PRICE, Judge:
Pursuant to a jury trial commenced on September 6,1977, appellant was found guilty of two counts each of involuntary deviate sexual intercourse,1 simple assault,2 and terroristic threats.3 Post-trial motions were denied, and appellant was sentenced to concurrent prison terms of from six to twelve years on each involuntary deviate sexual intercourse count, and a concurrent term of two and one-half to five years on the terroristic threats count. He now contends that several reversible errors were committed during trial. We disagree and for the following reasons affirm the judgment of sentence.
Viewing the testimony in the light most favorable to the Commonwealth as verdict winner, the facts of the incident may be briefly summarized as follows: During September of 1976, both appellant and one Robert Moore were inmates at the Broadmeadows Prison in Delaware County. On the 16th and 21st of that month, appellant called Mr. Moore into his cell for a chat. When Mr. Moore entered the cell, appellant [225] held a razor to his throat and forced him against the wall. Appellant next compelled Mr. Moore to undress and bend over a sink, at which time the two engaged in an act of anal intercourse. Appellant was arrested for this affair some three months later, on February 3, 1977.
Appellant’s first contention is that he was fatally prejudiced by the assistant district attorney’s use of the word “rape” in his opening address to the jury. Appellant argues that because the information filed against him did not include rape, the gratuitous and erroneous use of such an emotionally charged word rendered a fair jury trial impossible. We need not reach the merits of this issue, however, for we find it has been waived.4
It is well settled that to preserve for appellate review an objection relating to the opening or closing address of opposing counsel, that objection must be specific and be brought to the trial judge’s attention as soon as is practical. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). In the instant case, the following is the sole reference to the incident during the assistant district attorney’s opening:
“MR. STEDJE [Counsel for Appellant]: Your Honor, may we approach the Bench, please?
THE COURT: Yes.
MR. STEDJE: With the Court Reporter.
(Whereupon a sidebar discussion was held, as follows:
MR. STEDJE: I am objecting to the District Attorney’s opening. He is permitted to testify as to what the evidence will show, make a statement as to what the evidence will show.
[226] THE COURT: What he expects to show.
MR. STEDJE: That’s correct. He hasn’t done that. What he is doing is making a statement without saying that it’s subject to proof, cross-examination, anything else.
THE COURT: I expect he’s going to come to that.
MR. HARRIS [Assistant District Attorney]: Your Hon- or, that statement is-statement is well within the bounds of propriety. That’s a declarative sentence.
THE COURT: I really don’t see anything wrong with what he said so far. The only thing is, that kind of made you wince apparently was the use of the word rape.
MR. STEDJE: I’m not attempting to-
THE COURT: This is a, this is his statement of what he expects to prove. Now, I’m sure that if I know Mr. Harris he’s going to tell the jury that presently and I know that you’re going to tell the jury that; and if you want I’ll tell the jury that when the speech is over. But I won’t interrupt it.
MR. STEDJE: Thank you.
THE COURT: Your objection is noted.”
(N.T. Excerpts 3-4).5
From the face of this exchange, it is impossible to determine precisely either what the prosecutor said concerning rape, or what particular statement appellant’s counsel found objectionable. The fact that the court opined that counsel “winced” at the word rape is nothing more than conjecture on the part of the trial judge. If counsel wished to move for a mistrial or request curative instructions if in fact the word “rape” was used, he should have specifically done so. Particularly in cases in which the opening address is not recorded, counsel must state their grounds of objection with specificity, and place the allegedly improper remarks on [227] the record. As counsel neglected to do so in this case, we deem any objection to have been waived.
