COMMONWEALTH of Pennsylvania v. Frank BARANYAI, Appellant.
Superior Court of Pennsylvania.
June 13, 1980.
Argued April 12, 1979. Petition for Allowance of Appeal Granted March 13, 1981.
419 A.2d 1368
We affirm the judgment of sentence.
LIPEZ, J., concurs in the result.
Kemal Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, аppellee.
Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.*
WIEAND, Judge:
Frank Baranyai, a policeman in the Borough of Millvale, Allegheny County, was tried by a jury and found guilty of one count of assault and another count of official oppression arising out of an incident with one David Stier. He was also found guilty on a general charge of official opprеssion involving numerous persons. He was acquitted of twenty-six other charges. Post trial motions were denied, and a sentence of probation was imposed. This appeal followed.
The facts, as set forth in the opinion filed by the court below, are as follows: “On March 25, 1977, David Stier,
Appellant has not questioned the sufficiency of the evidence to sustаin the verdicts. He does raise many other issues, which we will consider seriatim.
He argues, first, that the trial court erred in refusing a mistrial because of prejudicial remarks allegedly made by the District Attorney during closing argument. This issue, however, has not been preserved for appellate review. Counsels’ closing arguments were not recorded. Aрpellant interposed no objections during the District Attorney‘s closing argument and made no request to place on the record those remarks alleged to be objectionable. After the arguments had been concluded and during a conference between counsel and the trial judge in chambers, appellant for the first time complained of alleged prosecutorial overreaching and moved for a mistrial.
“Where the argument is not recorded, there is a need to require an objection during the argument so that the remarks may be placed in the record at or about the time they are made and thereby ensure accuracy. Otherwise, the recollection of both counsel and the court at the conclusion of the argument may differ and thereby result in unnecessary factual disputes.” Commonwealth v. Adkins, 468 Pa. 465, 472, 364 A.2d 287, 291 (1976). See also: Commonwealth v. Gilman, 470 Pa. 179, 187, n.4, 368 A.2d 253, 256, n.4 (1977).
In the instant case, counsel failed to establish a record sufficient to permit an appellate court to make an intelligent judgment as to the nature of the District Attorney‘s re
In preparing a record for post trial proceedings, the parties elected not to transcribe the testimony of Assistant Attorney General Michael Louik. Consequently, we are unable to ascertain, as appellant urges us to do, that his testimony imрlied that appellant had been involved in additional offenses which had not been prosecuted.
Next, appellant argues that the trial court erred in denying a motion for mistrial after the testimony of a Commonwealth witness had varied from an offer of proof made by the District Attorney. The offer had been to show a threat made by appellant to a witness that the witness should “get out of my town” and that appellant would “get him” if he “testified or appeared in town again.” The witness testified only that appellant had told him to stay out of town. The variance was harmless. This testimony was less damaging than that suggested by the offer, and it is difficult to understand in what manner appellant wаs prejudiced thereby. It did not require the granting of a mistrial.
A mistrial was also requested when the District Attorney asked appellant, on cross-examination, “Do you remember yourself telling Mr. Hersick2 that ‘if I‘m found not guilty, I‘m going to press charges against all the witnesses against me‘?” The trial court ruled the question irrelevant, sustained a defense objection thereto and instructed the jury to disregard it. The motion for mistrial, however, was denied. The appellant argues that this was error.
There is no merit in this argument. It has been held that it is proper for the Commonwealth to show an attempt by a
Appellant argues that a mistrial should also have been declared because the trial judge, in response to a prosecution request that appellant give answers responsive to counsel‘s questions, said: “You two better get your act together or you‘re going to be in trouble with this court.” A request for mistrial was made at the next recess. It is contended that the judge‘s remarks made it impossible thereafter for appellant to receive a fair and impartial trial. We disagree.
It has frequently been said that despite the fact that a trial judge must exhibit absolute impartiality in the conduct of a trial, “[e]very unwise or irrelevant remark made in the course of a trial ... does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner thаt it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. England, 474 Pa. 1, 16-17, 375 A.2d 1292, 1300 (1977); Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973); Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957) (emphasis omitted).
In the instant case, after a review of the record, we are satisfied that the remark was an isolated occurrence, that there was no manifestation of bias in favor of the Commonwealth and no expression of opinion concerning the merits of the case or the credibility of appellant. The remark of the
Appellant argues finally that the information charging official oppression against many persons during the summer of 1973 and various other dates was fatally defective.
