*1 10/29/04, Opinion, Trial Court at 3.2 ing pre-stamped judge’s We a signature with agree analysis. this Rather, hearing sug- officer’s order. we gest procedure that a better would be Furthermore, we find that the hearing submit the findings officer’s and procedures place set in by Administrative assigned recommendations for judge A-2 of efficiency Order 1999 increases the disapproval either confirmation or follow- juvenile system of overburdened court ing expiration ten-day for period by focusing the trial court’s attention on filing “Request a for sug- Review.” This specific disagreements party may gested procedure guarantees that a with hearing have findings officer’s will make ultimate determination may in fact alleviate for appellate the need thereby the facts and create a final order minimum, review. At a procedures such in adherence with the § dictates of of allow the trial court to hear Act. In light deficiency Juvenile relative to this the issues from a raised first Order, in the current Administrative person perspective and a crystal establish justice lized interests of we record for remand and direct this Court’s review. In discussion, permit accordance with court forgoing Mother to file Request find Appellant’s pro we for Review nunc specify- failure to seek tunc review Allegheny ing sought before an County of Com issues to be reviewed Court within mon Pleas trial judge pursuant parties to the ten after the ap receive notice of plicable Administrative Order resulted in a the remand this record. lack an evidentiary hearing to create a ¶ Appeal quashed. Case remanded appeal. record, for record It is this estab for proceedings further consistent with by a trial judge,
lished court which enables Opinion. Jurisdiction relinquished. court to determine whether findings the court supported by compe
tent evidence and whether the court con statutory
sidered the factors order
ing change. Accordingly, conclude
that the instant hearing order of offi interlocutory
cer remains until confirmed subsequent order of a court judge. COMMONWEALTH of ¶ 17 We our disap further note Appellee practice proval hearing officer using an order pre-stamped judge’s with signature. practice This does conform PARKER, Appellant. Maurice 6305(c) requirements
to the of subsections (d) Act, of the Juvenile provides which Court Superior Pennsylvania. disposition in writing confirmation May Submitted 2005. aby judge of hearing officer’s recom Aug. Filed urge mendations. We therefore court amend Order A-2 Administrative eliminating practice of affix- We multiple transcripts note that permanency planning refer- this case enced the trial court are indeed concern only able court was to obtain three those in the instant case. The trial court advises transcripts. hearings regard out of the ten held in
er court abused its discretion permitting, objection, over a defense his al- opening statement.1 We conclude trial court though the abused its discre- *3 tion, resulting error was harmless. do, however, against We caution the use of by prosecutors such tactics the future. ¶ 2 on approximately p.m., At 11:30 2, 2002, evening April Crump Ms. Sheila process was in of walking to a store Phil- located at 22nd and Oxford Streets store, adelphia. While en route to the Ms. brother, Crump Dwayne her Crump, saw friend, Washington, driving and his James Trial, 02/18/04, in a blue Chevrolet. N.T. at agreed 76. The two Ms. drive store. Crump to the When the car arrived store, Crump at the Ms. and her brother approached the store Appellant while exiting store. Ms. at Crump testified Appellant Dwayne trial that and each gave Dwayne other an “odd look.” Id. at 79. Crump then the store entered but Ms. Meanwhile, outside. Appellant remained Mr. approached Washington, who had re- car, if mained in and asked him Mr. Swift, MaryAnn F. Philadelphia, ap- for problem a Crump Appellant. had with pellant. Appellant pulled Then up his shirt reveal- Burns, Jr., Hugh Atty., J. Dist. Asst. Id. ing gun. at 80. Com.,
