*1
519
(1980) (Riggins applies
Mitchell, 487 Pa.
569,
A.2d 758
410
Com-
decided);
Riggins
direct
when
appeal
all cases on
Jefferson, 484 Pa.
115,
A.2d 971
monwealth v.
398
the sen-
(semble).
argued
if
had
appellant
Accordingly,
later,
sentencing
at the time of
tencing judge, either
sentence,
the judge
for reconsideration of
petition
for the sentence
erred in
to state the reasons
failing
had
we should have been
when the
was imposed,
sentence
the case for
sentence and remand
obliged to vacate the
fact, however,
argue
did not so
appellant
resentencing.
not,
he did
he has waived
sentencing judge.
Since
Clair,
v.
418,
to us. so to
right
argue
This our discussion of however, continues. Specifically, discussion majority’s the sentence was on to consider whether majority goes excessive, was not. The satis- majority and decides that it by considering fies itself the sentence was not excessive opinion as stated in the filed reasons for the sentence confers imposed. majority after the sentence was Thus regards as entitled legitimacy opinion: however, Young, opinion, as a to consideration. Under reasons, is not entitled to considera- belated statement tion; ignored. have been should therefore 662 A.2d Pennsylvania
COMMONWEALTH of WHITING, Anthony Appellant.
Superior Pennsylvania. Court of Dec. 1977.
Submitted Filed June 1980. *3 Packel, Chief, Assistant Public Appeals,
John W. Defend- er, Philadelphia, appellant. for Henson, District Attorney, Philadelphia,
Eric B. Assistant Commonwealth, appellee. WATKINS, JACOBS, Before President Judge, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
WATKINS, Judge: appeal judgment is an from the of sentence of the
This Division, Pleas, of Phila- Court of Common Criminal-Trial Whit- County, by defendant-appellant, Anthony delphia rape, burglary, robbery after conviction ing, on 1973. The failed other offenses November defendant on motions which was appear hearing post-trial for his apprehended set for 1974 and bail. He was May skipped (3) post-trial three later and his motions were heard years 12, 1976, he December after which was sentenced to a (5) (10) ten Defendant now prison years. term of five of his motions. appeals post-trial denial sentencing proper. of the defendant was The (3) of three between defendant’s conviction and delay years was due to defendant’s own act of bail. sentencing skipping Although arrested and tried and convicted of other charges this three he had used an assumed during year period name. Defendant’s own act of bail and an skipping using assumed for the responsible delay, name sentence *4 limits, court, imposing was within and the trial in statutory sentence, considered the defendant’s character the sev only for which he had been erity his crimes convicted on 17, 1973, was, November in sentence. imposing His sentence therefore, respects. in all proper
The evidence at trial revealed that defend produced ant raped apartment one Ida Williams and robbed her on June 1973 at about 2:30 P.M. clearly She identified culprit, defendant as the had a view of him good during seen in she had person that he was a was certain rape, (5) five times four building at least her apartment reveals that was testimony of her A review previously. verdict. support sufficient clearly when it the court erred claims that The defendant Mitchell, to one Vandora daughter, the victim’s permitted told to her details about the crime as to certain testify had occurred. The after the crimes immediately her mother who lives across boy the defendant as “the victim described testimony held that such hall”. The lower court rape of the complaint” to show the “prompt admissible Whether or time after the crime had occurred. short holding testimony was in its reasons the court correct testimony clear that such admissible for that reason “spontaneous as a was admissible part daughter been suddenly whose mind has person declaration aby unex emotion caused some to an subject overpowering was person in which the shocking occurrence” pected in place so near time and involved and which had occurred its having the likelihood of the incident so “to exclude his reflective faculties.” in from part emanated in whole or Coleman, A.2d 387 Commonwealth v. court, testified present victim was event the There cross-examined. vigorously court herself and was fore, no in permitting there was error made to her to victim’s statements daughter victim’s as which daughter’s at the home after the incident immediately from (PA) blocks about one and one-half located victim’s apartment. mistrial should have also claims that a
Defendant
follows:
officer testified as
arresting
when the
been declared
TO YOU?
