*1 469 tliе compel grant nor can we Tiscio; have granted v. 172 Burke, further ex rel. DiCamillo grace. Com. any Aside A. 916. from 91 2d Ct. 10, 11, re- on its merits did not the petition issue venue, rel. Pa. Su- Burke, ex Cobb Com. quire hearing. A. 207. Ct. Cf. perior Order affirmed. Appellant.
Commonwealth v. Savor, *2 Argued November 1955. Before P. J., Rhodes, Gunther, Hirt, Ross, Wright, Woodside, and Ervin, JJ. him
Norman Paul with Wolhen & Wolhen, Landy, for appellant.
Albert A. District Fioh, Assistant Attorney, District Malone, him James F. Jr., Attorney, appel- lee.
Opinion January 17, 1956: J., Weight, Reese were Joseph Peter Clegg James Savor, Alle- and Terminer of Oyer indicted Court of Reese on of armed gheny County charge robbery. pleaded for the prosecution witness guilty, at the morning trial of Clegg. During Savor attorney Reese session, questioned district “Q. as follows: known Mr. long you Clegg have How and Mr. I Savor? A. met Mr. in 1943 Savor Well, the Western Q. State You met Mr. Penitentiary . . . Savor in 1943 in the Penitentiary?” Western State Hon- attorney, Savor’s then “Your addressed court: I object or, to the being given by answers witness, as being prejudicial objection to the defendant”. This ivas sustained: we will sustain “Yes, objection, *3 and strike so much the statement from the record as indicates that been had defendant, Savor, Western Penitentiary”. then to judge trial said jurors: “We tell the to that Jury because disregard that might be сonstrued by you as evidence a con- viction of some former and that should not be crime, any evidence to tell against Savor trial of I this ease. ask to take that from you your mind”. After the noon attorney Savor’s made recess, a motion to a withdraw which motion de- juror, was Both nied. Savor and were convicted. No mo- Clegg tion was made for a new trial. Sentence was imposed, and this appeal by Savor followed.
Appellant’s contention is that it sole was reversi ble error for the trial to refuse to a withdraw judge juror. In court be should be noted that limine, low was not afforded an to this opportunity pass upon question. For this reason the appeal should be dis missed. See Commonwealth v. Supe 179 Pa. Aikens, rior Ct. 118 A. 2d Commonwealth v. 501, 205; Pittman,
472 However, 214. Superior 118 A. 2d Ct. 645, Pa.
179 immediately attorney trial appellant’s tlie was at since army the Commonwealth service, into called thereafter point”. Under press technical this desire “does not dispose concluded we have the circumstances, appeal the merits. on appellant a contends, course true,
It is of
special
except
circum
certain
under
crime,
distinct
against
dеfend
stances,
being
crime: Common
for another
tried
ant who
193. However,
A. 2d
Pa. 43, 110
v. Burdell,
wealth
necessarily operate to make
proposition
first
witness
as where
a statement
inadmissible
in Commonwealth
instance,
For
met the defendant.
Superior
A.
Ct. 16,
v. Robinson,
right to show
“had a
the Commonwealth
said that
was
prose
by the
of the defendant
identification
the first
the street and
cuting
him on
she saw
whether
witness,
prison
in a
she
him
whether
saw
him
had
arrested,
(italics
being
other
held
some
while
cell
offense
supplied)”.
v. Biancone,
also Commonwealth
See
case the
102 A. 2d
which
Ct. 6,
testify
robbery
permitted
he
of a
victim
ain
of the defendants
first
identification
made his
identity
appellant’s
issue
prison.
not at
While
theory
of his defense was
in the case at bar,
any
design.1 Therefore
unlawful
he was unaware
*4
partici
prior intimacy of the
the
that
it would seem
pants
notwith
relevant evidence,
should constitute
standing
that
and unsolicited disclosure
the incidental
robbery
1
premises
Appellant
the
the
in which
did not enter
However,
get-away
remaining
Reese
place,
car.
outside
took
robbery,
appel
appellant
that
of the intended
that
knew
testified
ap
automobile,
used,
that
well as his
and
lant’s revolver was
equal
pellant
share of the loot.
