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filed: October 12, 1984.


NO. 744 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of March 18, 1980, in the Court of Common Pleas of Philadelphia County, Trials Division, Criminal Section, at Nos. 757, 759, 761, 762, June Term 1979.


John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ., en banc. Popovich, J., dissented. Spaeth, President Judge, filed dissenting opinion. Brosky, J., joined in Spaeth's, President Judge, dissenting opinion.

Author: Beck

[ 334 Pa. Super. Page 207]

Appellant was convicted of rape, robbery, burglary, and simple assault.*fn1 His post verdict motions were denied and he was sentenced to ten to twenty years for rape, ten to twenty years for robbery, and ten to twenty years for burglary, to be served consecutively. Sentence was suspended on the simple assault bill. His direct appeal from

[ 334 Pa. Super. Page 208]

    the judgment of sentence is now before this court. We affirm the judgment of the trial court.*fn2

The Commonwealth produced evidence at trial that appellant entered the home of the victim, punched and robbed her, and forced her to submit to sexual intercourse. The appellant's defense was based on misidentification and alibi.

Among other challenges to the conduct of the trial, appellant contends that the trial judge assumed the role of advocate for the Commonwealth. He asserts that the judge's extensive and biased questioning of witnesses exhibited prejudice against him and denied him a fair trial. We disagree.

The standards guiding a judge in interrogating witnesses during trial are well established. Our Supreme Court in Commonwealth v. Myma, 278 Pa. 505, 507-508, 123 A. 486, 487 (1924) ruled:

A judge in a jury trial has a right to interrogate witnesses. It sometimes becomes his duty to do so, even to the point of recalling a witness to supply an omission of proof on a material point: Boggs v. Jewell Tea Co., 266 Pa. 428, 434 [106 A. 781]; State v. Jackson, 87 S.C. 407, 69 S.E. 883; Lycan v. People, 107 Ill. 423. But a judge may so conduct an examination as to make it an abuse of discretion, requiring a new trial.

Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination . . . Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses's credibility, or do anything to indicate a leaning to one side

[ 334 Pa. Super. Page 209]

    or the other, without explaining to the jury that all these matters are for them.

Accord, Commonwealth v. Seabrook, 475 Pa. 38, 379 A.2d 564 (1977); Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970); Commonwealth v. Rhem, 283 Pa. Super. 565, 424 A.2d 1345 (1980); Commonwealth v. Toombs, 269 Pa. Super. 256, 409 A.2d 876 (1979).

The American Bar Association's Standards Relating to the Function of the Trial Judge have further elucidated the role of the judge as interrogator.

[I]t is appropriate for him [the trial judge] from time to time to intervene in the conduct of the case. Thus, when it clearly appears to him that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, he may be question to a witness elicit relevant and important facts. He may interrogate a witness after a cross-examination which appears to be misleading to the jury . . . . The judge should be aware that there may be greater risk of prejudice from over-intervention than from under-intervention. While he should not hesitate to exercise his authority when necessary, he should avoid trying the case for the lawyers. American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge, Approved Draft, 1972, Commentary, Section 1.1(a), P. 26-27. See: Commonwealth v. Seabrook, supra [475 Pa.] at 45, [379 A.2d at] 567.

Although the standard in these cases is well-settled, its application on appellate review is difficult because the appellate court applies the standard on a cold record.

It is impossible to record the demeanor of the judge when questions are asked by him. A hostile form of mind cannot be recorded unless the questions themselves disclose it; it is impossible to note either the inflection of the voice, the manner of the questioner, or what is generally termed the "atmosphere" of the trial.

[ 334 Pa. Super. Page 210]

    facts proven by the evidence or inferences to be drawn from the facts.

N.T. 602.

In a four hundred and eighty seven page trial transcript, only a small portion, twelve pages, included questions that the court posed relating to police practices. The court directed questions at certain police officers to clarify police practices for the jury. The judge asked one police officer to define the term a "forty-eight", N.T. 250; others to explain standard line-up procedures. N.T. 307, 316 and 401. The judge queried an investigating officer who had taken night-time photographs of the scene about the lighting conditions that existed when he took them. N.T. 268-269. The judge conducted this questioning in a neutral unbiased manner and clarified the subject matter under consideration. Counsel for the appellant was given an opportunity for recross-examination after the court completed its inquiry. N.T. 316. See Commonwealth v. Lanza, 228 Pa. Super. 300, 323 A.2d 178 (1974). The net result of this questioning was to enlighten the jury on police practices which were important for their understanding of the case.

