Commonwealth v. Ewell

WIEAND, Judge:

If, during a jury trial on a charge of driving while under the influence of alcohol, the prosecuting attorney deliberately elicits from a Commonwealth witness an extrajudicial statement attributed to the defendant “that he had an incident before for drunken driving,” can the prejudice be removed by an instruction from the court that the statement can be used to show the defendant’s state of mind or the state of his condition but that, in fact, “[tjhere is nothing in the record available for the prosecution or de fense ... that the defendant was arrested or prosecuted for drunken…