*1 jury prevented week read to the prior creating of a record. contradicted, say venture to this much cannot be Bradley
and is sufficient under and under the harmless Story error test announced in to make out a case for granting a new trial. Further into the under- inquiry of the a domain into we standing jury, always which are invade, into specula- reticent would take us the realm of tion and conjecture. Any inquiry serious into the under- standing precluded jury when the foreman failed request. to inform the trial court of its For the reasons under either the Bradley foregoing rule rule, or the harmless on error the facts and circumstances case, I grant Appellee of this would a new trial.
v. HAMMER, Appellant. Frederick Supreme Pennsylvania. Court
Submitted Dec. 1984. Decided June *4 for Philadelphia, appellant. Gay, Andrew G. Lawler, Goldberg, Philadelphia, Richard
Robert B. appellee. FLAHERTY, C.J., LARSEN, McDER NIX,
Before HUTCHINSON, PAPADAKOS, MOTT, ZAPPALA and JJ. THE COURT
OPINION OF FLAHERTY, Justice. entry judgment direct from the appeal
This is a degree against of murder of the third sentence off-duty the death of an arising Hammer from Frederick officer, appel- Uffelman. The police Charles Philadelphia conducting conduct of the trial alleges lant that the witnesses, including examination of repeated extensive and defendant, in the role of advocate for the acted ofttimes v. Myma, Commonwealth in violation prosecution
93 505, (1924) A. and Pa. 123 486 exhibited incredulity testimony defendant’s violation of Commonwealth v. Williams, (1976). 364 A.2d 281 We agree and and remand for a new trial. accordingly reverse at trial that body Proof adduced the dead Uffelman, victim, on Charles was found sidewalk in Philadelphia Delaware Avenue on Friday, October 1978. The victim’s blood alcohol content was determined to be on .18 vomit was sidewalk near victim as well on cuff of the victim’s The trouser. Common- wealth’s theory case based on the the appellant, who had a lengthy walked distance in trying reach Philadelphia looking International for car to Airport, was a approximately steal and at 8:00 in walk- evening, after ing hours, 3 he approximately reached Delaware Avenue where he upon came Uffelman.
The sought prove Commonwealth that Uffelman had pulled his over car to the curb and was crouched over to vomit, having drinking p.m. been since 4:00 It was theo- rized that appellant, viewing this as an steal opportunity to car, struck Uffelman over the head with a 4 inch square, long foot piece old lumber lying nearby as Uffelman was over. crouched presented defense testimony consisted of by several
expert witnesses and testimony of the defendant. Fred- erick years Hammer was 18 old at the time of the incident and lived one approximately and one-half hours time driving from Philadelphia, but was in Philadelphia that day to do a carpentry-type job with his brother and a co-worker on a building During scaffolding roof. job, upon which they fell, stood collapsed whereupon he was trans- ported to a local hospital squad but rescue released after examination determined that he was merely bruised. Appellant testified that he had less than a dollar and that after waiting for approximately hospital three hours at the expectation him, his brother would retrieve called his Stepfather get and was advised public transpor- tation to “center his city” stepfather again call once he he believed that he testified that Appellant had an address. *6 he began to a and that enough money not have take bus did receiving direction the elevated train after walking beneath of the direction police regarding general from a officer the airport to the go He that he to testified decided airport. and also knew city” he that it was “center thought because the airport. find He easily be able to stepfather his would the location both because airport himself was familiar with airport passes home to the Philadelphia the route from his he served in the during Navy and a complex period because shipyard the which Philadelphia he was at briefly located to the airport. close the had
