Appendix — McKendrick v. Pennsylvania

8 2 e 1 6 56 Office -Supreme Court, U.S.

I } , FILED

IN THE MAY 18 1963

ANDER L. STEVAS,

SUPREME COURT OF THE UNITED STATES cierk

OCTOBER TERM, 1982

NO,

CAROLYN MC KENDRICK

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA

Respondent

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI ON APPEAL FROM THE

SUPREME COURT OF PENNSYLVANIA

STEPHEN H, SEROTA, ESQUIRE

Suite 400

21 South 12th Street

Philadelphia, PA 19107

215-564-5959

IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

PHILADELPHIA COUNTY

TRIAL DIVISION = CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA

V.

CAROLYN McKENDRICK

SUPREME COURT NO, 256

January, 1979

Appeal from the Judgments of Sentence

of the Court of Common Pleas of

Philadelphia, June Term, 1977,

Nos. 1206, 1208

OPINION

LATRONE, J. Filed JANUARY 19, 1982

Carolyn McKendrick, the defendant, was

charged with a criminal homicide and related

weapons offenses resulting from her "love-

nest" shooting of Tyrone Everett, a South

Philadelphia pugilist of national renown,

in the second floor front bedroom of her residence

at 2710 Federal Street here in Philadelphia at

about 11:00 o'clock a.m. on May 26, 1977.

Following a trial before this Court sitting with

a jury, McKendrick was convicted of murder of

the third degree and possession of an instru-

ment of crime. A jury verdict of not guilty

was returned on a separate criminal information

charging possession of a controlled substance

with intent to manufacture or deliver which re-

sulted from police confiscation of the bundles

of heroin at the McKendrick residence shortly

after the fatal shooting. Priortotrial, with-

out objection from defense counsel, the Common-

wealth elected not to proceed on a fourth and

last criminal information covering the charge

of involuntary manslaughter. Since this Court

nol prossed this charge of involuntary manslaughter

on the Commonwealth's motion following the trial,

it is now reminded that it is forever barred from

future prosecution of this charge which arose from

2.

the same conduct or resulted from the identical

criminal episode or transaction. Commonwealth

v. Campana, 452 Pa. 233, 304 A.2d 432 (1973)

(Campana I) and Campana II, 455 Pa. 622, 314

A.2d 854 (1974); Commonwealth vs. Tarver, 467

Pa. 401, 357 A.2d 539 (1976): Commonwealth v.

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

Commonwealth vs. Edwards, 264 Pa. Super. 223,

399 A.2d 747 (1979); Section 110 of the Crimes

Code, 18 Pa.C.S.A. #110 (effective June 6, 1973).

Post-verdict motions were filed, argued

and denied. This Court imposed concurrent sen-

tences of 5 to 10 years and 2-1/2 to 5 years

for McKendrick's conviction of murder of the

third degree and possession of an instrument

of crime. The instant appeals are from these

judgments of sentence. In compliance with the

requirements of Pa.R.A.P. 906(2), this Court

has received copies of Notices of Appeal from

these sentences to both the Supreme and Superior

Courts of Pennsylvania. It is assumed that

3.

defense counsel subsequently effected a con-

sOlidation 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. §211.503(c) (1979-1980 Pocket Part.)

Despite the fact that McKendrick's

attorney filed the required written post-

verdict motions, it is submitted that only

the following designated grounds have been

preserved for appellate consideration by the

Pennsylvania Supreme Court:

(1) that the trial Court erred in its

denial of a defense motion for a mistrial

when Doris Everett, deceased's mother, tes-

tified as a Commonwealth witness that Ricardo

McKendrick defendant's husband, had made

contractual agreements with third persons

to have the deceased killed:

(2) that the trial court erred in its

denial of a defense motion for a mistrial

when Doris Everett, deceased's mother, also

4.

testified as a Commonwealth witness that

Ricardo McKscndrick, 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 witness, made

testimonial references to having been admin-

istered lie detector tests by the police

during his period of custodial interrogation;

(4) that the Court committed reversible

error in allowing the Commonwealth to introduce

evidence of prior consistent statements made

by Teri Price, a Commonwealth witness in its

case-in-chief, in order to rehabilitate his

credibility as a witness;

(5) that the trial Court erred in its

denial of a motion for mistrial when a court

clerk, then presented as a rebuttal witness

for the purpose of introduction. of impeachment

evidence concerning defendant's prior con-

viction for relevant criminal acts, erroneously

5.

