Appeal from the Judgment of Sentence entered December 13, 1982, Court of Common Pleas, Allegheny County, Criminal Division at No. 8202867A.
Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Wieand, Johnson and Montgomery, JJ.
[ 346 Pa. Super. Page 458]
Appellant, Tyrone Williams, was convicted following a jury trial of one count of involuntary deviate sexual intercourse and one count of criminal conspiracy and sentenced to serve not less than 7 1/2 nor more than 15 years of imprisonment.
On appeal the following questions are presented to this Court:
I. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY DEPRIVE THE ACCUSED OF A FAIR AND IMPARTIAL TRIAL AND CONSTITUTE REVERSIBLE ERROR?
A. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY DURING CLOSING ARGUMENT CONSTITUTE REVERSIBLE ERROR?
B. DID PREJUDICIAL COMMENTS MADE BY THE DISTRICT ATTORNEY WHILE DEFENSE COUNSEL WAS CROSS-EXAMINING THE ALLEGED VICTIM CONSTITUTE REVERSIBLE ERROR?
II. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE A CRUCIAL PROSECUTION WITNESS REGARDING HIS ALLEGED RECORD AS A JUVENILE OFFENDER?
For the following reasons we affirm.
The charges against Appellant stem from an alleged jailhouse rape. The victim, who was 18 years old and an
[ 346 Pa. Super. Page 459]
inmate at the Allegheny County Jail, testified that he was anally raped while the Appellant's brother, Lynn Williams, stood guard outside Appellant's cell. Apparently the victim was incarcerated awaiting sentencing following his guilty plea to twelve or thirteen counts of burglary.
Appellant initially argues that the prosecutor, on two separate occasions during closing arguments, made alleged prejudicial comments. Timely objections to both comments were made by defense counsel and requests to the trial court for cautionary instructions were denied. While referring to the first time the Appellant probably saw the victim in jail, the prosecutor commented; "What does [Tyrone Williams] see when [the victim] walks in, ladies and gentlemen? He sees fresh meat, that's what he sees." N.T., 8/13/82 at 156.
While the prosecutor has a duty to fairly present the Commonwealth's case, as we indicated in Commonwealth v. Connors, 311 Pa. Super. 553, 563-64, 458 A.2d 190, 195-96 (1983):
not every intemperate or improper remark by the prosecutor requires a new trial . . . . Before a new trial is required, the language must be such that its "unavoidable effect . . . would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that ...