Philadelphia, appellee. for argument ensued, 3 An Ms. and DELSOLE, P.J., into the her Crump Before: BENDER went store to tell OLSZEWSKI, brother the events unfolding and JJ. about outside Washington Appellant. between Mr. and BENDER, J. Ap- exited Crump Mr. the store and told appeals everything 1 Maurice Parker (Appellant) pellant that was “cool.” Id. at April judgment Despite Crump’s from the sen- 81. Mr. con- efforts to situation, imposed upon following him his con- Appellant tence trol Mr. murder, aggravated for attempted Washington argue Ap- viction continued to until assault, pellant violations of the Firearms out the pulled previously Uniform he Act, possessing to Mr. Ms. Washington. instrument had shown Id. The sole her appeal Crump attempted crime. issue wheth- brother to enter reasoning 1. The court did not file Pa.R.A.P. have the benefit of the court’s for 1925(b) opinion is no objection. overruling the Thus, sitting longer on the bench. do not doors, commode and then crash” in the passenger side “loud the vehicle say, mother ‘What Appellant began Appellant’s shoot- heard stopped but 145, 146, 154. Id. at you doing at from the driver’s side. with that?” ing the vehicle shooting began, and Mason entered 83. After the Alston Id. Officers away and continued and therein discovered loaded Washington Mr. drove restroom commode. hospital, he until reached the where .38 millimeter revolver he gunshot subsequently ar- multiple treatment Id. 145. The officers received Crump Appel- Appellant Ms. testified that and recovered revolv- wounds. rested until there lant shot his at the vehicle er. at 146. Id. (she testified that
were no bullets left she 18, 2004, February 6 On noise). “clicking” heard a testimony, After two commenced. *4 away in Washington drove his When Mr. Appellant convicted afore- vehicle, Crump and her brother ran Ms. later Appellant mentioned crimes and was apartment building. their Id. at home to and one-half fifteen sentenced seven 83, 84. timely years’ appeal incarceration. This ¶4 5, later, 2002, on April Three followed. in the of her Crump Ms. rental office ¶7 he to the sole issue regard With apartment complex Appel- when she saw appeal, Appellant argues that raises on into walking building lant next door. overruling in a trial court erred defense immediately that Crump Ms. testified she objection display Housing Authority called the Police and in his statement. prosecutor spotted that had the man told them she of trial display He contends that such a Washington days who shot Mr. before. unnecessary inflammato- and evidence Authority at Philadelphia Housing Id. 85. at ry. Appellant’s brief 4. Police Alston Rosalind Stacey Officers and call, responded Mason to the interviewed ¶ discussions, During pre-trial thereafter, Crump, kept Ms. and that he in- prosecutor informed the court apartment complex under surveillance. recovered tended later, at Id. 142. Two hours the officers during opening arguments. the restroom Appellant apartment noticed as he left the Trial, 2/18/04, 52. at Defense counsel N.T. complex with mother. The officers his objected, would be stating years stopped Appellant, who was sixteen and the course of trial produced during old, why him not in and asked he was therefore, in the opening its use Then Appel- school. Id. the officers asked unnecessary would be prosecutor they lant his mother if would walk judge Id. The trial stated prejudicial. apart- community center of the over prohibiting authority knew no that he question to further complex ment order manner, open in this prosecution Appellant. Id. 143. thus, deny motion defense ¶ ability to so was denied. prosecution the do During questioning, Mason Officer began, Before the concern for Appellant out of handcuffed however, instructed the as Officer safety herself well lawyers did by very statements became fid- Appellant Alston because simply but were evidence Appellant thereaf- constitute nervous. Id. gety and what the they which would learn if he use the restroom. means ter asked could side restroom, and what each would about Offi- case was Appellant was While outside, prove. Id. Alston, attempt just heard standing cer presents 9 Appellant for our actions. Discretion is abused when the impression review an first pursued represents issue of course not merely being whether is an error of but judgment, where the proper manifestly for a or judgment use unreasonable or prop, as a potentially inflammatory piece not applied where the law is or where during opening statements. the record shows that the action is a only Not impres prejudice, is this a matter of first of partiality, result bias or ill sion in Pennsylvania, we have been able to will. only locate handful decisions in other Id. at 753 (quoting Flicking Coker S.M.
