Appeal from the Sentences of Feb. 23, 1976 of the Court of Common Pleas, Criminal Div. of Allegheny County at No. 6327 June Term, 1972 and No. 8078A Sept. Term, 1972 Respectively.
William F. Manifesto, Pittsburgh, for appellant at No. 619.
Allen N. Brunwasser, Pittsburgh, for appellant at No. 632.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., files a dissenting opinion in which Van der Voort, J., joins.
[ 253 Pa. Super. Page 568]
This is an appeal from judgments of sentence by two of three co-defendants. Appellant Lee (now deceased)*fn1 was convicted of keeping a bawdy house, keeping a disorderly house, accepting bawd money, and conspiracy to commit prostitution and assignation. Appellant Sargent was convicted of conspiracy to commit prostitution and assignation. The jury also convicted Shelly Jean Schall of various offenses, but her appeal is not involved here.
Appellants assign numerous errors. We shall discuss only one, however, because it requires that a new trial be granted.*fn2
[ 253 Pa. Super. Page 569]
Appellants argue that the prosecutor in his summation to the jury made impermissibly prejudicial remarks. As he opened his summation the prosecutor said:
Now, the Defense attorneys are in a unique position -- unique in the sense that they are here to protect their clients and insure that they get a fair trial -- which I think we will all agree has happened. Every opportunity for their points to be raised and to be heard and argued and to be listened to and digested by you have been given to them and they have exercised those options. But Defense attorneys are paid to acquit their clients. Mr. Brunwasser is paid to frame the evidence and the issues in the light most favorable to his client, Lee, and he is asking you to acquit him. And Mr. Manifesto has been paid by his client Catherine Sargent, so that she will be acquitted. And Mr. Kelly is being paid so that his client, Schall, will be acquitted. So understand, when they speak to you, they speak to you with that basic reasoning: They want their people found not guilty of the crimes charged.
So, when you ultimately go upstairs and you sit down and you listen to each other talk, and you say to yourself, " Did I hear a fair summary, analysis of the evidence and the facts; or, did I hear a paid attorney tell me what I should have been told to make me find his client guilty or not guilty," in this particular case, obviously, they are being paid for acquittal. Take that for what it's worth. N.T. 414-15 (emphasis supplied).*fn3
Shortly afterwards the prosecutor referred to one of the key facts linking appellant Sargent to the alleged conspiracy to commit prostitution and assignation: the fact that although the massage parlor operated on the third floor by appellant Sargent was apparently independent from the establishment operated on the second floor by appellant Lee, an extension telephone in Sargent's name had been installed on the
[ 253 Pa. Super. Page 570]
second floor. After the police undercover visit (as a result of which appellants were arrested), but before trial, the extension telephone was disconnected. The prosecutor said of this:
[W]hy were phones needed on the Second Floor if Catherine Sargent ran a legitimate parlor, whatever, on the Third Floor? Were Sargent and Lee strangers? Why was Lee sending girls to the Third Floor? Why was Sargent having phones installed on the Second Floor? And why, in January of this year, was the phone taken out from the Second Floor and put only on the Third Floor -- according to the records? ...