*1 ” Broad Triangle Golden Field v. of the chancellor?’ A.2d Inc., 410, 415, casting, Yuhas 1158 (1974), quoting U.S. denied, cert. 619-20 Schmidt, formalize their to intended The fact that parties material or omitted some later date some agreement not controlling therefrom is terms and conditions terms all the essential as the to agreed long parties them. Field to be binding upon the contract intended In re Inc., supra; Broadcasting, v. Golden Triangle F.2d 886 Cir. Co., (3d Oil & Burner ABC-Federal 1961). considering made clear that all we are
It should be in the lower court’s order out spelled here is the support of order that are satisfied that the terms We Q2)inion. affirmed. It is and it is parties were agreed for remain this a pe- the record Court directed an husband oppor- riod of thirty days give appellant we transfer it to the Supreme request tunity or- equity for consideration portion Court 1974. If no is made request such January 31, der shall be returned to the lower court. it days within 30 in the did not considera- participate J., Hoffman, of this case. or decision tion Wiggins, Appellant. *2 March 1974. Before
Submitted P. J., Watkins, Hoffman, Cercone, Yan Price, der Jacobs, Yoort, JJ. Spaeth, and
Thomas E. for Harting, appellant. T. Brubaker,
Charles A. Achey, Jr., George D. Richard Eckman, Assistant District Attorneys, for appellee. District Attorney, Commonwealth, 1974: Opinion November J., Jacobs, *3 of armed rob- appellant herein was convicted and sentenced to of of a term bery1 imprisonment 2% In the court com- appeal alleges to 5 this he that years. error a mistrial refusing mitted reversible to grant statement and opening when the district attorney that defendant had the argument the closing suggested the of a defense and characterized burden presenting man.” We have “dangerous carefully as a appellant record and find that the court acted the reviewed that the appellant prejudiced by was properly affirm the of accordingly judgment remarks. We the sentence. “is no duty a defendant under to take
It is clear that evidence of his innocence but produce the stand of presumption the by mute innocence protected stand the Commonwealth sustain its that burden demand 872, 24, 1939, 705, D. 4705, P. § 18 P.S. § of Act June 6, 1972, P. L. § No. 5. repealed, of Dec. Act
of proving Ms a guilt beyond reasonable doubt.” Com- monwealth v. Miller, Superior Ct.
A.2d 870 (1965). a the Therefore, suggestion by district that a attorney defendant has a burden of pre- a defense is The Com- senting manifestly erroneous. bears a never monwealth burden shifting proving each and essential element of crime every the charged and the not offer defendant need defense any whatso- ever. Commonwealth v. Rose, the fact that the was
However, statement erroneous does not necessitate the conclusion the that error was Here reversible dimensions. the judge immediately instructed the the the jury misquoted statement law and was to be court disregarded. stated: of the the Court instructs jury, you any “[M]embers made remarks by district do not attorney] change [the the of the is on theory law burden the Com prove monwealth to guilt Defendant beyond a reasonable doubt at all times and that burden never shifts. is no requirement of Defendant any [T]here take the witness stand. no implication of guilt [A]nd failure of the fact that Defendant does not take the stand be [may the defend Additionally, drawn].” take and presented ant did the stand an alibi defense, charged and the judge properly with regard to In light the defense. of the judge’s immediate instruc tions the erroneous disregard statement and because the attorney, district defendant introduced as to defense which properly charged we find that cannot suffered any prejudice. *4 Supreme Donnelly States Court United The DeChristo 637, 647-48, foro, 94 Ct. S. 416 U.S. 1873-74 stated that ordinary prosecutor between trial error “the distinction and egregious . . [which misconduct . that sort of amounts] to a denial process. . . [s]hould due . of constitutional continue to be observed. omitted). (footnote .” . . Lowery, See Commonwealth appellant also that the court commit- The contends refusing grant ted error in a mistrial when, reversible during closing attorney argument, charac- “dangerous man.” terized as a The record [ap- following exchange: “Mr. Zimmerman reveals the pellant’s Objection. He that —made counsel]: stated allegations to the one that he [of defendants] three they goes said didn’t want and then he other two they my and he far states as are client concerned, they dangerous and the men are and other, went wanting as far as I on the on, them. want that record. brought That has been not been testi- shown, out mony. attorney]: Mr. Brubaker [the district You you your have on the record what want but, Honor, beginning I statement made was the of a sentence flatly, and was directed at these I men and said these dangerous are men. If what? The Court: Mr. Bru- dangerous I said these are men. To that state- baker: objected. ment Mr. Zimmerman Mr. Zimmerman: As compared previously to the statement he made about the third man. The Court: What said about him? they frankly : He said don’t want Mr. Zimmerman gets Shay: third man then he to these— [counsel Mr. object for one of the 1 : want to co-defendants] to that your jury, Honor. Court: Members too, point any these men are not convicted at this so re- Attorney danger- made marks the District [as] to disregarded you ous men is to be are to divorce your that statement from mind. The Court in- will fully you as to what the law is with struct reference jurors to this offense. Motion withdraw the is de- I : for nied. Mr. ask a mis-trial on the Zimmerman Attorney. of the District remarks Court: Mr. for a Zimmerman asks motion mis-trial, for a mis-trial exception noted.” is disallowed *5 76 improper, attorney was remark of the district attorney holds it. “A district
and we cannot condone
responsibility,
exer-
and he must
an office
unusual
impartiality.”