He that he underestimated distance testified over he walking after for three hours airport the and that the driver of a pass- Delaware Avenue where had reached a ask him if he needed ride. He ing car ex- stopped and the airport accepted was the plained that his destination driver, testified that the decedent Uffel- offered ride. He advance, man, proposition offering made a homosexual refused, appellant and that the appellant money when gun violent and held a on angry, appellant. driver became curb, to the pulled began He then car allegedly car, front see saying walk of the “We’ll quickly around of,” grabbed appellant’s made then you’re what through appellant the car window. After was forced chest car, picked up post out he used as a get decedent, facing swung weapon, approximately while ground. who then fell and struck the decedent car, got to the driver’s side of Appellant then went away. and drove later, stopped speeding an hour he was
Approximately Troopers. route to home two State Pennsylvania on his identification, he presented false which repeatedly When liquor, held in order served he was ordered out of to be shirt, old wearing Navy car and He was issue frisked. name, “Hammer,” a on which last was stenciled over his troopers, from state a Appellant hopped ran pocket. escaped. Upon an embankment and guardrail, went down vehicle, glove search of the compartment state troopers whereupon found Uffelman’s identification for the contacted and learned first time Philadelphia of Uffelman on body had been found Delaware Avenue. A description appellant neighbor was issued and a Pennsylvania who State Trooper and who knew Freddie Hammer arrested Hammer the following night. expert presented defense forensic testimony to the
effect that the documented fractures to the skull of the victim were single consistent with a blow and location of the was not blow inconsistent awith stance of the actors approximately facing one another. The expert *7 witness further testified type that the of head suf- wound fered the victim by affected an area of the brain controlling responses involuntary and thus could induce an involuntary vomiting response head, to contrary blow the to after the Commonwealth that theory vomiting Uffelman was at the time he was struck. a trial,
After
jury
was
of
convicted murder
of the third degree. Judgment of sentence
term
imposing a
of imprisonment of seven and one-half
years
to fifteen
was
19,
entered on March
of
Notice
direct
to this
appeal
18,
Court
timely
filed on April
1980.1
On appeal, Hammer
argues
pattern
that
of examination
of
witnesses
the trial
constituted
judge
advocacy
point of
favoring
view
prosecution
and that this undue
participation adversely and prejudicially contributed to the
verdict,
amounting
thus
a denial
of due process, Com-
Archambault,
90,
monwealth v.
(1972).
448 Pa.
court’s appellate review. not in determining arises whether The issue difficult claim, for dis prejudicial, judge’s conduct well-founded, in determining but whether infra, cussed due to fail review counsel’s precludes doctrine the waiver to each instance of lodged timely objection ure to have re by the court heretofore questioning objectionable Jones, 183, 185, Pa. v. 487 409 Commonwealth quired Clair, Commonwealth v. 25, (1979); 27 see also 458 A.2d 418, (1974); 1123(a).2 272 Pa. 326 A.2d Pa.R.Crim.P. courtroom,
In
is the foremost
judge
authori-.
governor
second
none and no
conduct
ty,
judge’s
stated in
judge.
resides
the courtroom save the
As
505,
(1924):
Myma,
Commonwealth v.
278 Pa.
of his own amply recognized by conduct is the Code of Conduct, 1973, adopted Judicial in by this Court effective 1, January 1984:
A establishing, should in judge participate maintaining, observe, high should stan- enforcing, and and himself dards conduct independence so and integrity judiciary may be preserved. Conduct, Code Judicial (emphasis supplied). Canon A respect should and comply and law should conduct all times a manner that himself promotes confidence in public integrity impartiali- ty of the judiciary.
Id., 2, A (emphasis Canon Section supplied).
A judge should disqualify in a proceeding himself which his impartiality might reasonably questioned, be including but limited instances where:
(a) a personal has bias prejudice or a concerning party____
Id., C(l)(a) Thus, Canon Section (emphasis supplied). officer of judiciary in this charged Commonwealth is self-regulating with a function deemed the foremost arbiter of personal his own bias or prejudice hence his competence preside over matter.
Avoidance of a conflict of regarding interest financial matters requires that
A judge should about his personal and inform himself interests, financial fiduciary and make a reasonable effort personal about the financial interests inform himself of his spouse and minor residing children in his house- hold.
