# Petition — McKendrick v. Pennsylvania

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0757%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 1106

## Text

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-

(THIS PAGE INTENTIONALLY LEFT BLANK]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0757%3A1. Public record. Not legal advice.