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COMMONWEALTH PENNSYLVANIA v. FRANK BARANYAI (06/13/80)

filed: June 13, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK BARANYAI, APPELLANT



No 1061 April Term, 1978, Appeal from Judgments of Sentence imposed June 26, 1978, by the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC77-05187A and CC77-05185A.

COUNSEL

Bruce E. Dice, Pittsburgh, for appellant.

Kemal Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.*fn* Cercone, President Judge, files a concurring opinion.

Author: Wieand

[ 278 Pa. Super. Page 86]

Frank Baranyai, a policeman in the Borough of Millvale, Allegheny County, was tried by a jury and found guilty of one count of assault and another count of official oppression arising out of an incident with one David Stier. He was also found guilty on a general charge of official oppression involving numerous persons. He was acquitted of twenty-six other charges. Post trial motions were denied, and a sentence of probation was imposed. This appeal followed.

The facts, as set forth in the opinion filed by the court below, are as follows: "On March 25, 1977, David Stier,

[ 278 Pa. Super. Page 87]

    after having lunch and a few drinks with his business partner at the VIP Bar and Cousin's Lounge, went to his pickup truck. His partner had parked his truck so close behind Stier's truck that Stier was unable to get his truck out of the parking space. Stier put his truck in reverse, backed up, thereby bumping the truck behind him in an effort to move the other truck. The truck did not move and, instead, Stier's actions resulted in the spinning of his truck wheels, a screeching noise and a cloud of smoke. At this time defendant Baranyai, on his way home from work and still dressed in his uniform, came upon Mr. Stier and stopped. The defendant asked Stier what he was doing and Stier replied that he was trying to get out of the parking space. Baranyai got out of his car and went over to Stier asking him to get out and walk to the rear of his truck and back again. Stier complied at which time Baranyai told him to lean against the truck and spread out. Stier had his hands on the cab of the truck and tried to turn around three or four times in order to tell the officer that the truck behind Stier belonged to his partner, but each time Stier turned, the defendant pushed him back and told him to shut up. A handcuff was placed on Stier's right wrist and again he tried to turn around at which time Baranyai threw him to the ground. The officer sat on top of Stier and as the victim tried to raise himself up, the defendant put his hand around the victim's throat and three times hit his head against the pavement. The officer then took Stier's right elbow and pushed it toward the left shoulder to such a degree that an observer expected it to snap. Baranyai then called to a man sitting in the defendant's car and asked him to bring his nightstick which the man did. The defendant raised his nightstick and told the complainant to 'stop it or I'll split your head open.' (T.T. 51). Two other officers arrived on the scene, picked Stier up off the ground and placed him in their cruiser. Stier was charged with Drunk Driving and Resisting Arrest. His case was accepted for the Accelerated Rehabilitative Disposition Program.

[ 278 Pa. Super. Page 88]

"The general charge of Official Oppression listed fifteen individuals*fn1 who at various times over a period of years claimed that they had been oppressed by Officer Baranyai. The facts involved in each of those cases are too numerous to set forth here. Testimony was presented at trial in regard to all of the incidents. Generally, the complainants charged the defendant with mistreatment, harassment, false arrests and assaults."

Appellant has not questioned the sufficiency of the evidence to sustain the verdicts. He does raise many other issues, which we will consider seriatim.

He argues, first, that the trial court erred in refusing a mistrial because of prejudicial remarks allegedly made by the District Attorney during closing argument. This issue, however, has not been preserved for appellate review. Counsels' closing arguments were not recorded. Appellant interposed no objections during the District Attorney's closing argument and made no request to place on the record those remarks alleged to be objectionable. After the arguments had been concluded and during a conference between counsel and the trial judge in chambers, appellant for the first time complained of alleged prosecutorial overreaching and moved for a mistrial.

"Where the argument is not recorded, there is a need to require an objection during the argument so that the remarks may be placed in the record at or about the time they are made and thereby ensure accuracy. Otherwise, the recollection of both counsel and the court at the conclusion of the argument may differ and thereby result in unnecessary factual disputes." Commonwealth v. Adkins, 468 Pa. 465, 472, 364 A.2d ...


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