No. 1777 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, No. 111, 1977.
Roy Davis, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 275 Pa. Super. Page 224]
Pursuant to a jury trial commenced on September 6, 1977, appellant was found guilty of two counts each of involuntary deviate sexual intercourse,*fn1 simple assault,*fn2 and terroristic threats.*fn3 Post-trial motions were denied, and appellant was sentenced to concurrent prison terms of from six to twelve years on each involuntary deviate sexual intercourse count, and a concurrent term of two and one-half to five years on the terroristic threats count. He now contends that several reversible errors were committed during trial. We disagree and for the following reasons affirm the judgment of sentence.
Viewing the testimony in the light most favorable to the Commonwealth as verdict winner, the facts of the incident may be briefly summarized as follows: During September of 1976, both appellant and one Robert Moore were inmates at the Broadmeadows Prison in Delaware County. On the 16th and 21st of that month, appellant called Mr. Moore into his cell for a chat. When Mr. Moore entered the cell, appellant
[ 275 Pa. Super. Page 225]
held a razor to his throat and forced him against the wall. Appellant next compelled Mr. Moore to undress and bend over a sink, at which time the two engaged in an act of anal intercourse. Appellant was arrested for this affair some three months later, on February 3, 1977.
Appellant's first contention is that he was fatally prejudiced by the assistant district attorney's use of the word "rape" in his opening address to the jury. Appellant argues that because the information filed against him did not include rape, the gratuitous and erroneous use of such an emotionally charged word rendered a fair jury trial impossible. We need not reach the merits of this issue, however, for we find it has been waived.*fn4
It is well settled that to preserve for appellate review an objection relating to the opening or closing address of opposing counsel, that objection must be specific and be brought to the trial judge's attention as soon as is practical. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978); Commonwealth v. Kollock, 246 Pa. Super. 16, 369 A.2d 787 (1977). In the instant case, the following is the sole reference to the incident during the assistant district attorney's opening:
"MR. STEDJE [Counsel for Appellant]: Your Honor, may we approach the Bench, please?
MR. STEDJE: With the Court Reporter.
(Whereupon a sidebar discussion was held, as follows:
MR. STEDJE: I am objecting to the District Attorney's opening. He is permitted to testify as to what the evidence will show, make a statement as to what the evidence will show.
[ 275 Pa. Super. Page 226]
THE COURT: What he expects to show.
MR. STEDJE: That's correct. He hasn't done that. What he is doing is making a statement without saying that it's subject to proof, cross-examination, anything else.
THE COURT: I expect he's going to come to that.
MR. HARRIS [Assistant District Attorney]: Your Honor, that statement is-statement is well within the bounds of propriety. That's a declarative sentence.
THE COURT: I really don't see anything wrong with what he said so far. The only thing is, that kind of made you wince apparently was the use of the word rape.
MR. STEDJE: I'm not attempting to-
THE COURT: This is a, this is his statement of what he expects to prove. Now, I'm sure that if I know Mr. Harris he's going to tell the jury that presently and I know that you're going to tell the jury that; and if you want I'll tell the jury that when the speech is over. But I won't interrupt it.
THE COURT: Your objection is noted."
From the face of this exchange, it is impossible to determine precisely either what the prosecutor said concerning rape, or what particular statement appellant's counsel found objectionable. The fact that the court opined that counsel "winced" at the word rape is nothing more than conjecture on the part of the trial judge. If counsel wished to move for a mistrial or request curative instructions if in fact the word "rape" was used, he should have specifically done so. Particularly in cases in which the opening address is not recorded, counsel must state their grounds of objection with specificity, and place the allegedly improper remarks on
[ 275 Pa. Super. Page 227]
the record. As counsel neglected to do so in this case, we deem any objection to have been waived.
Appellant next argues that the trial court improperly limited his cross-examination of the victim, Robert Moore. Specifically, Mr. Moore on direct examination testified that appellant forcibly engaged him in an act of sodomy on two separate occasions as described supra. On cross-examination, appellant attempted to explore the possibility that this testimony might have been given in return for a reduction in the sentence that Mr. Moore was serving.*fn6 The trial judge sustained an immediate objection to this inquiry, ordered the question and answer stricken, and instructed the jury to disregard the exchange.*fn7
Appellant contends that this information was particularly relevant because at his first trial, Mr. Moore had initially testified that no sexual abuse occurred on September 16th, and altered his testimony only after an alleged guarantee of protection from the prosecutor. Nevertheless, we agree that the trial court correctly refused to allow inquiry into this area. This ...