No. 1061 April Term, 1978, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC77-05187A and CC77-05185A.
Bruce E. Dice, Pittsburgh, for appellant.
Kemal Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ.
[ 296 Pa. Super. Page 344]
This is not the first time this matter has been before the Superior Court. When it was previously here, an opinion was filed and an order entered which set aside appellant's conviction on a general charge of official oppression but affirmed the judgment of sentence imposed following conviction of a specific assault and act of official oppression by appellant, a policeman, against one Dave Stier. See: Commonwealth v. Baranyai, 278 Pa. Superior Ct. 83, 419 A.2d 1368 (1980). In affirming the latter judgment of sentence, we decided, inter alia, that the closing remarks of the prosecuting attorney had not been preserved for appellate review because they had not been recorded and because defense counsel had failed to interpose any objection to the prosecutor's closing argument. Only after the jury had left the courtroom and counsel had adjourned to the trial judge's chambers did counsel complain and move for a mistrial. On allocatur to the Supreme Court, the matter was "remanded to the Superior Court for consideration of the merits of Mr. Baranyai's objections to the closing remarks of the attorney for the Commonwealth at trial."
Following closing arguments of counsel, but prior to the court's jury instructions, counsel retired to the judge's chambers. There, the following occurred:
"MR. DICE [appellant's counsel]: A couple of comments that I believe were highly prejudicial. Mr. Cuebas three times indicated that Baranyai was a 'punk behind a badge.'
"THE COURT: I didn't like that very much either.
[ 296 Pa. Super. Page 345]
"He called him Buford Puser [sic], Clint Eastwood; that, again, is shocking and prejudicial. 'To get out of town;' and comments about New York -- I ...