Id., C(2) Canon (emphasis Section supplied). It would indeed be a contemptible system required which counsel civil potential case to ferret out conflicts of interest *9 example, judge’s in a financial interests
residing, for disqualification. duty the That judge’s order to obtain too, So, the would it be judge. expressly resides the of permit injustice judicial to inherent unacceptable in a criminal case for go remedy without impropriety of In a by objection censure counsel. criminal want of counsel, judge, is who has the the prosecution, “[i]t conduct of a fair and lawful responsibility ultimate moderator, a mere judge trial. is not but is ‘[T]he purpose assuring the trial of its governor proper of for the ” Lakeside determining questions of of law.’ conduct and 341-342, 1091, 1096, v. Oregon, 435 U.S. 98 S.Ct. omitted) (1978) (citations (emphasis 326-327 L.Ed.2d supplied). assuring of the efficacy impartiality counsel by this function and
judge negated self-regulatory is bench, question or judge poses for a who authority trial is to believe that during predisposed makes a comment is it not be proper, spoken. or comment lest question that the will predisposition, Given that likelihood In objection negligible. counsel’s be well-cautioned doctrine, context, the waiver underlying rationale to cure objection gives opportunity court timely Indeed, error, one. relatively empty becomes a as a objection exists that counsel’s will be viewed possibility annoyance3 may aggravate well the situa- source tion.4 objections may only annoy serve the court was
3. That counsel’s objected, during extended exami- in this case when counsel evidenced court, defendant the court's inference that nation of the holster, gun put his in his when the saw the victim back defendant Upon objection, so the court had not testified. counsel’s defendant court," by saying jump on this twice admonished counsel "Don’t required apologize the court that it "wouldn't counsel assure p. Similarly, again." objected N.T. counsel dur- happen 1287. when question ing interruption to a of direct examination the court’s ruled, witness, expert brusquely right. "All the court You defense object. Okay? just p. it. overruled it.” N.T. I overrule establishing Appeals Kentucky, exception also 4. The Court timely objection, requirement of observed:
99 Thus, are not we inclined to strictly enforce the waiver in case judicial doctrine the of intemperance for counsel veto actions viewed by cannot the to be judge wholly of The role the permissible. judge inter- being inextricably the dispensing justice, twined with of it would be manifestly to the embodiment of unjust permit justice the courtroom process the criminal to thwart without benefit relief to the accused where the has judge beyond crossed thresh- objection old of and where impartiality by counsel be to may no avail. record, it appears
On this whereas that objection to meaningless satisfy would be the reasons for raising and, record, as further objection by reflected this indeed judicial justice intensified is not served animosity, strict application waiver doctrine. Accordingly, we hold that the failure of trial counsel to object questioning to charged who is judge, self-regula a function of tion, will not under all circumstances render the allegation of judicial impropriety appellate unavailable for review.5 remark, judge objectionable When the trial makes an counsel is may antagonizing faced with a judge by dilemma. He risk remarks, calling objectionable scarcely attention to the which can jurors by subsequent be erased from the minds a admonition. objection unsuccessfully, may aggravated If is made the harm be may may and the objection situation be worsened. He make no hope jury ignore places that the will the remark. This position disadvantage may counsel in an unfair and at a which not any part____ due light, be to conduct on his Viewed in this objection judge to the unnecessary, remarks a trial is ... 45, Sparks, (Ky.1958) (emphasis
Collins v.
310 S.W.2d
supplied).
48-49
holding today merely joins
5. Our
other areas of law in which the trial
routinely given
is
sufficient
to
discretion meet the circumstanc-
case, notwithstanding
objection
es of the
absence of
or absence of
input
power corollary
A
judge’s duty
counsel.
to maintain
integrity
process,
judicial
the order and
Commonwealth v.
