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COMMONWEALTH PENNSYLVANIA v. CLAUDE LEYMEISTER (04/03/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 3, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
CLAUDE LEYMEISTER, APPELLANT

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.

COUNSEL

Jeffrey P. Bowe, Assistant Public Defender, Pottsville, for appellant.

Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.

Brosky, Wickersham and Roberts, JJ.*fn*

Author: Wickersham

[ 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 objection is exactly what the

[ 285 Pa. Super. Page 542]

    supreme court in Adkins was trying to avoid. While that court spoke in terms of the timeliness of the objection, its holding was to "ensure an adequate and correct record on appeal." Commonwealth v. Adkins, 468 Pa. at 472, 364 A.2d at 291. Defense counsel has the "obligation of setting forth in context and with sufficient illumination the statements he deemed offensive and prejudicial so an appellate court could make an intelligent judgment as to the nature and possible effect of the comments." Commonwealth v. Banks, 454 Pa. 401, 410, 311 A.2d 576, 580 (1973). We therefore find that defense counsel has the burden of not only making a timely objection during the prosecutor's closing but also of placing the challenged remarks on the record. Instantly, appellant's counsel failed to do so and the issue is waived.


*fn* Justice Samuel J. Roberts of the Pennsylvania Supreme Court is sitting by designation.


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