jurisdictions that have addressed this issue Co., er 533 Pa. A.2d result, appeal.2 on As a there is no clear (1993)). matter, law nor is there a clear judges 11 Trial generally enjoy standard of review courts. broad discretion regarding the admission Therefore, by analogy, we borrow the of potentially misleading or confusing evi applied standard of in cases con review Mining Corp. dence. Daset v. Industrial cerning admissibility of evidence. Fuels Corp., Pa.Super. 473 A.2d judges Trial also have the 10 Determinations about the ad *5 authority to exclude relevant evidence if its missibility of evidence are entrusted to the probative substantially value is outweighed sound discretion trial court of the and will danger the prejudice of unfair or confu be only upon showing reversed that the Rullo, sion. Sportswear, Whistler Inc. v. clearly court abused its discretion. (1981). 230, 289 Pa.Super. A.2d 40 433 See Lilliock, 237, Commonwealth v. 740 A.2d relevant, also (“Although Pa.R.E. 403 evi 243 In (Pa.Super.1999). Commonwealth v. may dence if probative be excluded its Widmer, 308, (2000), 744 560 Pa. A.2d 745 value is the outweighed danger of un Pennsylvania the Supreme Court articulat prejudice, fair confusion of the issues or ed the abuse of appli discretion standard misleading jury...”). Furthermore, the appeals: cable to all the function of court is to balance imports The term “discretion” the ex- alleged the prejudicial effect of the evi judgment, ercise of wisdom and skill so against value, dence probative its and it is dispassionate conclusion, as to reach a not for an court to usurp that law, within the framework and is Bartlett, function. v. Commonwealth 446 purpose not exercised the giving of (1972). 392, 796, Pa. 800 288 A.2d effect to judge. the will of the Discre- case, tion must on the 12 In be exercised foundation the instant the definition of reason, of prejudice, per- to what opposed constitutes admissible evidence must motivations, caprice sonal or arbitrary conjunction purpose be viewed in with the alleged body weapon, during opening argu- Those cited in the decisions not of this murder Luallen, Opinion e.g. State v. include: See 654 finding jury, ments to the but the defen- 226, (Mo.Ct.App.1983) (holding S.W.2d 228 prejudiced display); dant was not Peo- knife, prosecutor displaying a butcher Priester, 942, 942, ple v. A.D.2d 102 477 that was later introduced into evidence with- (1984) (holding N.Y.S.2d 803 that the failure objection, jury during opening out to the object prosecu- of defense counsel to the prejudice statements did not result in to the jury during tor’s of a rod to the metal State, defendant); 414, v. Cheatham 900 P.2d opening deprive did not the defen- statements (Okla.Crim.App.1995) (holding improp- 424 it trial, deny dant of a fair did it nor the defen- prosecution er for trial court to allow the trial). "meaningful representation” dant items, including flashlight use similar to the
493 of from the minds dispelled never be in order under- opening statements 193, Williams, 90 A.D.2d why prosecution jury.” People to use v. allowing the stand (1982). con- opening in its statement 456 N.Y.S.2d an abuse of discretion. stituted Pennsylvania Rules 604 of the Rule The purpose opening governs opening Procedure of Criminal jury how [apprise] “to [of] statement is closing How- arguments.3 statements background its develop, the case will ever, timing only to speaks this rule proved; but attempted what will be be statements, permit- not opening it v. Nel is not evidence.” Commonwealth evidence, displays, or use of ted content son, Pa.Super. A.2d note that etc. We evidence, an Although opening asserting that no authoritative correct in represents opportunity the first during prohibited prosecution decision jury has hear the facts of displaying opening statements jurors’ minds essen case. Since eventually be admitted gun, which would stage tially “blank slates” at this Never- objection. into evidence without trial, opening can have a tre statements theless, compelled find that we are impact on the ultimate outcome mendous Appellant that use agree with fact, In of the trial. Commonwealth handgun by its prosecution Pa. 626 A.2d Montgomery, 533 possi- purpose no but to statement served (1993), Supreme Court commented our jury predispose bly influence the that “the statement can often finding guilty the accused stage be the most critical times gun by charged. The crimes trial,” is there where “the prosecution honestly could not be said lasting impression its first and forms often except any legitimate purpose to serve *6 added.) (Emphasis