received an
473
in the peniten-
inception
had its
acquaintance
their
50
Pa. 647,
200
v. Biddle,
In Commonwealth
tiary.
indicted for
jointly
were
A.
three defendants
264,
One was
of buglary.
in the act
murder committed
concert
criminal
as to the
testify
permitted
in-
under
crime
the particular
three
anterior
long
mentioned
crimes were
other
though
even
vestigation,
attempt
but without
way,
in a
general
witness
evi-
elicit such
the Commonwealth
part
on
99,
Robb,
v.
also Commonwealth
dence. See
Howbeit, improper. was the remark of witness that peal error should to how the then arises as “The question juror by withdrawing whether corrected; jurors testimony admonishing out the striking usually This testimony. the irrelevant to disregard under of the circumstances a consideration involves its prob irrelevant evidence was which Commonwealth, Saunders v. jury”: able effect on rule to a The best approach Pa. 29 A. 62. 423, v. Blose, enunciated in Commonwealth adopted we 50 A. 2d wherein 742, Rutledge in Kot of Mr. Justice language following Ct. 1239: U. S. 66 S. States, teakos United is sure all conviction done, when is said “If, or had but nоt influence the jury, the error did should the judgment the verdict and very slight effect, assurance, with fair . . . But if say, stand one stripping without happened all pondering after the judgment action from the whole, the erroneous it is error, impos not substantially swayed not af rights to conclude that substantial were sible there cannot be whether merely fected. The inquiry from the apart phase support result, was enough *5 by affected the error. It is even whether the rather, so, error itself had substantial influence. If or if one so, grave is left in the conviction cannot stand”. doubt, In the case at arewe satisfied from our bar, review appellant thoroughly of the record that received a fair properly trial and was convicted. a verdict Indeed, guilty miscarriage justice. of not would have been say appellant canWe with assurance that not prejudiced by alleged improper remark. It there- fore our conclusion that the unsolicited observation challenged, concerning jury here which the promptly constitute admonished, a sufficient grant reason for the of a new trial. judgment of sentence is affirmed. by Dissenting Opinion J.: Ross, agree majority admittedly
I cannot that so prejudicial simply a remark can be cured instruc- jury My to the I file tions therefore this dissent. essentially concern arises from the role this decision play growing as a further addition to the number will precedents steadily away which have whittled at evidentiary safeguards surrounding the fair trial guaranteed charged to defendants who are with the theory prejudiсial commission of crimes. The that the weighed effect can be and then cured instructions jury to the is unrealistic to the utmost and should not extended. When a matter is considered its harmful, prejudice is delivered to the the instant it is ut- and all the tered, instructions thereafter cannot impression. Thoughts jurors erase its the minds of judicial cannot be turned off and on the switch of They verbiage. expоsed are and once humans, to the it com- disregard thereafter prejudicial matter, *6 in harmful nature are so Remarks of pletely. tend- of their no doubt there be that should themselves in- In such an adversely. the jury to influence ency it had say assurance, cannot reasonable we stance, tobe give course should only harmful effect. Our no in imbedded our of the doubt the the benеfit trial. a new and award system laws, the dis a question by in response When Reese, met in that he first appellant trict uttered attorney, he conveyed in Penitentiary, the Western State in that he knew Savor the fact jury only not serving in penitentiary but that was Savor 1943, If of a crime. it was not for conviction prior sentence it the district made attorney clear to the jurors then, “Q. You met Mr. Savor by repeating: so Obviously Penitentiary?” thought Western State in the minds of the that jury then firmly implanted was If there was still some doubt was a convict. appellant previ whether Savor was jurors in the minds of the court said: “We a it vanished when ously convict, that because that be might jury disregard tell of a conviction of some construed by you 160 Pa. Superior In Com. v. former crime.” Blose, a officer poliсe 50 A. 2d cited majority, was a likeness of the photograph asked whether a was “ 168): ‘He a He answered little (page defendant. because was penitentiary looking now, better ” on this re Judge Reno, commenting photograph.’ : inference which 168) only “The mark said (page that testimony from the was appellant drawn could be incompetent It and highly convict. was a former the court although its testimony, prejudicial case trial reports a new denying opinion ... we are of opinion in an ideal atmosphere, tried not eradicate not and could did its instructions of a The environment the statement. the effects of infallible criterion a final and furnish trial prejudicial impact can be statements which deep testimony judge must have . . . The left presently impression lasting reasons truth, and, confidently developed, assert we interplay wholly from the abstracted instructions jury’s generated impressions and convictions which supplied) (Italics much How ultimate conclusion.” prior emphatically more could the matter of Savor’s through triple gotten to the than conviction attorney, utterance the district witness, This court. was no mere statement that the witness *7 penitentiary photograph of but that viewed Savor, self- himself an admitted convict and witness, perpetrator robbery question, confessed of the armed knew when he was confined in the Western Penitentiary. State v. is one of the outstand- Com.,
Shaffner ing principle forerunners of the that a distinct crime, being unconnected with the one for which defendant is against cannot be admitted in evidence tried, him. Mr. opinion Justice in the of course his stated at Agnew, page (60) proper presumption 65: “It is not to raise a guilt, ground, having of on the that committed one depravity likely crime, it exhibits makes it he would Logically, commit another. the commission of an in- dependent proof, offence is not of the itself, commis- sion of another сrime. Yet it cannot be to be said with- certainly, out on the mind, one be shown influence for if guilty equally to be another crime it heinous, will of promote ready might a more he belief, have com- charged; mitted the one with which he is it therefore predisposes juror prisoner mind to believe the of criminal act of another, To make one evidence guilty. them must have existed сonnection between some pur- them together linking mind of the actor, be neces- accomplish; to must he intended pose aby of the connec- person actor, to sary identify the one must that he committed who tion which shows connection, Without obvious done the other. have to to him prisoner compel to the unjust it is not only instead but it two acquit one, of himself offеnces multiplied a trial with burthen justice detrimental mislead the jury. tend to issues that confuse innocent of other offences criminal be may most guilty he if fairly might against him, tried, charged which, char- prejudicial From the nature and himself. acquit not be should such is obvious it evidence, acter of plainly perceives unless mind received, aby connection, of the one visible tends, commission prisoner. of the other the commission prove the evidence be so dubious judge If the doubt perceive clearly connection, benefit of instead prisoner, suffering should an independent- to be prejudiced minds the jurors that par- it no proper fact, carrying ticular (Italics supplied.) guilt.” Burdell,
Mr. Chief Justice Stern Com. very A. examined this and con problem 43, 110 *8 one of the cluded thаt unless well within recognized testimony such inadmissible exceptions1 prejudicial question identity ease, of in was no at issue as 1 In this there majority opinion. in Biancone cited and eases the Robinson might majority remark intimate that be relevant The any design. of of unawareness unlawful The the defense an rebut any the Commonwealth did not offer it for that is that such swer to (In it), purpose, and fact did further it was elicited offer in direct in its it on examination case chief —before the defend put attempted in his defense. ant ever an of evidence There, in a reversal. result must and ac- and defendant the same involving extortion alleged husband victim (a essentially same complices days but two other) occurring wife his one, subsequent trial for the in the inadmissible was prior, this de- no be question There can robbery. armed Court’s intention of the Supreme indicative cision was one that unless within enforce the strictly rule, be held crimes will of prior exceptions, a new and grounds as prejudicial, inadmissible trial.2 Burdell case was of the errors
One other had which of defendant photo of a police introduction The the defendant. identify used victim been indicаtes succinctly to this error discussion relative “It : 51) remark here (page inherent prejudice card and it showed a Bertillon or police picture awas an lapel inscription to his coat with attached plate came from the the photograph thereon disclosing Bureau. To make the mat- County Allegheny Detective Attorney county ter the District detectivеs worse, ar- that defendant was under to explain were allowed at the time the picture some crime’ 'charged rest with there any proper purpose taken. Even if into evidence it was cer- the photograph offer there- printed not to delete matter improper tainly necessarily because the would prejudiced on, disclosure had been fadt сommission another charged years before crime.” (Italics supplied) relies Saunders v. majority heavily upon Com.,
345 Pa.
29 A. 2d
and Com. v.
