*1 their can be based on conclusion that no verdict their returning choice had no alone. decision actually rebelling against without verdict authority, wearing absolute be- indicia of man who, judgment. their dictated their master and came vigorously dissent. I most Appellant. v. Hales,
Commonwealth Argued C. 1955. Before Steen, J., November JJ. Musmanno Bell, Abnold, Jones, Steaene, Francis B. with him Lord, James A. McGoldriclc, appellant. *2 B. Jolm Attorney, Assistant District Graham, with Baymond him Attorney, Joseph B. District Start, Pappano, E. Attorney, ap- First Assistant District for pellee. January by
Opinion 1956: Me. Justice Bell, charged in Commonwealth this case the defend- years age, unmarried Yiola ant, ing of Hales, with hav- baby by killed and murdered her 6-weeks-old im- mersing it in a basin of water. She was of convicted degree first murder with recommendation of im- life prisonment. She seeks new trial because of trial errors.
While on witness assistant stand, district attorney questioned defendant as to the whereabouts person way her in who was no aunt, connected with objection by the crime. When the raised counsel defense replied: prison.” “In was she overruled, The district attorney then asked: “What in is she there After for?” objection defendant’s she answered: overruled, attorney brought “Murder.” The district then out that every day had her defendant seen aunt since she was prison. in When the district asked “What is objected. in there defendant for,” she “Your honor, objecting questioning am on the record. This line of prejudicial, . . .is to start irrelevant with, inflam- trying imply matory, something that isn’t even in the case.” agree
We defendant that this evidence was not highly prejudicial only irrelevant, and loas not and Judge’s could be eicred later statement in his charge testimony that the should dismiss the nothing their it has to do minds since with defendant’s error guilt reversible This was or innocence. granted. trial must be
a new signed she arrested, Hales When defendant police request author- at confession a written county examining detectives In chief cross ities. defendant asked this statement, had obtained who gotten the defendant detective, whether he, made corrections she had initial the sheets on which Judge then said: her statement. “The Court: interrupt. you in- Are like to Just a would minute, county county timating and the chief detective deliberately planted kind mistakes these detectives to trick defendant, of statements order intimating? their testi- Mr. Lord: Well, what *3 exactly your mony, not accordance with honor is you What under- understand. what we The Court: you saying your by cross examina- but are now stand, they deliberately plant in these tion that mistakes state- attention to it and ments so call defendant’s right? that sir. corrected, Mr. Lord: The No, trying you What are to do? would like to Court: asking him how know. Lord: We this mistake Mr. transcript? got your into this Yes, Court: strong deliberately question intimation that he was a somebody planted him for this or else mistake this, these or series of mistakes did statement; that? Mr. : I not mean that mean intimation, Lord your long right, honor. The Court: All as it is straight. answer of was to witness the effect going meant. We are he understood what permit by court to that in this room innuendo, police county officers and these these detectives deliber- ately try to defendant in that trick manner.” improper.
The last statement of the Court was Judgment and sentence reversed and new granted. by
Concurring Opinion M[r. Justice Musmanno: I concur in the decision of the Court that a new imperative presiding judge trial is because allowed attorney put questions the trial assistant district to girl-defendant subject on the of her aunt’s convic- certainly nothing tion for murder, to do with jury. the issue before the Court and Much has been lately guilt by said about but here the association, dis- attorney attempting suggest by guilt trict kin- possible ship, raising a inference that the defendant family came from a homicide murderers, whom occupation killing was common a routine. The aunt’s her habits and difficulties with the domicile, law possible had no association with the defendant’s case, questions appertaining and all to them should have been judge. duty pilot excluded Just as it is the of a guide through naviga- a vessel the safe channels of bility, steering clear of all submarine so is it hazards, responsibility of the trial to hold the helm of relevancy in order to firm, avoid the banks of irrele- vancy prejudice on one side shoals on the other. ample warning
The trial had had of the rocks prejudicial irrelevancy offing, in the but he declined damage they might to consider inflict to fair- ques- ness of the trial. When the district first *4 tioned the defendant about her and the aunt, objections, overruled defense counsel’s defense counsel inquired of the Court: “What relation has Sir?” it, calling Instead of for an offer at side the trial bar, might “It said: have a lot. don’t know. Go ahead.” travelling
