*1
therefore, falls within the
‘all other
description,
cases,’
in
Section 7
the Act of 1951 . .
.
However, Court Appellate Jurisdiction Act 1970 specifically the “all other repealed cases” sentence of the Act 1951.3 And the no Legislature provided equivalent ground this Court appeal habeas cases.4 We therefore corpus as did conclude, the Su perior Court Colcough, because there is no ap pellate jurisdiction in all extradition Court, cases from the appeals denial of a grant writ ha beas must be taken to the corpus Court. Superior is transferred appeal Court. Superior July 31, 1970, V, amended, Act of art. § 17 P.S. 211.509(a) (149) (Supp. 1974). § II, 201-05, (Supp. See id. 1974). §§ art. P.S. §§ 211.201-.205
Commonwealth v. Talley, Appellant. *2 November Before Argued 15, 1973. O’Brien, Eagen, and JJ. Roberts, Nix Pomeroy, Manderino, G. with him George Lindsay, Burke, J. Stanley appellant. Bussell, B.
Bichard District him Attorney, Gy- with Palmer Dolbin, rus Assistant District Attorney, Commonwealth, appellee.
Opinion by Mr. Justice 1974: O’Brien, April 23, M. tried a Talley, Maurice was by judge Appellant, of murder in the first degree. found jury guilty motions denied and was sen- were appellant Post-trial life This followed. imprisonment. appeal tenced facts are as surrounding appeal follows: of one Miss Patricia January 19, 1968, body On in Schuylkill County, along was discovered Sholley Pennsylvania of the Police. Route officers State 895, had since been December missing The decedent last leaving Reading Hospital, seen when she nurse. An had been employed practical where she man that a fitting descrip- revealed investigation at the same hos- had employed tion disappeared. seen the decedent night and was pital to war- residence, of appellant’s pursuant A search a bloodstained suit owned by appellant rant, produced *3 iden- that were nursing equipment a and flashlight and decedent. Later two persons, belonging tified as in an automobile accident with had been involved who on the the decedent noti- disappeared, night appellant the the li- of this accident gave police fied police of automobile was driving. number the appellant cense the matched that of decedent’s automo- This number decedent’s car recovered, bile. after the was Moreover, on found the automobile that the fingerprints police tried and arrested, was appellant’s. Appellant matched of murder in the first degree.1 convicted the court erred in first trial alleges Appellant motion for a mistrial to al- defense due not granting made remarks district attorney leged prejudicial district clos- closing argument. attorney, his of all after a discussion of evidence jury, ing evidence discussed appellant, against 1 Appellant sufficiency question does not of the Common evidence. wealth’s accident the automobile information at
had false given . . “. stating: the murder, after occurred shortly which it is Well, accident? this the importance What is of his the condition really. One, or three-fold two and the people Farmer Ney the time clothes between substances all whitish now, saw him in the hospital Ladies his fly open. He has on him. He is disheveled. is your fly when certainly Jury, and gentlemen stick tail for a man’s shirt it natural isn’t busted, this described Zerbys particularly Of course, out. and, and on his pants; coat his white substance it very co-pilot efficient Mrs. Zerby, being course, he write insisted number. She the license got she were, he did write but what down; name and address his James because Did he write, McOoy, down? Maurice Did he write, he No. of the names used?
one Did write Roberson. he He James No. Talley? wrote, Street. He wrote 412 Church No. his address down? across but he Street, got the same used Now, to. was testified no address as and there is such street, down? Did he write number Did he his telephone write num- or the telephone number down telephone his own He wrote of course not. No, ber of decedent]? [the lady little old who that poor the telephone down number he wrote telephone in here. That’s whose came Why then and there. made it just up right He down. mur- just man has committed This this important? That little scratch to be identified. He didn’t want der. him.” If state- car concerning wasn’t Zerbys on the a review the evidence against made before ment was *4 error to have been grant it well may appellant, v. Wilcox, in Commonwealth However, mistrial. stated: (1934), “Complaint A. 653 we Pa. 129, officer said the defend- the Commonwealth’s that made the offenses him. . . . charged against guilty ant was attorney may always argue The Commonwealth’s establishes of the de- guilt evidence that jury and that in fendant, certain facts evidence are conclu- sive of such At guilt.” 139. page
The district did no more here than al- attorney was lowed by Wilcox. He con- merely argued ducted himself in a manner surreptitious at the scene of an automobile accident because he had committed a murder. This was a reasonable inference on based testimony was given by who were in- persons in volved the automobile accident with More- appellant. the trial over, judge adequately protected against any possible prejudice that re- appellant could suffer as a sult of the statement. He instructed fol- jurors “If lows: you believe that any they utterances have made in their closing arguments such an express opinion, you will such an disregard in opinion consid- ering testimony at arriving your verdict this case. You are not bound by any . . .” opinion. next
Appellant
alleges
the trial court com
mitted error when it denied the defense’s
request
polygraph
narco-synthesis testing
appellant. We
do not
agree.
even if
polygraph test,
conducted,
be
would
inadmissible
and,
no
therefore,
value to
appellant. See Commonwealth v.
