No. 80-3-711, Appeal from the Judgment and Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, dated August 20, 1980, April Sessions, 1979, Nos. 596-603.
S. David Fineman (Court-appointed), Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Sarah B. Vanderbraak, Asst. Dist. Attys., Philadelphia, for appellee.
Roberts, C.j., Nix and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., concurs in the result of this opinion.
On February 25, 1979 at 3:10 a.m., defendant and two other males knocked on the door of a residence at 2833 West Diamond Street in Philadelphia. The second-floor of the residence was operated as a speakeasy by Mrs. Lorraine Rambert who was present at that time along with several of her children, grandchildren and a man named John Farrell.
Mr. Farrell went down the stairs to answer the knock on the door. Several members of the Rambert family testified that a man then came up the stairs with a shotgun in his
hand, followed by appellant who had grabbed Farrell around the neck and held a gun against his back, and a third male. The third man entered the second floor speakeasy rooms, warned everyone present not to move, and took or moved Mrs. Rambert's purse. Appellant, still holding Mr. Farrell around the neck, then followed the first man up the stairway toward the third floor. According to the witnesses, there were two shots and Farrell fell down the stairs, fatally wounded.
One of the witnesses saw appellant fire his weapon and saw a flash from the gun held by the man at the top of the stairs. Appellant was also wounded by one of the discharges. He stumbled down the stairs and into the street, where he received prompt assistance from a police officer who had been across the street in a patrol car and who called for a unit to transport appellant to a nearby hospital.
Appellant was charged with murder, robbery, criminal conspiracy and related offenses, and was tried in October, 1979 in the Court of Common Pleas of Philadelphia County. Appellant's defense was that he was an innocent bystander. Appellant testified that he had been at a party earlier that evening, had left the party to obtain some marijuana, and had met up with one Elijah Dennison and some other men who took appellant to 2833 West Diamond in an attempt to purchase the marijuana. Once inside, according to appellant, the other men pulled guns (to appellant's complete surprise), there was shooting and appellant was injured by the first shotgun blast. Appellant testified he had no intention of committing a robbery or of shooting anyone when he went to the speakeasy.
The jury disbelieved appellant's version of the events and returned a verdict of murder of the second degree, robbery, criminal conspiracy and possession of an instrument of a crime. Post-verdict motions were filed by trial counsel asserting only the standard "boiler-plate" allegations in support of a new trial (i.e., challenges to the weight and sufficiency of the evidence). Additionally, appellant filed a pro se motion for a new trial and in arrest of judgment
which alleged the ineffectiveness of trial counsel, and sought the appointment of new counsel.
The lower court granted the pro se motion for appointment of new counsel who filed supplemental post-trial motions. New counsel represented appellant on May 6, 1980 at an evidentiary hearing held before the Honorable Theodore B. Smith, Jr., who was also the presiding judge at appellant's trial. On August 20, 1980, the post-trial motions were denied and appellant was sentenced to life imprisonment on the murder conviction and to lesser concurrent terms on the remaining convictions. Direct appeal was then taken to this Court.*fn1
Appellant first argues that he was unduly prejudiced by certain remarks made by the prosecutor in his closing argument and that the court's curative instructions were inadequate to dispell the prejudice. We disagree.
During his closing, the prosecutor made the following remarks in commenting upon appellant's "innocent bystander" defense:
Now, what did [appellant] say? He took the stand. He didn't say I wasn't there. What does he tell you? Is it out of Grimm's? Is it out of Mother Goose? Where is it from? Notes of Testimony (N.T.) at 1011.
Trial counsel immediately objected. The trial court sustained the objection and rendered the following cautionary instructions to the jury:
The Court: I'll sustain the objection. You [the prosecutor] may not characterize the defendant's testimony in such a fashion, and the jury will disregard that characterization entirely, the suggestion that the defendant's testimony was out of some fairytale. You heard the defendant's testimony. It's to be treated like any other witness's testimony and may not be characterized in that fashion. Do not use such expressions again. And you will disregard that characterization entirely, ladies and gentlemen.
The Prosecutor: May I continue, sir.
The Court: Yes, with the admonition I have given you. N.T. at 1011-12.
Certainly, it is improper for a prosecutor to express a personal belief or opinion as to the truth or falsity of evidence of defendant's guilt, including the credibility of a witness. Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979) (where defendant's version of events was branded a "big lie"); ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8(b) (Approved Draft, 1971). However, it is equally clear that comments by the Commonwealth's attorney do not constitute reversible error unless the "unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Van Cliff, 483 Pa. 576, 582, 397 A.2d 1173, 1176 (1979) (citations omitted). Moreover, whether this standard has been violated is, in the first instance, a determination within the trial court's discretion, to be reversed on appeal only upon abuse of that discretion. Id.
While the prosecutor's comments may have been improper, we cannot say that the trial court abused its discretion in finding that there was no fixed bias or hostility formed in jurors' minds as a result of the comments, especially in light of the immediate, emphatic instructions to the jury and admonition to the prosecutor.
Appellant next argues that he was unduly prejudiced by an improper leading question asked of him by the prosecutor. During ...