complete
Common-
with
cise his duties
277
Additionally,
though we believe
the lan
used
guage
here did not rise to prejudicial dimensions,
the record reveals that
was
jury
cau
sufficiently
tioned
the trial
The
judge.
instruction immediately
followed the improper
statement and
ad
specifically
vised the
to
disregard the
see Common
statement,
wealth
Talley,
was later
supra;
reinforced in
See
charge.
Commonwealth v.
Martinolich,
Dissenting Opinion J.: Spaeth, characteriza- I believe that closing man” in a “dangerous as tion unprofes- (and sufficiently prejudicial argument of a new trial. the granting to sional) warrant aby prosecutor argument The limits of permissible in ABA The Prose- forth Standards, to a are set at 126: cution Function §5.8 all reasonable in- prosecutor may argue
“(a) record. is unprofes- from evidence in the It ferences mis- sional prosecutor intentionally conduct for the as to the infer- or mislead the jury state the evidence it draw. ences prose- conduct for the unprofessional It is
“(b) or personal cutor his belief express opinion or evidence or the falsity testimony the truth of any of the defendant. guilt *7 should not use
“(c) prosecutor arguments calculated to inflame the or of the passions prejudices jury. refrain argu- should from
“(d)
prosecutor
ment
the
from its
duty
which would divert
to
the case on the
decide
issues
evidence,
injecting
than the
or innocence
guilt
broader
of the accused
controlling law,
by mailing predictions
under
verdict.” In
consequences
jury’s
present
these limits were transgressed.
case
of epithets
“The
to a defendant
application
no
legitimate place
trial
. . .
district attor
[has]
322 Pa.
ney’s argument.”
Capalla,
185 A.
“It
is no
203,
part of a
206,
200,
is not his
attorney’s duty,
district
it
right,
Id.
a defendant.”
204,
A. at 205.
stigmatize
In
a district
Court concluded that
Capalla,
Supreme
reference to the defendant as a “cold-blooded
killer”
repre
constituted reversible error
it
because
sented an expression
of his
attorney
personal belief that
Very
defendant was guilty.
the court relied on
recently
Capalla
finding revers
ible error in a prosecutor’s reference to the defendant
and his
accomplices
“hoodlums” and “animals.”
Lipscomb,
317 A. 2d
court,
(1974). Through such
said the
epithets,
“the assistant district attorney interjected his personal
belief in
guilt
of the accused.” Id. at
317 A. 2d
at 207. And see Commonwealth v.
