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decided: October 20, 1978.


No. 2295 October Term, 1976, Appeal from the Judgment of Sentence imposed July 6, 1976, by the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Nos. 1204-05 March Session, 1976.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Deborah E. Glass, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 377]

On December 16, 1975, appellant Richard Neal was tried in Philadelphia Municipal Court and convicted of retail theft*fn1 and conspiracy.*fn2 Sentences of eleven and a half months to five years imprisonment for retail theft and five years probation for criminal conspiracy were subsequently imposed. An appeal was taken to the Court of Common Pleas where appellant waived a jury trial and on May 7, 1976, was again found guilty of the same two offenses. Post-trial motions were denied and appellant was sentenced to imprisonment for two and a half to five years on each conviction, with the sentences to run consecutively to each other and to a three to ten year term appellant was currently serving. This appeal followed.

The Commonwealth adduced the following proof at trial. Mr. Anson Cooper, store detective at a Lit Brothers Department Store in Philadelphia, testified that on August 16, 1975, at about 12:30 p. m., appellant and a co-defendant, one William Wright, entered the store. After looking at various items in the men's department, each man grabbed an armload of pants from a table and ran out the nearest exit to the street. Outside the store, each man placed his load of

[ 258 Pa. Super. Page 378]

    merchandise in a shopping bag and they proceeded away from the scene. Mr. Cooper gave chase, and with the aid of a police detective, apprehended appellant and Wright within approximately five blocks. The twenty-nine pairs of stolen pants, which were recovered, had a retail value of $488. Appellant does not question the sufficiency of the evidence against him.

Appellant appeared for his trial de novo in the Court of Common Pleas in clothing issued by the State Correctional Institution at Graterford, purple pants and matching shirt with a number on the left side. Appellant moved to have the trial continued until he could obtain civilian clothes, but the court denied this motion, stating that "[w]hat clothes he is wearing or where he is currently residing will have absolutely no effect on this court's determination of the case." It is contended that requiring appellant to proceed to trial in prison garb deprived him of the presumption of innocence and constituted error requiring a new trial.

Appellant would have this court extend the principle recognized in Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976), where the United States Supreme Court stated that "the State cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes . . . ." (Emphasis added). It is asserted that several decisions of this court require us to hold that trying a defendant in prison clothes before a judge sitting alone is also fatally prejudical. Cases such as Commonwealth v. Fields, 231 Pa. Super. 238, 331 A.2d 494 (1974), Commonwealth v. Lockhart, 227 Pa. Super. 503, 322 A.2d 707 (1974), and Commonwealth v. Rivers, 218 Pa. Super. 184, 279 A.2d 766 (1971), support the general proposition that the same principles of evidence, error and prejudice should be applied in both jury and non-jury trials. Decisions like Commonwealth v. Mangan, 220 Pa. Super. 54, 281 A.2d 666 (1971) and Commonwealth v. Berkery, 200 Pa. Super. 626, 190 A.2d 572 (1963), allocatur refused, 202 Pa. Super. , cert. denied, 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415 (1964), on the other

[ 258 Pa. Super. Page 379]

    hand, recognize the special training and competence of the trial judge and grant him broader discretion as to the determination of his own objectivity in the face of improper exposure to prejudicial evidence. In Commonwealth v. Conti, 236 Pa. Super. 488, 345 A.2d 238 (1975), after reviewing both these lines of cases, the court states:

"It is also plain, when cases like Berkery and Mangan are compared with cases like Rivers, that at least in Pennsylvania no fixed rule has been announced for determining when a trial judge will be regarded as having been able to maintain his impartiality after hearing incompetent evidence. We do not undertake to announce such a rule now. Instead, we shall continue to decide each case according to its particular facts. In so doing, however, we do explicitly recognize that two factors will be considered of critical import. One factor will be the inherently prejudicial quality of the specific evidence involved. . . . The other factor will be the importance of the evidence to the particular case. Suffice it to say that when, as in Berkery, the other evidence is overwhelming, we shall be less sensitive to the risk of harmful prejudice below." 236 Pa. Super. at 501, 345 A.2d at 245.

The evidence involved in the instant case, appellant's appearance for trial in prison clothing, while of a type which might greatly influence a jury, would not be likely to impair the objectivity of a trial judge. As we have previously noted, Estelle v. Williams, supra, focuses exclusively on the jury trial situation. No authority has been cited in specific support of appellant's argument for expansion of the Williams principle. In fact the only apparent case law on the point, recommended to us by the Commonwealth, is to the contrary. In United States ex rel. Diamond v. Social Service Dept., 263 F.Supp. 971, 975 ...

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