*1 Pennsylvania, Appellee, COMMONWEALTH of SATTAZAHN, Appellant. David Allen Pennsylvania. Superior Court Sept. 1992. Submitted July Filed 1993. 6, 1993.
Reargument Denied Oet. *5 Elder, John Reading, appellant. for Com., Lanzillo, ap- Dist. Atty., Reading, Asst. Carolyn pellee. *6 ROWLEY, and and Judge, President WIEAND
Before HUDOCK, JJ.
PER CURIAM: and was found by jury Allen was tried'
David Sattazahn aggravated first degree, robbery, murder guilty of of crime, (two counts), of an instrument possession, assault of license, conspiracies and a several a firearm without carrying a manager of of robbing killing with and connection motions were County.1 in Berks Post-trial family restaurant life for denied, to imprisonment was sentenced Appellant and serve consecu- He was also sentenced to first murder. degree (5) nor years than five of not less imprisonment tive terms of (5) (10) not less than five robbery, for more than ten years (10) to commit years conspiracy ten for years nor more than (2) (1) than two one nor more year not less than robbery, crime, less and not than instruments of years possessing for (2) a (1) for years carrying one nor than two year more appeal judg- from a On direct firearm without license.2 sentence, that there was insufficient ment Appellant argues of murder, for degreе his convictions first evidence to sustain murder, to degree conspiracy to commit third conspiracy a a carrying firearm without aggravated commit assault and granted trial be He also that a new should license. contends (2) (1) misconduct; evidence improper of prosecutorial because with agreement Appel- to the pertaining plea Commonwealth’s (3) instructions. co-conspirator; jury lant’s erroneous sufficiency of the evaluating challenge In evidence, favorable to light we view the evidence in the most Commonwealth, We then which has won verdict. to permit jury determine whether the evidence is sufficient charge to of criminal 1. The trial court sustained a defense demurrer murder, degree jury Appellant found conspiracy to commit first guilty conspiracy degree not of criminal commit second murder. guilty 2. offenses which was found The several additional merge purposes sentencing. were deemed 420
to determine
that each and
element of the
every
crimes
a reasonable doubt. See
charged
beyond
established
Smith,
577, 581,
523 Pa.
568 A.2d
602
Hardcastle,
Commonwealth v.
(1989);
236, 246,
denied,
cert.
U.S.
S.Ct.
1169,
stances established at trial “need absolutely not be incompati innocence, ble with defendant’s the question any [the] but doubt is for the unless evidence ‘be so weak and *7 inconclusive that as a matter of law no of fact can probability be drawn from the combined circumstances.’” Common Sullivan, wealth v. 129, 150, Libonati, (quoting Commonwealth v. 504, 508, (1943)). The evidence Appellant’s at trial established that on Palm 12, 1987, Sunday, April at or about 11:00 Richard p.m., Boyer, Restaurant, the manager of the had Heidelberg Family closed car, the restaurant and was walking carrying day’s his the in receipts a bank when and deposit bag, Appellant Jeffrey Scott Hammer from a emerged wooded area behind the restaurant, wait, where they had been in and lying demanded that Boyer surrender the bank deposit bag. Boyer initially raised his hands and to throw the in attempted bag the direction of the restaurant building. then told Appellant Boyer to retrieve the bag and to it to bring him. In response demand, to Appellant’s Boyer walked over and retrieved the However, bag. again he threw the in bag the direction of fled, restaurant and to run began away. Boyer When both Appellant and Hammer fired their in guns his direction. Hammer, who was carrying revolver, .41 caliber Magnum fired once over Boyer’s however, head. Appellant, fired his .22 caliber Ruger, times, pistol semi-automatic five striking shoulder, once in the left in the back and twice lower Boyer the head. face back of and the portion the lower of Hammer and he and deposit bag, retrieved the bank Appellant the next early was discovered body fled the scene. Boyer’s had arrived for work. He a waitress when she morning by as a result of wounds. gunshot died 12, 1989, later, being while years July More two on than which a statement by police, Jeffrey gave Hammer questioned shooting and robbery himself in thе implicated Appellant and Hammer, Appellant he and Boyer. According of Richard had, on four robbery for sometime and planning had been to the restaurant robbery, gone five prior or weekends night manager. On to observe the movements an went abandoned Appellant Hammer and robbery, on then drove guns, been and factory, they storing where had 3-wheeler, vehicle to a location in a all railroad tracks terrain he when fired Hammer told police near the restaurant. over head as Boyer’s intended to shoot Boyer, at Richard he had Appellant’s plan that his and Hammer said warning. not they had intended robbery been to commit a only robbery shooting After to commit a murder. said, he and had run their Hammer Boyer, via the railroad factory vehicle and returned to the abandoned bag the black duffel which Along way, they tracks. lost lying along they bag, had The which was placed guns. their factory, tracks of the abandoned vicinity railroad guns were subsequently found two brothers. police had police July turned over to on after *8 based informatiоn factory upon conducted a search of gun The .22 caliber provided Jeffrey to them Hammer. and had Boyer purchased by Appellant used to kill had been name. been registered degree, it was neces
To murder the first prove willfully, sary prove the Commonwealth had killed Richard deliberately, premeditation Boyer. with McNair, 368, 373, See Commonwealth v. 603 529 Pa. A.2d Lee, 1014, 591, v. (1992); Commonwealth 1017 401 602, (1991). 1084, “A criminal homicide 585 A.2d 1089 consti-
422
tutes murder of the first degree when it is committed
an
2502(a).
intentional killing.”
