No. 511 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 248-276 August Term, 1978.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Beck and Hoffman, JJ. Hoffman, J., files a concurring and dissenting opinion.
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Michael Pinder was convicted by a jury of burglary, four counts of robbery, aggravated assault, terroristic threats and unlawful restraint, three counts of rape and involuntary deviate sexual intercourse, and one count of possessing an instrument of crime. After post-verdict motions had been denied, Pinder was sentenced to a lengthy term of imprisonment. On direct appeal, he contends that numerous trial errors combined with prosecutorial misconduct to deprive him of a fair trial. He also contends that he was sentenced in violation of double jeopardy considerations. We will consider these issues seriatim.
During the early morning hours of June 28, 1978, Augusta Monroe, age 62, was awakened by her daughter, Louella, who discovered that a window in their apartment had been opened by a person unknown. When she went outside to investigate, Mrs. Monroe encountered her neighbor, Margarita Hamlin. When both entered the Monroe home, they found a black man holding a gun on Louella and Cheryl Walson, a guest in the Monroe home. He ordered the women into a bedroom, demanded money, emptied several bureaus. Unable to find more than fifteen dollars, he raped three of the women and forced them to engage in deviate sexual acts. Two of the women were forced to engage in deviate sexual acts with one another, and one was injured so badly as to require a hysterectomy because the rapist forcefully pushed his hand into her vagina. During the hour long ordeal only the elderly Mrs. Monroe was spared from the intruder's vicious sexual assaults.
All victims gave a detailed description of their attacker to the police. He was approximately 5' 11" in height, weighed 200 pounds, was in his 20's, wore a mustache and closely cropped hair, and had a broken tooth. His clothes included a red and white striped shirt, black knee length, cut-off trousers, a black zippered jacket, sneakers and sunglasses. From the victims' description, a composite sketch was
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drawn. Appellant, Michael Pinder, was subsequently identified and arrested. When arrested, appellant was at home, clad only in a bathrobe. Police escorted him to his bedroom to dress, where he selected a red and white striped shirt, black knee length cut-off trousers, sneakers, and a black jacket. All four victims identified appellant at a subsequent line-up.
Appellant's first argument is that he was prejudiced by remarks made during trial by the trial judge. We examine only two. The remainder of the remarks complained of by appellant were made at side-bar and were not communicated to the jury. Such remarks cannot be said to be prejudicial. Commonwealth v. Whitson, 461 Pa. 101, 107, 334 A.2d 653, 655-56 (1975); Commonwealth v. Krasner, 285 Pa. Super. 389, 413 n. 13, 427 A.2d 1169, 1181 n. 13 (1981).
The first comment made in the presence of the jury came after defense counsel, in the words of the trial judge, had "petulantly demanded" that he be provided with a transcribed copy of a witness's earlier testimony for purposes of cross-examination. After it had been determined that counsel had previously been given a copy of the notes, the following occurred:
THE COURT: Was the defendant provided notes of all these?
[DEFENSE COUNSEL]: Yes, Your Honor. It's my fault. I didn't bring my copy over.
THE COURT: You can't make a grandstand in the presence of the jury, then. You were provided with notes . . . .
The second instance occurred after defense counsel had reacted to a witness's response by dramatically throwing up his hands and exclaiming, "Oh!" The court struck the comment and instructed counsel to refrain from making gestures and comments.
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These two judicial remarks by the trial judge were isolated incidents in a lengthy trial. See, e.g., Commonwealth Page 61} v. Ferguson, 289 Pa. Super. 163, 170-71, 432 A.2d 1103, 1106 (1981); Commonwealth v. Mayo, 272 Pa. Super. 115, 120, 414 A.2d 696, 699 (1979). Contrary to appellant's allegation, the record does not show that the court ever displayed a hostile attitude toward the defense. Indeed, the trial judge demonstrated commendable restraint during a trial in which he was required to deal constantly with hostile and defiant tactics by defense counsel. The few mild reprimands given by the court, if possibly they evidenced annoyance with counsel, did not demonstrate hostility toward the defendant. See: Commonwealth v. Humphreys, 267 Pa. Super. 318, 331, 406 A.2d 1060, 1066-67 (1979); Commonwealth v. Frank, 263 Pa. Super. 452, 473, 398 A.2d 663, 673 (1979). "Counsel may properly be admonished on such occasions without nullifying the entire trial as long as the trial judge does not display partiality or prejudice by his conduct, manner of speech, or choice of language." Commonwealth v. Frank, supra, 263 Pa. Super. at 473, 398 A.2d at 674, citing Commonwealth v. Phillips, 183 Pa. Super. 377, 384-85, 132 A.2d 733, 737 (1957). Moreover, it is axiomatic that:
'[e]very 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.' (citations omitted)
Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). The record shows that appellant was not prejudiced, was not deprived of a fair trial, and is not entitled to another trial.
Appellant's next argument is novel. Barbara Kauffman, a third year law student certified as a legal intern pursuant to Pennsylvania Bar Admission Rules 321 and 322, had assisted the Philadelphia Defenders' Association in the preparation of appellant's case for trial. During the first
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four days of trial she had been permitted by the court to sit in the gallery from where she took notes. She was also permitted to attend side-bar conferences and confer freely with defense counsel. On the fifth day of trial the court denied a defense request that Ms. Kauffman be permitted to sit at counsel table. Appellant contends that he was thereby deprived of his right to be represented by effective counsel.
His contention must fail; he was not denied representation by counsel. Appellant was represented by counsel during the entire trial, and he does not contend that counsel was ineffective. Ms. Kauffman had not been admitted to the bar, and her participation in the trial was circumscribed by limitations contained in Pa.B.A.R. 322. The extent of her active participation in the trial, moreover, was subject to the rule that the general conduct of a trial is committed to the broad discretion of the trial judge. Commonwealth v. Warner, 209 Pa. Super. 215, 225 A.2d 98 (1966), cert. denied, 389 U.S. 986, 88 S.Ct. 477, 19 L.Ed.2d 479 (1967). The placing of reasonable limitations on the participation of persons other than primary counsel is not an abuse of the trial court's discretion. Thus, in Commonwealth v. Bachert, 271 Pa. Super. 72, 412 A.2d 580 (1979), rev'd on other grounds, 499 Pa. 398, 453 A.2d 931 (1982), we held that it was not an abuse of discretion to limit the right to examine witnesses and make objections to chief counsel for each side. Moreover, in the instant case, appellant has not identified any prejudice resulting from the trial court's refusal to allow the legal intern to sit at counsel table.*fn1
During cross-examination of the victims, defense counsel attempted to use police summaries to show alleged inconsistencies in the victims' trial testimony regarding appellant's appearance on the night of the rape. Where the
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witness was able to recall and verify the descriptive statement in the police report, counsel was permitted to cross-examine the witness concerning inconsistencies appearing therein. However, where the witness could not recall making a statement to police or was otherwise unable to verify the accuracy of the police summary, counsel was not permitted ...