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submitted: April 3, 1985.


Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Philadelphia County No. 83-03-2440-2442


Pamela P. Cohen, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, Olszewski and Hoffman, JJ. Olszewski, J., files dissenting opinion.

Author: Cavanaugh

[ 345 Pa. Super. Page 238]

John Harvey appeals from the judgment of the Philadelphia County Court of Common Pleas imposing concurrent

[ 345 Pa. Super. Page 239]

    sentences of life imprisonment and from two and one half to five years on convictions for first degree murder and possession of an instrument of crime. These convictions arise from the strangulation death of Denise Madison on February 4, 1983. In a bench trial the appellant contended that the victim had been choking on an unknown object and that he had accidentally strangled her in an attempt to remove the obstruction from her throat. On appeal, Harvey presents two issues for our consideration: (1) whether he was prejudiced at trial by misconduct on the part of the prosecutor? and (2) whether the evidence was sufficient to sustain his conviction for first degree murder? For the reasons set forth in this opinion, we vacate the sentences imposed and remand for a new trial.

The tendency in our courts has been to afford to the prosecutor a fair degree of latitude in trying criminal defendants. As it is often stated, not every intemperate, irrelevant, unwise or improper remark by a prosecuting attorney is grounds for a mistrial. See, e.g., Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Green, 321 Pa. Super. 246, 467 A.2d 1346 (1983). "Although a prosecutor's statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor's remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict." Maxwell, 505 Pa. at 166, 477 A.2d at 1316-17 (citing Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 92 (1982)). Where the defendant is tried before a judge sitting alone, the standard for proving harm from prosecutorial transgressions is perhaps even more stringent, for the law of this Commonwealth frequently presumes that the trial judge will disregard any inadmissible evidence or improper argument. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Glover, 266 Pa. Super. 531, 405 A.2d 945 (1979).

[ 345 Pa. Super. Page 240]

Nevertheless, "[t]here are times when evidence is so prejudicial that we cannot assume that the trier of fact will be able to put the evidence aside and arrive at an impartial adjudication." Commonwealth v. Conti, 236 Pa. Super. 488, 495, 345 A.2d 238, 242 (1975). As the court in Conti stated, "judges are subject to the same emotions and human frailties as affect all persons, lay jurors or not." Id., 236 Pa. Superior Ct. at 499, 345 A.2d at 244. This court in Conti reviewed the rationale underlying a rule of presumed judicial detachment. In conclusion we said:

It is plain from the cases cited that in some instances due process requires that we not simply rely on the fiction of a judicial blindside. It is also plain, when cases like Berkery [200 Pa. Super. 626, 190 A.2d 572 (1963)] and Mangan [220 Pa. Super. 54, 281 A.2d 666 (1971)] are compared with cases like Rivers [218 Pa. Super. 184, 279 A.2d 766 (1971)], that at least in Pennsylvania no fixed rule has been announced for determining when a trial judge will be regarded as having been able to maintain his impartiality after hearing incompetent evidence. We do not undertake to announce such a rule now. Instead, we shall continue to decide each case according to its particular facts. In so doing, however, we do explicitly recognize that two factors will be considered of critical import. One factor will be the inherently prejudicial quality of the specific evidence involved. This, as indicated, was determinative in Rivers. There the evidence was "so prejudicial" that the risk of improper adjudication could not be ignored. In contrast, when the risk is not of emotional impact but rather of intellectual error in tracing a chain of inferences or in recognizing the pitfalls of double hearsay, greater weight will be given to judicial expertise. See Levin and Cohen, [The Exclusionary Rules in Non-jury Criminal Cases, 119 U.Pa.L.Rev. 905 (1971)]; Davis, [Hearsay in Non-jury Cases, 83 Harv.L.Rev. 1362 (1970)]. The other factor will be the importance of the evidence to the particular case. Suffice it to say that when, as in Berkery, the other evidence is overwhelming,

[ 345 Pa. Super. Page 241]

    we shall be less sensitive to the risk of harmful prejudice below.