testified from an extract of criminal re-

cord that the defendant had a prior convic-

tion for the charge of possession of a firearm

with a defaced serial number;

(6) that the trial Court erred in ad-

mitting evidence of defendant's prior con-

victions of the charge of receiving 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 Everett,

the deceased, in order to establish that the

instant killing was perpetrated by the defend-

ant in self-defense of her person;

(9) that the trial Court erred in ruling

as inadmissible certain portions of defendant's

hospital records which explained her treatment

for relevant personal injuries, but which like-

wise contained hearsay statements to the attend-

ing physician explaining 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 mistrial at various trial junctures

at which the District Attorney made prejudicial

and inflammatory references to defendant's well-

furnished home, wearing apparel, possession of

large quantities of clothing and shoes, and

adulterous relationship with the deceased;

Fe

(12) that the record contained insufficient

evidence to support the defendant's conviction

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-ver-

dict motions within the required ten day

period after 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 McKendrick's conviction

in toto, these motions also contained sixteen

grounds in addition to this sufficiency

challenge. Thus, the original motions con-

tained allegations in nineteen paragraphs.

As is the ¢ommon 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 a copy of

(Footnote No. 1 is continued on Page 9)

Be

(footnote No. 1 is continued)

the transcript of trial testimony, defense

counsel submitted "Additional Motions for New

Trial And An Arrest of Judgment" which 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 eleven grounds which were neither argued

nor briefed before it at the post-verdict juncture,

this Court considered and evaluated the remaining

twelve grounds set forth above which had been filed

in written form of post-verdict motions. It is

submitted that this Court's consideration of the

remaining twelve reasons which are set forth

above, exclusive of the eleven grounds which

were neither briefed nor argued, preserved

them for appellate review. See generally,

Commonwealth v. Blair, 460 Pa. a. S31 A.2d 313

;

Commonwealth v. Hilton, 461 Pa. 93, 334 A.2d

Commonwealth v.. Terry, 462 Pa. 595, 342 A.2d

92 (1975);

Commonwealth v. Fortune, 464 Pa.367, 348 A.2d

783 (1975);

Commonwealth v. Porillo, 474 Pa. 63, 376 A.2d

635 (1977);

Commonwealth v. Smith, 474 Pa. 550, 379 A.2d

96 (1977);

Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d

183 (1978);

Commonwealth v. Roach, 477 Pa. 379, 383 A.2d

9

Commonwealth v. Waters, 477 Pa. 430, 384 A.2d

Commonwealth v. Jones, 478 Pa. 172, 386 A.2d

496 (1978);

(Footnote No. 1 is continued on Page 10)

9.

l.

(Footnote No. 1 is continued)

Commonwealth v. Allen, 478 Pa. 342, 336 A.2d

965 (1978);

Commonwealth v. Hitson, 482 Pa. 215, 393 A.2d

1160 (1978);

Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d

570 (1978);

Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d

1072 (1979);

Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d

1374 (1979);

Commonwealth v. Hennessey, 485 Pa. 647, 403 A.2d

575 (1979);

Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d

1296 (1979);

Commonwealth v. Bilhardt, 269 Pa. Super. 95,

409 A.2d 31 (1979);

Commonwealth v. Hue, 269 Pa. Super. 334, 409

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 degree and

voluntary manslaughter were in error; (2) that

the trial Court's requested supplemental jury

instructions defining malice were incorrect;

(3) that the trial Court erred in failing to

specifically charge the jury in the language

set forth in defense counsel's submitted

points for charge pertaining to numerous

issues (4) that the trial Court committed

reversible errors when it sustained the

District Attorney's objections to various

remarks in defense counsel's summation to the

sas? (5) that the trial court erred in over-

ruling the defense demurrer to the criminal

information pertaining to the drug charge in

(Footnote No. 1 is continued on Page 11)

10.

(Footnote No. 1 is continued)

this case; (6) that the trial Court erred in

permitting the District Attorney to question

Teri Price, a Commonwealth witness, concerning

whether or not he was selling drugs for the

defendant; (7) that the testimony of Detective

Volkmar concerning his search at defendant's

residence was inadmissible since it arose

from an invalid search warrant failing to

allege sufficient probable cause information;

(8) that the Court erred in allowing the

District Attorney to question the defendant

concerning the source of her bail money in

this criminal proceeding; (9) that the Court

erred in allowing District Attorney voir dire

questioning of prospective jurors concerning

capital punishment; (10) that the admission of

items of bloodied clothing, various photographs,

and the comments concerning 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 prosecutor 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 pre-

served for appellate review. Commonwealth

v. Williams, 476 Pa. 557, 383 A.2d (1978);

Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d

th v. VanCliff, 483 Pa.