§
18 Pa.C.S.
See Common
Chester,
wealth v.
589,
578,
1367, 1372 (1991),
526 Pa.
587 A.2d
—
denied,
cert.
U.S.-,
and-,
422,
The case
in Pennsylvania
law
“consistently
has
held
that the requirement of premeditation and deliberation is met
whenever there is a conscious purpose to
about
bring
death.”
O’Searo,
Commonwealth v.
224, 239-240,
30,
466 Pa.
352 A.2d
(1976).
Jones,
See
37
Commonwealth v.
522, 525-526,
355 Pa.
317,
(1947).
50 A.2d
319
The cases further hold that
specific intent
to kill “can be formulated in a fraction of a
O’Searo,
v.
second.”
240,
supra
466
Pa. at
(footnote omitted).
423 that, during the Instantly, suggests the evidence became irritated committing robbery, Appellant of a course to his directions. When the victim failed with comply when flee, gunshots to fired five attempted Appellant the victim also Although areas death. body, causing into vital of the victim’s victim, to may initially only have intended rob Appellant actions, failed cooperate, when the victim to subsequent an inference that type permit were of a sufficient that had upon had an to kill his acted formed intent victim such, intention, Ap demise. As thereby causing victim’s killing for a and deliberate conviction willful pellant’s evidence. supported by competent however, the Com are that agree, We constrained Appellant’s guilt conspiring of prove monwealth failed to aggravated murder and degree the crimes of third commit is stat criminal defined conspiracy assault. crime of as follows: ute
(a) of conspiracy. guilty is person Definition —A a to commit person persons with another or conspiracy or its facilitating if intent of crime with the promoting commission he:
(1) or persons they such other or agrees person with consti- one or more of them will conduct which engage solicitation to commit attempt tutes such crime or an or crime; such or
(2) or in the agrees persons aid such person other or attempt or or an commission such crime planning such solicitation to commit crime. 903(a). conspiracy § “The essence of a criminal
18 Pa.C.S. being, it into common no matter how came understanding, accomplished.” Com particular objective criminal be 915, A.2d 918 monwealth v. 338 487 Keefer, Derr, 501 Pa. See also Commonwealth v. French, 396 Pa.Super. Pa. A.2d 175 aff'd., (1992). Therefore, proof for conspiracy requires conviction intent. of the existence of a shared criminal Schomaker, 404, 409-410, 1222-1223 *10 Horner, was Appellant charged by criminal information with conspiracies to degree commit third murder and two counts of aggravated assault based an with upon alleged agreement victim, Jeffrey maliciously Hammer to kill the serious to inflict bodily the victim him injury upon by shooting handgun, with a and to cause bodily injury weapon, victim with a deadly to-wit, Hammer, trial, however, a handgun. At Jeffrey alleged co-conspirator, testified that and had Appellant he agreed robbery, to commit a had to kill the planned but not victim. Hammer guns said that he and had carried Appellant for only Although of their victim. purpose intimidating head, that he fired acknowledging had a shot over the victim’s Hammer that it had been intended as a explained warning shot. He denied at any agreement any that there had been rather, kill time to Thеir had been to manager. plan, him handcuff and him in the of put back his truck. There was no other evidence different suggesting agree- evidence, therefore, ment. The established that only Appel- lant had with Hammer conspired to commit the crime of There no robbery. evidence that Hammer had ever been party to an agreement Appellant with to shoot the robbery victim or otherwise cause serious or death. bodily injury Rather, the evidence was that Appellant had formed a sepa- rate intent kill shoot and the victim only after the victim had failed comply with Appellant’s directives. It follows that Appellant’s convictions for conspiracy to commit third murder degree and on two counts of to commit conspiracy assault, aggravated as charged, were unsupported by compe- tent evidence.
Moreover, even if there was evidence suggesting that Appellant and Hammer had agreed commit of several fenses, 903(c) it is at 18 provided § Pa.C.S. that a person “[i]f conspires crimes, to commit a number of he guilty only of one conspiracy long so as such multiple crimes are object relation- conspiratorial or continuous agreement same prove not there Instantly, the Commonwealth did ship.” and and distinct between Hammer separate agreements were murder, robbery commit crimes of Appellant Rather, assault. the evidence demonstrated aggravated robbery to commit a and that single agreement there was a Boyer during of Richard occurred shooting death between relationship of that initial conspiratorial continuation Therefore, evidence, Ap- Hammer. under the Appellant single convicted of count pellant properly only could be criminal conspiracy.3 sufficiency has challenged also firearm carrying
evidence to sustain his conviction as offense is defined statute without a license. This *11 follows:
(a) a firearm in carry defined. —No shall person Offense in or about his any person, except vehicle or concealed on business, without a place place of abode or fixed of provided subсhapter. as in this license therefor 6106(a). Here, clearly § the evidence was suffi- Pa.C.S. transported to that and Hammer had Appellant cient establish their in an all vehicle to and from the scene of weapons terrain on weapons their crime and that had concealed the their they victim to close the restaurant persons waiting while for the also day’s receipts. and leave with the The evidence estab- to carry lished that not have a valid license Appellant did provisional registration permit. firearms or a valid firearm therefore, evidence, beyond a The was sufficient to establish had carried a unlawfully reasonable doubt Appellant firearm a without license. Commonwealth,
At in- of the the trial court request structed as follows: violence,
In of person committing the trial of a a crime murder, a and a crime of violence is defined the law as assault, satisfied, you, you or if are robbery aggravated challenged 3. has not his conviction for the additional offense possess conspiracy to an instrument crime. sаtisfied,
jury, are beyond doubt, a reasonable firearm, defendant was armed with a it, as I have defined he used or to attempted use this firearm and had no license to same, carry the this shall be evidence of his intention to commit said crimes of violence.
