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COMMONWEALTH v. JACKSON (01/19/73)

decided: January 19, 1973.

COMMONWEALTH
v.
JACKSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1971, No. 2737, in case of Commonwealth of Pennsylvania v. Norman M. Jackson.

COUNSEL

Sallie Ann Radick and John J. Dean, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los and Robert L. Eberhardt, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice Pomeroy concurs in the result.

Author: Manderino

[ 450 Pa. Page 93]

Appellant, Norman M. Jackson, was convicted of second degree murder and sentenced to serve not less than ten nor more than twenty years. In this appeal from the judgment of sentence, the only question raised is whether the trial court unfairly participated in the trial as an advocate and thereby deprived the appellant of an impartial jury trial.

Appellant gave a statement in which he admitted that he shot the victim during a fight in the appellant's apartment. According to the appellant's statement, a fight began when the victim refused to engage in homosexual relations with the appellant's roommate because he was black. Appellant stated that he accidently shot the deceased during the fight. The prosecution introduced evidence establishing that the shooting was not accidental. In order to establish a modus operandi,

[ 450 Pa. Page 94]

    one of the witnesses called by the Commonwealth was Richard Vos. He testified that he had once been invited to the appellant's apartment where he was robbed and stabbed by the appellant and his roommate.

Many of the alleged errors raised by the appellant concerned questions by the trial court when Vos was testifying.

On one occasion, Vos, who had testified about knife wounds he received from the appellant, was asked to stand up and point to the area of injury on his chest. After Vos pointed out the areas, the court asked if there was a scar and when Vos replied in the affirmative the court suggested that the scar be exhibited. As the scars were being shown to the jury, defense counsel peered at the scars and shrugged his shoulders. Defense counsel admits that he was attempting to convey to the jury the minor and inconsequential nature of the scars. Defense counsel was admonished by the court. The court said, ". . . If you have a comment to make, you may cross-examine the witness, but don't cater to the gallery. This is no joking matter. . . ."

We do not agree that the above described participation by the judge constituted error. When the trial court asked about the scar and suggested that the scar be shown, the subject matter of the knife wounds had already been opened up. The trial court did not introduce any new area of inquiry. The trial court had no knowledge about the existence or non-existence of the scars when the request was made. We do not think that the trial court unduly participated as an advocate for the prosecution.

The court's admonishment of defense counsel for shrugging his shoulders after looking at the scars was not an improper comment. Defense counsel was not on the witness stand and his gesture admittedly was to convey ...


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