COMMONWEALTH of Pennsylvania v. James CLARK, Appellant.
Superior Court of Pennsylvania.
Submitted March 23, 1979. Filed July 25, 1980.
421 A.2d 374
Petition for Allowance of Appeal Granted Feb. 23, 1981.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before PRICE, SPAETH and LIPEZ, JJ.
PRICE, Judge:
On February 24, 1978, a jury found appellant guilty of rape1 and aggravated assault.2 Post-trial motions were denied, and appellant received a sentence of four to fifteen years imprisonment for the rape conviction and a suspended sentence for the aggravated assault conviction. He brings this appeal alleging errors by the trial judge in conducting the voir dire, admitting evidence, instructing the jury, and overruling his objection to the prоsecutor‘s closing argument. We find these contentions lack merit, and therefore, we affirm the judgment of sentence.
On June 26, 1977, while the victim was outside the bar in which she had previously seen her attacker, she spotted appellant аnd began shouting that he was the one who had raped her. The police arrived at the scene, and Officer William Sammons placed appellant under arrest. Upon searching him, the officer recovered an eight inch folding pocket-type knife.
Appellant‘s first complaint concerns the admission of testimony of Officer Sammons regarding his discovery of the knife in appellant‘s pocket and the display of the knife to the jury during the Commonwealth‘s closing argument. He objects that this evidence was irrelevant and prejudicial because the circumstаnces were insufficient to justify an inference that the knife taken from him at the time of arrest was the same weapon that had been used in the commission of the crime. We disagree.
It is well established in Pennsylvania that all that is demanded before a weapon may be introduced into evidence is a sufficient foundation revealing circumstances justifying an inference of the likelihood that the weapon was used in
In testing the relevance of evidence, the courts of this Commonwealth have cited with approval the following definition: “Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.” Commonwealth v. Shoatz, 469 Pa. 545, 564, 366 A.2d 1216, 1225 (1976); Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976) (both quoting C. McCormick, Evidence § 185 at 437-38 (2d ed. 1972)). The accused‘s possession of an implement or weapon giving him the means to carry out the crime constitutes some evidence of the probability that he committed the crime and is a relevant part of the Commonwealth‘s case. Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d 181 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) (citing with approval, 1 Wharton‘s Criminal Evidence § 157 at 289-90 (13th ed. C. Torcia 1972)). As the interval of time between the possession of the instrument of crime and the criminal event lengthens, the probative value of the evidence may become more tenuous, but that consideration is one for the jury to resolve in evaluating the weight of the evidеnce; the competency of the evidence is not affected. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978); Commonwealth v. Shoatz, supra. The lack of positive identification that the knife was the actual weapon used likewise affects the weight of the evidence and not its admissibility. Commonwealth v. Ford, supra. A pocketknife is of such a size and character that one may carry it as a matter of
Of course, the prejudicial impact of the evidence may outweigh its probative value, and the court may be moved to exclude the evidence on this basis. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Quarles, 230 Pa.Super. 231, 326 A.2d 640 (1974). In determining whether evidence is so remote that the prejudicial effect outweighs the probative value, the court has no fixed standard on which to rely, but must instead consider the nature of the crime, the evidence being offered, and all attendant circumstances. Commonwealth v. Kinnard, 230 Pa.Super. 134, 326 A.2d 541 (1974). The trial judge‘s determination that evidence is not too remote to be admissible is within his sound discretion and will not be overturned absent an abuse. Id.
Possession of a pocketknife is not such an unusual or damning circumstance that the jury is likely to be inflamed and prejudiced by its proof. It is apparent that many people carry such knives and that appellant‘s possession, of itself, was not any direct evidence of his guilt. Furthermore, testimony concerning the knife was not emphasized during the course of the four day trial and the knife itself was not even formally introduced into evidence.3 We decline to find that the possible prejudice so outweighed the probative value of this evidence that its exclusion was mandated. No abuse of the trial judge‘s discretion is indicated on this record.
Aрpellant‘s second assignment of error concerns the admission, for impeachment purposes, of his prior conviction for burglary. He claims that the trial judge refused to consider all the factors enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and, thus, employed an improper standard in admitting this testimony. This contention is refuted by the record.