Appellant contends that this instruction violated his right due process under both the United Pennsylvania States and Constitutions in that there is no rational basis for an inferring intent commit crime of violence from the absence of a are, license to carry therefore, a firearm. We upon called construe the statute in question which reads:
§ 6104. Evidence of intent
In the trial of a person for committing or attempting to violence, commit crime of the fact that he was armed with firearm, used, used or attempted to be and had no license same, carry shall be evidence of his intention to violence.[4] commit said crime of § 18 Pa.C.S. 6104. The jury instruction was based upon the language contained Section 6104. enactment,
In construing a legislative consider, we must among other things, following principles statutory con- struction:
(a) objeсt of all interpretation and construction of statutes is to ascertain and effectuate the intention of the Assembly. construed, General Every statute shall be if *12 possible, to give effect to all its provisions.
(b) When words of a statute are clear and free from all ambiguity, letter of it is not to be disregarded under the pretext of pursuing spirit. its 4. A "crime of violence” is defined at Section 6102 of the Act in the following manner: crimes, Any "Crime of following violence.” of the attempt, or an a same, solicitation conspiracy or a any to commit namely: of the murder, assault, voluntary manslaughter, rape, aggravated robbery,
burglary, intercourse, arson, involuntary deviate sexual extortion violence, accompanied by by threats of prisoner, assault by assault prisoner kidnapping. life (c) explicit, are not the words of statute When may ascertained Assembly be intention of General matters: other considering, among [*] [*] [*] [*] [*] (6) consequences interpretation. of a particular The presump- certain guided by § 1921. are also Pa.C.S. We legislative intent: ascertaining tions in the Assembly In of the General ascertaining thе intention among following presumptions, enactment of a statute the others, may be used:
(3) intend to violate does not Assembly That the General or of this Common- the United States the Constitution of wealth. § 1922.
1 Pa.C.S. his intention to commit “shall be evidence of phrase face, is, its unclear regarding said crime of violence” on mandatory by the statute presumption whether the favored We argument. crux Appellant’s or This is the of permissive. to use the attempted no case in which a court have found research also a basis for a instruction. Our statute as court to any attempt appellate has to disclose real an failed the statute. interpret come to with and grips rule, intent, is an as a essential general Criminal G.T., 409 element In the Interest charged. crime Pa.Super. It
Hogan, by the reasonable proved beyond must be statute, may create infer Although legislature, by doubt. must bear rational proved ences and the facts presumptions, not, do they to be inferred. If relationship fact cannot stand. statutory presumption inference or validity statutory рresumptions, respect With Supreme has observed: United States Court if no statutory cannot be sustained there be presumption [A] proved fact ulti- rational connection between the *13 428
mate fact if the inference of the one from presumed, proof of the other is of lack of connection arbitrary because say between the two common This is not to experience. presumption may upon that a valid not be created a view of broader than jury might specific relation that a take case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not for the it competent legislature to create as a rule governing procedure of the courts. 463, States, 467-468, 1241,
Tot v.
319
63
United
U.S.
S.Ct.
1245,
1519, 1524 (1943) (footnotes omitted).
87 L.Ed.
also
See
States,
6, 33-34,
1532,
Leary v.
395
United
U.S.
89 S.Ct.
1546-1547,
57,
(1969);
23 L.Ed.2d
80
Commonwealth v. DiFrances
co,
188, 194-195,
204,
(1974).
458 Pa.
329 A.2d
208
“If the
inference the
is
proven by
allowed to draw from the facts
is
because of a lack of connec
arbitrary,
two,
tion between the
due
process
fatally lacking.” Com
91, 109,
727,
monwealth v.
Pa.
A.2d
737
Shaffer,
288
447
denied,
867,
164,
cert.
409 U.S.
93 S.Ct.
The trial court
the instant case
interpreted
statute in such a manner as to relieve the Commonwealth
from its
proving by
Appellant
burden of
evidence that
acted
murder,
with intent
robbery,
to commit
crimes of
effect,
aggravated assault.
It
told the
if it
jury,
believed
had had in his
and had
possession
used an
firearm,
unlicensed
this fact alone “shall be evidence оf his
This,
said
intention to commit
crimes of violence.”
we are
effect,
agree
constrained to
with
In
Appellant,
improper.
*15
court,
the trial
the
of the statute
by reading
language
without
any qualifying language,
jury
presump
let the
believe that the
tion created
statute
a
In
by
presumption.
the
was
conclusive
instructions,
examining jury
it is
to look at the
important
as a
and not base a
on isolated
charge
whole
decision
excerpts.