Patterson,
457,
(1973),
contempt power,
452 Pa.
Turning
appellant’s
for the court to intervene
ask
it
proper
is
established
from either coun
appear
"did not
on facts which
questions
tendency
enlighten
“had a
examination” and which
sel’s
supra
v.
Pa.
Myma,
Commonwealth
jury,”
required
trial is
when the
new
An indicative expression favor of at jury box and the counsel quickly reflected duty through of depart To from the clear line table. conduct, the order- or contravenes questions, expressions take It has a tendency justice. of administration ly impar- right a one parties fair from of as trial, jurispru- under our guaranteed system tial of guilty judge's a It is to the satisfaction that the voluntariness of also Pennsylvania Rule Criminal Procedure plea be established. of must 319(b) judge plea is under- provides satisfied that the is that “[i]f tendered, voluntarily may accept plea." standingly accept plea guilty judge may of unless he determines that refuse to understandingly plea voluntarily is tendered. Assertions bearing inquiry; it to be upon the is a determination counsel have no judge. solely the satisfaction of the made
101 Judges dence. should refrain from extended examination witnesses; trial, not, should during indicate merits, opinion an on the a doubt as to the witnesses’s or credibility, anything do to indicate a to one side leaning other, or the without explaining jury that all these matters are for them. 278 A. (emphasis
Id. Pa. at 487 supplied). Where the judge oversteps the bounds propriety witnesses, in examining by exhibiting opinion, or preju bias dice, the be be jury must deemed to inordinately impressed by judge’s this evidence of the such that the opinion defend deprived impartial ant fair and trial. The trial becomes not one of trial but of jury, trial jury impressed judge.
Trial
judge participation
the examination of the
testifying defendant is acutely objectionable where there is
any suggestion that the
opinion
has
regarding
credibility of the
or
defendant
plausibility
events
defendant,
related by the
Commonwealth v.
McCoy,
(1960);
Pa.
Williams,
Where, here, as credibility the of the defendant was crucial and story where his not totally lacking verisimilitude, the need for judicial impartiality is para- An area of the direct the important testimony by
mount. recorded statement made formally addressed appellant police. The testified that he appellant appellant eight first ordered to for examination before the strip being ques- then redress officers assembled and before actual of a state- prior compilation tioned for hours to the testified he was aware what clearly ment. He that end complied to hear and that order to police wanted from state- questioning involuntary and that those ments, by the improvised police. statement was written assertion, stressed the stilted advancing In this defense on the statement as evi- of the answers written phrasing recorded as the simultaneously were not dence that police. purported improvised statement but were interrupted defense counsel’s direct repeatedly court to pose questions the defendant on this issue examination of content con- that the written answers suggesting answer, the content of that does that contain formed: “But in fact When the defend- exactly you wearing?” were what that,” “never said it like the court responded ant that he retorted, “No, I’m the content of saying but that answer, wrong clothing de- anything is there about actually were being clothing you scribed as far N.T. responded, the defendant “No.” wearing?” to which detail, another the court chal- Again, on pp. 1146-1147. defendant, you does that differ from lenged the “How what N.T. told them?” questioning pursued by line of prosecutorial
Another that a serious incon- suggested court there was pointedly relating legal sistency testimony in the defendant’s direct testified on duty Appellant retreat. decedent once away run from the simply reason he did decedent, he was afraid who outside of the car was because However, it him as he ran. pistol, would shoot harbored away did run from the two be recalled will *13 him an hour approximately who troopers stopped state following the incident:
BY THE COURT: didn’t run from the rear Q. you You stated you were fearful Uffelman’s Uffelman vehicle because gun, right? Yes,
A. Q. Okay, sir. 1 by on Route stopped were you now when they were armed? see that you did Troopers, two State Iif seen a I don’t remember I were. A. assume gun. Well,
Q. as why you just running weren’t fearful them, as firearms, their Uffelman’s firearm? from felt, I I you A. don’t know. can’t tell how guess—I really. (emphasis
N.T. 1783 supplied). This purported inconsisten- cy, prosecution which even the in cross-examination had not deemed worthy emphasis, cannot be said to have any permissible judicial purpose to clarify or to “en- testimony lighten the jury” and was clearly advanced the court in adoption of a prosecutorial function. questions
Numerous additional posed the court preju- dicially exhibited incredulity regarding plausibility and, defendant’s version of again, events would be as appropriate cross-examination prosecution, as questioning by judge. When the defendant testified on direct he believed he didn’t enough have to take money a bus and decided to walk. The court asked: “Did the thought ever occur to you ask fare anybody what the public transportation was you walking as were on the street you passing were people?” N.T. 1203. p.
