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decided: December 2, 1977.


NO. 597 APRIL TERM, 1975, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Washington County, at No. 484 October Term, 1972.


M. Richard Mellon, Pittsburgh, for appellant.

George E. Anthou, Assistant District Attorney, Canonsburg, and Jess D. Costa, District Attorney, Bentleyville, submitted a brief for Commonwealth, appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone and Spaeth, JJ., join.

Author: Van Der Voort

[ 252 Pa. Super. Page 150]

Appeal is taken to our Court from judgment of sentence rendered, following jury verdict and denial of post-trial motions, upon an indictment charging the crimes of accessory and receiving stolen property.*fn1 The charges stemmed from a December 4, 1972, burglarous entry into a gun shop in Eighty Four, Pa., and the removal therefrom of rifles, shotguns, handguns, and ammunition.

On the morning of trial, prior to voir dire, Judge GLADDEN and counsel met in the chambers of the court, where and when defense counsel mentioned that he had learned from the office of the District Attorney "that one of the prosecution witnesses might make some statement implicating me [counsel himself] in some way in the disposition of these weapons." (Quoting from the Notes of Testimony of

[ 252 Pa. Super. Page 151]

    the trial, p. 2).*fn2 The attorney for the Commonwealth stated his ignorance of the truth of the statement, agreed with defense counsel that it would be prejudicial, if used, and stated that the prosecution had no intention of permitting this testimony to be aired. And during trial, which began immediately after the above-referenced discussion in chambers and lasted from March 25 through 27, 1974, not the slightest hint of this allegation, either by direct statement or inference, was placed within the hearing of the jury. However, appellant now argues that he was denied effective assistance of counsel, and that his counsel was crippled in his ability to represent him due to the disclosure at trial of this unfounded allegation. The argument is wholly without merit because the jury never heard this charge, and thus in no way could it be prejudicial to either defendant or his counsel.*fn3 Appellant's present argument is undermined by the fact that counsel took no action to be relieved from serving, and we must conclude that his expressed belief that he was rendered unable to be an effective advocate was not recognized at the trial stage. Appellant suffered no prejudice, and was represented to the fullest extent by his counsel; there is no error. Appellant's second argument is that he was denied the presumption of innocence when the lower court in its charge referred to him as "prisoner".*fn4 The one use of the word "prisoner" arose in the court's discussion of the common law crime of accessory before the fact: "[E]ven

[ 252 Pa. Super. Page 152]

    though the prisoner may not have been the actual perpetrator of the crime, if he falls within the definition of an accessory before the fact . . . then he is to be treated in law and in every respect as though he were in fact the person who committed the offense." (Quoting from the Notes of Testimony, p. 234). Following the jury's retirement for deliberation, the statement by the court was brought to its attention, albeit without formal objection or suggestion for amendment or correction. It is our duty to read the charge as a whole to determine if reversible error is to be found. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). So doing in the instant case, we conclude that the lower court, in its use in a single instance of the word "prisoner" in instructing the jury on the law pertaining to accessory before the fact has not erred. Repeated reference to a defendant as "the prisoner", could be prejudicial. While the accused or defendant is, to be sure, a "prisoner" in the sense of one being detained under arrest, while awaiting trial, that description of a person on trial is less desirable than "defendant" or "accused". Where, as here, it is used only once, and in a context where general instructions on a legal theory are being given, the term cannot sway the jurors' minds to a position of prejudice against the defendant. See Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948).

Judgment of sentence affirmed.

HOFFMAN, Judge, dissenting:

I believe that a conflict of interest may have vitiated the effectiveness of the representation provided by appellant's trial counsel. Therefore, I dissent and would grant appellant a new trial.

On December 4, 1972, a burglary occurred at a gun shop in the town of Eighty Four, Washington County, Pennsylvania. Subsequently, Washington County authorities arrested appellant on charges of being an accessory before and after

[ 252 Pa. Super. Page 153]

    the fact of burglary and larceny, receiving stolen property, and conspiracy. Trial was scheduled for March 25, 1974, in the Washington County Court of Common Pleas. On that date, after selecting and seating a panel of jurors, but before conducting voir dire, the prosecutor, appellant's ...

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