Prosdocimo,
(Emphasis excerpt from this that the trial court an gave regarding instruction of intent presumption to kill from of a on a deadly the use vital of the weapon part instruction, victim’s this .body. qualified In the court presumption language by stating jury may that the infer it if chose, but that not have presumption. it did to follow the No part jury in that of the appears qualifying language such this lan- § 6104 Use of regarding instruction quoted infra. pre- jury that properly would have informed guage con- § rather than permissive 6104 was sumption created therefore, the jury, It is reasonable find clusive. a manda- instruction as one calling understood court’s is which presumption, impermissible. tory instruc fashioning jury in The trial court’s error the statute without according language qualifica tion The permitted tion not harmless. instruction killing, intended to commit an intentional find that and i.e., degree, robbery as well murder of the first as assault, he had merely gun, which aggravated because used, To find he was unlicensed. possession and which intended to legislature suggest otherwise would be to flies in face of the States create a statute which United for use of conclusive Pennsylvania and State Constitutions DiFrancesco, Sand supra; presumptions. Montana, supra. strom v. legislature find that the We cannot 1922(3). remedy § To would intend that result. Pa.C.S. required.6 this error new trial licensing or We likewise find a rational between the 6. connection person with which a acts failure to license a firearm the intent using that firearm. legislature recognized prohibited offen between has distinction weapons peaceful purpose no "shall not be sive which have Adams, society”, 245 Pa.Su in our allowed exist *16 436, 479, 431, peaceful have per. 482 and those which 369 Stewart, 343 potentialities. as Commonwealth v. as well lethal Cf. 584, 514, 532, (1985). Pa.Super. The are banned 495 A.2d 593 former usage conclusively presumed, absolutely while the because criminal is allowed, obtaining a are of license is tantamount latter if licensed. The possession purposes; the acknowledgment the is for lawful to an that suggests opposite. One who envisions no to obtain a license the failure refuse, unlikely requirеd, to purpose firearm to if criminal for the is authorities, proper while ownership weapon of that declare say will. This is that one who harbors criminal intentions not to intent, every suggests criminal but rather instance the lack of a license piece required simply a lack of license is another of circumstantial that might from user of a firearm be evidence which the true intent of the given ascertained in situation. a Although carry had this involves a license to case whether firearm, firearm, merely a license own the the same the rather than 432
We find no merit Appellant’s remaining arguments. The decision to or for grant deny motion mistrial is within the sound discretion of the trial necessary court. A mistrial is when only an incident which is upon a motion for mistrial is of based such a nature as to defendant a trial. deny the fair Commonwealth v. 554, Crawley, 539, 334, 514 Pa. 526 A.2d 342 Chestnut, (1987). See also Commonwealth v. 169, 176, Hernandez, 603, (1986); Commonwealth v. 512 A.2d 498 405, 415, 1268, Pa. 446 A.2d prompt “[W]hen court, curative or an cautionary instructions are given by of abuse discretion for denying motion will not [in mistrial] Meadows, readily be found.” Pa.Super. 1006, 1009 (1989). also Seе 553 A.2d Lawson, Com Thomas, monwealth v. statement,
In his opening told the prosecuting attorney jury: further testimony shortly will show in this case that
after murder Richard the defendant was Boyer Hammer, overheard threatening Jeffrey him for threatening if losing bag threatening got him that he he caught, would seek on revenge Jeffrey Hammer. He would kill Hammer, Jeffrey too. mistrial,
Appellant moved the court A which denied. cautionary instruction as given then follows: THE at gentlemen, COURT: Ladies this time I want speeches underscore that are not counsel evidence in this case and you that what will decide this case upon what will say. witnesses
I also am instruct at going specifically you this time that you disregard are to last remarks counsel with regard any to the alleged substance of statement defendant been may saying have overheard to Mr. Hammer sometime after alleged offense. reasoning reaching is sound in result there is a rational licensing
connection between the and the intent to commit criminal acts with that firearm. *17 attorney, prosecuting statement was made When the a witness one cаlling had as anticipated the Commonwealth Wanner, between who was to relate a conversation Fritz impli- had Jeffrey Appellant Hammer in which Appellant and Boyer. robbery killing Richard cated himself trial, however, that the court Later in the told prosecutor death threats testify because of refusing witness attorney, against had made him. The prosecuting which been At therefore, a this not to call as witness. decided Wanner This motion point, again the defense moved for a mistrial. court’s the trial was also denied. contends rulings were erroneous. should
A
statement
prosecuting attorney’s opening
he intends
be limited
the facts which
statement
may be
any
inferences which
prove
legitimate
at
trial
Duffey, supra,
from such facts. See
drawn
361,
1184;
v. Fair
At the
he
had no reason to believe that
would
attorney
prosecuting
at Appellant’s
be
to call Fritz Wanner as a witness
unable
it
discovered
only
trial.
