No. 330 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 1342-77.
George B. Ditter, Chief of Appeals Division, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., files a concurring statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 273 Pa. Super. Page 153]
The instant appeal arises from appellant's conviction of possession of a controlled substance, namely, heroin.*fn1 Appellant, who at the time of the commission of the offense was an inmate at The State Correctional Institution at Graterford, Pennsylvania, raises one question which we find worthy of discussion in this opinion: Whether the trial court erred in refusing to grant a mistrial when the assistant district attorney, during summation to the jury, characterized the testimony of a witness for appellant as a "lie."*fn2 The relevant facts are as follows:
While appellant was a prisoner at Graterford, Correction Officer Arthur Smith stopped him in a corridor and asked to inspect a paper bag appellant was carrying. Appellant complied, and inside the bag underneath several packs of cigarettes Officer Smith found a hypodermic needle wrapped in toilet tissue. At trial Officer Smith testified that while he was opening the bag, appellant dropped a packet to the floor which he had taken from his prison-pants pocket. Subsequent analysis revealed the substance in the packet to be heroin.
Appellant offered a different account of the events through his testimony. Although he did not dispute the bag contained a hypodermic needle, he claimed the heroin was in the bag also. His defense was that he thought the bag only contained cigarettes which fellow-inmate Harry Twiggs had asked him to deliver to another inmate. He denied having inspected the contents of the bag, and also denied having dropped the packet of heroin to the floor. For corroboration he summoned Harry Twiggs who testified that he had asked appellant to deliver the "cigarettes," and that appellant was
[ 273 Pa. Super. Page 154]
neither informed of nor inspected the contents of the bag in his presence. Of course, if the jury had found that appellant did not know he was transporting heroin, he would have been acquitted.
Obviously, the only substantial issue in the case was the credibility of the witnesses. Focusing on the issue at hand, the assistant district attorney made the unfortunate mistake of characterizing as a lie the testimony of Harry Twiggs, then serving a life sentence for murder. Immediately, defense counsel objected and moved for a mistrial. The court sustained the objection, but refused to declare a mistrial. Instead the court instructed the jury as follows:
"I would comment, members of the jury, that it would be a more sequacious argument on the part of Mr. McGilvery, if he were to suggest to you that the testimony of the witness Twiggs was not to be believed, and then advance for you the reason why he thought it was not credible."
"It was improper for him to suggest that the testimony was prefabricated or conceived between the witness Twiggs and the defendant, and I would ask you to ...