Appellant next argues that the trial court improperly limited his cross-examination of the victim, Robert Moore. Specifically, Mr. Moore on direct examination testified that appellant forcibly engaged him in an act of sodomy on two separate occasions as described supra. On cross-examination, appellant attempted to explore the possibility that this testimony might have been given in return for a reduction in the sentence that Mr. Moore was serving.6 The trial judge sustained an immediate objection to this inquiry, ordered the question and answer stricken, and instructed the jury to disregard the exchange.7
Free access — add to your briefcase to read the full text and ask questions with AI
PRICE, Judge:
Pursuant to a jury trial commenced on September 6,1977, appellant was found guilty of two counts each of involuntary deviate sexual intercourse,1 simple assault,2 and terroristic threats.3 Post-trial motions were denied, and appellant was sentenced to concurrent prison terms of from six to twelve years on each involuntary deviate sexual intercourse count, and a concurrent term of two and one-half to five years on the terroristic threats count. He now contends that several reversible errors were committed during trial. We disagree and for the following reasons affirm the judgment of sentence.
Viewing the testimony in the light most favorable to the Commonwealth as verdict winner, the facts of the incident may be briefly summarized as follows: During September of 1976, both appellant and one Robert Moore were inmates at the Broadmeadows Prison in Delaware County. On the 16th and 21st of that month, appellant called Mr. Moore into his cell for a chat. When Mr. Moore entered the cell, appellant [225] held a razor to his throat and forced him against the wall. Appellant next compelled Mr. Moore to undress and bend over a sink, at which time the two engaged in an act of anal intercourse. Appellant was arrested for this affair some three months later, on February 3, 1977.
Appellant’s first contention is that he was fatally prejudiced by the assistant district attorney’s use of the word “rape” in his opening address to the jury. Appellant argues that because the information filed against him did not include rape, the gratuitous and erroneous use of such an emotionally charged word rendered a fair jury trial impossible. We need not reach the merits of this issue, however, for we find it has been waived.4
It is well settled that to preserve for appellate review an objection relating to the opening or closing address of opposing counsel, that objection must be specific and be brought to the trial judge’s attention as soon as is practical. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). In the instant case, the following is the sole reference to the incident during the assistant district attorney’s opening:
“MR. STEDJE [Counsel for Appellant]: Your Honor, may we approach the Bench, please?
THE COURT: Yes.
MR. STEDJE: With the Court Reporter.
(Whereupon a sidebar discussion was held, as follows:
MR. STEDJE: I am objecting to the District Attorney’s opening. He is permitted to testify as to what the evidence will show, make a statement as to what the evidence will show.
[226] THE COURT: What he expects to show.
MR. STEDJE: That’s correct. He hasn’t done that. What he is doing is making a statement without saying that it’s subject to proof, cross-examination, anything else.
THE COURT: I expect he’s going to come to that.
MR. HARRIS [Assistant District Attorney]: Your Hon- or, that statement is-statement is well within the bounds of propriety. That’s a declarative sentence.
THE COURT: I really don’t see anything wrong with what he said so far. The only thing is, that kind of made you wince apparently was the use of the word rape.
MR. STEDJE: I’m not attempting to-
THE COURT: This is a, this is his statement of what he expects to prove. Now, I’m sure that if I know Mr. Harris he’s going to tell the jury that presently and I know that you’re going to tell the jury that; and if you want I’ll tell the jury that when the speech is over. But I won’t interrupt it.
MR. STEDJE: Thank you.
THE COURT: Your objection is noted.”
(N.T. Excerpts 3-4).5
From the face of this exchange, it is impossible to determine precisely either what the prosecutor said concerning rape, or what particular statement appellant’s counsel found objectionable. The fact that the court opined that counsel “winced” at the word rape is nothing more than conjecture on the part of the trial judge. If counsel wished to move for a mistrial or request curative instructions if in fact the word “rape” was used, he should have specifically done so. Particularly in cases in which the opening address is not recorded, counsel must state their grounds of objection with specificity, and place the allegedly improper remarks on [227] the record. As counsel neglected to do so in this case, we deem any objection to have been waived.