It was
when
was later
death
refusing
alleged
because of
testify
witness was
not to call him as
threats that
decision was made
circumstances,
is no merit
witness.
these
there
Under
*18
defense argument
that the prosecuting attorney was
guilty
McNair,
See Commonwealth v.
misconduct.
supra
During opening argument, the prosecutor had not referred name, by Wanner but had spoken only of a witness who had overheard a conversation between Jeffrey Hammer. The reference was brief and was not of such a nature as to have prejudice, created rendering jury incapable of returning fair verdict. When the statement was made to the jury, the court instructed the jury ignore it. When it later became apparent the witness would not it testify, was not error for the trial court to deny renewed motion for mistrial.
Appellant also contends that the trial court should have granted defense motions for mistrial because of two references to prior criminal activity Appellant. Superior Court has reviewed the applicable law as follows:
Clear references to prior unrelated criminal conduct defendant generally warrant the granting of a defense mistrial, motion for because the commission of one crime is not proof of the commission of another and because the effect of such evidence is to create prejudice unfair against Morris, Commonwealth v. defendant. 164, 175, 493 Pa. 715, (1981); 425 A.2d 720 Riggins, Commonwealth v. 374 243, 251, Pa.Super. 1004, (1988); 542 A.2d Common 1008 Thomas, wealth v. 1, 361 Pa.Super. 442, 521 A.2d (1987). However, 449-450 not all references which may indicate prior criminal activity warrant reversal. Mere “passing prior references” to activity criminal will not neces sarily require reversal unless the record illustrates defini tivеly that prejudice resulted from the reference. Common Nichols, wealth v. 1, 4, 1281, (1979); 485 Pa. 400 A.2d 1282 Commonwealth v. Riggins, supra. The nature of the refer ence and whether the remark was intentionally elicited by the Commonwealth are additional factors to be considered in determining whether a mistrial is necessary. Common Pursell, wealth v. 212, 230, 508 183, Pa. 495 (1985); 192 Williams, 172, 178, 249, 470 Pa. 368 A.2d
435
Richardson,
(1977).
496
v.
See also: Commonwealth
252
McEachin,
(1981);
v.
A.2d 1162
Pa.
437
Commonwealth
v.
(1988);
Q at this happened point? building. What guns A had stolen there. We me. Q Excuse but for mistrial refused a defense motion
The trial court as follows: jury cautioned the has been an and there gentlemen,
THE Ladies COURT: to the objection has the objection and the Court sustained striking are statement this witness. We last volunteered and will not consider you from the evidence that statement it, It testimony of the this witness. portion the last of this evidence. unresponsive; part it not court of discretion trial perceive no abuse We had remark motion for mistrial. The denying the defense more nothing volunteered the witness and constituted been had guns in which the than a reference to manner passing in the expressly implicate Appellant obtained. It did not been however, event, In the fact that taking guns. any of the had been stolen was relevant guns part of the conspiracy and of made preparations by Appellant Hammer of robbery. Finally, commit the crime the trial court instruct- statement, ed the disregard witness’s volunteered and the not did make prosecution again reference thereto. incident, With to this respect received a more ruling favorable than he was entitled to trial receive. The court’s is not a ruling proper awarding basis a new trial. alleged
The final to prior activity reference criminal Hammer, during occurred the redirect Jeffrey examination of when the prosecuting attorney asked the witness: cases, robberies,
Q other burglaries, These ten ten two cases, total of 12 other did have you co-conspirator those cases? answer,
Before the objected witness could defense counsel prosecuting attorney requested a side bar conference. counsel, Following lengthy discussion in chambers with both trial court ruled as follows: THE Ladies and has gentlemen, COURT: Court objection sustained the question objection by last of— defense counsel last question prosecution. of the Baldwin,
Mr. you may rephrase and ask question another one. *20 prosecutor’s
The question Jeffrey Hammer was a refer- ence to other crimes to which the witness had entered of pleas as guilty a of his with part plea bargain the Commonwealth. limine, Pursuant to a defense motion in trial had the court pre-trial ruled that the prosecution precluded inquir- was from involvement, Hammer, into ing Appellant’s along with Jeffrey in the commission of any crimes other than those related to robbery the and of killing Boyer. Richard The prosecutor’s may question to Hammer have been a of trial violation the However, court’s on the in ruling motion limine. because of a counsel, objection defense prompt the did not witness answer the question, and as not identified other, Hammer’s accomplice in unrelated crimes. Under
437 circumstances, did its discretion the trial court not abuse these it motion for mistrial. when denied a defense of miscon reviewing prosecutorial averments
When
jury,
of
improper argument
duct
in the form
in
“must be evaluated in
context
remarks of the prosecutor
Smith, 490 Pa.
380,
v.
occurred.” Commonwealth
which
they
v.
(1980).
also Commonwealth
986,
See
388,
416 A.2d
989
Com
429,
531,
(1986);
439,
515 A.2d
536
Carpenter,
511 Pa.
Toledo,
480,
224, 236, 529 A.2d
v.
monwealth
365
attorney do
the district
486
‘comments
“Generally,
effect of
the unavoidable
reversible error unless
not constitute
in
[jurors], forming
be to
prejudice
such comments would
so
their
and
toward the defendant
hostility
minds fixed bias
and
they
objectively
the evidence
render
weigh
could not
”
445, 454,
522
Pa.
Strong,
a true verdict.’
denied,
1060,
479,
cert.
(1989),
110 S.Ct.
563 A.2d
U.S.
v.