When one is in uncharted it is waters, going advisable first to find into out whwb one is before going ahead. trial court the new refusing
In Ms opinion criminal the into aunt’s the excursion to sought justify already had counsel that defense by stating record re- record A of the aunt. study reference made or no significance, of little reference was that this veals Defense concerned. murder was far as the issue of so where witness Commonwealth had asked one counsel and the to prior hoxmcide, had the defendant lived her On another occa- aunt.” “with replied had witness a Commonwealth wit- counsel had asked defense sion remarks to the defend- not made certain if he had ness that the witness replied the aunt and ant about not. that if he impression also of the
The trial is aunt’s to evidence regard allowing erred telling the error by he corrected murder, conviction attempt the evidence. The disregard jury is not successful. testimony always tainted sterilize root in the taken such germ prejudice instruction can extirpate of the that no it, minds It that admonition it. appear no deaden would in remarks to the instead of Judge’s jury, case, it. He watered nurtured said: Mlling germ, “ that has an Aunt ‘And then came out she her day. and she The aunt is in prison every sees same there murder. And she has talked to her about her for but defendant not to extent. . great said . case, reference to the aunt is Now with while that prison, your should dismiss minds en- fact, as far consideration of this case is as con- tirely It do cerned. she not de- there, fact upon cide the or innocence of this guilt girl she fact an aunt who is time in Broad- prison serving has it has nothing meadows do with the de- murder, in the case far as guilt fendant or innocence is ” concerned.’ *5 158
It be noted will that while trial tells the jury to dismiss from their minds the fact that de- prison, in fendant’s aunt is he declares four times that prison. it a fact that the aunt inis Nor does he leave any possibility jury’s for doubt in the that the mind prison “serving aunt inis time . . . murderAfter emphasis utterly of this it character, was useless jury tell that the aunt’s homicidal tendencies had nothing charge against to do with the the defendant.
In the case of Commonwealth v. Pa. Su Blose, perior police photo referring Ct. a 165, a officer, graph explained “peni of the that a it defendant, was tentiary thereby photograph,” quite clearly informing already that the defendant was a convicted Commenting testimony Superior felon. on this incompetent prejudi highly “It Court said: and testimony, although opinion cial and court its denying reports new that the case tried in atmosphere, feeling an ideal without altercation of be appellant’s attorney, tween counsel and the district we opinion of that its instructions did not and could eradicate the effects of the statement. . . The testi mony deep lasting impression must left have and presently developed, for reasons truth, and, we confidently wholly cannot assert that the instructions interplay impressions abstracted from the generated jury’s convictions which ultimate con assumption . clusion. . It is not an unwarrantable jury] experienced arriving it [the trouble in at a con appellant’s and we cannot be certain that clusion, crim placed inal record was not scales the forma judgment. tion the ultimate These in circumstances possibility appellant’s legal dicate more than a right substantially impugned to a fair trial was incompetent prejudicial testimony. The court juror, should withdrawn error was not *6 by It serious and instructions. error, its cured impeaches the conviction.” subject
Speaking in the case of Com on this same Fugmann, Pa. Mr. Justice 4, v. 18, monwealth theory pointed Justice) (later out: “In Chief Maxey testimony any but a that no shall have intends law jurors’ nearly practice, logical all minds; effect ¡both logical psychological testimony effect a a and has varying intends no ratios. The law witness’s except jurors’ any appeal testimony make to the shall practice, reasoning tes in actual a faculties; witness’s timony appeal emo more of an to the makes sometimes tions than to the reason.” in the case at that the
It cannot be excluded bar by to the murder committed the defendant’s reference jury psychological effect on aunt had a the —to disadvantage. defendant’s appeal urges en- in this she is
The defendant
only
a
trial
because she was
effect
to new
titled
placed
in the defendant’s dock with murder-convicted
judge,
de-
but also because
attitude,
aunt,
deprived
language,
her of a fair
conduct and
meanor,
deciding
charge
impartial trial. In
whether this
is
and
speculate.
to
not need
The 800-
one does
substantiated,
replete
page printed
record is
with instances of
judge’s participation in the trial more as an advocate
impartial
partisan than as
arbiter of the
law.
and
Myma,
v.
