decided: February 28, 1980; As Amended March 18, 26, 1980.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Crim. No. 77-228
Before Adams, Rosenn and Sloviter, Circuit Judges.
The appellant, Robert Swinehart, was convicted by a jury of conspiracy to defraud the United States by uttering stolen savings bonds, aiding and abetting the uttering of ninety-four savings bonds, and thirteen counts of forgery.*fn1 In his appeal, Swinehart alleges that he was prejudiced by certain remarks made by the prosecutor during closing argument and that he had not received effective assistance of counsel at trial. He asks us to order the district court to grant a new trial because of prejudicial comments by the prosecution, or to remand for an evidentiary hearing on the ineffective assistance of counsel claim. We reject these contentions and affirm.
Testimony at trial established the following facts: On January 21, 1977, 107 United States Savings Bonds were stolen from the home of LeRoy Johnston of Phoenix, Arizona. On April 15, a woman identifying herself as "Shirley Johnston" presented 94 of these bonds, fully endorsed, to the First Farmers Bank of Lancaster, Pennsylvania and used them to open an account. Three days later, the thirteen remaining bonds, bearing the signature "LeRoy Johnston," were deposited into the account. LeRoy Johnston testified that he had never endorsed the bonds, and a handwriting expert called by the government testified that the signatures on the thirteen bonds matched Swinehart's handwriting.
On April 19, Swinehart attempted to cash a $3,000.00 check, drawn on the "Shirley Johnston" account, at the Neffsville branch of the First Farmers Bank. A bank employee, telling Swinehart that there were insufficient funds in the account, refused to cash the check. Swinehart informed the employee that a deposit had been made the previous night at the Park City branch. The employee told Swinehart to return the next day to see if the deposit had cleared.
Upon his return on April 20, Swinehart was arrested by agents of the United States Secret Service. One of the agents testified that the Service had learned of the deposits of the stolen bonds from the bank and other sources, that Swinehart had attempted on April 19 to cash a check drawn on the "Shirley Johnston" account, and that he was expected to return the following day. At the scene of the arrest, the agents obtained from Swinehart the checkbook that the bank had given "Shirley Johnston" when she opened the account on April 15, a bank identification card bearing the name "LeRoy Johnston," and an interest computation sheet listing the stolen Johnston bonds which had been given to "Shirley Johnston" at the time she opened the account.
II. IMPROPER PROSECUTORIAL STATEMENTS
During his closing remarks to the jury, the prosecutor suggested that, in his opinion, Swinehart was guilty,*fn2 and made several references to the veracity of a handwriting expert called as a prosecution witness.*fn3 Swinehart's counsel did not object to these comments, nor did he request the trial judge to instruct the jury to disregard them.*fn4 Swinehart now contends that these remarks deprived him of due process.
In previous cases, we have reprimanded prosecutors who, in the course of opening or closing argument, vouch for the veracity of a government witness or express their views regarding the guilt of the defendant.*fn5 Such statements are both contrary to decisions of this Court*fn6 and violate the Code of Professional Responsibility of the Pennsylvania Supreme Court.*fn7 It is with considerable concern, therefore, that we must again express our disapproval of improper prosecutorial comments about a witness' veracity and the defendant's guilt.*fn8
Despite our disapprobation, we are constrained by previous decisions of this Court to reject Swinehart's plea for a new trial on this ground unless, reading the record as a whole, we conclude that he was prejudiced by the prosecutor's comments. In the past, the Court has distinguished between prosecutorial remarks regarding the defendant's guilt or a witness' credibility that are based on the evidence and those that are based on information outside the record. We have stated that the latter constitute reversible error per se, but the former are grounds for new trial only if the defendant was prejudiced by the remarks.*fn9
The improper prosecutorial statements in this case were limited to comments regarding evidence adduced at trial. Accordingly, they do not constitute reversible error per se, and we must determine whether Swinehart was prejudiced by them. The record developed at trial*fn10 persuades us that the jury would have convicted Swinehart even had it not been exposed to the improper prosecutorial comments. Swinehart was apprehended attempting to withdraw funds from a bank account comprised of the proceeds of stolen bonds. Several items linking him to the stolen bonds were obtained directly from him at the time of his arrest. And, a handwriting expert, whose testimony was not contradicted, declared that the signature on thirteen of the bonds matched Swinehart's handwriting.
Moreover, the trial judge, in his charge to the jury, helped dispel any improper inferences the jurors might have drawn from the prosecutor's remarks. In clear terms, the judge instructed that Swinehart was presumed to be innocent and that the prosecution had the burden of proving guilt beyond a reasonable doubt; that "statements and arguments of counsel are not evidence in the case"; that the jurors are the "sole judges of the credibility of all witnesses"; and that the jurors should give the expert's testimony "such weight as (they) may think it deserves." The district judge also noted specifically that "throughout the closing arguments of counsel you have heard reference made ...