No. 2064 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 4326-78
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Hoffman and Van der Voort, JJ.
[ 284 Pa. Super. Page 330]
Appellant, Ralph Linder, was convicted by a jury of theft by deception.*fn1 Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of two to five years. This appeal followed.
The facts may be summarized as follows. On August 20, 1978, between three and four p. m., Dennis Fitzgerald was the attendant at Neely's Sunoco Station in Hatfield Township, Montgomery County, Pennsylvania. He was approached by appellant who identified himself as J. B. Smith and asked to speak to Mr. Neely, the owner of the station.
Mr. Fitzgerald called Mr. Neely on the telephone and handed the receiver to appellant. Appellant spoke with Mr. Neely who agreed to order tires for appellant's truck. Mr. Neely then hung up the telephone, but appellant continued to talk into the receiver about delivering some merchandise to Mr. Neely. Mr. Fitzgerald stood nearby listening. While appearing to still be conversing with Mr. Neely on the phone, appellant told Mr. Fitzgerald to note certain articles and their prices on a credit card receipt and to run the receipt through the credit card machine. Mr. Fitzgerald complied with appellant's orders, and the merchandise which he listed on the credit card receipt totaled $515.00. After appellant finally hung up the receiver, Mr. Fitzgerald paid him $515.00 in cash and appellant promised to return with the merchandise. Appellant never did return.
At approximately five thirty p. m., Mr. Neely arrived at the station. When he learned of the payment made to appellant, he promptly called the police. Mr. Neely testified that he had never authorized such payment. (N.T. of the Trial on March 13, 1979, at 69, 72).
Appellant raises seven assignments of error on appeal.*fn2
[ 284 Pa. Super. Page 331]
Appellant's first contention is that the lower court erred in denying his motion for mistrial based on prosecutorial misconduct. Appellant contends that the assistant district attorney expressed his personal opinion as to appellant's guilt in his opening statement when he commented to the effect that there was no question that appellant took $515.00 from Neely's Sunoco Station.*fn3
A prosecutor should not express his personal opinion about a defendant's guilt. Commonwealth v. Evans, 479 Pa. 100, 102, 387 A.2d 854, 855 (1978). The impropriety of a prosecutor's remark does not, however, always require the
[ 284 Pa. Super. Page 332]
granting of a new trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). The Pennsylvania Supreme Court stated in Stoltzfus :
But even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa. Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. ...