The crime of official oppression is defined by
“A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:
(1) subjects another to arrest, detention, searсh, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
(2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.”
The information charging appellant with official oppression of many persons generally over a period of several months was as follows:
“The District Attorney of Allegheny County by this information charges that on (or about) summer of 1973 and various other dates in the said County of Allegheny Frank L. Baranyai hereinafter called actor, did commit the crime or crimes indicated herein; that is:
“The actor in his capacity as a public officer or employeе; to wit, a police officer of the Borough of Millvale, knowing that his conduct was illegal, acted or purported to act in an official capacity or took advantage of such actual or purported capacity, and subjected another namely, Margaret Blume, Ronald Conway, Bernard Pietz, Jr., Daniel Burchill, Robert McQuaide, Andrew Tomaro, Erich Salac, Carl Abt, Shirley Wukits, Robert Lennartz, Franz Hersick, to mistreatment, harassment, arrests, and assaults while in the performance of his duties as a police officer of the Borough of Millvale, that is to say the actor beat, falsely arrested, and otherwise used his position as a police officer to harass the victims in violation of Section
5301(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 5301(1) .”
The number of offenses charged by this information was impossible to determine. It included a charge of oppressing each of the named persons either collectively or individually at least once during the summer of 1973. Three days before the dаte for trial the court, over a defense objection, permitted the information to be amended by adding the names of additional persons whom the Commonwealth alleged to have been oppressed by acts of misconduct on the part of appellant.3 By the time of trial, therefore, appellant had been charged in one count of the information with official oppression of sixteen persons by unspecified acts occurring on undesignated occasions. The evidence showed separate acts of alleged oppression and not a collective oppression of the named persons as a group. Thе trial court instructed the jury that to convict on this information it was necessary that appellant have oppressed only a sufficient number of the persons named therein to evidence an illegal scheme, plan or course of conduct. A determination of oppression with respect to each named person was not required by this instruction. The courtroom interpretation of the information created a new crime; one involving a series or collection of specific acts of official oppression. Such a crime is not to be found in the language of the Crimes Code.
The information is, or ought to be, “the star and compass of а criminal trial,” and “must be a notification to the defendant of the charge he has to meet.” Commonwealth v. Petrillo, 338 Pa. 65, 77, 12 A.2d 317, 324 (1940); Commonwealth v. Lambert, 226 Pa.Super. 41, 44, 313 A.2d 300, 301 (1973).
“Two or more offenses ... may be charged in the same information if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged.” Pa.R.Crim.P. 228(b) (emphasis added).
The information chаrging a general crime of officially oppressing many persons failed to comply with these requirements. The information, charging in one count the crime of oppressing sixteen persons during the summer of 1973, was fatally defective, and the conviction obtained thereon must be set aside.
Appellant also argues that his convictions for assaulting and officially oppressing Dave Stier are inconsistent with and barred on principles of collateral estoppel by Stier‘s conviction for driving while under the influence of intoxicating liquor and resisting arrest. This argument was considered at length by the trial court. We agree with the observations there made that Stier‘s accеptance into the Accelerated Rehabilitative Disposition Program did not constitute an adjudication of guilt. Moreover, the Common
The judgment of sentence for the crime of general official oppression is reversed and set aside, and appellant is discharged. The judgment of sentence on the charges of assaulting and officially oppressing Dave Stier is affirmed.
CERCONE, President Judge, files a concurring opinion.
CERCONE, President Judge, concurring:
While I join in the Majority Opinion in this case, there is a matter I wish to clarify. If the court in this case had charged the jury concerning individual acts of official oppression against Margaret Blume, et al., rather than charging on a pattern of official oppression, appellant‘s position would be more difficult. The ambiguities of the information may not have been assailable on appeal, becausе appellant did not file a bill of particulars seeking to have the Commonwealth specify the events to which this information referred.* Pa.R.Crim.P. 304; Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977). The issue in this case, however, involved the court‘s charging, and the jury‘s finding appellant guilty of a crime which the legislature has not created. It is hornbook law that courts do not have the jurisdiction to сreate criminal law. See, e. g., 21 Am.Jur.2d, Criminal Law, § 376 (1977). Since the question is jurisdictional, appellant‘s failure to file a bill of particulars or a motion to quash the information on the basis that it did not charge a statutory crime did not waive the question.
* Judge DONALD E. WIEAND is sitting by special designation.