When the defendant testified that he continued to walk because he believed was not too far from the airport, the pursued court a line of questioning based on the fact that appellant spent a period brief stationed at the Philadelphia naval base: “How far is the distance between the Naval Base and the airport?” “You that, have traveled haven’t you.” “How long does it take you by car to from get Naval Base the airport?” “It takes more than five get minutes to from the Naval Base to the airport, doesn’t p. it?” N.T.
104 point, reinforce a Commonwealth
The court chose to if, appellant that as prosecution, covered already by sexual, he testified, were would the decedent’s intentions on “Did off the main road which traveled: have turned you riding when were go big he off that street ever of or cut into the side streets any him?” “Did he ever off always stayed “He on Delaware of the other streets?” any Avenue, p. 1274-5. right?” N.T. long- he placed recitation how
When defendant’s booth, phone by dialing from a phone public distance calls zero, failed to by apparently the number directly preceded the court asked: “How experience, with the court’s comport p. N.T. got can tell us number direct?” you you that 1056. pursued the defendant questioning
The court also
mind,
issue in the
related to state
crucial
elicit evidence
subject of
degree
guilt,
but a
regard
case with
in
disapproval
viewed with
Common-
judicial commentary
During assistant the defend- questioning while he was of the defendant and to his had conveyed ant what events the defendant on incident, girlfriend the court evening interrupted asking, you escaped the examination “Did tell her that you “Q. from State Police?” “A. Excuse me?” Did you mention the from the Police Miss escape Hargan?” State “A. I told that I was on stopped her Route State from page Police and ran them.” N.T. of prosecutorial questioning
Another round the court *15 a during questioning occurred the court’s of defense surre- witness, expert buttal a of background origin brief which necessary. The defendant testified that the dece- which, dent amade homosexual advance when rebuffed by defendant, prompted violence which re- eventually sulted in the decedent’s death. The Commonwealth rebut- ted this evidence of homosexuality presenting both the wife decedent’s who testified to a “normal” sexual life with decedent an absence indication of any bisexuality as well reputation as numerous witnesses who testified to the decedent’s reputation for heterosexuality.
In evidence, surrebuttal of reputation this the defense proffered witnesses, two psychiatrist a “sex- specializing ual disorders” and a sociologist, both involved in the volun- tary treatment of bisexual and homosexual men. im- port psychiatrist’s testimony experience that his in the treatment of bisexual men who were heterosexually married was that the aspect homosexual of their lives was hidden and secretive and that it was common in those cases for the man to pursue the aspect homosexual of life in a clandestine, anonymous manner unknown to family and friends, and such activity bemay coupled with alcohol consumption, which, the “disinhibiting” effect of eases the expression of an otherwise restrained From conduct. this the defense argued that the reputation Commonwealth evi- dence of heterosexuality did not conclusively negate the defendant’s testimony propositioned the victim him.