TOIT T9787 Commonweal

576, 397 A.2a 1173 (1979); Commonwealth v. Mays

485 Pa. 371, 402 A.2d 1008 TI979). Since these

eleven reasons were neither briefed nor argued

by defense counsel at the post-verdict stage,

they are not viable appellate issues and will

not be discussed in this Opinion.

ll.

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

testifying as a Commonwealth witness, made

potentially prejudicial references to the

prior criminal record and other purported

criminal 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 remards occurred

when the prosecutor was questioning Doris

Everett about her deceased son's relationship

with the defendant. The full pertinent records

context in which the remark was made as follows:

2. Although this single assignment of

error, in fact, emcompasses grounds one and two

set forth at the beginning of this Opinion as

designated grounds preserved for appellate

consideration, it will be treated as one since

_the claims involve the same witness and sub-

stantially similar issues require discussion

and analysis.

12.

"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

particular time about seeing

Carolyn Swint McKendrick?

A. Yes, I did.

Q. What was that advice?

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 ob-

jection. Deny the motion. [Italice

added.]"

At this juncture, this Court denied

defense counsel's motion for mistrial and

immediately delivered the following cautionary

instructions:

ie

"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

4¢.

(N.T. p.p. 108-109]

Upon further questioning on direct examination

by the prosecutor, Doris Everett made the second

of her cahallenged remarks which appears as

follows in this record:

"Q. Mss. Everett, do you know the

usband of Carolyn McKendrick,

a person by the name of 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?

14.

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 my son killed. [Italics

added.)]" [N.T. p. 109]

At that juncture, this Court once again

denied defense counsel's motion for a mistrial

and delivered the following cautionary

instruction 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 repeataing it. Those of much

more wisdon, 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. .

15.

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 purported 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

a crime. 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.

16.

Lastly, forget that the remark was

made. Erase it from your minds."

[N.T. p.p. 113-114

Since both challenged remarks 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

discussed jointly. In each instance, it is

submitted that the sua sponte cautionary

instructions from this Court served to

eradicate and expunge the potentially preju-

dicial impact of such challenged remarks upon

the minds of the jury.

A trial court's use of curative instruc-

tions is an approved and encouraged practice

which is normally adequate to remove the

taint of prejudicial matters that are brought

to a jury's attention. Commonwealth v.

Starks, 479 Pa. 51, 387 A.2d 829 (1978).

Generally, the standards used to determine

the efficacy of cautionary instructions are

that they be delivered promptly, that they

be specifically tied to the potentially

17.

prejudicial fact or event, and that they be

Clearly and firmly worked to advise the

jury that it must disregard the prejudicial

event. Commonwealth v. Shoemaker, 240 Pa.

255, 87 A.684 (1913); Commonwealth v. Martinolich,

456 Pa. 136, 318 A.2d 680 (1974); Commonwealth

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

challeged 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 pre-

judicial events; for example Commonwealth v.

Fugmann, 330 Pa. 4, 198 A.99 (1938)

18.

(prejudicial impact of erroneously admitted

evidence remedied by curative instructions) ;

Commonwealth v. Senk, 412 Pa. 184, 194 A.2d

226 (1963) (emphatic curative instructions

cured prejudicial impact of inadmissible

evidence concerning defendant's prior im-

prisonment 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. Tate, 458 Pa. 541, 388 A.2d

353 (1979); (prejudicial reference by a witness

to defendant's use of drugs cured by curative

instructions); Of... 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 prejudicial testimony from a witness war-

ranted the grant of a new trial). A comparative

analysis of this case with the train of cases

cited clearly discloses that the instant

19.

remarks did not surpass the degree of potential

prejudice of the types of remarks held to be

curable by cautionary instructions. Moreover,

as a distinguishing 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 ac-

complished their aims of curing the potentially

prejudicial impact of the remarks here chalienged.

Finally, immediate and effective cautionary

instructions have been held to be efficacious

in remedying the potentially 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); Comn-

onwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302

(1972); Commonwealth v. Glover, 446 Pa. 492,

20.