Although justice the administration of has under- gone many changes since the first tribal chieftain top judgment climbed of a bowlder to in sit on his all civilizations then fellow-tribesman, since attested that one entrusted awesome re- sponsibility deliberating of on the of fate others must patient, temperate considerate, reflective and —ever holding justice equalizing the scales of with an hand. unfortunately, impatient, in this case, was intemperate throughout inconsiderate, and, the trial assigned prosecution. rested arm the his scale proceedings longer Under his domination the no were a by jury through itas has come down the venerat- ing stage centuries. He used the courtroom aas for a throughout,
*AU italics mine. judicial performance despotism. repertoire of solo tyranny only by of limited of his was number appeared footlights before the un- defense who his restrained ire sarcasm. by particularly
The defense counsel were favored with the lash of While, course, scorn. criticising province is within his and even lawyers censuring improprieties in his committed proper speeches presence, it is not for him to make imply Nor misconduct which does exist. extolling against as another warranted witness, credibility, com- witness or when witness’s counsel, being by petence honesty one or or attacked side the other. ques- time arrest she of the defendant’s
At police. questions by Her were reduced tioned resulting signed form statement. written she county cross-examining the chief of In the course of if he him had, defense counsel asked detectives, girl prevailed upon procedure, enter matter containing varying corrections her sheets initials by regarded inquiry legitimate her. made This *8 police, him and it on the roused as attack lawyer: unjust of the to an defense censure “The interrupt. Are like to : Just a would minute, I Court county you intimating and the chief that the detective county deliberately planted in mistakes detectives trick the defendant, in order to kind of statements these you intimating? : their Mr. Lord Well, is that what are exactly your testimony, in accordance honor is you What under- understand. what we The Court: your by saying cross examina- now but are stand, deliberately plant they in mistakes these state- tion that it and attention to defendant’s call the ments so right? Mr. Lord: sir. No, that it corrected, have : What are you trying to I like do? would The Court to know. Mr. Lord: We are him this asking how mis- take into got this transcript? Tes, Court: your question was a intimation that he deliber- strong or ately else for him somebody planted this in mistake or this, these series of mistakes in this statement; mean that? Mr. Lord : I did not mean that intima- tion, your honor. The Court : All itas right, long straight. The answer of the witness was to the effect that he understood what you meant. We are not going to permit that in this court room that by innuendo, police these officers and these county deliber- detectives ately try to trick in any defendant that manner. Mr. that is not the Well, intimation tried to get Lord: and I across, would like to have that stated for the record was not.”
The Court’s impassioned defense of the police his condemnation of defense counsel com served to pletely wreck cross-examination on the point, at issue, thus rendering further questioning useless. No one can doubt the magnificent work done de police partments throughout but no one nation, say can the entire history of law enforcement police no man has ever executed a guileful even maneuver, attempt gain regarded what as the truth. On subject in the Judge Reno, case of Commonwealth v. 175 Pa. Ct. Claiborne, Superior 49, sagaciously observed: the judge “Clearly, solemnly pronounced the police surgeon’s testimony superior to appellant’s not officers are withstanding police can be fallible, share common mistaken, prejudices, been known commit perjury. credibility police is to be officers the same judged by appli standards cable all witnesses. They supposed to dis interested as the trial witnesses, judge suggested *9 but whether or not are charge, they so in fact a jury A. question. 726. 309 Pa. Cf. Com. v. Brown, police testi- tbe and not embraced ‘the state’ We have mony police not one of the eternal veri- of a officer is ties.” county de- asked the chief of