The witness’ opinion was based on experi- direct clinical ence years over 20 with approximately 900 bisexual married male clients. The prosecution’s court aided the able cross- to pursue examination a line of questioning regarding sam- in which witness pressed whether techniques pling proffered the evidence honesty” intellectual “in all cases, average year” “on so few 45 a based witness male general population relevance to the any had statistical Philadelphia. p. N.T. in the witness, sociologist engaged The second in hetero bisexuality his thesis relating preparation men, in his experience also testified that sexually married men, reputation the treatment bisexual aspect of the homosexual pursuit conclusive in that presented The court tended most often to be clandestine. misleading syllogism allegedly distorted relevant challenged testimony of the witness’ inquiry “logic” led testimony dangerously in a that the suggesting manner “inferring untruth:” THE BY COURT: to this
Q. logic is the soundness and statement: [W]hat man whom Any concerning adult heterosexual married *16 being the communi- there is no of a homosexual repute engaging must be homosexual activities ty accordingly are clandestine? they because Well, agree not statement. A. I would with that Well, just Q. you gave that’s the converse of what on, opinion isn’t it? was, Well, the statement impression
A. that my it was how engage activity,” in such that’s person “could such a question. I understood Well, logic? in the adult
Q. Any the difference what’s married, whom is concerning is there heterosexual who activities, could respect no to homosexual reputation with be a homosexual? Yes,
A. correct. that’s
Q. That’s correct?
A. Yes. conclusion?
Q. logical; logical And that’s that’s a is possibility yes, A. That the there someone— that. say would have to
Q. Isn’t there a untruth danger inferring due to the proof you absence in that hypothesis said sound? pp. (emphasis
N.T. 2022-2024 This supplied). entire line of would if questioning reading make suitable elicited but it prosecution, judge, when elicited is clearly improper. prosecutorial cross-examination, In the case of likely sufficiently are jurors sophisticated discern the the two subtlety propositions. However, between extent the “learned” court suggests, determinedly “logic,” application that the witness’ testimony does lead court’s distorted extension of the proposition, jurors easily impressed by may the court come view the wit- ness’ entire testimony threat. That the an- witness’ swers rebutted the judge’s suggestions does not adequately mitigate impact the questioning for the witness’ response in the negative weight “would have little in the face the obviously opposition determined of the judge.” McCoy, 107-108, Commonwealth v. supra, A.2d at 642.
Almost immediately thereafter when same witness testified to reputation his clients believed enjoyed, interrupted the court direct examination to cross-examine witness advocate the assertion that because the witness had conducted interviews in community regarding reputations the clients’ heterosexuality, “no witness had true testifying basis” for to the clients’ reputations other than what the clients reported them to be. p. N.T.
Perhaps telling the most episode of the court’s orientation to the prosecution during occurred the assistant district *17 attorney’s cross-examination of this witness when defense counsel an lodged objection and the only court not failed rule on the objection but also forcefully the supplemented prosecution’s question. The was an subject apparent incon- sistency the sociologist’s between and testimony prior the the testimony of The psychiatrist. assistant district attor- ney had asked in sociologist’s experience whether the 108 of behavior in which his interviewees a pattern
perceived choosing and in secrecy” physical the sought “anonymity encounters, homosexual e.g., such avoidance locations men. the frequented by homosexual When public bars “I responded, would that those are not neces- say witness choose,” of the place they characteristics would the sary questioned whether “it attorney assistant district would you ago, to learn that about an hour someone who surprise 7,000 describing has said he has interviewed ... in people 7,000 he has interviewed chose their people where of anonymity secrecy; locations catchwords [used] different?”, opinion whereupon is defense counsel your prosecution’s to the extreme mischaracterization objected The preceding testimony. the extensiveness of witness’ And right. person expressed court added: “All who degree degree holds a medical and a opinion psychiatry, statement,” add, 2030-2031, did might pp. to that N.T. on not rule the objection.