286 A.2da 349 (1972); Commonwealth v. Evans,

465 Pa. 12, 348 A.2d 92 (1975). In this case,

the jurors had enough common sense to compre-

hend that Doris Everett, the deceased's mother,

would have venomed feelings toward the de-

fendant and anyone related to her by either

affinity or consanguinty. Further, there is

not an iota of evidence to indicate the the

jurors could not follow this Court's instruc-

tions that any possible criminal record of

defendant's husband should not be imputed to

her directly. Further the jurors were quite

capable of understanding that Doris Everett's

testimony 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

21.

could not have been as presutieset as con-

tended within the entire trial context.

Lately, this Court's admonition that McKendrick,

"stands here to ke 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.

McKendrick further complains that this

Court erred in refusing her attorney's motion

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 disclose

that the three challenged references made by

this witness that he had submitted to polygraph

examinations constituted unprovoked, nonresponsive

and clearly unexpected answers to the prosecutor's

questioning on direct examination.

22.

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 this point, this

Court denied a defense motion for mistrial.

(N.T. p.o. 478-479]

Shortly thereafter, upon being presented

a copy of a second inconsistent written state-

ment taken by the police, Price abortively

identified this statement by stating. "The

second test I took.” At this point, the

defense objection was sustained. [N.T. p.p.

482-483] The record discloses that defense

counsel did not make a motion for mistrial.

A failure to request a mistrial 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.

23.

Commonwealth v. Hoskins, 485 Pa. 542, 409 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 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.2da 393 (1976); Commonwealth v. Maloney,

459 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. Conse-

quently, this specific aspect of this assignment

is waived.

Finally, the third and last challenged

reference to a lie detector was made when Price

24.

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

untrue." Here, once again, this Court

denied defense counsel's motion for mis-

ry (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 reference to a lie detector test,

such as, "Oh, the test,” my first test,"

"first two tests." ([N.T. p.p. 551,558,

559] Defense counsel is correct in not

asserting these three grounds as part

of this assignment of error. First, he

himself elicited them on cross-examination.

Commonwealth v. Camm, 443 Pa. 253, 277 A.2d

325 (1971). Second, due to the absence

of a contemporeous objection in each of the

25.

"The obvious reference

obviously the machine would

be a lie-detector test. You

are to completely disregard

any reference to a lie-detector

test. You judge this witness'

credibility or believability

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]

‘

(Footnote No. 3 is continued)

three instances, they are not issues preserved

for appellate review. Commonwealth v.

Farduarson, 467 Pa. 50, 354 A.2d 545 (1976);

Commonwealth v. Pritchett, 468 Pa. 10, 359

A.2d 786 (1976); Commonwealth v. Griffin, 271

Pa. Super. 228, 412 A.2d 897 (1979).

26.

Since only two of Price's testimonal

reference 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 that 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, reliability, and validity of such

tests have ngt been sufficiently and adequately

extablished. In fact, the Pennsylvania evi-

dentiary 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

4. There is a long train of cases in support

of this proposition; for example, Commonwealth v.

Saunders, 386 Pa. 149, 125 A.2da 442 (1956); DeVito

v. Civil Service Commission, 404 Pa. 354, 172 A.2d

161 (1961); Commonwealth v. Johnson, 441 Pa. 237,

272 A.2d 467 (1971); Commonwealth v. Camm, 443

Pa. 253, 277 A.2d 325 (1971); Commonwealth v. Brooks

454 Pa. 75, 309 A.2d 732 (1973); Commonwealth v.

Tailey, 456 Pa. 574, 318 A.2d 922 (1974); Common-

wealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976);

Sie

this type of incompetent evidence aimed

at establishing his innocence. Common-

wealth 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 defendant's guilt. DeVita v. Civil Service

Commission, supra; Commonwealth v. Camm, supra.

A close analysis of this line of casis whic ic-

tate 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. Camn,

supra; Commonvealth—v. Garland, supra; Common-

, 273 Pa. Super. 14, 416 A.2d

1065 tis?) Since the two challenged references

to lie detector tests merely implicated the cred-

ibility 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 was warranted are inapposite

to this case.

(Footnote No. 4 is continued.)

Commonwealth v. Cain, 471 Pa. 140, 369 A.2d

1234 (1977); Commonwealth v. Kemp, 270 Pa.

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

Riccio v. Dilworth, 179 Pa. Super. 65, 115

A.2d 865 (1955); Commonwealth v. McKinley,

181 Pa. Super. 610, 123 _ 24 735 (1956); Common-

Hunter v. Banmiller, 194 Pa.