Commonwealth
(quoting
L.Ed.2d 775
McNеal,
(1974)).
also
See
Baker,
1, 17, 511 A.2d
v.
Pa.
Tabron,
prose
making closing argument,
In
639-640
may
jury
address the
with
wide latitude and
permitted
cutor
flair. See Commonwealth
a
degree
certain
oratorical
Chester,
599-600,
[A] jury presenting case to reasonable latitude “logical arguments free his or her with present must be jury may con- remarks to the vigor.” force and Counsels’ from the legitimate inferences tain fair deductions prosecutor testimony. presented during evidence establishes may that the evidence always argue may not offer guilt, although prosecutor the defendant’s either in of the accused personal opinion guilt as to Nor may or from the witness stand. testimony argument toas opinion he or belief and express personal she guilt, including of defendant’s truth or evidence falsity credibility a witness.
438
D’Amato,
Commonwealth v.
471, 489-490,
514 Pa.
526 A.2d
(1987)
300,
(citations omitted).
See also Commonwealth v.
309
Bullock,
269, 278-279,
535,
384 Pa.Super.
558 A.2d
539-540
Yabor,
(1989);
Commonwealth v.
356,
376 addition,
67,
546 A.2d
74
In
prosecution may,
“the
address,
its closing
attempt
to meet
pleas
arguments
mаde by defense counsel in his summation.” Brown,
285,
6,
70,
Pa.
489
302 n.
414 A.2d
n.
78-79
6
See also
576, 584,
Cliff,
Commonwealth v. Van
397
483 Pa.
denied,
1173,
(1979),
cert.
964,
A.2d
1177
441 U.S.
99 S.Ct.
Perkins,
(1979);
Commonwealth v.
With respect three witnesses called case, defense in prosecuting attorney this said to the jury: robbers, men are Those three liars. Convicted convicted thieves, convicted are burglars. They for whatev testifying cousin, er reason. You decide. One’s a one doesn’t know the man all he testify at but wants to anyway. The third man—
The strategy of the defense in this case had been attack the witness, credibility prosecution’s of the Jeffrey chief Hammer. Thus, witnesses, the defense Houser, called three Harold Antonio Estrada and Gregory Capwell, all of whom were cell former mates of Jeffrey They Hammer. testified to statements allegedly made by Hammer while in prison. Houser said that Hammer told him that Appellant had pur- chased a pistol on Hammer’s behalf. This testimony introduced to support the defense contention that the murder *22 by had been owned by Appellant, weapon, purchased while Estrada, and Appellant, who is a cousin of Hammer. Both that he expected that Hammer had told them testified Capwell against Appellant. return his testimony a in for light sentence defense counsel character- closing argument, his Throughout criminal,” “no person with Hammer as a “career Jeffrey ized testimony, sug- he As to Hammer’s integrity whatsoever.” you He would lead good. isn’t gested memory that: “His he’s memory. lying, he’s but great to believe But got he’s also Hammer’s Defense counsel lying, emphasized okay.” plea bargain exchange record and his lengthy criminal concluded offer- his Counsel testimony against Appellant. and robbing had acted alone in ing the that Hammer theory save implicating Appellant was to killing Boyer Richard his own life. had convic- impeached by
All of defense witnеsses been Therefore, light of the tions for offenses. crimen falsi upon of the credibility extensive attack defense counsel witness, say prose- chief we cannot Commonwealth’s the three defense witnesses were cutor’s brief remark that prosecutor’s The liars misconduct. prosecutorial constituted restrained, response remark an and indeed appropriate, credibility to defense attack upon counsel’s relentless Jeffrey Hammer. attorney argues prosecuting improp- also that the in his
erly closing argument testimony referred is no merit in Jeffrey Hammer as “uncontroverted.” There Court has observed: argument. Superior this attorney to refer to it is for a improper prosecuting “[W]hile testify, improper failure it not for the a defendant’s for the items of evidence which prosecutor identify LaMassa, v. have uncontradicted.” Commonwealth been 54, 57, 450, also: 367 A.2d 451 See Pa.Super. 532 Jones, 471, 476-477, 364 Pa.Super. v. 242 Commonwealth Kloch, 368, supra A.2d 370-371 “ 588-590, A.2d consti- 230 at 327 at 389-390. ‘To error, further, indicating duty remark go tute must testify, permitting an unfavorable defendant ” inferenсe to be drawn from his failure to do so.’ Com Kloiber, 412, 419, monwealth v. 378 Pa.
(1954), denied, cert. 348 U.S. S.Ct. L.Ed. 688 Thomas, quoting Commonwealth v. 118 A. “‘Reference to the failure of a testify behalf, defendant to on own to constitute revers error, ible jury’s must call the attention the fact that the defendant has not testified and must lead to an reasonably ” inference that he would have taken the if guilty.’ stand not Kloiber, 378 Pa. at supra quoting Holley, at *23 300-301, (1948). 56 A.2d Ulen, 524-525, 414 Pa.Super. Commonwealth v. 790-791 also Byrd, See 1015-1016 prosecutor’s The regarding testimony comment the of Hammer, Jeffrey context, when viewed its as proper follows: case,
How does the evidence in this how do the facts apply charged? is, to the crimes issue did simple again David Sattazahn take the life Boyer of Richard then rob Right him? now Hammer’s Jeffrey testimony is uncontro- verted. He’s— Objection.