160 Pa.
62,
Blose,
Ct.
742 and
Superior
excerpts
therefrom.
165, A.
comprehensive
prob
For a
and informative discussion of this
Boulden,
see Com. v.
lem
479 their action. do not flatly support These cases cor 425 case that from Saunders page quotation a con error involves “usually rection of this admitted irrele of the circumstances under which sideration effect on and its probable vant evidence entire rule and indicates of the jury” only part shows next In the very situation. inapplicability its this 425) it is : Saunders stated paragraph case, (page “Of where evidence admitted is improperly course, a sort which tends to the minds prejudice jurors, the error is not cured charge withdrawing from their consideration . . but where the evidence is .; of this character and the eliminates it from charge consideration there no jury’s complaint.” is cause for The remark here (Italics supplied) beyond question is of the of the type which tends to the minds prejudice jurors. “A under consideration of circumstances . which . . is therеfore not unnec given” only [it] but under rule. like Of essary, improper import the majority’s reliance of Mr. upon quotation Justice in Kotteakos United Rutledge States, U. S. 66 S. Ct. on appears page 170 of the Blose Ct. 165. case, supra, While the first that rule if after ex part says that amining court is it had no or error, slight sure influence on the it is verdict the second harmless, para indicates: “But if one cannot graph as say, fair after all surance, pondering that happened without the erroneous action from the stripping whole, was not judgment substantially swayed error, it is impossible to conclude that rights substantial were not affected. The cannot be inquiry merely whether there was enough support the result, apart from the phase affected the error. It is even rathеr, wheth so, er the error itself had substantial If influence. so, one is grave conviction cannot doubt, left if *10 obviously prejudicial supplied) a (Italics So
stand.” played an unsubstantial have remark cannot be said to any part “fair not at least in conviction, Savor’s quotes this lan- In the Blose case which assurance.” photograph” “penitentiary guage, mere remark require granting The of a trial. new sufficient only equal prеjudice but far remark here was not the mouth of a self-confessed more since came from purported accomplice, the under- and received criminal, attorney’s repetition. scoring can of the district How import say equal re- that a remark of at least is we in and not in another? We can- versible error one case not. not and should prej prejudiсial, it will its nature
If a remark is “approaches” any the Saunders The case. udice general guides, supra, in worded are but Blose cases, language. general is established Once a remark pro admittedly proper prejudicial, as this one is, any “weighing” indulge in further cedure is not jury. upon possible ma as the effect Whether, its acquittal jority an would be a mis seems to believe, place determining prej carriage justice in has no majority in fact the Kot effect. The does what udicial merely inquiry prohibits teakos rule —“The enough support apart there was result, whether phase from the affected the error.” No one can played guess remark what role such delibera in tions. The doubt rests defendant’s favor and he given negligence it. Our courts, should be do cases, “weigh” plaintiff brings circumstances not when a out that the defendant insured. is Scranton Gas Water Co. v. Weston, 575. Is liberty any important an individual less than property company? question of an insurance itself. should answer supra, in Com. Burdell,
Mr. Chief Justice
Stern,
con-
is the
my opinion
Dumber, eral rule that a distinct unconnected crime, laid be indictment, a against It is not prisoner. proper presump- to raise tion on the committed one guilt, having ground, it exhibits makes it he crime, depravity would likely commit another’: Shaffner 60-65. Com., objection to this sort of evidenсe is that compels to meet a of which he had no notice. charge It confuses him in his raises collateral defense, issues, diverts the attention the crime im- jury from, mediately being shows that the de- tried, generally should be convicted because he is a bad man. fendant We do not intend to modify this principle.” (Italics supplied)
We should lose sight never the fact that when laywe down а principle law establish a precedent, apply will to the only but to the guilty innocent. This defendant may as the ma- guilty perhaps, — But jority he is. states, is beside the point. From the moment learned that he had peniten- tiary guilty or record, innocent —didn’t have a he-—
“Chinaman’s chance” of conviction. In escaping other words my did not he, have a fair trial. judgment, I would, reverse the therefore, judgment sentence and award a new trial.
Urey Appellant. v. Horchler,