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

Chapman, 255 Pa. Super. 265, 386 A.2d 994 (1978);

Also see, Wharton's Criminal Evidence §630 (13th

Ed. by C.E. Torcia, 1973).

28.

The prejudicial effect of remarks made by

a witness must be measured in the trial context

in which they were made. wealth v.

Stolzfus, 462 Pa. 43, 337.A.2d 873 (1975);

v. Perillo, 474 Pa. 63, 376

A.2d 635 (1977). However, it is not every

remark, statement or comment by a witness,

even is 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 weight the evidence and render

a true verdict by an objective determination.

Neal, 456 Pa. 394, 319 A.2d

Commonwealth v. McNea

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 possible

impact on his own believability as a witness,

and, in no way, eroded the presumption of in-

nocence accorded McKendrick in the minds of this

jury. Further, Price's remarks did not affect

the objective determination of McKendrick's

guilt by his jury. In fact, as will be discussed,

Price's own reference to the lie detector tests

probably served as negative factors which in-

fluenced this jury to disbelieve him.

Further, a close perusal of Price's testi-

mony would disclose that he was a psychologi-

cally abnormal, emotionally distraught, and

possibly intimidated Commonwealth witness.

By fair appraisal, Price's prohibited references

to the lie detector tests were unprovoked, un-

instrigated, and perhaps unwanted nonresponsive

29.

answers to proper questions on direct ex-

amination put to him by the prosecutor.

In this case, the prosecutor was not

guilty of any wrongful conduct instru-

mental in bringing about the prohibited

responses from Price, an admitted homo-

sexual 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 pur-

pose Of rehabilitating the credibility

of one of its witnesses on redirect ex-

amination. Commonwealth v. Johnson,

supra; Commonwealth v. Kemp, surpa.

Further, in the trial context, it

is submitted that Price's admissions that

he had lied to the police, thereby requiring

polygraph examinations, served to erode

his credibility and so help the defendant.

As is more fully discussed in Part III,

infra of this Opinion, Price's credibility

was impeached by the use of various im-

peachment techniques: (1) the use of two

inconsistent statements he had made to the

police; (2) the admitted grant of immunity

given to him by the prosecution in exchange

for his testimony; (3) the use of inconsis-

tent statements given during an interview

with defense counsel; (4) the use of incon-

sistent statements which he had made as a

Commonwealth witness at the preliminary

hearing in this case. Thus, when weighed

in the full context of his trial testimony,

Price's references to the need for police-

administered polygraph examinations could

only serve to impress the jury of the fact

that he was a potentially mendactious

30.

witness who also was disbelieved by the

police. Admittedly, the reference 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 dis-

credited 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 eyewitness beside defendant, was not

only thoroughly impeached during cross-ex

amination, but impeached himself by giving at

least four different accounts of what had

transpired on the day in question..."

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

Finally, this Court's cautionary in-

structions 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 reference was to be ignored served

to erase any prejudice in the minds of this in-

stant 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 worked to

advise the jury that such remarks were to be

disregarded. Commonwealth v. Shoemaker, supra;

Commonweath v. Martinolich, supra; Commonwealth

v. Talley, supra; Commonwealth v. Wiggins, supra.

Consequently, this second assignment of

error is meritless..

31.

[J-#266)

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OP PENNSYLVANIA NO. 296 JANUARY TERM 1979

Vv.

CAROLYN MCKENDRICK

Appellant

APPEAL FROM THE JUDGEMENT

OF SENTENCE DATED JUNE 26,

1979 OF THE COURT OF COMMON

PLEAS CRIMINAL DIVISION,

COUNTY OF PHILADELPHIA AT

NOS. 1205-1208 OF JUNE

TERM, 1977

ARGUED: OCTOBER 21, 1962

2)

6

be

PER CURIAM. FILED: December 29, .9€2

Judgment of sentence affirmed.

Sx eme Court of Pennsy: ania

Eastern Bistrict

No. 296 January Tern, 1979

JUDGMENT

(ii CONSIDERATICN WHEREOF, it is now here ordered and

adjuiged by this Court that the JIDG@ENT of the CURT of

COMMON PLEAS, TRIAL DIV., CRIMINAL SECTION - PHILADELPHIA Coury,

be, and the same is hereby AFFIRYED.

Prothonotary

Dated: December 20, 1982