1938) (prejudicial impact of erroneously admitted evidence re-

medied by curative instructions); Commonwealth v. Senk, 412 Pa.

184, 194 A.2d 226 (1963) (emphatic curative instructions cured

«lle

prejudicial impact of inadmissible evidence concerning defendant's

prior imprisonment for unnatural sex relations); Commonwealth v.

Beach, 445 Pa. 257, 284 A.2d 792 (1971) (prejudicial effect of »

defendant's unrelated conviction cured by prompt and explicit

curative instructions); Commonwealth v. Williams, 470 Pa. 172,

368 A.2d 249 (1977) (prejudicial reference by a witness to the

defendant's unrelated use of drugs cured by curative instructions);

Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978)

(prejudicial impact concerning a question directed at defendant's

failure to call a witness remedied by curative instructions);

Commonwealth v. Tate, 458 Pa. 180, 401 A.2d 353 (1979) (prejudi-

cial reference by a witness to defendant's use of drugs cured by

curative instructions); Cf., Commonwealth v. McDuffie, 476 Pa. 321,

382 A.2d 1191 (1978) (failure of trial judge to strike and deliver

immediate curative instructions at the time of receipt of prejudi-

cial testimony from a witness warranted the grant of a new trial).

A comparative analysis of this case with the train of cases cited

Clearly discloses that the instant remarks did not surpass the

degree of potential prejudice of the types of remarks held to be

curable by cautionary instructions. Moreover, as a distinguish-

ing characteristic, the remarks in the cited cases were mostly

directed at the defendant rather than a relative of the defendant,

as occurred in this case. Thus, it is submitted that the instant

cautionary instructions accomplished their aims of curing the

potentially prejudicial impact of the remarks here challenged.

Finally, immediate and effective cautionary instructions

have been held to be efficacious in remedying the potentially

_—_—- + — ee ee a we

prejudicial impact of improper conduct or remarks by testifying

witness who are related or friendly to the victim or who are

hostile to the defendant. Commonwealth v. Dolhancryk, 273 Pa.

Super. 217, 417 A.2d 246 (1979); Also see, Commonwealth v.

Flood, 302 Pa. 190, 153A. 152 (1930); Commonwealth v. Hawkins,

448 Pa. 206, 292 A.2d 302 (1972); Commonwealth v. Glover, 446 Pa.

492, 286 A.2d 349 (1972); Commonwealth v. Evans, 465 Pa. 12, 348 A.

2d 92 (1975). In this case, the jurors had enough common sense

to comprehend that Doris Everett, the deceased's mother, would

have venomed feelings toward the defendant and anyone related

to her by either affinity or consanguinity. Further, there is

not an iota of evidence to indicate that the jurors could not

follow this Court's instructions that any possible criminal re-

cord of defendant's husband should not be imputed to her directly.

Further, the jurors were quite capable of understanding that

Doris Everett's testimonial reference to a “contract” was based

on unreliable neighborhood hearsay and that there was no evidence

connecting her to such an agreement, if it did exist. Moreover,

since McKendrick herself later took the stand and admitted that

she had fatally shot the deceased, this reference to a "contract"

made by another could not have been as prejudicial as contended

within the entire trial context. Lastly, this Court's admonition

that McKendrick, “stands here to be tried on the merits of her

own case" was clear and specific enough to be understood by every

member “of the jury.

Thus, McKendrick's first assignment of error must be rejected.

-13-

II.

McKendrick further complains that this Court erred in re-

fusing her attorney's motions for mistrial in several instances

in which Teri Price, a Commonwealth witness, testified that he

had been administered polygraph or lie detector tests during

police interrogation. A fair appraisal of this record will dis-

close that the three challenged references made by this witness

that he had submitted to polygraph examinations constituted un-

provoked, nonresponsive, and clearly unexpected answers to the

prosecutor's questioning on direct examination.

Early in his direct examination, Price was questioned about

the truthfulness of a contradictory statement he gave the police

and answered, "The machine says I wasn't telling the truth." At

tae

this point, this Court denied a defense motion for mistrial.

[N.T. p.p. 478-479)

Shortly thereafter, upon being presented a copy of a second

inconsistent written statement taken by the police, Price abort-

ively identified this statement by stating, “The second—test I

took." At this pgm the defense objection was sustained.

—

(N.T. p.p. 482-483] The 7 Fecord discloses that defense counsel

did not make a motion for mistrial. A failure to request a mis-

trial even in trial circumstances where a defense objection is,

in fact, sustained to potentially prejudicial trial occurrences

means that such an issue is not preserved for appellate review.

Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979). At

the time of the happening of a possibly prejudicial event during

the course of adversary trial proceedings, a defendant is only

-14-

OM OO ee we ee o- ~ * we Td ° «© -

entitled to receive that relief which his attorney has requested

from the court. Commonwealth v. Glenn, 459 Pa. 545, 330 A.2d

535 (1974); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393

(1976); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976);

Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 690 (1978); Pa.R.Crim.P.

1118. Here, since defense counsel merely interposed an objection

which was sustained and did not interpose a motion for mistrial,

it is quite evident that, in this instance, he received only that

relief requested. Consequently, this specific aspect of this

assignment is waived.

Finally, the third and last challenged reference to a lie

detector test was made when Price was questioned about a statement

he made to the police concerning his acceptance of a drug delivery.

In this context, Price answered, "No. The machine said it was

a,

untrue." Here, once again, this Court denied defense counsel's

———m—

motion for a mistrial.” ([N.T. p.p. 490-491]

‘Additionally, at this juncture and on its own motion, this

Court delivered the following cautionary instructions to the

jury:

3. During the course of his own cross-examination of Price,

defense counsel elicited three additional answers which made re-

ference to a lie detector test, such as, "Oh, the test," “my

first test,” “first two tests." [N.T. p.p. 551, 558, 579] De-

fense counsel is correct in not asserting these three grounds as

part of this assignment of error. First, he himself elicited

whem on cross-examination. Conmigo any 443 Pa. 253,

O77 A.@d 325 (1971). Second, due to the absence of a contempore-

‘8 @bjection in each of the three instances, they are not issues

preserved for appellate review. C

467 Pa. 50, 354 A.2d 546 (1976); Co

Pa. 10, 359 A.2d 786 (1976);

er. 228, 412 A.2d 897 (1979).

oo eee — ’ ————— mee *

"The obvious reference -- obviously the

machine would bh a lie-detector test.

You are to completely disregard any re-

ference to a lie-detector test. You

judge this witness’ credibility or be-

lievability or lack of believability,

which is in your sole discretion, from

what you are hearing and watching as he

is testifying.

You are the truth determiners, not any

testing.

As to the reference by the witness, the

witness doesn't know the admissible

from the inadmissible. The witness is

as you all are, a layman. Don't derive

any prejudicial reference as the result

of his testimony.” [N.T. p. 491]

Since only two of Price's testimonial references that "The

machine says I wasn't telling the truth" and that "No. The

machine said it was untrue’ to have taken a lie detector test

are presently viable appellate issues, our discussion and anal-

ysis will be limited to them.

At this time, it is the well-established law of Pennsylvania

that the results of a polygraph examination are inadmissible evi-

dence for all purposes because the scientific accuracy, reliabil-

ity, and validity of such tests have not been sufficiently and

adequately established. In fact, the Pennsylvania evidentiary

4. There is a sone train of cases in support of this proposi-

tion; for exampie, ommeo : 386 Pa. 149, 125 A.2d

442 (1956); Civil Service Commiss! on, 404 Pa. 354, 172

A.2d 161 (196 Pa. 237, 272 A.2d

467 (1971); Cc n Pa. 253, 277 A.2d 328 (2972);

mo 5, 309 A.2d 732 a ak m

5 Pa. 574, “318 A.2d 922 (1974)5 ¢ ommc

~ 354 A.2d 875 (1976); Com

Super. 7, 410 A. 2d 870 (1979);

179 Pa. Super. 65, 11 d & ommc

Vv 181 Pa. Super. 610, 123 A. 2d 735 (198% ; u

wealth ex. rel. Hunter v. Banmiller, 194 Pa. Super. 448,

(Footnote No. 4 continued on page 17)

-16-

rule barring the results of a lie detector test or polygraph

examination has been quite broad in its application under the

case law. Testimony of an accused's willingness to take a test

to establish his consciousness of innocence is inadmissible.

Commonwealth v. Saunders, supra. The defendant may not introduce

this type of incompetent evidence aimed at establishing his inno-

cence. Commonwealth v. Brooks, supra; Commonwealth v. Talley,

Supra. Equally as well, it is improper for the Commonwealth to

introduce such evidence for the purpose of establishing the de-

fendant's guilt. DeVito v. Civil Service Commission, supra;

Commonwealth v. Camm, supra. A close analysis of this line of

cases which dictate the grant of a mistrial in trial instances

in which there have been prohibited references to a polygraph

examination discloses that they are specifically and solely

directed to such references that pertain to the defendant which

could give rise to inferences of either his guilt or innocence.

Commonwealth v. Camm, supra; Commonwealth v. Garland, supra;

Commonwealth v. Johnson, 273 Pa. Super. 14, 416 A.2d 1065 (1979).