MR. ELDER: THE COURT: Sustained. what,
MR. It’s for you any, BALDWIN: to decide if in Jeffrey contradictions are If story. you Hammer’s be- witnesses, them, lieve the three defense if don’t you believe that’s toup you. Jeffrey you But told it didn’t happen, that they are lying.
Upon of reviewing prosecutor’s closing the whole argu- ment, it is readily apparent prosecutor’s that the to reference testimony being Hammer’s uncontroverted was made in an effort to efficacy restrict of testimony which had been given defense, by three witnesses called not call attention to the fact Appellant had not testified on his reason, own behalf. For this the trial court denied a defense not abuse trial did ruling, In so court motion for mistrial.7 its discretion. when court erred argues next that the trial that, Jeffrey Hammer to elicit from the prosecutor
it allowed testify agreed he had plea bargain, of his part as trial, object his counsel had At truthfully against Appellant. follows: had ruled as ed and the court objecting any record I’m ELDER: For the MR. promises where he plea agreement testimony regarding he testifies. to tell the truth when again in. I think that’s I’ll let come THE COURT: an agree- to enter into the motivation part of part the — parcel question part here and ment on both sides testify. motive to corrupt motive or lack of the corrupt All right. attorney
Thereafter, examination, prosecuting direct on Hammer: Jеffrey testimony from following elicited at Exhibit No. Hammer, look I ask take Q you Mr. recognize Do this you 55 marked the Commonwealth. document? seven page Yes,
A I do. page. look at each Q Take a Yes, A that’s it. *24 that?
Q you Do remember A Yes. to agreed have your plea agreement you of
Q part As not? you have in this testify proceeding, Yes. A the police? with cooperate You to
Q agreed Yes. A testimony? honest truthful and
Q By that, charge, the trial court instructed in its final We 7. observe also jury follows: as every whether or entirely up in criminal trial to the defendant It is right under Constitution testify. He has an absolute not to guilt of from the fact any not inference silent. You must draw remain testify. he did not A Yes. a
Q agreement As result of February this on 5th of 1990 you case, pled guilty this did you not? Yes,
A I did. Q pled You guilty to murder in the third degree? A Yes.
Q Robbery, possessing crime, instruments criminal conspiracy commit murder in the third degree, criminal conspiracy commit criminal robbery, to com- conspiracy mit possessing instruments of crime and firearms not to be carried without license?
A Yes.
Q As a result of that plea you to receive a expect sentenсe of 19 to years?
A Yes. incarceration,
THE COURT: That’s
right?
Yes,
THE
sir.
WITNESS:
Tann,
In
In cases where the Commonwealth is
of a
informed
witness’ intention to assert a privilege against self-incrimi-
nation, we have held that it is reversible error to call that
witness to the stand where it is likely
will
*25
associate the witness with the defendant and the criminal
to
the accused----
giving
charges against
rise
the
episode
Com-
where the
pertains
prohibition
believe the same
We
jury the fact
attention of the
seeks to call
monwealth
witness,
in the
with the accused
associated
that a
who is
his
has waived
charges,
activity giving rise
criminal
and
self-incrimination
Amendment rights against
Fifth
has
tactic
tell the truth. This
the witness stand to
taking
defendant,
jury
that the
emphasizing
the effect of
witness, has the same opportuni-
with the
who is associated
The
and tell the truth.
rights
waive his constitutional
ty to
invita-
this blantant
prejudiced by
[sic]
defendant is unduly
from the fact that
jury
to draw an inference
tion for
self-
against
right
his constitutional
foregoing
witness is
he fails
the accused if
spotlight
This
incrimination.
tends
preju-
an
thing
clearly
improper
invites
to do the same
and
jury.
from the
dicial inference
case,
use of this
the Commonwealth’s
present
In
jury to infer that
steer the
only
tactic could
unwarranted
witnesses,
Hill,
Fifth
waived their
and
since its
Patterson
self-incriminating tes-
willingly
rights
gave
Amendment
testimony was the truth
and Hill’s
timony, Patterson
is circumstance
Added to this
believable.
entirely
failing to
witness stand and
taking
Tann not
appellant
This invited
his own defense.
any testimony in
offer
truth,
that,
his
had told the
if he had testified and
inference
guilt.
entirely
It was
confirmed
testimony would have
prejudicial
to invite such
for the Commonwealth
improper
here.
in the
employed
inferences
manner
Tann,
327-
supra at
459 A.2d at
omitted).
(footnote and citations
Bricker, situation arose A
similar
wit-
two Commonwealth
The documents which formalized these two agreements signed by were then States for the Attorney United Western District of the District Pennsylvania, Attorney Allegheny County, Attorney for the General Common- Pennsylvania, wealth of and Kellington Rossi respectively, and the who Attorneys Rossi and individually represented Kellington at the signatories agree- time. The these ments, documents, by executing placed the imprimatur support their offices as for the that Rossi and proposition Kellington were telling the truth.