DID HE
ANYTHING
“Q.
SAY
I
NO
RIGHTS.
TOOK
“A.
I
HIM OF HIS
WARNED
HIM OR NO CONVERSA-
FROM
STATEMENTS
AT THAT TIME.”
TION
this
claims that
moved for a mistrial and
Defendant then
de-
as the
comment
impermissible
constituted an
response
*5
Defendant’s
right
fendant’s
to remain silent.
counsel ob-
jected (at
bar)
cautionary
instructions
any
being
side
given
regarding
to the
this matter because he felt that
jury
merely
such instructions would
underscore the matter in the
In certain instances curative or
jury’s
cautionary
mind.
the trial court to the
an
instructions
can cure
to the
impermissible reference
defendant’s exercise of his
right
Maloney,
to remain silent. Commonwealth v.
The defendant also claims that the trial court erred when it stated in it felt charge that the victim “testified The court also fairly truthfully”. stated the following:
“Now, don’t obviously be misled the-where two sets of friends and former friends of this defendant that are- whose reliable as to where opinion may may be he was. Do not be the fact that all of impressed by witnesses testified-the alibi witnesses testified that be- tween the of-I or five hours think four witnesses said that on June 14th year, birthday party, of this that Momma’s P.M., between the hours of noon time and 9:00 all the people stayed nobody house and ever left the house can whether only impression-you decide that kind of impresses you-but consistency my impossible I don’t-I think it’s quite suspect. that four in a house on a summer people stay day, would mean, apparently and left the house. I it’s that nobody in my opinion that would consistency sort of determined as to all of some question raise *6 for have But that’s given. witnesses those people-that for be it. It’s may impressed You to determine. you to determine.” you and
However,
reviewing
charge
prejudicial
whole.
error,
charge as a
we must consider the
reversible
Lance,
Pa.
JACOBS, participate did not decision of this case.
SPAETH, dissenting: Judge, of sentence judgment I believe we should vacate for a new trial. remand stated: judge to the charge jury,
In his In deciding conflicting testimony believe, you which should not necessarily swayed by be the number of wit- nesses on each side. You find that may the testimony of a few witnesses-just one witness-is more believable than the opposing testimony greater of a number of witnesses.
On the hand, other you should also consider the extent to which conflicting testimony supported by other evi- dence. You should evaluate the of Ida Williams care, with special in view of Ida Williams’ emotional involvement difficulty determining truth with respect charged, crime which is one that usually carried out in private.
You can determine for yourselves what her appearance was. I cannot influence I you. can that I say thought she *7 was a direct very witness who up stood extremely well under circumstances that must have been dis- extremely tressing painful and to her.
Now, before find you the defendant the crime charged case, in this you must be convinced beyond a reasonable doubt that did, fact, the act charged in occur and it occurred without Ida Williams consent.
One of the factors to be considered in a case of this kind is as to whether a complaint was promptly made to the I police. would say, from the facts as I them, have heard Ida Williams proceeded with all commendable and due haste to to her immediately go daughter for assistance and immediately report her, what had occurred to immedi- ately police....
Ida Williams testified that she did not see any particular mark or scars on the defendant. One of the witnesses for the defense stated that at the time of the line-up there was blood coming out of the corner of the mouth of the defendant at the time and that somehow the inference would be that because blood was coming out of his mouth that an inference that you may draw-that is entirely up you-that that somehow identified him as the person and it upon that that Ida Williams made her identification. She consistent.
