No. 2184 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Indictment Nos. 2216-2217, October Term, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Div., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ.
[ 266 Pa. Super. Page 183]
On October 9, 1976 at approximately 1:30 a. m., complainant alighted from a bus at 31st and Lehigh Avenue in Philadelphia, Pennsylvania. She desired to go to 29th Street in order to catch a connecting bus. It was raining; one Gary Cheatham was standing at the stop with an umbrella; he approached her and offered to accompany her to the 29th Street stop with his umbrella; she accepted his offer.
Before they reached the bus stop, appellant and a companion approached the complainant and Mr. Cheatham; appellant put a straight razor to her throat and led her to a house four blocks away.
Once in the house, the three men, joined by two more men, raped the complainant and forced her to perform various other sex acts.
Following her release, complainant went to her mother's house and from there to Episcopal Hospital, from where the police were summoned.
[ 266 Pa. Super. Page 184]
Following a trial by jury (two co-defendants were also tried with him), appellant was convicted of rape and involuntary deviate sexual intercourse. Post verdict motions were denied and a sentence of twelve (12) to thirty (30) years imprisonment was imposed (consecutive terms of 6-15 years).
Appellant initially asserts that a mistrial should have been granted by the lower court because of the repeated prejudicial remarks by the prosecutor.
"The prosecutor is a quasi judicial officer representing the Commonwealth. His duty is to seek justice, not just convictions." Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975).
Thus, where the prosecutor breaches his duty of fairness and acts in a manner that deprives the defendant of a fair trial, a mistrial should be granted. Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978).
We note, however, that the misconduct must cause prejudice to the defendant, and if the prejudice to the defendant is eliminated by subsequent curative instructions from the court, then no mistrial need be granted. Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
Appellant asserts three*fn1 instances of prosecutional misconduct. The first concerns a comment interjected by the prosecutor while defense counsel was cross-examining a police officer.
Q. (Defense Counsel) And you further saw him many times last week, almost every day of last week in court here. Isn't that right?
[ 266 Pa. Super. Page 185]
Q. But of course you have an awful lot of cases out of that district, don't you?
Q. And you see an awful lot of people. Is that right?
Q. And today you can't remember which of these fellow is Gary Cheatham. Is that what you have told us?
Q. You didn't a few minutes ago, ...