A presentation of the numerous other improprieties unnecessary prejudicial is for the tenor those apparent already trial is from enumerated. While alone, instance, may each viewed warrant perhaps such process, aggregate, conclusion of a denial due compelling. Accordingly, we reverse a determination entered the trial and re judgement sentence court for a trial.6 mand new
McDERMOTT, J., filed a dissenting opinion which PAPADAKOS, J., joins. by appellant raised relates Miranda
6. The additional claim given warnings warnings given upon Appellant alleges his initial arrest. constitutionally police because the officer were invalid attorney specify appointment did not of an would be “without warning given appellant regarding appointment of counsel cost.” attorney, that "if he one included admonition couldn’t afford Suppression Hearing, p. appointed be for him.” N.T. would argument reject- (emphasis supplied). Appellant’s considered Ponton, ed this in Commonwealth v. A.2d 634 Court (1972). *18 McDERMOTT, Justice, dissenting. evening
On the October of a body man found on lying was Delaware Avenue in Philadelphia. The pocket man’s rear ripped was and his head battered. A piece of lumber lying fit nearby possibilities of a rob- and murder. bery The man was identified as an off-duty police officer and his car was missing. Alarm and hunt swiftly appellant followed. The in possession victim’s car and fleeing for fear or guilt was racing his Oxford, home Pennsylvania. Stopped for speeding by state troopers on his he way, car, from the jumped fled over ditch and home, field to a nearby sought the use of a phone, girlfriend summoned his to drive him home. The officers recalled the name “Hammer” on stenciled his shirt. The next day the state police net ineluctably closed around him. He apprehended and a search warrant found the victim’s wallet hidden under his rug. bedroom Faced with the coming inculpation of the car and the wallet, victim’s the appellant police told that all was in fact innocent. Unfamiliar with Philadelphia, he said he was in that city work day’s as a carpenter, he fell scaffold, from a while briefly hospitalized, lost contact with his brother. He called home and asked his stepfather to come for him. Believing airport to be a central location he set that as place for meeting. Short of money, he started walking to the airport. It was further away and a longer walk than he thought. On Delaware Avenue he met the victim who offered him a ride. During the ride he said the victim made menacing advances, homosexual stopped car, gun and at point forced appellant out to accomplish his purpose. On the pavement as the approached, victim he saw a piece of wood, scuffled and successfully struck the deceased with length of wood. The ground deceased fell to the fear escaped. face,
Upon its his version has a note of innocence; bucolic lad, a luckless country big villainized city, forced to violence and flees in fear from both the villain and the police. We did him; not see or hear did jury and to of that All *19 down, him, him and fled with his struck robbed
vomitting, trial, took the long thorough appellant car. In a test. dooming put and the was explain stand evidence murder; him of third that is jury guilty degree The found to do harm did not intend bodily intended serious but have more. The have done might majority kill. done They cliche more. have found that what was a They essentially further when the trial explanation, damaged ridden was certain relevant judge perfectly proper, questions. asked they excerpts As for their chosen support point, have that, of two standing from the out of context record trial testimony, depict thousand are offered to pages inquisitor, engaging appellant questions, which, minds, a prove the answers to at least to their must fatal trap. this examples opinion enumerates several majority the trial questioning part
so-called on “prosecutorial” court. The first comes from the direct examina- example attorney tion of the his and concerns a written appellant by improvised was statement which asserts police. some extent (Defense Counsel):
BY MR. DUFFY Take Are the Q. right. page AH a look Freddie. is, ’s, “A.” page words on that that are next to the that answers, your are those all words? indicating words sir, No, they A. are not. “Freddie, first tell me
Q. question: you Take the Can you night last the man wearing picked what were when up? you wearing
“I shirt Navy short-sleeved denim work Hammer, name, left- last stenciled across the my pocket, Navy blue top pair long johns, hand denim and work shoes.” pants work way you question? Is that answered precisely
Ill No, sir, not. He it is told me my A. that name was top pocket across left-hand because stenciled were downstairs that identified me and police officers I said that was what had across top left-hand my pocket.