Conti, 236 Pa. Super. at 501, 345 A.2d at 245.

Furthermore, it is the burden of the Commonwealth to establish that its misconduct did not affect the outcome of the trial. See Commonwealth v. Bricker, 506 Pa. 571, 589-591, 487 A.2d 346, 355 (1985). The supreme court has outlined the reviewing court's inquiry:

We must first be able to declare a belief that the error was harmless beyond a reasonable doubt before it will be held harmless and a judgment of sentence affirmed. Furthermore, the burden of establishing that the error was harmless beyond a reasonable doubt must be borne by the prosecution. Applying this two part analysis in Davis we said that if there is a reasonable possibility that the error "might have contributed to the conviction . . . might have moved 'the minds of an average jury' toward conviction . . ." the error cannot be held harmless.

Commonwealth v. Collins, 462 Pa. 495, 503, 341 A.2d 492, 495 (1975) (quoting Commonwealth v. Davis, 452 Pa. 171, 177, 305 A.2d 715, 719 (1973) (footnote omitted)).

In the present case, our review of the record indicates that the misconduct of the prosecutor may have had serious consequences in unfairly prejudicing the judge and denying the appellant his right to a fair trial. Just as the supreme court found in Collins,

[a] reading of the record discloses that the misconduct of the prosecutor was not limited to isolated moments of error in the heat of trial advocacy. The record is replete with instances of prosecutorial misconduct which permit only one reasonable conclusion: from the very beginning of the trial, the prosecutor adopted a strategy calculated to try the case on his own terms rather than within the rules of evidence and the standards of professional conduct.

Commonwealth v. Collins, 462 Pa. at 499, 341 A.2d at 493. Moreover, the misconduct of the prosecutor in this case was "so prejudicial" that we cannot assume that the trial judge

[ 345 Pa. Super. Page 242]

    was unaffected. As distinguished by the court in Conti, the impact of many of the instances of prosecutorial misconduct here was of a highly emotional nature rather than being confined to matters of the intellect. Thus, on the particular facts of this case, it is not sufficient to rely merely on an unchallenged presumption of judicial detachment as argued by the Commonwealth.

Our prosecuting attorneys are vested and bound by certain obligations inherent in their position.

"The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the Commonwealth's case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate . . . ." Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737 [(1889)].

Commonwealth v. Tumpson, 242 Pa. Super. 1, 5, 363 A.2d 1129, 1131 (1976) (quoting Commonwealth v. Toth, 455 Pa. 154, 158-59, 314 A.2d 275, 278 (1974)). See also Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). In accord with this view our courts have expressly adopted the ABA Standards Relating to the Prosecution Function. See Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978). Those Standards provide in part:

Presentation of evidence

(b) It is unprofessional conduct for a prosecutor knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.

[ 345 Pa. Super. Page 243]

. . . .

ABA Standards for Criminal Justice, The Prosecution Function, § 5.6 (1982) [hereinafter ABA Standards].

Argument to the jury

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.

Id. § 5.8. Although this latter section relates specifically to argument to the jury, we feel that its admonitions to prosecutors apply also in non-jury cases, particularly where the misconduct reaches the level contemplated in Conti.

Prosecutors are expressly directed "not [to] use arguments calculated to inflame the passions or prejudices of the jury." Commonwealth v. Bricker, 506 Pa. 571, 586, 487 A.2d 346, 353 (1985) (quoting ABA Standards § 5.8(c)). They are further admonished to "refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law . . . ." ABA Standards § 5.8(d). See Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). In spite of these controlling standards of permissible trial conduct, the assistant

[ 345 Pa. Super. Page 244]

    district attorney engaged in the following exchanges on cross-examination of the appellant:

Q So that you were able to, as it were, con and deceive people and by stealth remove this quantity of money, were you not?*fn1

A No, sir.

Q You were honest with the people in the way that you removed the money?

A No, sir. I pled guilty.

Q Did you put on any kind of act or lie to them in any way in order to get into the vault and remove, how much was it, ...

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