Admitting testimony of a prior conviction for the purpose of impeachment is a matter within the sound discretion of the trial judge. Commonwealth v. Cobb, 258 Pa.Super. 91, 392 A.2d 698 (1978); Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366 (1977). Our supreme court set forth guidelines for the exercise of that discretion in Commonwealth v. Bighum, supra, and recently clarified them in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).4 In Bighum, the court stated the considerations as follows:
“the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant‘s story than to know of a prior conviction.” Commonwealth v. Bighum, supra, 452 Pa. at 567, 307 A.2d at 263.
In Roots, the court explained that these factors are to be used in an attempt to strike a balance between the competing interests of the Commonwealth in showing the defendant-witness’ veracity, and of the defendant in avoiding prejudice that may result from jurors assuming that testimony of prior convictions demonstrates predispоsition to commit the crime charged. Moreover, the court explicitly stated that the list was not exhaustive or exclusive, but merely illustrative of considerations that should influence the decision.
The instant record reflects that the trial judge was aware of the factors set forth in Bighum. He had a copy of the
Contrary to appellant‘s assertions, the trial judge correctly evaluated the facts of this case to find that this latter consideration weighed in favor of permitting the testimony. Appellant had several other witnesses by which to defend himself. The testimony of Malcomb Ruffin was introduced to dispute the identification testimony of the victim. He testified that he knew appellant and had seen him leaving the area earlier, but he later saw another man that he did not recognize running from the scene of the crime. Ethel Clark testified for appellant and also threw doubt upon the victim‘s identification. She testified that on the date of the crime, appellant had a mustache and the beginnings of a beard, contrary to the victim‘s description of her assailant as clean-shaven. Appellant also introduced the testimony of Monique Wooden that she had been seated on a stoop on Uber Street early that morning, and had seen no unusual activity at the garage. She further stated that it took her about twenty minutes to drive home from the area and that appellant, her mother‘s common-law husband, arrived home about ten to fifteen minutes later. Thus, she gave some evidence of an alibi since her testimony indicates that the rape occurred after she left the area, but that had appellant been involved, he would not have been able to make it home within the time she testified he arrived. Although appellant contends that if he had been able to testify to the events the evidence would have been stronger, this is not the standard by which we are to judge. The concern is that he not be
Furthermore, the conviction was crucial to the Commonwealth‘s case as a means of attacking appellant‘s credibility. Appellant claims that his signed statement made at the time of his arrest, which had already been introduced, was an available and more effective method of impeachment. Due to the exculpatory nature of this statement, we disagrеe. The prior conviction, although it was over eight years old, was not so old as to bear no reflection on appellant‘s veracity. Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978) (7 year-old guilty plea allowed in for impeachment); Commonwealth v. Rompilla, 250 Pa.Super. 139, 378 A.2d 865 (1977) (6 year-old conviction admitted).
Appellant next objects to remarks made by the prosecutor during closing argument, claiming that they so inflamed and diverted the jury from proper considerations that a new trial is merited. The remarks appellant finds offensive consist of the following:
“We talked about rights of Americans and this lady came to you and said—‘I have been violated.’ This is a lady who has a right to live in peace. You have a right to go across the strеet to the gas station and buy cigarettes—[objection—overruled]
You have a right to go to a neighborhood bar and get yourself a six pack, and a lady forty years old has a right not to be a captive of darkness and have to stay in her house. We are talking about rights of an American.” (N.T. 4.84-85).
We find the cumulative effect of the statements was not so prejudicial that appellant was denied a fair trial, and hence, a new trial is not warranted. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
The prosecutor has an obligation during closing argument to present facts in a manner that will lead the jury to a dispassiоnate and objective evaluation and will produce a
Although in Commonwealth v. Reynolds, 254 Pa.Super. 454, 386 A.2d 37 (1978), this court pointed out the undesirability of engaging in evaluations of the comparative rights of the defendant and the victim, the prosecutor‘s argument in that case attempted to elevate the rights of the victim above the due process rights of “robbers” and “rapists,” as the accused was characterized throughout the argument, offsetting the rights of the latter. We, of course, emphasized that a criminal defendant‘s rights remain constant and are defined in the constitutions of the United States and Pennsylvania. The present remarks merely point out that
Appellant next complains that the trial judge erred in failing to charge the jury in accord with Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), to receive the victim‘s identification testimony with cаution, especially since he included an instruction that if the identification testimony was positive and unqualified it may be treated as a statement of fact. We reject this contention.