BY THE COURT: answer, But the content that
Q. does contain exactly you what in were wearing? fact That’s I told him I A. what I was wearing but never said it like that. No, I’m
Q. but what saying the content of the answer, is there anything wrong clothing about the de- being scribed as far as the clothing actually you were wearing? No, sir, clothing wearing.
A. this is *20 Is Your MR. DUFFY: Honor finished?
THE COURT: Yes. MR.
BY DUFFY: Do Q. you know whether had a on you shirt on the night of October 13th had “Hammer” that written across the left breast?
A. I’m not I had sure. a lot of shirts Navy and some say them “Hammer” on it and them some of don’t. “Hammer”, Q. Amongst the ones that say are all they identical? No, “Hammer, F.P.”,
A. there are some that say with the it, initials “F.P.” after and just say some on it. “Hammer” Q. say nothing? And some that Yes, A. sir.
Q. right. All Do you you know what told the police when they wearing? asked what were you you A. I told them wearing I was shirt Navy Navy with and pants pair of work long shoes some underwear. Q. How did the “Hammer” across the pocket come into this answer? That’s what I want tell you to the jury. A. That’s when told they policemen me down- stairs identified me as being Hammer because they said stenciled across left my “Hammer” was name my
pocket. You your injuries? All asked about
Q. right. you Were get wanted Pascali said that Detective Graham down. injuries the injuries? asked about you
Were if I asked I don’t know was A. asked earlier. then. sen- your tell the this right. you police All Did
Q. —is from the tence, running words: “While your are these hit a face first and left knee my I fell in the creek police, numerous scratches The knee is swollen with rock. bruises.”
Are words? your those like that. No, sir, say something I would never A. police told the about you remember what Q. you Do that area? particularly about your injuries, wrong why asked me earlier They A. —what I hit a rock I fell I told them that when my knee and got know where numerous I don’t the creek. words. They my are scratches and bruises. BY THE COURT: creek answer: “I fell say Doesn’t this
Q. —the knee hit a rock.” leftmy them? you differ from what told How does that first. I fell in the creek face A. I didn’t tell them right. All THE COURT:
BY MR. DUFFY: with numer- tell them the knee was swollen
Q. you Did ous scratches and bruises? No, sir, I said that.
A.
never
1146-1149).
questions
these
(N.T.
majority catagorizes
The
of the direct
repeated interruptions
from the bench
hand,
I,
questions
at the
looking
on the other
examination.
no
whole,
doing
the
judge
the
believe
in the context of
to
issues
right
duty
clarify
his
and his
exercising
more than
Manning,
v.
Commonwealth
the witness.
by interrogating
652,
(1981).
only
Pa.
To find in trial other judge’s question some against logic question, the inherent and is necessary the reflection The seems jaundiced eye. majority more to anxious find fault with trial than to judge consider the intrinsic question whether received a is fair trial. true that during It surrebuttal trial judge seemed somewhat disturbed the proof offered that there are latent propensities persons that are not known either to themselves or others they until surface. He did not, however, denigrate that common fact. What he did do question proof”. “scientific it would Perhaps have been better had he let proceed unquestioned. the witness Notwithstanding however, his questions the witnesses did give in fact their “scientific proofs” that there are closet homosexuals; proof it equivalent to fact sometimes in Indianapolis. rains majority decision is disturbing yet another
reason, in that
have this
they
weakened the
day decidedly
legal
sound
perfectly
principle
objections
perceived
trial errors will be
waived unless
are made at the time
alleged
Jones,
error occurs. Commonwealth v.
487 Pa.
(1979);
Clair,
PAPADAKOS, J., dissenting opinion. in this joins
v. ALLEN, Appellee. Joseph Supreme Pennsylvania. Court April 1985.
Submitted Decided June all notes scenario. contradic- played them version, tions, in his many assigned and there were were pursued him fear and excitement. Commonwealth ill and upon that he came a man who was upon theory