It is beyond question permitting that prosecution send these jury during documents out with the deliberations impermissibly credibility bolstered of Charles Rossi and Charles In Kellington. bolstering credibility, so their court violated the defendant's to a fair right trial. judice,
In the case
sub
introduction of the plea
witnesses,
agreements
as
served
silent
causing the same
prejudice
appellant
as
held
we
to be reversible error in
(1983)
Tann,
].
155. distinguishable of the instant case are
The circumstances
Here,
Tann and Bricker.
in
the prosecuting
from those
to dis-
Jeffrey Hammer
order
attorney merely questioned
Common-
of his
with the
plea agreement
close
existence
agreement. No
of that
parameters
wealth and
establish
jury
or
imply
was made to establish
attempt
silent in order to
right
remain
giving up
Hammer was
give
testimony
did
testify against Appellant, nor
Hammer’s
failure to
because of
negative
Appellant’s
rise to a
inference
questioned
district attorney
at
trial. The assistant
testify
agreement
the terms of his
only
Hammer
to establish
briefly
conduct is consis-
with
Such a course of
the Commonwealth.
Court’s observation
Supreme
tent with the
Bricker,
supra, that it would be appropriate for the Com-
monwealth to reveal the existence and parameters of a plea
agreement
through the testimony of the witness who had
entered the agreement.
Id. at
Finally, Appellant contends that the trial court com mitted reversible error when it refused to instruct consistently with the following requested point charge:
6. If you, jury, find that two be conclusions can equally evidence, drawn from the one to establish tending guilt and the other tending to establish innocence of the charged, crimes your it is duty accept conclusion of Defendant, innocence and acquit the David Sattazahn. Appellant argues that the trial court’s failure to give this requested jury compels instruction granting of a new trial. We disagree.
“In reviewing jury instructions to determine whether re versible error has been court, committed a trial we consid er charge as a whole. Error will not be predicated on Rather, isolated excerpts. *28 it is the general effect of the charge controls.” Commonwealth v. Myers, 376 Pa.Su 41, 50, per. 309, (1988). 545 A.2d 314 also See Commonwealth Bowers, 377, 392, v. 400 1165, Pa.Super. (1990); 583 A.2d 1172 Commonwealth v. Riggins, 243, 253, 374 Pa.Super. 542 A.2d 1004, 1009 “A trial court is not required to accept requested instructions verbatim. The key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide in its jury deliberations.” Cimorose, Commonwealth v. 1, 10, Pa.Super. 330 1318, (1984) (citations 478 A.2d 1323 omitted). See also Faulkner, 57, — 79, 28, (1991), 595 A.2d denied, 40 cert. -, U.S. 112 exhibit, Although 8. marked plea as an agreement Jeffrey between Hammer and the Commonwealth was not introduced into evidence at trial, Appellant's nor was it jury viewed or jury sent out with the during deliberations.
447 1680, 118 (1992); v. Prosdo L.Ed.2d 397 S.Ct. 1273, 147, 150, cimo, A.2d 1274 Common 578 61, (1983), Ohle, 470 70 cert. v. Pa. wealth 854, denied, 1083, 88 L.Ed.2d U.S. 106 S.Ct. “ Therefore, instruction proper request refusal to give ‘[t]he only is for a new trial if the aby ground [defendant] ed not been covered the trial thereof has otherwise substance ” LaMassa, 367 general charge.’ court’s Werner Pa.Super. (quoting Co., Inc., Service Quality Oil (1984)). charge, we are jury
After review of the trial court’s careful error by court not commit reversible satisfied that the did for requested point to verbatim refusing Appellant’s recite instructed on the charge. jury fully adequately was guilt beyond Appellant’s burden of proving Commonwealth’s with thereto were respect Its reasonable doubt. instructions free of error. erred by that the trial court additionally
Appellant argues charge for requested point refusing jury to recite for to the crime of necessary intent establish pertaining However, we degree third murder. conspiracy to commit pre- evidence was have determined that insufficient already offense, we will cause to of this sented convict such, it is vacated. As unneces- his conviction therefore to be given with to instruction which sary review degree third charge conspiracy commit respect murder. new on all charges for a trial
Reversed and remanded degree to commit third murder except conspiracy those as- aggravated commit conspiracy and the two counts charges, judgment conspiracy sault. With such respect is not charges are dismissed. Jurisdiction arrested and the *29 retained.
WIEAND, J., Concurring files a Statement.
WIEAND, Judge, concurring: however, I In my concur. judgment, the intention of the legislature adopting § 18 Pa.C.S. 6104 was clear. The trial court was of the same opinion. Despite expressed misgivings, the trial court in this charged case almost jury precisely as legislature had provided. agree
I with the majority, for the reasons which it has so expressed, well that the jury trial court’s instruction deprived appellant of a fair trial. Having wrestled with and tried to statutory understand the on provision this and numerous prior occasions, however, I am persuaded that to the extent it case, instruction such supports as was in this given statute is irrational and arbitrary, unconstitutional. There- fore, I By would so hold. this taking step, might we well be prevent able to trial courts in falling the future from into the same error which the statute caused in this case.
Margaret ROWAN, Appellant. BERKS CHILDREN AND COUNTY YOUTH SERVICES ROWAN, Appellant.
Noel M. Superior Pennsylvania. Court of
Argued April 1993. Aug.
Filed 1993.
Reargument Denied Oct. 1993.