No. 38 W.D. Appeal Docket 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, Entered February 8, 1983 at No. CC8104541A.
Lawrence J. O'Toole, Jr., North Versailles, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Melinda G. Tell, Asst. Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a concurring opinion. Larsen, J., concurred in the result. Flaherty, J., filed a dissenting opinion in which McDermott and Papadakos, JJ., joined.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
Appellant, Robert ("Codfish") Bricker, appeals a judgment of sentence of death for murder of the first degree imposed by the Court of Common Pleas of Allegheny County.
Appellant was charged in connection with the death of Thomas Sacco. The record indicates that Sacco was shot and killed by Miles Gabler on March 25, 1979 at approximately 1:00 a.m. at an after-hours club in the City of Pittsburgh. The Commonwealth's evidence indicated that Gabler had been solicited by the Appellant to shoot Sacco. The record further indicates that Sacco was conspiring with William ("Eggie") Prosdocimo in an illegal drug operation in Pittsburgh and that Sacco was employed by Prosdocimo as one of his dealers. Ill feelings appeared to develop between Prosdocimo and Sacco due to Sacco's apparent financial indebtedness to Prosdocimo. As a result, Prosdocimo stopped utilizing Sacco as a drug dealer. These ill feelings continued to mount between the parties. Subsequently, the record indicates that Sacco became a police informant against Prosdocimo. The Commonwealth's theory was that on becoming aware of this, a plot was conceived by the Appellant, Prosdocimo and Gabler to kill Sacco. As part of this conspiracy, the Appellant was to receive Sacco's drug territory. In furtherance of the plot, Sacco was to be lured to the scene of the actual shooting by a promise of a drug delivery. The record clearly indicates that the Appellant denied any involvement either as to the conspiracy or as to the actual murder. Contra, Gabler, one of the admitted conspirators, candidly conceded shooting Sacco. Gabler steadfastly denied any involvement of the Appellant.
Appellant alleges various grounds for a new trial and challenges the validity of the death sentence. One of the grounds advanced for a new trial is based upon various alleged instances of prosecutorial misconduct during the
course of the trial. Some of these occurred during the cross-examination of Charles Bonasorte, a defense witness. Bonasorte, a bar owner, was called to contradict testimony that the alleged conspirators in the Sacco murder had held a meeting in his bar. The prosecutor opened his cross-examination by asking Bonasorte, "How's the drug business?". [N.T. Vol. 3, p. 53] On objection by defense counsel, the court ordered the prosecutor to rephrase the question. The cross-examination then continued as follows:
Q. The Judge asked me to rephrase the question, Mr. Bonasorte, so we will rephrase.
Do you deal drugs from Eggie Prosdocimo?
A. Look on my record, no.
Q. I don't want to look at the record. Did you ever deal drugs?
[N.T. Vol. 3, p. 56] There was no evidence that Bonasorte dealt in drugs.
Bonasorte testified that after closing his own bar, he would always go to Butchie's, an after-hours club in Pittsburgh. Bonasorte testified that on the night in question he went to Butchie's, but decided to go to a different bar after seeing a crowd and learning of Sacco's death. He further testified that he was not sure as to what time he closed his bar, but thought it was between 12:30 and 1:15 a.m. He indicated that it was a slow night and that his closing time varied according to the amount of business.
The prosecution tried to advance as part of its case that Bonasorte had closed the bar earlier than indicated. This led to another alleged instance of prosecutorial misconduct during the cross-examination. Appellant claims that the prosecutor improperly expressed a personal opinion as to the truth of Bonasorte's testimony. The relevant part of the cross-examination is as follows:
Q. What time did you usually close your bar?
A. It all depended. If I had a decent crowd I would lock the door and stay all night.
Q. You wouldn't have any reason to close it 12:30 on the night of the Sacco murder?
A. I stayed there late a lot of nights and put a lot of hours. I would run out of there on weeknights. Monday and Tuesday nights when they were weekends and Thursday night I would get out early. We had Friday and Saturdays I would stay as long as I can.
Q. My question was, you would not have any special reason to close early on the night of the Sacco murder, would you have?
Q. Not the fact that you knew Prosdocimo was coming out there with Bricker and Gabler?
Q. Prove it. That's what we are here for.
MR. HILNER: I think that we can get along a lot better if Mr. Lees observes just a few rules of common courtesy. I don't think he needs to call the witness a liar. The credibility of all witnesses is for the jury.
After a post-trial hearing, the trial court ordered that the transcript be amended to show that the prosecutor's statement, "That's a lie." was an interrogatory sentence and not a declaratory sentence. [Trial court opinion at 6] It appears from a review of the transcript, however, that the lower court abused its discretion in permitting the amendment.
The third incident of which the Appellant complains occurred during the prosecutor's attempt to shake Bonasorte's testimony. Bonasorte testified that he knew Charles Kellington's testimony at a June, 1981 preliminary
hearing was false. He had not disclosed such information previously. The following exchange ensued:
Q. When did you tell Bricker?
A. When I heard that he said that they were in my bar and I said that's a damn lie. I said I think it's out of line. Excuse me for swearing.
Q. I want the jury to understand this.
A. I want to look at the jury.
Q. You look at them. Look them in the eye because they're staring at you. You tell Bricker in June of 1981, hey Bob, I got information Kellington is lying. Right?
[N.T. Vol. 3, p. 61] No objection was made by defense counsel; however, appellate counsel has raised the issue of the propriety of the prosecutor's statement.
The conduct of the prosecutor does not present this Court with a novel question. Rather, the prosecutor's actions demonstrate a blatant disregard for the long-standing principles which have been enunciated by this Court.
A prosecutor must limit statements to facts in evidence and legitimate inferences therefrom, Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). In Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976), we required a new trial where the prosecutor in his closing argument ascribed to a homicide defendant a motive that could not reasonably be drawn from the evidence. Although Adkins involved remarks made during the closing argument, its import is not limited to that stage of the trial. A prosecutor must act properly throughout the trial. This is illustrated by Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975) in which we reversed a conviction on the basis of prosecutorial misconduct at various points in the trial of a homicide case. The ...