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COMMONWEALTH PENNSYLVANIA v. MARK NICHOLSON (12/23/82)

filed: December 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK NICHOLSON, APPELLANT



No. 539 October Term, 1979, APPEAL FROM THE JUDGMENT OF SENTENCE OF FEBRUARY 27, 1979 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION, Nos. 976-987 JUNE TERM, 1978

COUNSEL

Dennis J. Cogan, Philadelphia, for appellant.

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth, Cavanaugh, Wieand, McEwen, Cirillo and Montemuro, JJ. Spaeth, J., files a dissenting opinion, in which Cercone, President Judge, concurs in the result.

Author: Cirillo

[ 308 Pa. Super. Page 372]

This is an appeal from the judgments of sentence, dated February 27, 1979, of the Court of Common Pleas of Philadelphia County.

On February 2, 1978, three men armed with guns entered the B & D Variety Store at 51st and Brown Streets in Philadelphia and robbed eight persons of money, watches, wallets and other personal possessions. The appellant, Mark Nicholson, was arrested on May 19, 1978 in connection with this incident. Each of the victims testified at the trial and all were able to identify the appellant, either subsequent to the incident or at trial, as one of the robbers. Their testimony established that the store was well-lighted, that they had an excellent opportunity to observe the unmasked faces of the intruders, and that the robbery lasted more than thirty minutes. Additionally, the victims testified that they had seen the appellant in the neighborhood on previous occasions.

[ 308 Pa. Super. Page 373]

The appellant denied culpability and alleged that the victims conspired to falsely identify him as one of the perpetrators. He sought to support this hypothesis by establishing that none of the victims immediately identified him, either my name or by nickname, to the first police officers on the scene, although he was known by some of the victims. Furthermore, the appellant introduced evidence that he and one of the victims, Jasper Golatt, had belonged to rival gangs earlier and therefore, he contended, Golatt was responsible for the alleged fabrication.

The appellant was convicted by a jury of eight counts of robbery. He subsequently filed post-trial motions for a new trial and in arrest of judgment, which were denied. Following a presentence investigation and a neuropsychiatric examination, the Honorable Curtis C. Carson, Jr. sentenced the appellant to concurrent terms of imprisonment of not less than five years nor more than ten years. The appellant's appeal from these judgments of sentence was argued before a panel of this Court, and was reargued before the Court en banc.*fn1 We affirm the judgments of sentence of the lower court.

The appellant's first contention on appeal is that certain remarks of the trial judge, made in the presence of the jury, were prejudicial and require the granting of a new trial.*fn2

The appellant sought to ascertain whether police, when first arriving on the scene, had asked the victims if they knew who committed the robbery. During the cross-examination of Harry Singleton, one of the robbery victims, the following occurred:

[ 308 Pa. Super. Page 374]

Q. And when the police came in the store, there was no discussion with the police with you about what had happened and who the people were; is that right?

A. Right.

Q. In fact there was no discussion between the police and the other people, other than you --

THE COURT: How can he testify to that?

DEFENSE COUNSEL: If he was there, your Honor.

THE COURT: Well, that doesn't make any difference. He doesn't know what the police asked the other people and I wish you would correct the cross examination to bring out the facts. He doesn't know what the police said to somebody else not in his presence.

DEFENSE COUNSEL: Could we have a sidebar conference?

THE COURT: No.

DEFENSE COUNSEL: I have an objection to make.

THE COURT: Make your objection.

DEFENSE COUNSEL: That wasn't his testimony, my objection is that he was there --

THE COURT: He cannot testify -- how does that man know what the police said to other people? According to his testimony, there were nine other people involved in this, the victims of this holdup. Now, how can he tell what the police asked other people?

DEFENSE COUNSEL: My objection respectfully is, your Honor, that that is the proper response to give if he doesn't know what was said, then he says 'I don't know what was said.'

THE COURT: Are you taking into consideration the intelligence of this young man who is on the stand? He's not a lawyer like you. He doesn't know the well-termed phrases. It takes no great shakes to confuse this man and take advantage of his inarticulation [sic].

DEFENSE COUNSEL: I'm not doing that, your Honor.

THE COURT: You are.

[ 308 Pa. Super. Page 375]

DEFENSE COUNSEL: Most respectfully, I object, your Honor, and I feel that I would like to make some argument out of hearing of the jury. I want to protect my client's interest --

THE COURT: I know what your objection is. I want you to proceed with your questioning.

DEFENSE COUNSEL: I have a motion as well.

THE COURT: That's denied, too.

Cross-examination of the witness then immediately continued:

Q. Mr. Singleton, was there any conversation between the police and any of the other people in your presence?

A. No, not that I know of.

The appellant concedes that the intervention by the trial judge did not harm his cross-examination. Rather, he argues that the judge's remarks castigated his counsel, bolstered the credibility of witness Harry Singleton, portrayed his counsel as a "trickster", and may have influenced the attempted impeachment of other Commonwealth witnesses.

"It is a maxim of our jurisprudence that a trial judge occupies an exalted and dignified position and that absolute impartiality in the conduct of the trial is expected of him." Commonwealth v. England, 474 Pa. 1, 16, 375 A.2d 1292, 1299 (1977); See also, Commonwealth v. Nesbitt, 276 Pa. Super. 1, 419 A.2d 64 (1980). However, as this Court has articulated:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.

Commonwealth v. Axe, 285 Pa. Super. 289, 294, 427 A.2d 227, 230 (1981); Commonwealth v. Wright, 279 Pa. Super. 608, 421 A.2d 365, 368 (1980); Commonwealth v. Phillips, 183 Pa. Super. 377, 382, 132 A.2d 733, 736 (1957). This

[ 308 Pa. Super. Page 376]

    standard has also been adopted by the Pennsylvania Supreme Court in the case of Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).

In Commonwealth v. Davis, 497 Pa. 335, 440 A.2d 1185 (1981), the subsequent dialogue transpired:

BY THE COURT:

Q. What was he talking to you about?

A. He wasn't talking about too much. Just about my case, that is all. About my case, like when I get on the stand for me to tell what I know about the case. What happened to me. That's what I'm doing.

Q. That's what your [sic] doing now?

A. Yes.

Q. Did he tell you to say anything that you are not saying now?

A. No.

Q. Did he tell you to say anything that was not part of your case?

MR. SAGEL: Judge, may I interrupt and --

THE COURT: Never interrupt the court. Sit down.

MR. SAGEL: I respectfully --

THE COURT: Sit down.

MR. SAGEL: I respectfully object, Sir.

THE COURT: I said to you to sit down.

MR. SAGEL: I must object --

THE COURT: Sheriff, take him into custody. We'll stand in recess, ...


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