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filed: September 4, 1981.


No. 251 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas, York County, Criminal Division, at No. 207 of 1976.


H. Stanley Rebert, Assistant Public Defender, York, for appellant.

Daniel F. Wolfson, Assistant District Attorney, York, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, Judge, concurring and dissenting.

Author: Cercone

[ 291 Pa. Super. Page 196]

Under our system, one accused of a crime is presumed innocent until the prosecuting attorney has demonstrated beyond a reasonable doubt to an impartial jury of the vicinage that he and the malefactor are identical, or that his actions match the definition or conform to the elements of the malefaction of which he stands accused. This presumption of innocence is but one of the many aspects of the fundamental law of our land. Like its counterparts, it emanates from the core concept which seeks to restrain governmental excess and prevent abuse by those exercising state power. As it pursues justice the Commonwealth is thus committed not only to the principle that one is innocent until proven guilty, but also to the principle of fairness in criminal prosecutions. Indeed, these principles are complementary, one without the other would frustrate the ends and objectives of justice.

Equally fundamental to our system of the administration of justice is the notion of impartiality. We have restrained the Commonwealth's power to obtain guilty verdicts by requiring that the jury be impartial. This requirement encompasses not only that impartiality attained by culling the jury from the venire, but also impartiality in the way it reaches its verdict. In other words, the verdict must be "intellectually compelled after a disinterested, impartial and fair assessment of the testimony . . . presented." Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). For this reason, we do not permit the Commonwealth to obtain a verdict in its favor by appealing to a jury's attributes other than those of reason and perception. This is all the more true because of the quasi-judicial role of the prosecuting attorney and the likelihood that the jury will trust him in what he says, believing in its innocence that he will always fulfill his role within permissible bounds. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972); Commonwealth v. Sargent, 253 Pa. Super. 566, 385 A.2d 484 (1978). As our representative in the

[ 291 Pa. Super. Page 197]

    criminal court proceedings, the prosecuting attorney seeks no victims, only justice. Commonwealth v. Revty, supra; Commonwealth v. Sargent, supra. Although he may personally believe that the evidence clearly indicates the accused's guilt, we allow him only to argue fair deductions and appropriate inferences from the evidence, Commonwealth v. Revty, supra,

[s]o that the jury can dispassionately and objectively evaluate the testimony in a sober and reflective frame of mind that will produce judgment warranted by the evidence and not inspired by emotion or passion.

Commonwealth v. Harvell, 485 Pa. at 411, 327 A.2d at 30. And see Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977). To allow him to do otherwise would be to permit the Commonwealth to overstep the limits which we have imposed for the protection of an individual's fundamental rights and liberties.*fn1

With the foregoing firmly in mind we turn now to the case at bar, which is, as we have intimated above, a prosecution

[ 291 Pa. Super. Page 198]

    for rape and kidnapping. The uncontroverted evidence shows the following to be true. In the early evening of August 10, 1975 the victim, a young woman of seventeen, was walking along a road in York County on her way home. As she proceeded she was accosted by six men in a pick-up truck. Four of the men were in the rear of the vehicle; the other two were seated in its cab. They made several lewd remarks and then suddenly two of the six snatched her from the roadside, deposited her in the rear of the truck, and returned themselves to their former positions, whereupon the vehicle sped away from the scene of the abduction. The victim was later able to identify one of the two abductors who first laid hands on her as one of the passengers in the rear of the truck. Her second captor was the passenger in the truck's cab. The victim was unable to see this man's face, but could see the length and color of his hair, which was similar to appellant's. The truck travelled the back roads of York County for some time, making at least one stop before reaching its destination. During this traverse of the county, the victim was able to catch glimpses of appellant, who was then seated in the passenger's seat of the truck and who turned several times to look out the back window at the doings in the rear of the vehicle.

Upon arriving in a deserted area of the county, the victim was removed from the truck and taken several yards from the vehicle. She was forced to the ground and raped by at least four members of the group, but not by appellant. When the victim feigned unconsciousness she was taken to nearby Shrewsbury and dumped beside the road. After some initial panic she ran to the house of a friend who summoned police and medical assistance.

Immediately following these events the victim was able to identify with precision the four men who had been in the rear of the truck, all of whom were subsequently convicted of rape. Her description of the fifth man was less clear, but she could say that he had hair of a color and length similar to the second of her two abductors, and that she saw his face, following the abduction, at which time he was in the

[ 291 Pa. Super. Page 199]

    truck's passenger's seat. Furthermore, she could say that this fifth man had been present at the scene of the rape, but had not known her carnally himself. Of the sixth man she could give no description whatsoever.

Some months after the incident the victim identified appellant as the fifth man, and based on his hair color and his position in the cab of the truck when she first saw his face, as the second of the two abductors. He was subsequently arrested and charged with three violations of the Pennsylvania Crimes Code, specifically, Section 3121(1) (rape by forcible compulsion), Section 2901(a)(3) (kidnapping to inflict bodily injury or to terrorize the victim), and Section 2702(a)(1) (aggravated assault). Crimes Code, 18 Pa.C.S. §§ 3121(1), 2901(a)(3), 2702(a)(1). At trial, the Commonwealth sought to prove that appellant was one of the two men who had originally removed the victim from the roadside, based on the victim's identification of appellant. The Commonwealth also sought to prove that appellant acted as an accomplice to the victim's subsequent rape and confinement. Appellant's defense to the initial abduction rested on the contention that the victim was mistaken in her identification of him as one of the abductors. He admitted that when the victim first saw his face he was seated on the right side of the vehicle, but denied he participated in the abduction. He contended, rather, that at the time of the abduction he was the driver of the truck, and that by the time the victim first had the opportunity to see him he had been obliged by his fellows to yield the steering wheel to one less intoxicated than he. He further argued that the coincidence of similar hair color and the change in seating arrangements inside the cab worked together to create the impression in the victim's mind that he was the abductor. Appellant presented corroborating testimony concerning his inebriation and the fact that his fellows obliged him to let someone else drive. In defense to the Commonwealth's theory that he acted as an accomplice to the victim's subsequent confinement and rape, appellant sought to exculpate himself on the theory that his inebriation was so extensive that he was

[ 291 Pa. Super. Page 200]

    incapable of forming the requisite intent to aid and abet the commission of the crime physically perpetrated by his companions. Appellant demurred to the assault charge, which demurrer was sustained. The jury found appellant guilty of the two remaining counts and the court subsequently sentenced him to a term of imprisonment of not less than seven and one half and not more than fifteen years in a state correctional institution. It is from this judgment of sentence that the appeal is brought.

Appellant contends that the trial court committed error when it refused to grant a motion for mistrial following allegedly prejudicial remarks by the prosecuting attorney during his summation speech.*fn2 Immediately following the prosecutor's summation, counsel for appellant moved for a mistrial based on the allegedly prejudicial remarks the prosecutor had made. Since the argument was recorded, an objection at the close thereof was timely. See Commonwealth v. Gilman, supra; Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976); Commonwealth v. Allessie, 267 Pa. Super. 334, 406 A.2d 1068 (1979). The causes for the mistrial motion were reiterated in appellant's post-verdict motions and are thus preserved for our review.

Essentially, appellant has preserved for our consideration four types of alleged prejudicial statements by the prosecuting attorney during his summation speech:

(1) an alleged "guarantee" to the jury that the victim would recall clearly what happened to her because of the intense emotion associated with the events;

(2) the argument that appellant's failure to call a witness -- one of the four men previously convicted of the same crime -- allows the jury to infer that his testimony

[ 291 Pa. Super. Page 201]

    would have been damaging to the defendant had ...

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