Now, just that my opinion, in himon identification any scars or any said she did not see you But that’s time. or other line-up at all at to determine. . . . what it all comes you everything,
After have considered did as what sense to is common your down to use who, in and did person this housing project in this happen fairly and truthful- has testified opinion, Ida Williams my identifi- proper make really-did this she person -was ly defendant, and is charged has been of this who cation considering do that you. you by before And have to you. case impressed all witnesses in this way sets two obviously the-where Now, don't be misled this defendant that of friends former friends of reliable as to where are-whose not be may may he was. Do fact all of the impressed not be that be- —the alibi testified that witnesses witnesses testified think or five witnesses said tween hours of-I four party, on June 14th that Momma’s year, birthday of this between the of noon and 9:00 m. all p. hours time ever house. people stayed nobody in the house and left the im- decide whether that only impression-you can presses consistency, my opinion, that kind of jou-but I don’t-/ impossible think it's that four quite suspect. apparent- would in a house on a summer people stay day, mean, I that sort of ly, left house. it’s nobody would, raise consistency my opinion, determined *8 of question people-that some as to all of the the is for to deter- But that you given. those witnesses have to mine. You be it. It’s for impressed by you may determine.
(N.T. 796-803, added). emphasis Project 4.7 of ABA Minimum Section the on Standards Justice, (Ap- to Trial Relating by Jury Criminal Standards Draft, 1968), proved provides: court, may The instructs the (a) jury, at time it evidence, provided summarize comment on the it is the is instructed that jury unequivocally clearly facts, judge exclusive that is to determine the of weight credibility the evidence and the of witnesses and that it is not bound the comments of the court.
(b) permitted The and comment summary subsection (a) is governed by following principles:
(iv) The court state the law and comment on may matters in evidence on the of bearing credibility any witness, but not an that may directly express certain or of belief. testimony worthy unworthy added.) (Emphasis 4.7(b)(iv)
The
to
Commentary
Section
states:
permits
judge
standard
to the
put
jury appro-
priate legal principles
credibility
point
and to
out
evidence,
relevant matters in
such as conflicts in testimo-
But,
of a witness.
not ‘intimate that
ny
judge may
certain
of belief.’ Unit-
testimony worthy
unworthy
Bookie,
ed
(7th Cir.1956).
States v.
Just as a trial judge permitted is not to indicate to the jury his views on the verdict that they should reach in a criminal case . . . similarly, he is not [citations omitted] permitted indicate to a views on whether particular telling witnesses are the truth.
Here, the judge’s comments went far beyond “com- ment on matters . . . on the bearing credibility Standards, Instead, ABA supra. witness.” the judge’s com- ments made plain judge’s personal opinion witness; that Ida Williams was a credible the alibi credible; witnesses were not and that appellant was there- fore The trial guilty. judge’s statement to the was “for you to determine” whether alibi witnesses were excuse, of, credible did not or cure the effect the judge’s *9 of The personal opinion appellant’s guilt. of his expression admoni unequivocal the most preceded by statement impressed . Do not be “Now, by tions: don’t be misled ... Court Supreme .... it’s that . . ..” As the impossible Archambault, supra: in recognized, An that in his judge opinion expression by accused an indelible on the minds imprint is leaves of the The to to jury. jury undoubtedly going attribute cases, judge, experience because of his in criminal special determining guilt or innocence. As expertise (late Justice) Mr. Justice Chief for this Kephart stated “The judge occupies Court: an exalted and dignified position; person he is the one to whom the with jury, rare exceptions, looks for and from whom guidance, the liti- gants expect impartiality. absolute ...”
In light
jury
likely
give
of the decisive effect that a
a judge’s
statement
that
in his
the accused is
guilty,
cautionary
is clear that
instructions
to the effect
that
is the final
arbiter
verdict are insuffi-
cient
impact
judge’s
vitiate the
statement.
95-96,
Finally, it cannot be maintained that judge’s error was harmless. The of respective credibility Ida Wil- liams and of the alibi witnesses was critical to deciding the Wortham, Cf. Commonwealth v. case. 369 A.2d Moreover, 1287 (1977). despite being judge told witnesses, to be impressed by the of the alibi at least some of the were jurors evidently impressed, for the foreman judge twice informed the could not 810-811, reach a (N.T. 814-815) verdict. The fact eventually did reach a verdict makes it especially likely that of his of judge’s expression personal opinion appellant’s guilt proved decisive. and the case judgment sentence should be vacated
remanded for new trial. J.,
HOFFMAN, joins dissenting opinion. this