The appellant especially complains about the court's questioning the victim asserting that this questioning was unnecessary and that the questions were repetitious and served to highlight testimony favorable to the Commonwealth. N.T. 156-171. On the basis of the record we cannot conclude that the judge's questions went beyond the permissible border.

The court questioned the victim about the circumstances surrounding several identifications she made of appellant. The victim and a witness positively identified the appellant at both the line-up and the preliminary hearing. The victim also identified him with certainty at trial during her direct testimony. However, a composite drawing made earlier by the police, based on the victim's and a witness' description, bore little resemblance to the appellant. N.T. 111-112; 145-149.

[ 334 Pa. Super. Page 212]

The victim's ability to observe her assailant during the commission of the crime was therefore crucial but was not addressed thoroughly in direct and cross-examination. After counsel had completed their examinations, the court briefly questioned the victim, first giving the jury cautionary instructions. N.T. 165.

The court asked the victim to describe the opportunities she had to observe her assailant, N.T. 166-167; and to explain her inability to adequately describe the assailant to the artist making the composite. N.T. 168. These questions themselves were neutral in content, were not protracted, and did not indicate bias. Counsel for the appellant was given the opportunity to recross-examine the victim after the court completed its questions. N.T. 170-171. Taking all these factors into consideration, we conclude that the court did not abuse its discretion in questioning the victim.

The appellant next contends that the judge's questioning of him was excessively extensive and indicated to the jury that the court did not believe his alibi defense. After a thorough study of the judge's examination, we conclude that the trial court did not abuse its discretion in questioning appellant.

On direct examination, the appellant gave the following testimony regarding his alibi defense:

Q. Where were you on that day, that evening?

A. You mean from the beginning of the day?

Q. From 7 o'clock in the evening on where were you that day?

A. I was around 12th and Christian for a while. Then I went to 12th and Carpenter. Then around 11th Street until about 11:30. Then I went home.

Q. Were you with anybody at any of those times?

A. Some of my friends.

Q. When did you go out to visit your friends?

A. About 5 o'clock.

Q. Were you able to bring any of those friends today in court?

[ 334 Pa. Super. Page 213]

A. No.

Q. Were you able to find them?

A. No.

Q. Have you been in police custody since May 11th, 1979, when Officer Berren placed you in custody?

A. Yes.

Q. So, have you been able to go out on the street and find any of your friends that you were with that night?

A. Yes.

Q. Have you been able to go out on the street and find any of those friends?

A. No.

N.T. 414-415.

The assistant district attorney cross-examined appellant regarding the details of his alibi, including the names and addresses of his friends, the amount of time they spent at each location the night of the crime, and the efforts appellant made, through his attorney, to locate these friends so that they would testify for him.

However, the question of whether his incarceration inhibited or prevented him from pursuing alibi witnesses to testify for him was not fully explored on direct, cross or redirect examination of appellant. After both counsel had completed their questioning of appellant, the court queried the appellant in general terms about his access to his attorney while he was incarcerated, to inform the jury about availability of counsel to prisoners in general and appellant in particular.

Before he began his questions, the judge issued cautionary instruction. N.T. 446. The judge, leading up to the subject of availability of communication between the appellant and his attorney, asked appellant:


Q. I want to clarify some things with respect to these people that you mentioned and that you have known all of your life, or most of them all of your life and that you have been unable to get a hold of.

[ 334 Pa. Super. Page 214]

Q. Now, have you had an attorney appointed for you since the very day of your arrest?

A. Yes.

Q. And since the day of your arrest and up through and including today have you had access to an attorney at any time that you needed one to discuss and prepare this case?

A. When he comes to see me.

Q. Speak to the jury.

A. Yes.

Q. Now, when did you give your attorney the names of these people that you mentioned from the stand today that know you were with them between 7:00 and 11 o'clock on May 9th 1979?

When did you give your attorney the names of those people?

A. I believe it was a couple of weeks, three, four weeks ago, I believe. I can't say ...

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