filed: February 15, 1980.
COMMONWEALTH OF PENNSYLVANIA
LAWRENCE DEMETRIUS SIMONS, APPELLANT
No. 294 Special Transfer Docket, No. 295 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Nos. 989 & 990 February Term, 1976.
Richard A. McDaniel, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge and Roberts and Lipez, JJ.*fn*
[ 275 Pa. Super. Page 566]
On May 26, 1976, a jury convicted appellant of murder of the second degree and robbery. After trial counsel filed post-verdict motions, appellant obtained new counsel, who filed supplemental post-verdict motions. After denying post-verdict motions, the trial court sentenced appellant to life imprisonment for murder and to a concurrent term of 5 to 10 years for robbery. Appellant contends that (1) the prosecutor's opening and closing statements were prejudicial; (2) the Commonwealth failed to disclose to the jury that a witness, a co-defendant, was testifying for the prosecution in return for a lenient sentence upon a plea of guilty to the charges against him; (3) the trial court erred in failing to provide cautionary instructions concerning impeachment by means of prior convictions; and (4) trial counsel was ineffective. In the interests of judicial consistency with the case of a co-defendant, Commonwealth v. Wayne Thorpe, No. 287 January Term, 1979, we reverse and remand this case for a joint evidentiary hearing with Commonwealth Page 567} v. Thorpe, on the issue of whether the Commonwealth disclosed all information to the jury concerning a plea bargaining agreement with a co-defendant, Ravenell.
In order to avoid further litigation or confusion should the case be re-appealed to our court after the evidentiary hearing on the above-mentioned issue, we will dispose of the remaining issues here. Appellant solicited Grant Ravenell, Wayne Thorpe and Angelo Casselle to rob the victim, Zollie Perry, for whom appellant had worked at one time. One of the men shot Perry during the robbery. Ravenell was also wounded. Ravenell pleaded guilty to murder of the third degree and lesser charges and testified for the Commonwealth at appellant's trial.
During his opening statement, the prosecutor argued:
". . . Mr. Perry . . . had a wife and child and he was a business man in your community in West Philadelphia.
[ 275 Pa. Super. Page 568]
his own bootstraps, built this building, this business, and that he also carried a gun. Because in the area in which this business was in West Philadelphia, it is not the safest area in the city for merchants.
This man stood by and allowed this to occur because of one thing, the greed and lust for money . . .
Commonwealth must make these agreements with co-defendants, to allow the prosecution of the main mover, the designer, the architect of this murder. But the agreement will be up front.
These agreements are sanctioned by the American Bar Association.
This man (Ravenell) is not going to let off lightly.
He is not like a man in prison when everybody in prison is innocent.
You will hear from a witness when this plan was conceived.
And now, his widow and child are left because this man decided to fight back on the streets of Philadelphia against persons like this man who pervert, who cajole and promise great wealth to other persons to rob and kill merchants in your community. You will hear of a meeting that took place prior to July 3, when this man knew what the receipts would be and that he employed one Wayne Thorpe. He employed a man by name of Cassalo and he employed a man by the name of DeWitt or DeWhite.
And Mr. Ravenell was taken in just as a lot of other persons are taken in by a person who has more persuasive power, more intelligence, and caused these persons to go
[ 275 Pa. Super. Page 569]
up the street which he remained in safety because he is the alleged brain of this robbery.
This man (indicating) this man led three other men into a trap, and he left them to fend for themselves. And if it wasn't for Grant Ravenell living, we wouldn't be here.
If Grant Ravenell died, then no one would have been arrested, no one, and the crime that took place, the death of Mr. Perry would go out the window. He would be just another merchant killed.
You may not feel that the law is just in some matters because the Commonwealth through the evidence will ask you to determine whether the man indicating the designs, the architect of this murder, is less culpable because he did not do it himself, but set the wheels in motion, and once they are in motion, the Court will tell you there is no stopping. And then, once they are set, the motion begins. He is responsible as if he would have pulled the hammer back on that gun, pulled that trigger and shot that man in the chest.
He was the viper in the bosom of this man who took him off the street. And he had the unmitigating gall to employ three persons to steal from the man, to bite the hand that fed this defendant."