Since the two challenged references to lie detector tests merely

implicated the credibility of Teri Price as a Commonwealth

witness, and they did not pertain to either McKendrick's guilt

or innocence, the teachings of the line of cases that a mistrial

(Footnote 4. is continued.)

A.2d 347 (1961);

A.2d 994 (1978);

Ed. by C.E. Torcia,

— Pa. Super. 265, 386

vidence 8630 (13th

-17<-

_ - -—- —ememewe + ae +

was warranted are inapposite to this case.

The prejudicial effect of remarks made by a witness must be

measured in the trial context in which they were made. Common-

wealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth

v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977). However, it is not

every remark, statement, or comment by a witness, even if unwise,

irrelevant, or prejudicial which warrants a new trial, but the

language must be such that its unavoidable results would be to

prejudice the jury, forming in their minds fixed hostility and

bias toward the accused, so that they cannot weigh the evidence

and@ render a true verdict by an objective determination. Common-

wealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974); Commonwealth

v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977); Commonwealth v.

Starks, 479 Pa. 51, 387 A.2d 829 (1978); Commonwealth v. Brown,

489 Pa. 70, 414 A.2d 70 (1980). Here, Price's remarks concerning

his own submissions to polygraph examinations merely had a poss~

ible impact on his own believability as a witness, and, in no /

way, eroded the presumption of innocence accorded McKendrick in

the minds of this jury. Further, Price's remarks did not affect

the objective determination of McKendrick's guilt by this jury.

In fact, as will be discussed, Price's own reference to the lie

detector tests probably served as negative factors which influenced

this jury to disbelieve him.

Further, a close perusal of Price's testimony would disclose

that he was a psychologically abnormal, emotionally distraught,

and possibly intimidated Commonwealth witness. By fair appraisal,

Price's prohibited references to the lie detector tests were un-

provoked, uniustigated, and perhaps unwanted nonresponsive answers

to proper questions on direct examination put to him by the

prosecutor. In this case, the prosecutor was not guilty of any

wrongful conduct instrumental in bringing about the prohibited

responses from Price, an admitted homosexual who cried, trembled,

and shook as he testified in the witness box. Thus, this case

was not an instance in which the Commonwealth intentionally

violated evidentiary rules by utilizing polygraph testing results

for the purpose of rehabilitating the credibility of one of its

witnesses on redirect examination. Commonwealth v. Johnson, supra;

Commonwealth v. Kemp, supra.

Further, in the trial context, it is submitted that Price's

admissions that he had twice lied to the police, thereby requiring

polygraph examinations, served to erode his credibility and to

help the defendant. As is more fully discussed in PartIII, infra

of this Opinion, Price's credibility was impeached by the use of

various impeachment techniques: (1) the use of two inconsistent

statements had made to the police; (2) the admitted grant of

immunity given to him by the prosecution in exchange for his

testimony; th incon tent statements given during an

interview with defense counsel; (4) the use of inconsistent state-

eee

ments which he had made as a ealth witnesS-at the pretimtn-

ary hearing in this case. Thus, when weighed in the full context

of his trial testimony, Price's references to the need for police-

administered pclygraph examinations could only serve to impress

the jury of the fact that he was a potentially mendacious witness

who also was disbelieved by the police. Admittedly, the reference

-19-

to lie detector tests could have served to bolster the credibility

of two consistent statements given by Price subsequent to testing.

These two consistent statements were used by the prosecutor to

rehabilitate Price on redirect examination. ([See, Exhibits C-36

and C-37] However, the references to the polygraph did create a

juror image to the effect that the police found Price to be an

extrajudicial liar. In fact, defense counsel also agrees with

this Court's appraisal of Price as an unworthy and discredited

witness. Defense counsel's appraisal of Price's testimony is

found in his written Brief in support of post-verdict motions,

as follows: "The prosecution's star witness, and the only eye-

witness beside defendant, was not only thoroughly impeached during

cross-examination, but impeached himself by giving at least four

different accounts of what had transpired on the day in question.

e+. his testimony was contradicted and he was impeached..."

(Defense post-verdict Brief at pages 12-13]

Finally, this Court's cautionary instructions that the jury

was to disregard the reference to a lie detector test, that credi-

bility was a sole jury function, and that” the prejudicial refer-

ence was to be ignored served to erase any prejudice in the minds

of this instant jury. Upon a fair appraisal in the trial context,

such instructions were specifically tied to the prejudicial remarks,

were promptly given, and were clearly and firmly worded to advise

the jury that such remarks were to be disregarded. Commonwealth

v. Shoemaker, supra; Commonwealth v. Martinolich, supra; Common-

wealth v. Tallev, supra; Commonwealth v. Wiggins, supra.

Consequently, this second assignment of error is meritless.

-20-

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