No. 1217 October Term, 1979, Appeal from the judgment of sentence of the Schuylkill County Court of Common Pleas, Criminal Division, No. 800-1 of 1978.
Jeffrey P. Bowe, Assistant Public Defender, Pottsville, for appellant.
Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
Brosky, Wickersham and Roberts, JJ.*fn*
[ 285 Pa. Super. Page 540]
On March 7, 1979, a jury found appellant, Claude Leymeister, guilty of aggravated assault. Appellant's post-verdict motions were denied and he was sentenced to a term of imprisonment of one to two years. For the reasons set forth below, we affirm the judgment of sentence.
Appellant's sole contention is that the prosecutor misstated evidence during his closing argument and as a result deprived appellant of a fair trial. It is, of course, true that a prosecutor "must limit his statements to the facts in evidence and legitimate inferences therefrom." Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300, 302 (1972). If the prosecuting attorney's improper remarks so prejudice the jury as to prevent a fair trial, reversible error exists. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173
[ 285 Pa. Super. Page 541]
(1979); Commonwealth v. Reynolds, 254 Pa. Super. 454, 386 A.2d 37 (1978).
Before addressing the merit of the issue raised by appellant, we must decide whether the issue was preserved for appeal. We first note that the closing arguments of counsel were not recorded. Where the closings are not recorded, it is well settled that any objection must be made during the argument so that the challenged remarks may be placed in the record at or about the time they are made. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976); Commonwealth v. Kollock, 246 Pa. Super. 16, 369 A.2d 787 (1977). The purpose of this requirement is to ensure an accurate record on appeal. Commonwealth v. Perkins, supra. "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, supra, 468 Pa. at 472, 364 A.2d at 291.
In the instant case, appellant's counsel made a timely objection to the prosecutor's alleged misstatement of evidence but failed to place the remarks on the record. Therefore, although the record reflects an objection during the prosecutor's closing argument, this court is not apprised of the substance of the challenged remark.*fn1 Moreover, the recollection of both counsel and the lower court differs as to the occurrence and the substance of the objection.*fn2
The instant predicament of a factual dispute over the content of the closing and ...