When defense counsel getting any “gesture if he towards tectives had made interjected: attorney,” the court [the defendant] her department police responsibility on the “There is no get a not make so he did counsel defendants, might they gesture. as well If to do that police department up too.” and the courts .close conveyed judge’s remarks here could well something impression there was having lawyer. wrong His lan- about the defendant unnecessarily strong inac- guage as well as also police be no need for the there would because curate, up up shop their the courts to board and for to close might simply helping hand be lent because a doors seeking Although person counsel. an accused important, regarded matter as not have every guarantee that accused is a constitutional there guided represented counsel. is entitled in this on a conviction determined So attorney did not if the district that he chafed case object phases during counsel’s promptly of defense n cross-examination. kept these occasions the On attorney to rise to his feet to ob- goading the district example: [Mr. I think if ject. For “The Court: attorney] in- start district assistant Graham, might help terfering you little . . . Raise us out a bit objections get here.” up few a bit please May Again: court, “Mr. Graham: question. already answered has believe objecting, what am so He has, Court: guess. I can not rule it I take here and going to sit do, gives objects anything counsel me. unless *10 May chance to rule please on it. Me. Geaham : it hop up I could every court, and down here 30 seconds. right, you : doing very All are not it The Couet often. Me. Geaham : I right, could do it. : All Couet I will rule on it.” lawyers,
The defense Mr. Lord and Mr. McGoldrick, defending were proposition their client on the that the probably deceased infant Along died of natural causes. this Mr. cross-examining Lord line, one of the Com- monwealth doctors as to the diseases which kill infants in a judge matter of interposed: hours. The trial you “The Couet: Before answer I am that, doctor, going to ask the object assistant district to you trying prove to it. Are to this infant died of a specific you trying disease? prove. Is that what are to your question That is you what leads to. If are not trying to do that it is not cross-examination. Me. Loed : general theory This on autopsy, he has testi- fied from laying certain ground- . . facts .” After this attorney: you work, asked the district “Are objecting to Mr. Graham?” it, And Mr. re- Graham sponded: objecting,” whereupon “I am the Court not surprisingly intoned: “Sustained.”
When cross-examining defense counsel was a detec- tive as to the circumstances under which he obtained statement made he defendant, asked whether crying the defendant inspired at the time. This taunting into defense counsel as follows: crying “The Couet: She has been in the court room, why you don’t call attention to that? Me. McGoldbick: object going Your am honor, to for the record to the remarks of the court. The Couet: What is that? Me. going object am for the record to MoGoldeick: right, the remarks the court. The Couet: All object put record. After it, we all, very patient been with cross-examination in this very patient. very, Your honor, case, Me. McGoldeick: very charge. only attempting is a We serious get at the truth. I know. We have The Couet: very you in been liberal cross-examination; with just go around Bobin the time.” Bobin all Who into how entered was, case, explain. police When defense counsel matron asked a about *11 the condition of the cell which the defendant had attorney objected. court been the The district held, objection proceeded then to lecture sustained the and po- all defense counsel because he did not know about you You lice cells: “The Couet: better find out. Well, practicing years in been for a number of have law county to find out.” It is not the function of a trial lawyers supplement the education of to they pedagogical “find out.” assertions what should cross-examining In the coroner who conducted post-mortem on the deceased Mr. infant, examination the coroner to the Lord asked describe “urachus,” by the The coroner mentioned coroner. which had been replied: flippantly “You describe it.” Defense coun- question the that the coroner answer sel insisted finally you time he added: “Now next did, when you bring something going the next one to answer this.” like mildly reproving for his im- witness
Instead approved: pertinence, the court “The Couet: That is right, make the [defense counsel] answer.” if counsel asked coroner he had After defense diag- preserved on which he had made his the evidence question asked a the district nosis, going open one “This is to remark: caused questions.” after the district at- Then, for door completed torney redirect examination de- questions, put prepared some court counsel fense chided: “I it knew would open there it up; goes again.”