Russell,
The district attorney here not only suggested his personal belief in appellant’s as in guilt, Capalla, Lip scomb, and Russell, but he did inso such a as to way to the appeal “passions or prejudices of the jury,” ABA and, Standards, supra, he further, asked the base its verdict not on the evidence but on his personal assertion that two of the defendants were “dangerous.” Generally, evidence of a defendant’s char acter is irrelevant, Commonwealth v. Wable, 114 A. 2d (1955), but assuming here relevance, there was no evidence of character; there was no testi mony that appellant had a reputation for violence; and since appellant it testified, may be assumed that if he had had a serious criminal record, at district imp would have torney introduced that fact by way of eachment.1 1 According supra: Standards, 5.9 of the ABA § “It is un
professional prosecutor intentionally conduct for the to refer to or *8 argue on the basis of facts outside the record whether at trial or appeal, such public on unless facts are matters of common knowl- in that Lipscomb Capalla
This case is unlike immedi judge the trial cases, contrast to those here, In such to the statement. responded improper ately whether must be determined circumstances it “[the] pro to fully . . adequate curative instructions . [were] v. Rus Commonwealth tect the of the accused.” rights 130. A. 2d at sell, supra, 565, instructions were In curative deciding whether fac be to a number of given attention must adequate, reinforcing coupled tors. instructions with Prompt an improper the effect of charge prejudicial can obviate Commonwealth aby prosecutor, see, e.g., statement A. 2d 680, 456 Pa. 150-151 136, n.11, Martinolich, charge n.11 the instruction and provided sufficiently spe nor vague indefinite, are neither but cer degree with permit say any cific to “one [to] appli must have understood their tainty jury of.” or that cured the they complained cation harm 87 A. Shoemaker, “The should preferably instruction given immediately be after event and prejudicial in the be repeated charge jury. should specif It tied to the it should ically facts, and, clearly firmly the prejudicial advise be dis event must regarded.” Talley, 2d (1974) (dissenting opinion A. Roberts, J.). here instruction was specifically tied to the
district attorney’s improper and it statement, did ad- vise the disregard statement. it However, did not make clear why statement should be dis- was said regarded. Nothing either about the state- being ment’s without foundation in the evidence or about irrelevance of whether a defendant was ordinary edge experience based human or matters of which the judicial take notice.” court *9 in- in the these inadequacies Nor were
“dangerous.” charge in the Nowhere charge. struction cured the by there statement; reference to the specific was there any the attention comment about generalized was only sort and about the the of counsel arguments be paid say One cannot that should be returned. of verdict must have of that the certainty any degree “with the district at- from comment that understood” such and was to be ignored. statement was torney’s improper certain supra. Moreover, Shoemaker, generalized given given instructions were usually did that the verdict should Although judge say here. be “fair and he no admonition just” “factual,” gave be based or passion, that it should not on prejudice on nor did he that it had to be based say only evidence. is the evidence remaining whether was question prejudice resulting
so substantial that from the district statement was harmless. The evi- dence be summarized as follows. On July 10, around 11:00 a Grocerette p.m., Pennsupreme Road Lancaster robbed County by Roseville was three black men. One of the men No. (“robber 1”), was directed the actions of the armed, peo- who three and a employees customer —who were ple —two man at the time. The second No. (“robber store 2”) third man (“robber and the No. him, 3”) assisted stood 1No. and robber No. 2 the door. Robber each wore mask. No direct stocking such as gray evidence, of of possession proceeds fingerprints robbery, One of robbery. appellant linked employees as one of the robbers. appellant She identified said the of the robbers wore blurred their masks two features, structures or the general their bone but not shape data she From this heads. concluded that appel- their 2. This No. identification robber conformed lant made her. ones About two previous months with robbery appellant after the she identified as one pack photograph robbers from a in a shown included picked appellant eight-man and then she out of an her, corporeal lineup. She also identified his preliminary hearing. In she stated at trial fact, she was more certain of her identification after the preliminary hearing. employee The second identified appellant’s one of co-defendants as robber No. 1, previously stated he had identified the other appellant’s co-defendants as robber No. 2. third eyewitness made no identification. *10 against appellant
Thus the case
was not overwhelm-
ing.
pre-
On the Commonwealth’s side the
was
contradictory
appel-
sented with
evidence of whether
saying
lant was in fact robber No-.
one witness
he
testimony
arguably
was
whose
not,
another,
was
saying
appellant’s
he
reliable,
was;
side the
presented
with alibi evidence. While the
Commonwealth’s evidence would suffice
a
were this
challenging
case
where
defendant was
the suffi-
ciency
enough
it was
evidence,
not substantial
permit
the conclusion that
improper
beyond
statement was error harmless
a rea-
doubt.
sonable
Commonwealth v. Diaz, 438 Pa.
(1970);
A. 2d 592
Commonwealth v.
Robinson,
HofPMAN, Campbell, Appellant.