No. 249 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, No. 2362 December, 1979.
Arthur Henry James, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Montemuro and Popovich, JJ. Popovich, J., concurs in the result.
[ 319 Pa. Super. Page 263]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County entered against the appellant, Ricky Hickman. Appellant was convicted, after a jury trial, of one count of robbery.*fn1 After the denial of post-verdict motions, the appellant was sentenced to seven and one half (7 1/2) to twenty (20) years imprisonment; said sentence precipitating the present appeal.
Three issues are raised by the appellant herein. He contends that he was deprived of a fair trial because of improper remarks made by the district attorney during the trial, particularly in the examination of witnesses and in his closing statement. He also contends that he was denied his right to be judged by a jury of his peers by reason of the district attorney's use of his peremptory challenges to exclude all black veniremen from the jury panel. Finally, he contends that he was prejudiced by the answer of a Commonwealth witness which related another crime committed by the defendant, and that the trial court erred in denying his motion for mistrial on this point. Because we agree that the appellant was deprived of a fair trial because of the remarks made by the district attorney throughout the trial, it is not necessary to consider the other issues. We therefore vacate the judgment of sentence and remand for a new trial.
The relevant facts are as follows. On December 13, 1979, at approximately 5:30 -- 6:00 P.M., James Harris, the manager of a paint store in West Philadelphia, was depositing the daily receipts in the night depository of a branch office of the Central Penn National Bank. When Harris got out of his vehicle to deposit the receipts, a man holding a gun told
[ 319 Pa. Super. Page 264]
him to hand over the money. Harris turned and looked at the man for approximately five (5) to eight (8) seconds. After Harris relinquished the money, the man told him to get in the car and drive away. Harris then drove to a gas station and reported the incident to the police.
The next day Harris was relating the details of the incident to a local patrolman in front of the paint store. At that time the appellant drove by and parked down the street. Harris said to the patrolman, "[t]hat's the guy who robbed me." The patrolman then took the appellant into custody.
At trial, the Commonwealth introduced the identification testimony of Harris. Defense counsel countered with an attack on the identification based on the circumstances under which it took place (rainy, twilight) and on Harris' description of the facial hair of the perpetrator. The appellant also produced the alibi testimony of his mother, his girlfriend, his girlfriend's father and girlfriend's nephew.
Although the issues in this case were not complex, the proceedings were disproportionately protracted, to the extent of some five hundred (500) pages of transcript. One reason for this was a rather lengthy and disputed jury selection process which, and we say this only speculatively, might have stirred up some animosity between the district attorney and defense counsel. We mention this only to presage the verbal sparring which later occurred.
Turning to the law which is relevant to our inquiry, in Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973), the court held that:
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. ...