Throughout trial that defense judge charged counsel were employing delaying tactics and he kept demanding While hurry. celerity any is expeditousness recommendable, always is desirable, speed must not overshadow the prime requi- of a site trial, namely, ascertainment of truth. The following illustrates how the court counsel: badgered “The Court: Do more questions? Mr. : sir. The Yes, : many How more? McGoldrick Court You are reiterating awful lot. am not going stand it much longer.. How much more? Mr. Mc- : We wish to go through rest of the ques- Goldrick period tioning before the statement was taken. The Court: The rest of the period? Mr. Mc- questioning That sir. right, Court: You mean Goldrick: when she was brought district attorney’s office? That right. Court: Well, Mr. McGoldrick: her out of the Chester get Police Department and bring *12 her to Media up as as can I quick then. am getting sick this reiteration. up now. You Hurry had of her the Chester Police Station down for quite long her up so here to Media.” while, bring The cause of baby’s death diagnosed was as as- Defense counsel asked a Dr. Teabeaut phyxia. as to some of the causes of The asphyxia. fretted that doctor all to have the causes of give asphyxia in the court session for keep would “the rest of the And I to in propose go summer. on vacation August, I to get away.” will be able When a hope so case is on the railroad eye tried with an schedule of a judge’s there is always possibility that departure, justice train. wrong board as to defense counsel’s Constantly complaining ques- remarked after a given witness tioning, “I tMnk be said that so answer: about five times am, far. tired hearing it.” getting of On several occasions tbe to restrict attempted in tbe tbeir presentation defense counsel of defenses It to important tbe defense of point was view tbe hour exact tbe death tbe Tbe baby. establish of of court not would examination this permit point: Cotjbt: Tbe issue in this not “The case I see is it, when did tbe baby what did tbe die that die, baby from; is tbe issue. Mb. Lobd: If in many tbe court please, of tbe of Dr. questions McKnigbt cross-examination be far went tbe beyond answer and in this put evidence, Cotjbt: mortis. example, rigor No, far go tbe or beyond beyond answer the question. You asked him all entirely these which were questions opinion irrelevant tbe of tbe court tbe issue but case, to do it. Me. : It permitted you we Lobd is our at this time position by denying right us tbe to ask this question you are us tbe denying right test bis or judgment. bis credibility Mb. Gbaham: itMay tbe if this bad been please court, developed tbe defense in is devel- chief, they different, Cotjbt oped it in : cross-examination. devel- They oped it in cross-examination now they trying by this de- testimony show witness’ that what under incorrect at veloped cross-examination or least some of it. You better part get ques- down tion the cause death in this case and all this stop irrelevancy.”
The trial attitude tbe trial judge’s throughout and anti-defend- pronouncedly pro-Commonwealtb ant tbe fact that be probably explained by *13 district a bit of years, assistant bio- 17% data tbe but graphical imparted be even that jury, not bis tbe history justify testifying from bench. Dr. a When defense asked Teabeaut medical counsel in- the the judge, permitting answer, without question, inject and terrupted: right “Now now interrupt about of that report type, the court thinks this what the that of coroner’s portion report? Every physician and I was seventeen and report that have seen, give the years half would attorney’s district office, the description organs of vital of general body, or not stating they diseased, whether were diseased those that are to sus- principal vital understood organs life not mean that the cor- tain That would generally. oner’s his conclusion on the physician was predicating he fact that he found the normal or that found spleen other of normal. body abnormality part is the that he after he had given concentrated thing on, he findings up his of his description opened when is all body McKnight and it. Now that Dr. posted that examina- upon saying spleen would mean tion not that opinion physician normal, he it with testified drowning.” Having connected manner and at the defense counsel length, such that him- could not feel had made help in the case, accordingly self a witness and defense counsel cross-examine began judge: “Mr. Lord: saying In other that he did words, your honor, at in other negatived, look elimi- organs words, And His nated other causes of death.” Honor, abashed at in which he undignified position testified further: placed himself, placidly “The Court : if spleen In other he at the and he re- words, looked corded it was could still at some normal, look the cause part body other find of death bodyN the other of the Eater testi- part from the If fied some more bench! “The Court: then another is the that eould observation case, just as he Dr. the same said the spleen McKnight’s, out lungs I took a section normal, *14 not that does whether the child floated; prove thing, was drowned or whether he with was asphyxiated gas or what to him.” happened
Defense objected counsel to the court’s properly and articulated been what must now have comments, obvious to the the everyone namely, courtroom, attorney: case the district arguing I want to take to those com- “Me. exceptions Loed: honor. your you Couet: All ments, right, have an exception. believe are argu- Me. Loed: ing case to the for the attorney. district Couet: All you may exception have an right, record Go ahead. granted. am there trying show are certain portions report might very vital to the issue in this but the other case, parts merely descriptive. Go ahead.”
Dr. testified that the au- McKnight, coroner, topsy performed was a complete autopsy. Defense counsel believed it complete accordingly asked Dr. Teabeaut about it. The judge interposed again with resume on long what Dr. McKnight had said and concluded: “As I see testimony from the standpoint of the Commonwealth is that Dr. Mc- Knight made a complete autopsy was sufficient in his him opinion come to the conclusion to what cause of death was this case. This is as far as he went.”
Defense counsel refused to accept testi- judge’s mony to effect that the autopsy was complete and asked Dr. Teabeaut: your “Doctor, professional opinion what is a complete autopsy?”
