411 A.2d 1254 | Pa. Super. Ct. | 1979
Appellant and an accomplice attempted to rob a tavern in Chester, Pa., on October 13, 1976. Appellant, wearing a stocking mask, held a revolver on the patrons while his accomplice emptied the cash register. Appellant then asked the patrons for their wallets. One of the patrons was Morris Albany, an off-duty police officer. Albany, instead of complying with appellant’s order, attempted to disarm appellant and the two became engaged in a scuffle and wrestling match. At some point during the scuffle, Albany’s service revolver was drawn and several shots were fired. Appellant received several wounds and Albany was shot once, fatally. The ballistics evidence at trial established that the bullet which killed Albany came from appellant’s gun.
Appellant contended that he had been paralyzed by Albany’s shots before he could fire his own gun. He claimed that Albany himself caused appellant’s gun to discharge when Albany attempted to take the gun from appellant’s grasp.
Appellant was convicted by a jury of second degree murder, robbery, theft by unlawful taking, firearms violations, conspiracy, and recklessly endangering. He appeals from the concurrent judgments of sentence imposed subsequent to the denial of his post-verdict motions.
Appellant first contends that certain remarks of the trial judge were prejudicial and inflammatory and require the grant of a new trial. Those remarks occurred while appellant was testifying on direct examination in the defense side of the case. Appellant’s counsel asked him whether he had any intention of shooting anyone when he entered the bar. Appellant replied, “No, sir.” At that point, defense counsel inquired of the prosecutor whether the prosecutor had any objection. The prosecutor replied that the question had already been answered, as it had. The
The Court’s remark was not prejudicial. The interchange was initiated by defense counsel and the remark did not reflect bias or express an opinion on appellant’s guilt or innocence or on his credibility. The remark was directed solely at defense counsel and not appellant. The occurrence itself was a very brief exchange and, after the motion for mistrial was denied, cautionary instructions were immediately given to insure that there could be no possible misunderstanding of the trial court’s meaning. The remark of the Court and the subsequent interchange do not constitute the kind of prejudicial or inflammatory remark by a trial judge which requires the remedy of a new trial. See, Common
Appellant next argues that it was error for the trial court to permit the victim’s widow to testify as a witness for the Commonwealth. The Commonwealth contends that this issue has been waived since it was not raised in post-trial motions. The issue was, indeed, not raised in the post-trial motions, those motions having been of the standard “boiler plate” variety. The issue was, however, raised in appellant’s brief in the post-trial court but not discussed or decided in the Opinion of that Court. Our Supreme Court, in Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978), held that an issue raised in a written brief but not in post-trial motions was waived where the post-trial court refused to discuss it. Subsequently, in Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979), the Supreme Court held that there was no waiver where an issue was argued and briefed, although not raised in post-trial motions, where the post-verdict court decided the issue on the merits. It would appear, therefore, that this issue has been waived.
Even if not waived, however, the allegation of error is without merit. The victim’s widow was not called merely to testify to irrelevant facts concerning the victim’s private life, thereby appealing to the sympathy of the jury; she was called to testify that the decedent was right-handed and to show how he customarily carried his gun. In the context of the defense offered, that testimony was relevant to the issues being tried.
Finally, appellant contends that the Commonwealth did not prove beyond a reasonable doubt that appellant was not acting in self-defense. This question was not raised on post-trial motions nor was it briefed or argued before the post-verdict court, and, in accordance with Commonwealth v.
Judgment of sentence affirmed.