On August 23, 1979, Offiсers Dizio, Fellino, Robinson and La Bou of the Philadelphia Police Department were assigned to a special plain-clothes detail on City Line Avenue in the City of Philadelphia. While they were operating an unmarked vehicle in a westerly direction on City Line Avenue, they observed appellant, Leroy Edney, and his co-defendant, Larnell Woods, standing near the entrance of the Acme Supermarket at the intersection of 76th Street and City Line Avenue. Both men glanced furtively and intermittently at each other, inside the store and to the store’s adjacent parking lot. The officers drove their vehicle around the block and parked directly across the avenue from the supermarket.
Shortly thereafter, appellant and his co-defеndant entered the store and joined a third unidentified accomplice who apparently had entered the store earlier. Once inside, ap *366 pellant stood near the front entrance brandishing a revolver and keeping the store emрloyees and customers in check while Woods compelled an employee at gun point to open the check drawer and safe. The three men then ran from the store, to a light-blue, four-door Oldsmobile parked in the adjacent lot. Wоods assumed the driver’s position while appellant and the unidentified male took the rear seat. Off-duty Philadelphia detective, Patrick Devlin, observed the criminal activity also; in fact, he was the first to confront the three men as they entered the Oldsmоbile.
Forty feet from the Oldsmobile, Devlin ordered the trio to submit. Instead, Woods raised his revolver and both he and Devlin fired at each other simultaneously. Devlin ran for cover as the four plainclothesmen joined to terminate the foray.
Just then, Woods began driving the Oldsmobile from its parking space with appellant in the rear seat and the unidentified male fleeing on foot. A further exchange of gunfire resulted in wounding Woods and forcing the vehicle from his control; it veered from the eastbound lane of City Line Avenue and stopped against a tree.
A Smith & Wesson .357 revolver was recovered from the floor at Wood’s feet, $14,000.00 in cash was scattered through the car and appellant was lying unharmed on the rear floor with a chrome-plated revolver underneath his chest.
As a result of this incident, appellant was charged with robbery, possessing instruments of crime generally, simple assault, aggravated assault, criminal conspiracy and attempted murder. Prosecution of appellant and co-defendаnt was severed.
Following a lengthy jury trial in the Court of Common Pleas of Philadelphia County, appellant was found guilty of robbery, possessing instruments of crime generally, and criminal conspiracy. He was sentenced to not less than six years nor more than twelve years of imprisonment on the robbery bill, said sentence to run consecutively to a sen *367 tence imposed earlier on an unrelated conviction. A two and one-half to five-year sentence on the bill of possessing instruments of crime generаlly and a five to ten-year sentence on the criminal conspiracy bill were ordered concurrent to the robbery sentence.
Post trial motions for new trial and arrest of judgment were filed and denied. This timely appeal was taken from the judgment of sentence.
Appellant argues first that the trial judge erred in refusing to recuse himself due to his presiding over a trial for unrelated charges against appellant just two weeks prior to trial on the instant charges. Appellant was found guilty of those eаrlier charges and sentenced to undergo imprisonment by the same judge. The trial judge’s refusal to recuse himself was “particularly damaging”, according to appellant, because it forced him to forego a non-jury trial. He reluctantly procеeded to trial before a jury due to the fact that he was of the opinion that the trial judge was incapable of presiding impartially, having become acquainted at the earlier trial with appellant’s character traits and behaviorаl norms.
In
Commonwealth v. McQuaid,
As in McQuaid, the proceedings here were conducted before a jury, the ultimate fact-finders of guilt or innocence. *368 Much оf the criminal assessment did not lie with the judge, and we detect nothing from the record to indicate that his rulings removed factual issues from the jury or unjustly guided their final determination.
