Appeal from the Order of the Superior Court Dated December 20, 1985, at No. 1174 Pittsburgh, 1984, Affirming the Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, at Criminal Action No. 195 of 1983, Dated August 15, 1984. 348 Pa. Superior Ct. 354,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, Chief Justice, concurs in the result. McDermott, Justice, dissents. Hutchinson, Former Justice, did not participate in the decision of this case.
We must determine in this appeal whether the following summation to a jury, followed by a cautionary instruction, constitutes incurable prosecutorial misconduct which requires a new trial:
MR. ZEGLEN: They have been found guilty in any event. However, I cannot pick and choose my witnesses. Sure, I would like to have law-abiding citizens as witnesses. The problem is that crimes usually aren't committed in front of law-abiding citizens. It is other criminals who see crimes committed. They are the ones who see the crimes. Robert Ahlborn and Scott Dunn, they are criminals. They have lied. The defendant, Michael Johnson, is their friend. What does that tell you about Michael Johnson? Ask yourselves that. Who do criminals associate with?
THE COURT: Objection sustained. The jury will disregard that last statement.
MR. BOWER: Your Honor, may we approach the bench?
SIDEBAR DISCUSSION HELD ON THE RECORD
MR. BOWER: Your Honor, at this time, I think that is extremely prejudicial, and I would like a mistrial based on prosecutorial misconduct.
THE COURT: The Court does not feel that it is that prejudicial and with our cautionary instructions, we do not think that the motion is a proper motion, and we refuse it.
MR. BOWER: Thank you, ...