The transcript of the charge indicates that the judge clearly instructed the jury that they should accept the testimony with caution and approach it carefully. (N.T. at 4.100-101). Although not in the exact language of Commonwealth v. Kloiber, supra, the instruction was correct and adequate. We disagree with appellant‘s argument that this case is similar to Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973), because it is the “flip side” of Pitts, and that we should employ its reasoning to find error in the instant case. In Pitts, the defendant complained because only the cautionary part of the Kloiber charge had been given, and the jury had not been instructed as to the conditions for accepting the testimony as a statement of fact. The supreme court found this was an error because the jury was told the weight to accord the testimony, a question that is properly left for their decision. In contrast to Pitts, the instant charge instructed the jury of the different weights they could accord the testimony and properly left this matter within their discretion.
Appellant‘s fifth, and final, assignment of error is thаt the trial judge, who conducted the entire voir dire, improperly limited the scope of examination by failing to ask prospective jurors several questions submitted by his counsel. Specifically, the submitted questions were as follows:
“2. Mr. Clark is charged with rape and aggravated and simple assault. Would you be able to give a fairer trial to someone charged with something other than rape and assault?
a. Is there anything in the nature of these charges which would make it difficult for you to act fairly?
3. If the alleged rape victim testified is it possible that appearance would so upset you or influence you, that you could not give Mr. Clark a fair trial?”5
The scope of our review of the voir dire questioning is limited since the extent of the examination is within the sound discretion of the trial judge, and we will not reverse absent palpable error. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). The scope of voir dire should be limited to questions attempting to disclose lack of qualification and whether the juror has formed a fixed opinion as to the accused‘s guilt or innocence. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Legree, 256 Pa.Super. 128, 389 A.2d 634 (1978). It is not designed to provide a basis for peremptory challenge, and thus, “generally speaking, the ordinаry prejudices of veniremen are beyond the pale of exploration on voir dire.” Commonwealth v. Legree, supra, 256 Pa.Super. at 133, 389 A.2d at 634 (recognized exception for racial prejudice). We are conscious that it would be unrealistic to expect jurors to be free from all prejudices, and therefore, we require only that jurors be conscious of their sworn responsibility and attempt to reach a decision solely on the facts presented. Commonwealth v. England, supra; Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973).
In accord with the foregoing reasoning, the judgment of sentence is affirmed.
SPAETH, J., filed a dissenting opinion.
SPAETH, Judge, dissenting:
I believe that reversible error was committed in this case when the trial judge, over appellant‘s counsel‘s objection and without any cautionary instruction, permitted the prosecutor to wave appellant‘s knife in front of the jury during closing argument, despite the fact that the knife had never been admitted into evidence.
Officer William Sammons testified that when he arrested appellant, five weeks after the rape, he found a “silver handled knife, with [a] blade approximately three and a half inches long,” in appellant‘s right rear pocket. N.T. 1.166. The blade was a folding blade, and the overall length of the knife when open was eight inches. N.T. 1.167. While the officer was testifying, the prosecutor showed him the knife and had it marked for identification as Commonwealth‘s Exhibit No. 2. Later, the complaining witness testified that a sharp object was placed at her neck during the attack, but darkness prevented her from observing what it was. N.T. 2.85-2.86. She also testified that a sharp object felt like a
Before closing arguments commenced, appellant‘s counsel in colloquy pointed out that
none of the exhibits [including the knife] were admitted into evidence. I don‘t think the exhibits should be usеd any more as far as closing arguments and as far as being shown to the jury or anything else because they are not admitted into evidence. N.T. 4.15.