of the case.” For therefore, deci- inflame the jury, the reason, of im paramount we believe is by judge permit trial to such a sion the portance the level “playing field” be espe- display unreasonable. This is was during opening the statement and that dis of fact that counsel cially light true in the may prejudice jury to plays which tend the gun Appellant acknowledged for prohibited. Supreme be the should As trial, to during later be used shown would Division, York, Appellate Court of New into evidence. jury, the and admitted Department, prose Fourth stated when subject 15 on this the caselaw While opening the of state stage cutor used the of the commen- sparse, we believe some pull shotgun to from underneath ment jurisdic- in other tary offered courts to demonstrate the conceala clothing his cogently argues against permitting gun “the of tions bility weapon, image of the the inflammatory evi- potentially of dramatically hiding display the being removed from Smith, v. 864 S.W.2d prosecutor’s clothing could dence.4 In Guerrero beneath the states, photograph ing display a jury 604 "After the has 3. Pa.R.Crim.P. sworn, attorney hospital recovering the the Common- in bed dur- been for the victim opening statement wealth shall make an opening ing was not error statements jury. The defendant or the defendant's injuries of victims are photographs of the attorney may opening make an state- then injuries were to show how admissible or reserve it until after the Common- ment Green, sustained); People v. Cal.2d presented wealth its case.” has (1956) (upholding the 302 P.2d 311-12 of murder victim and photographs use of Commonwealth, e.g., Sherley But see v. during opening prison garb in the defendant (stating (Ky.1994) that allow- S.W.2d (Tex.App.1993), during 2-3, the opening App. 2003 Ohio LEXIS case, (Ohio (same) malpractice statements of a medical Ct.App.2003) plaintiffs displayed photograph counsel ¶ 17 In contrast the outcome of the injuries subject that were the cases, Smith and Wimberli v. People Id. at photograph suit. 799. The same Williams, supra., Supreme Court later was admitted into evidence without York, Division, New Appellate Fourth De objection by the defense. The Texas partment, found reversible error of Appeals Court stated that the Texas prosecutor pulled shotgun the sawed-off Rules Civil did not Procedure afford clothing open underneath his during right display any counsel the documents ing statements. the court obvi While photographs proposed or that he to offer ously concerned the demonstration into during evidence at trial his prove tended to an essential element of the Moreover, statement.5 Id. the court ac- case—that could be concealed — knowledged that where counsel is allowed the court also expressed concern with the detail in expectations such a manner the fact that the dramatic would tend case, places matters before he/she to form in jurors the minds of the an jury without a determination of their opinion guilt prior of the defendant’s admissibility. Id. The court ultimately single piece introduction of a of evidence. held that photograph because' the was later stated, As the court it would be difficult objection, introduced without the display of for the image dispelled to be when it came byit counsel plaintiff during open- for his time for the to deliberate. ing error. harmless case, Similarly, present outcome, Despite it is clear that hold that it for was error disapproved the court practice; allow “[ajlthough prosecution use and this conduct should not have court, gun during tolerated its been we are statement. bound Opening routinely abuse of discretion standard statements conduct- gives which wide courts latitude ed without visual aids and it was not neces- limiting opening statements.” Id. sary for displayed to be in order gain overview of the ¶ 16 The Court Appeals of Criminal hand, sight case. On the other State, Oklahoma in Wimberli 536 P.2d *7 uneasiness, gun may have possibly created 945, 951 (Okla.Crim.App.1975), was simi- if outright among jurors. not repulsion, the larly critical of the prosecutor’s actions in displaying gun Because the served knife, displaying a later admitted into evi- no purpose constructive the dence, during opening statements. In that prejudicial display the out- clearly effect of case, opined prosecutor’s the court that the weighed probative value, any slight the conduct was not “a model emulation.” precluded court should Nevertheless, prosecu- have the at Id. the court re- However, tor from the displaying gun. grant relief, concluding to fused that the given overwhelming the display Appel- was not prejudicial defendant thus, trial, lant’s at not deny guilt presented did not the defendant a fair it is Hawn, v. reasonably trial. Id. See also 2003 dif- probable Ohio WL conclude that a statements, stating may purpose briefly that aid the case shall the state to the nature statements). opening the party of his claim or defense and said what expects prove sought.” and the relief states, 265(a) party upon 5. Tx.R.CIV.P. “The proof whom rests the burden of the whole