Appellant next argues that the trial court improperly limited his cross-examination of the victim, Robert Moore. Specifically, Mr. Moore on direct examination testified that appellant forcibly engaged him in an act of sodomy on two separate occasions as described supra. On cross-examination, appellant attempted to explore the possibility that this testimony might have been given in return for a reduction in the sentence that Mr. Moore was serving.6 The trial judge sustained an immediate objection to this inquiry, ordered the question and answer stricken, and instructed the jury to disregard the exchange.7
Appellant contends that this information was particularly relevant because at his first trial, Mr. Moore had initially testified that no sexual abuse occurred on September 16th, and altered his testimony only after an alleged guarantee of protection from the prosecutor. Nevertheless, we agree that the trial court correctly refused to allow inquiry into this area. This court has previously stated that: “It is ‘hornbook’ law that a witness’s motivation or induce[228] ment to testify is properly within the scope of cross-examination. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931).” Commonwealth v. Baston, 242 Pa.Super. 98, 111, 363 A.2d 1178, 1185 (1976). The inducement here, however, has been removed; the return portion of the quid pro quo obviated. Mr. Moore was already sentenced on his rape conviction at the time of the first trial, much less the second. Any testimony as to a possible “deal” was thus irrelevant, for Mr. Moore no longer had anything to gain by falsifying his testimony. Once the sentence was imposed, his perception of what might be done on his behalf was quite immaterial. Consequently, as the limits of cross-examination are within the discretion of the trial court, Commonwealth v. Young, 263 Pa.Super. 333, 397 A.2d 1234 (1979); Commonwealth v. Ransom, 240 Pa.Super. 92, 360 A.2d 721 (1976), we see no error in the restriction here imposed.
Appellant’s next argument relates to the following exchange between the assistant district attorney and one Augustus Juisti, a deputy sheriff assigned to Judge de Furia’s courtroom during appellant’s first trial:
“Q. What in the world were the sheriffs doing locking the defendant and the victim together?
A. Well, as it was stated by my partner Harrell, at the time that this case came up we didn’t know anything or have any idea what kind of case it was.
Q. There’s been an opening to the Jury.
A. Yes.
Q. We’ve been told that it’s a rape case essentially?
A. Yes.
Q. You guys still locked them together?
A. Yes.
Q. This twenty-nine year old man raped a seventeen-year old boy, locked him together-”
(N.T. Harrell 25-26).
[229] Appellant argues that the characterization of the incident as a rape by the assistant district attorney was inflammatory and prejudiced the jurors against his cause. He neglects to note, however, that a strong curative instruction (N.T. Harrell 29) was immediately given by the trial judge in which he admonished the jury that they, and not the district attorney, were the ultimate arbiters of whether the crimes charged had indeed occurred. This was wholly proper. Although we agree that the prosecutor acted injudiciously in his characterization of the incident, this court has often noted that not every unwise or irrelevant remark made by a counsel compels the grant of a new trial. Commonwealth v. Johnston, 258 Pa.Super. 429, 392 A.2d 869 (1978); Commonwealth v. Green, 251 Pa.Super. 318, 380 A.2d 798 (1977). Moreover, it is well recognized that cautionary instructions delivered by the trial court may generally cure any intemperate remark. See Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Green, supra; Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977); cf. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976). Presently, the trial court effectively eliminated any possible prejudice through the use of its curative instruction.
Finally, appellant alleges that a mistrial should properly have been granted after the prosecutor, in response to an objection by appellant’s counsel, commented that “Mr. Stedje [Counsel for Appellant] is objecting because his ox is being gored.” (N.T. Harrell 43). We have previously noted that such remarks are not inevitably prejudicial to appellant, particularly when, as in this case, the comment is essentially a personal barb directed against opposing counsel. Keeping in mind that the grant of a mistrial is within the sound discretion of the trial judge, Commonwealth v. Tribblett, 242 Pa.Super. 164, 363 A.2d 1212 (1976), we find no abuse of that discretion here.
The judgment of sentence is consequently affirmed.
SPAETH, J., files a dissenting opinion.