When the trial judge asked the prosecutor, “[W]hy did you not offer everything into evidence?” the prosecutor replied, “Well, the reason I just didn‘t move everything into evidence was that I thought it was just not necessary. There was no reason.” N.T. 4.17. When appellant‘s counsel then went on to object specifically to the prosecutor “holding up the knife” during closing argument, N.T. 4.19, the prosecutor replied, “I can hold up a knife if I have marked the knife
Consistent with this colloquy, during closing argument the prosecutor did indeed display the knife to the jury. The following then occurred at sidebar:
MR. SOSNOV [appellant‘s counsel]: I am objecting to—I am objecting to his waiving [sic] it in front of the jury—the—knife—and I would object—
THE COURT: Okay, okay.
MR. SOSNOV: I will ask—
THE COURT: I will overrule the objection. N.T. 4.71.
The foregoing discloses the most flagrant violation—or ignorance—of what I should have supposed to be the fundamental principle of our law, namely, that an accused is tо be tried only on the basis of testimony and exhibits properly admitted into evidence. McCormick on Evidence, § 51 (2nd ed. 1972); 1 Wigmore, Evidence § 21 (Chadbourn rev. 1972). If an exhibit has been admitted into evidence, of course the prosecutor may refer to it in his closing argument, and, so long as he does so in a proper manner, may exhibit it to the jury, see, e. g., Commonwealth v. Mika, 317 Pa. 487, 177 A. 3 (1935); but until the majority‘s decision today, I have never read a case, and I do not believe there is one, upholding the opinion of the prosecutor, and the trial judge, that “I can hold up a knife if I have marked the knife for identification.”2
Here, it cannot be said that the prosecutor‘s display of the knife to the jury was incident to a “good faith offer of the evidence with a reasonable chance of success.” The display was during closing argument, nor was it marked by any good faith; it rather occurred because of the prosecutor‘s entirely unwarranted opinion that he had the right to display and argue on the basis of an exhibit that he knew he had not offered into evidence. Furthermore, here the display was not minimally prejudicial. In Gardner, four witnesses had linked the defendant with the item displayed. There was no comparable linking here. The knife was found in appellant‘s possession five weeks after the rape occurred; the complaining witness was not able to testify positively that any knife was usеd in the attack; and the trial judge had stricken from the record her testimony that the object placed at her neck during the attack felt like a knife.
5.8 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 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.
The prosecutor‘s display of the knife contravened both section 5.8(a) and (c). The prosecutor did not “argue . . . from evidence in the record“; he argued from evidence that he knew was not in the record. Further, given that the complaining witness‘s testimony regarding a knife had been stricken from the record, by displaying the knife to the jury the prosecutor both misstated the evidence and misled the jury. Still further, the display of the knife could only havе been designed to appeal to the jury‘s prejudices. As Wigmore has pointed out, the display of weapons used in a crime is often objected to because
there is a natural tendency to infer from the mere production of any material object, and without further evidence,
the truth of all that is predicated of it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. 4 Wigmore, Evidence § 1157 (Chadbourn rev. 1972).
Accord State v. Mayfield, Mo., 506 S.W.2d 363 (1974). Wigmore points out that these dangers can be lessened by the proper authentication of the evidence and careful instructions by the court. No such protective measures were taken here. Indeed, the absence of any such protective measures is perhaps the most striking feature of this case as compared to Gardner. In Gardner, the trial judge cautioned the jury:
“[T]here will go with you to the jury room one exhibit, which is the only exhibit I admitted into evidence . . . . The other exhibits were not admitted into . . . and are not for your consideration in your deliberations in this case.” 246 Pa.Super. at 594, 371 A.2d at 992.
As Judge PRICE, observed:
[P]rejudice resulting from erroneously admitted evidence may be rectified by cautionary instructions. Commonwealth v. Stolzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970). The same should be true where the evidence is never admitted.
Here, the trial judge not only refused to give any cautionary instruction regarding the knife, when appellant‘s counsel requested such an instruction during the complaining witness‘s testimony, but, in colloquy before closing argument, he expressly agreed with the prosecutor, over counsel‘s objection, that the prosecutor could display the knife even though it had never been admitted into evidence.
The judgment of sentence should be reversed and the case remanded for new triаl.