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decided: May 25, 1979.


No. 1520 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 996-1006, November Term, 1975.


Donald G. Joel, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Com., appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 266 Pa. Super. Page 363]

Pursuant to a jury trial concluded on November 8, 1976, appellant was convicted of rape,*fn1 criminal conspiracy,*fn2 involuntary

[ 266 Pa. Super. Page 364]

    deviate sexual intercourse,*fn3 and two counts each of kidnapping*fn4 and robbery.*fn5 Post-verdict motions were denied, and appellant was sentenced to several concurrent and consecutive prison sentences which totaled not less than 12 1/2 nor more than 25 years. Appellant now asserts numerous instances of error which we will address seriatim.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978), the following facts were adduced at trial. At approximately 9 p. m. on June 27, 1975, Florence Feld, age 57, and her husband Samuel Feld, age 66, had just parked their car in the garage of their apartment building in Montgomery Township. Before they reached the garage stairway, they were surrounded by appellant, Michael Guess (appellant's brother), and Joseph Toy (appellant's co-defendant). Toy and Michael Guess held guns to the temples of Samuel Feld, while appellant trained a gun on Mrs. Feld. After taking Mr. Feld's money and watch, and Mrs. Feld's pocketbook, appellant and his companions forced the couple into the back seat of their car. Toy and Michael Guess then drove the Feld's automobile out of the garage while appellant followed in a backup car. The two vehicles proceeded in tandem to the Cedar Hill Country Club, where Mr. Feld was removed from the vehicle. At Toy's order, Mr. Feld was about to be placed in the trunk of the car when his wife pleaded with the abductors and informed them that her husband suffered from a heart condition and emphysema. In apparent response to this request, the three miscreants deigned only to force Mr. Feld to lie flat on the front seat of his car with his head down. Toy then took Mrs. Feld into the rear seat and at gun point compelled her to perform fellatio on him. In the interim, Mr. Feld's labored breathing indicated a serious deterioration in his physical condition. Noting this, Mrs. Feld advised

[ 266 Pa. Super. Page 365]

    her assailants that she would cooperate with them on the condition that they release her husband.

Accepting this bargain, the group drove back into Philadelphia and allowed Mr. Feld to leave the car. After he was released and both cars were in motion, Michael Guess entered the back seat and penetrated Mrs. Feld's vagina with his penis. After several stops during which conferences were held, Toy similarly forced himself on Mrs. Feld. Finally, appellant, who had continued to drive the backup vehicle, also entered the rear seat and duplicated the actions of his companions. At the conclusion of this episode, Mrs. Feld was permitted to escape from the car. She immediately hailed a cab, returned home, and notified the police. Appellant was apprehended on October 16, 1975, after being implicated by Joseph Toy.*fn6

Appellant's first argument is premised on the following incident. During the District Attorney's closing address to the jury, he related the ensuing personal experience:

"You know you sit here and think of [how?] I would have acted differently, why did she do that, I would have fought and screamed. Let me give you an example of it.

I had an infantry platoon in Viet Nam, and the platoon of men was scouts, and they walked German Shepherds in front of other platoons to find booby traps and ambushes, they were out in front, they were the first to get it physically. I had two men in my platoon, one who was a college graduate who was bigger than I am, who was a big braggart, he was going to be cool and he was going to win his medals and he was going to be the hero; he thought he could run the platoon better than I could. I had another kid in my platoon who was a poor kid from North Carolina who was too dumb when he took the Army

[ 266 Pa. Super. Page 366]

    test first time around, so when they needed infantrymen they passed him sure enough so he could get in, whether he wanted to or not he was drafted. He was scared and he told me.

I went out with him one day, he said you're crazy, what are you doing out with me, you don't have to be out here. And he suppressed his fears.

Well, ladies and gentlemen, I went out with the big tough braggart who was going to win all the medals, he was so scared the dog wouldn't even function, the dog even got the fear of the handler; the only way I could get the dog to go out on patrol was take him, and I tripped a booby trap and through the grace of God I'm here. But that was the big tough guy who was going to be a hero. The small guy's lieutenant was wounded, he ended up taking over the platoon leading them out of the jungle to safety; he's the one with the medal today the poor quiet scared kid, not the big braggart who was sure he was a hero. You don't know what you would do in a situation, none of us do." N.T. 764-66.

At the conclusion of the closing argument, counsel for both appellant and appellant's co-defendant objected to these remarks and moved for a mistrial.*fn7 That motion was denied, and appellant now contends that because the comments placed the character of the district attorney in issue, they were improper and deprived appellant of a fair trial. We disagree.

While the guilt or innocence of an accused does not hinge on the relative merits of opposing counsel's summations, it is beyond dispute that jurors are heavily influenced

[ 266 Pa. Super. Page 367]

    by these final appeals. It is thus imperative that counsel for both the Commonwealth and the defendant scrupulously adhere to the principles governing their presentation. The prosecuting attorney is in a particularly sensitive position because he possesses a unique status as both an officer of the court seeking justice, and an agent of the state attempting to assure effective law enforcement. In recognizing this singular station, the courts have carefully circumscribed the permissible range of his closing argument. It has been stated that the prosecutor has an obligation to:

"'. . . present the facts so that the jury can dispassionately and objectively evaluate the testimony in a sober and reflective frame of mind that will produce judgment warranted by the evidence and not inspired by emotion or passion.'" Commonwealth v. Gilman, 470 Pa. 179, 188, 368 A.2d 253, 257 (1977), quoting Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974).

Frequently employed by the courts of this Commonwealth, e. g., Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), section 5.8 of the A.B.A. Standards Relating to the Prosecution Function provides:

"(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by ...

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