Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1688 of 1971, in case of Commonwealth of Pennsylvania v. Carlston Wiggins.
Thomas E. Harting, for appellant.
Charles A. Achey, Jr., and George T. Brubaker, Assistant District Attorneys, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.
[ 231 Pa. Super. Page 73]
The appellant herein was convicted of armed robbery*fn1 and sentenced to a term of imprisonment of 2 1/2 to 5 years. In this appeal he alleges that the court committed reversible error in refusing to grant a mistrial when the district attorney in opening statement and closing argument suggested that the defendant had the burden of presenting a defense and characterized the appellant as a "dangerous man." We have carefully reviewed the record and find that the court acted properly and that the appellant was not prejudiced by the remarks. We accordingly affirm the judgment of sentence.
It is clear that a defendant "is under no duty to take the stand or produce evidence of his innocence but may stand mute protected by the presumption of innocence and demand that the Commonwealth sustain its burden
[ 231 Pa. Super. Page 74]
of proving his guilt beyond a reasonable doubt." Commonwealth v. Miller, 205 Pa. Superior Ct. 297, 303, 208 A.2d 867, 870 (1965). Therefore, a suggestion by the district attorney that a defendant has a burden of presenting a defense is manifestly erroneous. The Commonwealth bears a never shifting burden of proving each and every essential element of the crime charged and the defendant need not offer any defense whatsoever. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974).
However, the fact that the statement was erroneous does not necessitate the conclusion that the error was of reversible dimensions.*fn2 Here the judge immediately instructed the jury that the statement misquoted the law and was to be disregarded. The court stated: "[M]embers of the jury, the Court instructs you any remarks made by [the district attorney] do not change the theory of the law that the burden is on the Commonwealth to prove the guilt of the Defendant beyond a reasonable doubt at all times and that burden never shifts. [T]here is no requirement of any Defendant to take the witness stand. [A]nd no implication of guilt by failure of the fact that the Defendant does not take the stand [may be drawn]." Additionally, the defendant did take the stand and presented an alibi defense, and the judge properly charged the jury with regard to the defense. In light of the judge's immediate instructions to disregard the erroneous statement by the district attorney, and because the defendant introduced a defense as to which the jury was properly charged we cannot find that the appellant suffered any prejudice.
[ 231 Pa. Super. Page 75]
The remark of the district attorney was improper, and we cannot condone it. "A district attorney holds an office of unusual responsibility, and he must exercise his duties with complete impartiality." Commonwealth v. Toth, 455 Pa. 154, 158, 314 A.2d 275, 277 (1974). "[I]n his official capacity, clothed with the gravest responsibilities, and exercising functions in a measure judicial, the district attorney should ever be cautious in expressing to a jury his belief in the guilt of the accused." Commonwealth v. Bubnis, 197 Pa. 542, 550, 47 A. 748, 749 (1901).
Upon a review of the record, however, we cannot agree that the remark of the district attorney, in referring to the appellant as a "dangerous man" rendered the appellant's trial "so fundamentally unfair as to deny him due process." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872 (1974). It neither expressed the district attorney's belief in the appellant's guilt*fn3 or was "calculated to inflame the passions or prejudices of the jury,"*fn4 nor did it so infect the case that it could not be excised by the immediate and later repeated curative instructions of the trial judge.*fn5 In Commonwealth v. Hoffman, 439 Pa. 348, 354, 266 A.2d 726 (1970), the Court held that references by the district attorney ...