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Commonwealth v. Boczkowski3/23/2004
ing Elaine's last will and testament was improperly admitted because it was irrelevant and because Cheek was not an expert as to the validity of wills in North Carolina. Appellant's counsel's only objection to this evidence was to Cheek's testimony regarding the validity of the will, specifically as to the effect of a witness's signature. Cheek did possess sufficient knowledge to testify about the effect of a witness's signature given her employment at the time of Elaine's death as a paralegal in the area of estates and trusts. Further, appellant's counsel subjected Cheek to extensive cross-examination on the subject of her knowledge of estates and trusts. The validity of Elaine's will was questionable because appellant had witnessed it which, under North Carolina law, operated to disinherit him because a beneficiary of a will cannot be a witness to the will. Because the Commonwealth suggested that appellant may have had a financial motive for killing Maryann, and because the Commonwealth drew parallels between the deaths of appellant's two wives, the testimony regarding Elaine's will was relevant to a possible economic motive for Elaine's murder.
Appellant's third assignment of evidentiary error is that the trial court erred in denying a mistrial following the testimony of Elizabeth Maple. Whether to grant the extreme remedy of a mistrial is a matter falling into the discretion of the trial court. "A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial." Commonwealth v. Jones, 668 A.2d 491, 503 (Pa. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 89 (1996). Maple, who lived next door to appellant and Elaine in North Carolina, testified that Elaine twice told her appellant was going to kill her, once, a week before Elaine's death and again the day before her death. At one point in her testimony, Maple gave opinion testimony regarding Elaine's state of mind, characterizing Elaine as frightful, terrified and scared, rather than confining her testimony to what Elaine had told her. Appellant objected on grounds that this aspect of the testimony was speculative and opinion-based. The trial court sustained the objection, struck the testimony, and admonished Maple not to state such conclusions. Appellant moved for a mistrial, which the trial court denied, finding that the testimony had not risen to a level requiring a mistrial. In a sidebar discussion, the trial court warned the prosecutor to limit Maple's opinion testimony. The prosecutor promised to ask one follow-up question and move on, which he did. On this record, we are satisfied that the corrective measures taken by the trial court were appropriate and that the extreme remedy of a mistrial was not required.
Appellant's fourth claim of evidentiary error is that the trial court erred by admitting evidence of hearsay statements, made by appellant's then five-year-old son, as excited utterances. Maple testified that on the night of Elaine's death, appellant requested that she care for his three children while he accompanied Elaine to the hospital. Maple testified that appellant brought the children to her door at approximately 3:00 a.m. and she promptly put them to bed in her daughter's bedroom. The next morning, while Maple was feeding the children breakfast, five-year-old Todd said, "my mommy was screaming so loud last night I had to put my hands up over my ears. She wouldn't stop screaming, and I saw her in the bathroom holding her hands up, and daddy told me to get out." N.T. 4/28/99 at 1495.
Rule 803(2) of the Pennsylvania Rules of Evidence permits the admission of an excited utterance as an exception to the general rule that hearsay evid
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