495 jury by judge, given reached if tions the the ferent result would have been during had not allowed that the remarks made prosecutor warning the been Therefore, that gun. the hold not evi- display statements did constitute opening dence, error the trial court harmless. effect the this Court concludes that the the the had on ¶ doc 19 The harmless error during state- prosecutor’s opening the trine, as in reflects adopted weight the slight compared ments to a reality that the accused entitled the is admitted evidence. properly trial, or necessarily perfect fair but not Judgment 21 of sentence affirmed. trial. v. Drum error-free Commonwealth mond, (Pa.Super.2001). 775 A.2d 853 Judge OLSZEWSKI flies a An may error be deemed harmless concurring opinion. the admit properly court where overwhelming, guilt ted evidence of is so OLSZEWSKI, J., Concurring. prejudicial and the effect of error is so the ¶ Undoubtedly, majority has insignificant by comparison, it is clear that ap- in this reached correct destination error beyond reasonable doubt that the must, however, disagree I with the peal; not could have contributed to the verdict. get Specifical- it has route taken there. Story, Commonwealth v. 476 Pa. ly, I cannot how see words, A.2d In 165-66 other preju- weapon during opening statements which, evidentiary by a rulings trial court I can thus appellant any diced in manner. likelihood, in all not do affect verdict concur in result. only provide disturbing a basis for will ¶ Here, chose to actual- jury’s judgment. Bryant Reddy, 793 ly display weapon during (Pa.Super.2002). A.2d par- fact this statements. Does that make case, In present one of the any ticular different witnesses, prosecution’s Crump, Ms. iden- prosecution gives a from one where the Appellant police tified three after (but detailed) description weap- of a verbal Trial, 2/18/04, shooting occurred. N.T. Theoretically on it will later introduce? Crump gun at 85. Ms. also identified the no: speaking, answer is neither question that gun Appellant as the used description weapon nor weapon trial, Police shooting. Id. 92. At point, and neither is “evidence” at Stacey Officer Alston identified the weapon description nor weapon being Appellant attempted “facts anything than a reference to other dispose in the restroom. prosecutor] reasonably believes that [the Bottomer, Additionally, a member Officer trial.” Common- will be established Unit, of the Firearms Identification testi- A.2d 566 Pa. Begley, wealth v. by examining re- projectiles fied *8 605, 626 inspecting from the vehicle covered ¶3 any Practically speaking, mark- is there gun’s them in connection with the this, difference? such where that In cases ings, projectiles he determined into evi- later admitted weapon revolver recovered were shot same jury was instructed to view Appellant. dence and the possession found to be in the oratory, I am such, statements as mere Appel- opening Id. at 185. As Moreover, can unable to see how defendant simply guilt overwhelming. lant’s by a being “unfairly prejudiced” in claim guilt the evidence of view weapon decision conjunction cautionary prosecutor’s instruc- with during opening statements:
going to see weapon point, some
the mere during opening state- only
ments can be considered allowable
“oratorical flair.”
¶ 4 question The of what to do had the
weapon been inadmissible trial is for appeal.
another Suffice it to say, based
upon now, the facts before us I believe appellant prejudiced by was not
prosecution’s display weapon during weapon statements: was later
properly introduced as evidence and the
judge specifically told
lawyers’ just that, statements are simply Therefore,
statements. I concur in the
result.
COMMONWEALTH of
Appellee, ADAMS, III, L. Appellant.
William
Superior Pennsylvania. Court of
Submitted March Adams, III, William L. appellant, pro se. Aug. Filed Streily, Michael Deputy W. District At- torney, Pittsburgh, and Karen T. Ed- wards, Assistant District Attorney, Pitts- burgh, Commonwealth, appellee. GANTMAN, J., McEWEN, Before: P.J.E., JOHNSON, J. *9 GANTMAN, BY
OPINION J.: Adams, III, Appellant, William L.