Brooks,
Pa.
Appellant
alleges that
the court committed
error in the
dire
voir
when it allowed the Common-
for cause
challenge
wealth
those persons who ex-
a personal
pressed
antipathy
capital punishment.
this
to be
argument
findWe
without merit. Appellant
case
not sentenced to
but
death,
rather
life
*5
exclude
imprisonment.
error to
not
therefore,
It was,
jurors.
Pa.
Sullivan,
v.
such
See Commonwealth
(1971).
leave file additional reasons for a new trial. This does imply a defendant can file these as a matter right, is a matter discretion but it with the trial of this we In facts fail to see an case, abuse court. attorney The same who tried the that discretion. post-trial represented in his motions. He case have been aware of what therefore, issues he should, Appellant’s supple- counsel raise. filed a intended argument before our after brief, court, which mental trial errors alleged additional which he two contends 58Ó post-trial
he would raise if allowed to file additional motions. However, our examination the record dis- allegations closes that one of these raised was, fact, appellant’s post-trial relat- motions, other, ing allegedly gruesome photographs, use could *6 certainly by have been raised ne- counsel without the cessity referring transcript. of
Judgment of sentence affirmed. Mr. Chief Justice part Jones took no in the con- sideration or decision of this case. Eagen
Mr. in Justice concurs result. the by Concuebing Opinion Me. Nix : Justice agreement I am in While resolution of with the the compelled appeal, only instant I am concur in to the finding I result. differ the with that Court’s the lower denying court committed no error in defense counsel’s request, prior permission perform poly- for to to trial, graph narco-synthesis testing upon appellant. The majority gathered reasoned the information from requested the two tests would be not admitted in the Admitting accuracy of trial the case. the of this con- present provide clusion under it not law, does an an- requests to the issue raised. swer These were made purpose offering for the the as results evidence at preparation but rather aid in trial to the of the defense. It was asserted that these tests would better enable regard to the defense counsel evaluate evidence with appellant’s capacity determining intent and crimi- his responsibility. question presented The nal is whether any refusing procedures there was basis these preparation of the the defense. request clearly
The
for these tests was
reasonable
the circumstances.
under
extensive use of the tests
prosecution
investigation
in criminal
the
indicates
they
recognized investigatory
are
tools. Further-
the
put
more
as
state
any
where,
here,
would not be
and there was
tests,
the
in the administration
expense
rou-
disruption
prison
of unreasonable
no claim
in my
there
judg-
to prison security,
is,
tine
threat
Had
denying
request.
no basis
ment,
have been avail-
testing
released on
would
bail,
the denial of ac-
him.
I can
conclude that
able to
only
from the
solely
these
tools resulted
investigatory
cess to
fact of his status as
detainee.1
I
I
court’s
ruling
error,
believe that
While
of sentence
absence
not disturb the judgment
would
from
error.
of a
showing
prejudice resulting
of the
I
resolution
am in accord with the majority’s
misconduct.
prosecutorial
of error charging
assignment
is the
At
core of the
assertion
complaint
for the Common-
argument
during
closing
statement
is an ex-
just
“this
has
committed murder,”
man
wealth,
of the ac-
guilt
belief
personal
pression
*7
for
The
which has
ex-
practice
cused.
distain
Common-
from
decisions of this
early
Court,
the
pressed
Pa.
A. 826
is
Ronello,
(1916)
wealth v.
96
329,
that
this unsworn evidence
recognition
based upon
inference
the
the unwarranted
that
conveys
jury
of his office additional
virtue
possesses by
prosecutor
of doubt as to
any
information
removes
question
which
v.
the accused. See Commonwealth
Shoe-
guilt
Reading I did an satisfied that it am ext,2 convey expres In sion of belief. prosecutor’s my personal judg no ment was more than an argument this statement that at the scene of the accident behavior appellant’s with the was consistent with the of one Zerbys actions crime There just who had committed the was charged. no of other information which insinuation conclusively that It was clear the con proved basis guilt. that appellant at clusion, point, guilty was flowed from the facts that had been recited charged, before the statement. immediately While, admittedly counsel no more clumsily executed, did than attempt urge jury accept legitimate inferences which from flowed of the en Zerbys’ believed version counter. Pomeroy
Mr. joins Justice this opinion. opinion fully majority during set forth the discussion
which the statement was made.