Since the Ms already given professional opinion as to what constituted a complete autopsy, district attorney objected, judge naturally sus- tained the objection. when the district
Then, was cross-examin- ing subject, Dr. Teabeant on this the court warned defense counsel: “Don’t because Mr. interfere, you.” Graham did not interfere The court had right no to tell defense counsel that he should not in- *15 object. completely terfere, is, Nor does the record spite “interfering,” absolve Mr. Graham from of the judge’s respect. laudation in this objected question put
When defense counsel to a the district the court defendant, you please permit warned him: “Will this defendant any to be cross-examined without or un- interference necessary interference?” quite unhappy
It is obvious the trial the manner in over which defense counsel battled for only praise their but he had client, the district at- going torney, even far so as to launch an encomium attorney’s on the district voice: “Mb. McGoldrick: object going shouting. Your I am Honor, to this The you going Court: What are to do? Mr. McGoldrick: objecting attorney’s I am to the district manner of questioning. question He does not have to her in that fashion. The Court: She is the defendant, she is sub- ject to intensive and unlimited cross-examination. Mr. : that is but she Yes, true, does not have to McGoldrick shouting be shouted at. The Court : He is not at her. away. he can stand Well, Mr. McGoldrick: : He uses voice how the court to hear likes Court Objection him. overruled. Go Mr. Graham.” ahead, may judge intermingled Paradoxical as it seem, anger jests jokes. his outbursts of attempted Beading the record one cannot conclude whether the wearing awas humorist the robes of a martinet, disciplinarian seeking or a strict the nervous relieve every imposes tension and strain that judge, jurors. lawyers, witnesses However, whatever judge’s have been the motivation behind the humor, place in had no of trial. serious business a murder purposefully generated Humor detracts from solemnity procedure un of court and can work just disadvantage to indeed it can accused, as effect on efforts of the Commonwealth similar seeking just every judge qualified Nor verdict. produce interesting, humor and distil wit which is entertaining. much less of sallies reflection) (as at case bar himself must admit on attaining immortality fell short somewhat anthology wit and at humor the bar or on the bench. taken Illustrations record will what reveal Judge Superior appropriately so Court- Reno “judicial rarely characterized as humor rises [which] above the dismal.”* When defense counsel asked the who taken the defendant’s detective, statement, *16 rights whether he had her of to in advised her not replied: criminate the detective I herself, “No, go into the Fifth she told she Amendment; before made this ex statement.” This caused claim: “The Fifth Amendment? . . Where I . did hear that before?”
While Dr. Teabeaut was defense coun- stand, open- sel stated that the coroner had indicated that in ing cavity the abdominal of the he child had discovered hemorrhages” lungs, whereupon “dotted over thought going “I observed: we were to Philadel- phia, explained not New York.” when the doctor Then, lungs might through that the have been seen the'ab- cavity might? dominal chortled: “Oh, He might periscope.” had a have McKnight
When defense counsel asked Dr. about pink pink the doctor said he never heard of blood,
* Claiborne, Superior Commonwealth v. 175 Pa. 46. Ct. whereupon the court
blood, asked: “How about blue play “straight And the blood?” now forced to doctor, replied: “I heard of have that.” man,” testifying A witness attitude defendant’s to- children said: and she talked “Yes, ward and she acted very happy everything; like she was and and we talked kids. I about the So told her could she have all she laughed and was all.” wanted, This caused judge, questionable say: thought “Q. I taste, bargain? guess they it took two to make a A. IWell, say? Q. do. She wouldn’t have the whole A. IWell, don’t know.” “By gems
And then there other to wit: wit, special Q. The Court: That is another field in chemis- try? A. I should like to Well, make I believe am one. knowledge good Q. You thing human know, sub- way up go crazy.” it divided we would all is; . . . you I will tell that we better do, we “The Court: laboratory taxpayers better build a and have the start paying for it.” . . . you up : The hours have taken
“The Court up by allowed to been take the court? That is the second time 20 minute recess has been referred to way don’t it want referred to more in the being by you. referred to innuendo this case hurry up your want cross-examination. go get something We better out and to eat.” always hoped properly It is to be that when a court *17 person recesses for food, trial for his life will impartial also be assured the bread of an and untram- judgment. meled