Trial counsel did not object to these remarks and the trial court did not immediately caution the jurors about them. Appellant argues that these remarks were so prejudicial that he was deprived of a fair trial and that trial counsel was ineffective for failing to object to them.*fn**
Some of the prosecutor's comments were justified. Evidence showed that appellant had gathered the three other men to commit the robbery and that, as one familiar with the victim's business routine, he planned the crime. Evidence also showed that, during his employment with the victim, appellant had held a position of trust and confidence,
[ 275 Pa. Super. Page 570]
in which he was responsible for important transactions and large sums of money. This evidence justified that prosecutor's argument that the victim had "trusted [appellant] like an older son." See generally, Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978) (prosecutor's comments in opening statement must be fair deductions from evidence expected to develop at trial). Appellant contends that the prosecutor's accusation that he employed the three other men is inaccurate because no evidence showed that he paid them for their services. It is apparent from other parts of the opening statement, however, that the prosecutor used the word "employ" only in the sense that the men served his purpose and acted under his discretion. The prosecutor did not assert or imply that appellant paid his colleagues to join in the robbery.
Nonetheless, some of the prosecutor's comments clearly played to the emotions of the jurors. His references to the victim's business and family were calculated to stir up sympathy for the Commonwealth's case. His designation of appellant as "the viper in the bosom of [the victim] who took him off the street," although certainly describing appellant in strong language was not so prejudicial that they deprived appellant of a fair trial. The prosecutor did not misstate the evidence or express his personal opinion of appellant's guilt, or credibility of trial strategy. See Commonwealth v. Hughes, supra. The court, in its charge to the jury, cautioned that the jurors need not accept the arguments of either attorney and they alone would determine the facts. Thus, the prejudice from the prosecutor's comments, if any, was slight. See Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873; Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Perry, 270 Pa. Super. 412, 411 A.2d 786 (1979). Consequently, trial counsel was not ineffective for failing to object to these comments. See Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978).
Appellant also contends that the prosecutor made prejudicial comments in his summation:
[ 275 Pa. Super. Page 571]
". . . it's an awkward position that I appear in front of you today because I do not think anything I could say or do could top the performance of the witnesses that you heard yesterday.
This may appear to you to be a homicide case which is just not well reported. But believe me, that this is the type of case that is probably more important than some other homicide case which causes fear in the community for people like you to go out to these stores, to deal with people in your community, because if you keep killing off these storekeepers, you have no one left. And that's what has occurred here, because the shrewdness of this man and his plan and his scheme and his design was for only one purpose.
Angelo backed out because they got his name and cards.
This man is so shrewd he out-shrewed himself.
If you do not believe the Commonwealth's case, then, there is no burden on this man to put a defense on. But he gets up on the stand.
[ 275 Pa. Super. Page 572]
You heard it from the next witness. He was also framed. He has nothing to win or lose. So, what's the difference whether he comes in here and tells you what he thinks is the truth, or what he just made up, or I guess, what this man has done has been to manipulate. He has manipulated everyone that has taken the stand in his own defense.
This man is shrewd. It's a shame he doesn't put his intelligence to something more productive."
Appellant contends that trial counsel was ineffective for failing to object to these comments. We find nothing inflammatory in these remarks. Thus, counsel was not ineffective. See Commonwealth v. Roach, supra.
Appellant asserts error concerning his impeachment at trial by use of prior convictions. During cross-examination, appellant asserted that he was not a murderer or a robber. The prosecutor then asked appellant whether it was true that, a few years earlier, he had been convicted of burglary, robbery and carrying firearms. Appellant admitted that he had been convicted of those charges. Trial counsel then objected and the trial court sustained the objection. Counsel did not request an instruction to inform the jurors of the limited purpose of introduction of prior convictions for impeachment and the trial court did not give one, either at that time or in its charge. Appellant first argues that the trial court had an obligation to provide the jurors such an instruction regardless of counsel's failure to request one. There is no authority for this proposition and we think the court should not, sua sponte, interfere with counsel's management of the defense in this matter. Appellant next contends that trial counsel was ineffective for failing to request a limiting instruction. Appellant did not raise this claim in his post-verdict motions and the post-verdict
[ 275 Pa. Super. Page 573]
court did not pass on it. Consequently, the issue is not preserved for appellate review. See Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978).
Finally, appellant raises the issue of whether the Commonwealth disclosed to the jury all information concerning a plea bargaining agreement with a co-defendant, Ravenell. In another co-defendant's case, Commonwealth v. Wayne Thorpe, supra, our Supreme Court granted the Commonwealth's Petition to Remand for an Evidentiary Hearing on this identical issue. In the interests of judicial consistency, we will join in the Supreme Court's order and hold that the instant case shall also be remanded for a joint evidentiary hearing on this issue. If the lower court finds that the plea arrangement was fully disclosed, then the judgments of sentence are affirmed without prejudice to appeal from that order on that issue. If the plea agreement with Ravenell was not fully disclosed to the jury, then judgments of sentence are reversed and the case remanded for new trial.
*fn* Justice SAMUEL J. ROBERTS of the Supreme Court of Pennsylvania is sitting by designation.