Dissenting Opinion by Mr. Justice Roberts : In view the my prosecutor’s was closing argument inflammatory, impermissibly his belief expressed Here guilty. district attorney told the “This man has just jury, committed murder.” certainly This is not an the evidence argument es tablishes Commonwealth v. guilt. 316 Pa. Wilcox, 173 A. (1934). positive Such a statement of guilt is unprofessional conduct. See ABA Project Stand *8 ards for Criminal Justice, Standards Relating to the Prosecution Function (Approved 5.8 Draft, 1971) ;1 § 1 Project Justice, See ABA on for Standards Criminal Stand Relating 5.8(b), Commentary ards Prosecution Function § at (Approved Draft, 1971). 128 expressions by prosecutor “Such unsworn, are a form of exploit testimony and tend to unchecked the influence of his office
583 DR 7-106 Responsibility, Professional of ABA Code (1969). (C)(4) in a has condemned prosecutor’s often
This Court
Com
evidence.
inflammatory
of
unsworn
jection
A.2d
Pa.
317
205
v.
455
525,
monwealth
Lipscomb,
314 A.2d
v.
In
supra,
of defendant’s
branding
testimony
that the prosecutor’s
lie”
error
requiring
as a “malicious
was prejudicial
objective
separate
which should
detachment
and undermine
argues.
argument
lawyer
is
the cause for which he
Such
ex
from
Legal
(4) ; Drinker,
pressly
7-106(C)
ABA
forbidden.
Code DR
(1953). Many
recognized
impropriety
147
courts have
Ethics
Annot.,
(1956).
A.L.R.2d
This kind
such statements.
50
766
argument
easily
by insisting
lawyers
restrict
avoided
them
form,
which take the
‘The evidence shows . .
selves to statements
.’
experienced
and British
similar form.
American
some
ad
you
say,
example,
T
it to
will
leave
whether this
vocate
evidence
suggest
States,
656,
.’
. .
etc. Harris v. United
F.2d
does
657-59
(D.C.
1968).”
Project
ABA
See also
r.
Standards
Ci
Relating
Justice, Standards
to the Prosecution
Criminal
Function
Draft, 1971).
(Approved
§ 1.1
Meyers,
573,
(1927) ;
v.
290 Pa.
Commonwealth
584 found the As in we that attempt new trial. Lipscomb, attorney’s into the district per- introduce evidence sonal constituted opinion impermissible prosecutorial conduct.
Is conduct here more prejudi- not prosecutor’s cial a liar or than the defendant as a characterizing hoodlum? The man com- just declaration “This has just mitted not to the credibili- murder,” goes accused’s or if ty decides the character, accepted by but, jury, ultimate innocence. guilt Expression issue — belief in the prosecuting accused’s de- attorney’s guilt prived fair a trial.
It has
long
the law in this Commonwealth that
“no man on trial
for murder can be officially charac
terized as murderer or as ‘a
killer,’
cold-blooded
until
is adjudged
murder or
guilty
pleads
guilty
v.
charge.” Commonwealth
322 Pa.
Capalla,
200, 204,
185 A.
205
203,
(1936).3 Characterization
the ac
cused as a murderer
what
precisely
prosecutor
did here and no amount of
can
sophistry
change
remark
impermissible
into a proper
argument.
closing
The trial court’s instruction to the
jury did
dis-
pel
from the
prejudice resulting
prosecutor’s
re-
mark. See Commonwealth v.
Pa.
Toth, 455
314
154,
A.2d
(1974).
A proper cautionary instruction re-
more than the
quires
admonition
simple
if you be-
lieve an
has been
opinion
expressed, you should disre-
gard it.
instruction should preferably
given
be
im-
after the
mediately
prejudicial
event and
repeated
It
jury.
should be
charge
specifically tied
to the facts,
it should
and,
clearly
firmly advise the
jury prejudicial
event must be disregarded.
Capaila
prosecutorial
followed
We
onr most recent
miscon
case,
Lipscomb,
duct
v.
525,
Commonwealth
455 Pa.
Tbe prosecutor’s an immediate Tbe bound negate, trial judge impact and Ms charge, prejudicial direction *10 inflam- The effect the prosecutor’s the statement. trial court’s conclusory statement, matory the prosecution to permit ineffectual instruction was before the “unsworn to put jury its closing argument officer of the court offered an testimony” unchecked on I cannot agree attorney. —the district Project a fair trial. See ABA record received Relating Criminal Standards for Standards Justice, Trial (Approved Function of the 5.10 Judge § 1972). Draft,
I dissent. in this joins
Mr. Justice Manderino dissent. v. Haas, Vogel Appellants. 1974. Before April Jones, C.
Submitted J., Roberts, O’Brien, Pomeroy, Nix Eagen, and Man- JJ. derino,