J-A21014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
JOSHUA JEAN,                              :
                                          :
                  Appellant               :           No. 2959 EDA 2015

             Appeal from the Judgment of Sentence July 14, 2014
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0013192-2013

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

CONCURRING STATEMENT BY MUSMANNO, J.: FILED NOVEMBER 22, 2016

      I agree with the Majority’s conclusion that, where the prosecutor had

elicited testimony regarding Appellant’s prior arrest (or incarceration),

defense counsel’s decision to forego a curative instruction waived Appellant’s

ability to plead prejudice on appeal. See Commonwealth v. Norman, 549

A.2d 981, 986 (Pa. Super. 1988) (en banc) (citing Commonwealth v.

Miller, 481 A.2d 1221 (Pa. Super. 1221 (Pa. Super. 1984), and concluding

that, “[w]hen counsel chooses to refuse appropriate curative instructions for

[a] legitimate tactical reason, the defense may not plead prejudice on

appeal.”).    I write separately to express my disagreement with the

conclusions reached by this Court in Norman and Miller.

      A trial court may grant a mistrial “only where the incident upon which

the motion is based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury from weighing
J-A21014-16


and rendering a true verdict.”   Commonwealth v. Cash, 137 A.3d 1262,

1273 (Pa. 2016) (citation omitted).     However, our Supreme Court has

concluded that “‘[a] mistrial is not necessary where cautionary instructions

are adequate to overcome prejudice.’” Id. (quoting Commonwealth v.

Chamberlain, 30 A.3d 381, 422 (Pa. 2011)).

     Absent a defendant’s confession, nothing can be more damaging and

prejudicial to a defendant than testimony regarding a defendant’s prior

arrest or conviction.   In my 35 years of judicial experience, once a jury

learns of a defendant’s prior conviction, the presumption of innocence, in

reality, disappears.    The impact of such testimony is immediate, and

prevents the jury “from weighing and rendering a true verdict.” See Cash,

137 A.3d at 1273. The remedy of a “curative” instruction is illusory, as it

cannot overcome the impact of such testimony on a jury.

     Judge Dubow joins this concurring statement.




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