Moreover, assuming appellant would have proceeded to a non-jury trial had thе trial judge recused himself, we find no prejudice suffered as a result of his defending himself before a judge and jury. An accused does not have an absolute right to a non-jury trial; his motion to waive a jury trial may confront objections by the prosecution and is subjeсted to approval by the court. Pa.R.Crim.P. 1101;
Commonwealth v. Sorrell,
It is appellant’s next contention that the prosecutor made several prejudicial remarks during opening and closing arguments that tainted the adjudication of guilt. First, frequent references were allegedly made to the actions of co-defendant Woods and his absence from the courtroom. This ploy was utilized, according to appellant, for the purpose of imputing guilt to appellant for the criminal acts of Woods; and, secondly, for the purpose of encouraging the jury to infer from Woods’ absence that he had no exonerating testimony to offer on appellant’s behalf. Particularly disturbing to appellant, in apparent support of his contention that the prosеcutor led the jury to believe that Woods’ absence indicated appellant’s guilt, was the prosecutor’s comment during opening argument on appellant’s and Woods’ relationship: “From the testimony, the credible testimony, if you find it credible, you will understand the connection and it will not be difficult.”
It is unreasonable to expect, especially during lengthy trials, that all impropriety will result in reversal. Many improprieties are of no consequence. Many remarks by the prosecutor are unwisely uttered; nеvertheless, they simply do not warrant the granting of a new trial. Only where such remarks may be reasonably said to deprive the accused of due process of law, is it appropriate to reverse a
*369
conviction.
Commonwealth v. Garcia,
We do not find the remark made by the prosecutor herein nearly as disturbing as that remark made in
Middleton.
We would be remiss, thеrefore, in ordering a new trial where one was deemed inappropriate by the
Middleton
court. Secondly, appellant was charged with criminal conspiracy; therefore, the actions of Woods were significant. Conspiracy necessаrily involves an agreement to promote and facilitate a criminal act; 18 Pa.C.S.A. § 903; it also involves holding all conspirators criminally responsible for the acts of one conspirator committed in furtherance of the plan.
Commonwealth v. Antico,
Appellant avers that the proseсutor’s handling of two revolvers during closing argument inflamed the passions of the jury, thereby interfering with their objective evaluation of the evidence. The record does not indicate that the prosecutor gestured with the weapons, aimed them at the jury оr held them for an unduly long period of time. Furthermore, the jury was frequently instructed to dismiss ail comments, questions and actions by counsel. Many improper actions can be neutralized by the court’s corrective instruction. See
Commonwealth v. Martinolich,
Next, appellant argues that certain prejudicial evidence was admitted rendering appropriate the ordering of a new trial. In particular, appellant complains that Officer Dizio’s testimony on direct examination that he was “assigned to a special rape detail” the evening of appellant’s arrest was evidence of violent crimes irrelevant to the instant proceedings and implicating appellant beyond the crimes charged.
A similar argument was raised by the defendant in
Commonwealth v. Dalahan,
“We believe appellant’s argument is specious. If drawn to its logical end, it would require all police officers to testify in plainclothes without reference to their occupation as policemen, since according to appellant’s argument, if one is caught by a policeman, whose job it is to catch wrongdoers, then obviously he must be guilty of somе wrongdoing. All people are aware that the function of a policeman is to apprehend suspected wrongdoers. The fact that the policeman is on special duty to apprehend burglars and he arrests an individual who is subsequently сharged with burglary, does not create a prejudicial inference with the jury that he is any more guilty than someone who is apprehended by a “regular” police officer. Id., 262 Pa.Superior Ct. at 623, 624,396 A.2d 1333 , 1334 (1979).
We find the testimony here of the special rape assignment less harrowing to appellant’s position than the Dalahan testimony. Appellant was not charged with rape; even *371 without the cautionary instruction given by the trial judge to disregard all references to crimes not charged, we do not believe that any jury could strain its logic to the point of inferring guilt of robbery from evidence of a special rape assignment.
Appellant once again оbjects to the actions of Woods being used as evidence against him. For those reasons given earlier in rejection of appellant’s objection to such evidence being discussed by the prosecutor in opening argument, we summarily dismiss such argumеnt here.
Lastly, appellant contends that the prosecutor used peremptory challenges to systematically exclude black jurors and thereby deny appellant’s right to be judged by his peers. In
Swain v. Alabama,
For these reasons, judgment of sentence is affirmed.