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COMMONWEALTH PENNSYLVANIA v. MICHAEL TOOMBS (03/21/79)

submitted: March 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL TOOMBS, APPELLANT



No. 2467 October Term 1978, Appeal from Judgment of Sentence entered in the Court of Common Pleas of Delaware County - Criminal Division, as of No. 398 A, B, C, E, and F of 1977.

COUNSEL

Albert M. Scibello, Assistant Public Defender, Media, for appellant.

David E. Fritchey, Assistant District Attorney, Chief, Law and Appeals Unit, Media, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 269 Pa. Super. Page 257]

Appellant was convicted by a jury of robbery, burglary, theft by unlawful taking, simple assault, and conspiracy. After his post-verdict motions were denied, he was sentenced to two to four years in prison.

Appellant first argues that the trial judge's extensive examination of defense witnesses was an abuse of discretion because in questioning the witnesses the judge assumed the role of the prosecutor and prejudiced appellant's case in the eyes of the jury.

The classic statement of the rule limiting a trial judge's participation in the examination of witnesses appears in Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924):

Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is

[ 269 Pa. Super. Page 258]

    better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court . . . . The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance and from whom litigants expect absolute impartiality. . . . [He] should not, during the trial, indicate an opinion, on the merits, a doubt as to the witnesses' credibility, or do anything to indicate a leaning to one side or the other, without explaining to the jury that all these matters are for them.

Accord, Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977); Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971); Commonwealth v. Elmore, 241 Pa. Super. 470, 362 A.2d 348 (1976); Commonwealth v. Lanza, 228 Pa. Super. 300, 323 A.2d 178 (1974); ABA Standards Relating to the Function of the Trial Judge, ยง 6.4, p. 19 (1972).

One of appellant's witnesses testified that after the robbery, on the same day it occurred, he spoke with the prosecuting witness. According to him, the prosecuting witness neither mentioned the robbery nor appeared nervous or excited but instead appeared intoxicated. Direct examination by appellant's counsel was brief, and the witness's testimony clear.

In presenting this witness, counsel apparently intended to suggest that no robbery had taken place. This suggestion would be consistent with counsel's overall theory that the prosecuting witness accused appellant of the crime at the instigation of the owner of the bar that was allegedly robbed, because the owner, who employed the prosecuting witness, had a grudge against appellant. Given that the prosecuting witness allegedly saw the robber, and yet could not identify appellant, whom he had known for over a year as a frequent patron of the bar, until police showed him a picture of appellant at the suggestion of the owner of the bar, evidence tending to show that a robbery may not have occurred was certainly relevant. Moreover, because the

[ 269 Pa. Super. Page 259]

    prosecution's case rested on the testimony of the prosecuting witness, any testimony tending to undermine that testimony was vital to appellant's case.

Before the assistant district attorney could begin his cross-examination of appellant's witness, the trial judge interrupted:

MR. BULLEN: Thank you.

THE COURT: Ask him when he started to discuss this matter, this testimony.

MR. BULLEN: Your Honor, --

THE COURT: I'm going to find out.

MR. BULLEN: May we approach the bench?

THE COURT: I'm going to find out.

MR. BULLEN: May we approach the bench?

THE COURT: Just a moment, I am going to ask him more questions. I am going to ...


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