Commonwealth v. Wiggins
Commonwealth v. Wiggins
Opinion of the Court
Opinion by
The appellant herein was convicted of armed robbery
It is clear that a defendant “is under no duty to take the stand or produce evidence of his innocence but may stand mute protected by the presumption of innocence and demand that the Commonwealth sustain its burden
However, the fact that the statement was erroneous does not necessitate the conclusion that the error was of reversible dimensions.
The appellant also contends that the court committed reversible error in refusing to grant a mistrial when, during closing argument, the district attorney characterized the appellant as a “dangerous man.” The record reveals the following exchange: “Mr. Zimmerman [appellant’s counsel]: Objection. He stated that — made allegations to the one [of the three defendants] that he said they didn’t want and then he goes to the other two and he states as far as they are concerned, my client and the other, that they are dangerous men and went on, as far as wanting them. I want that on the record. That has not been shown, not been brought out in testimony. Mr. Brubaker [the district attorney]: You may have on the record what you want but, your Honor, the statement I made was the beginning of a sentence and was directed at these men and I said flatly, these are dangerous men. The Court: If what? Mr. Brubaker: I said these are dangerous men. To that statement Mr. Zimmerman objected. Mr. Zimmerman: As compared to the statement he previously made about the third man. The Court: What was said about him? Mr. Zimmerman : He said they frankly don’t want the third man then he gets to these— Mr. Shay: [counsel for one of the co-defendants] : 1 want to object to that too, your Honor. The Court: Members of the jury, these men are not convicted at this point so any remarks made by the District Attorney [as] to dangerous men is to be disregarded and you are to divorce that statement from your mind. The Court will instruct you fully as to what the law is with reference to this offense. Motion to withdraw the jurors is denied. Mr. Zimmerman : I ask for a mis-trial on the remarks of the District Attorney. The Court: Mr. Zimmerman asks for a mis-trial, motion for a mis-trial is disallowed and exception noted.”
Upon a review of the record, however, we cannot agree that the remark of the district attorney, in referring to the appellant as a “dangerous man” rendered the appellant’s trial “so fundamentally unfair as to deny him due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872 (1974). It neither expressed the district attorney’s belief in the appellant’s guilt
“[T]he language of the prosecuting officer which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh in his behalf such circumstances of doubt, extenuation or degree of guilt that may be present in the case, and thus make them unable to render a true verdict.” Commonwealth v. Meyers, 290 Pa. 573, 581, 139 A. 374, 377 (1927), quoted in Commonwealth v. Hoffman, supra, at 355, 266 A.2d at 730. The language used here did not rise to that standard.
Additionally, even though we believe that the language used here did not rise to prejudicial dimensions, the record reveals that the jury was sufficiently cautioned by the trial judge. The instruction immediately followed the improper statement and specifically advised the jury to disregard the statement, see Commonwealth v. Talley, supra; and was later reinforced in the charge. See Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974). This instruction was adequate to “fully protect the rights of the accused.” Commonwealth v. Russell, 456 Pa. 559, 565, 322 A.2d 127 (1974).
The appellant raises two additional arguments which we find to be totally without merit. Moreover, no objection was made at the time the alleged errors on which the arguments are based occurred. See Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d 14 (1973);
Judgment affirmed.
Act of June 24, 1939, P. D. 872, § 705, 18 P.S. § 4705, repealed, Act of Dec. 6, 1972, P. L. 1482, No. 334, § 5.
The United States Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 647-48, 94 S. Ct. 1868, 1873-74 (1974), stated that “the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct . . . [which amounts] to a denial of constitutional due process. . . . [s]hould continue to be observed. . . .” (footnote omitted).
Compare Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974) with Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974).
ABA Standards for Criminal Justice, The Prosecution Function, § 5.8 (Approved Draft, 1971).
“Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.” Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S. Ct. 1868, 1872 (1974).
Dissenting Opinion
Dissenting Opinion by
I believe that the district attorney’s characterization of appellant as a “dangerous man” in closing argument was sufficiently prejudicial (and unprofessional) to warrant the granting of a new trial.
The limits of permissible argument by a prosecutor to a jury are set forth in ABA Standards, The Prosecution Function §5.8 at 126:
“(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
“(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
“(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
“(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by mailing predictions of the consequences of the jury’s verdict.” In the present case these limits were transgressed.
“The application of epithets to a defendant on trial . . . [has] no legitimate place in a district attorney’s argument.” Commonwealth v. Capalla, 322 Pa. 200, 206, 185 A. 203, 206 (1936). “It is no part of a district attorney’s duty, and it is not his right, to stigmatize a defendant.” Id. at 204, 185 A. at 205.
The district attorney here not only suggested his personal belief in appellant’s guilt, as in Capalla, Lipscomb, and Russell, but he did so in such a way as to appeal to the “passions or prejudices of the jury,” ABA Standards, supra, and, further, he asked the jury to 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 character is irrelevant, Commonwealth v. Wable, 382 Pa. 80, 114 A. 2d 334 (1955), but assuming relevance, here there was no evidence of character; there was no testimony that appellant had a reputation for violence; and since appellant testified, it may be assumed that if he had had a serious criminal record, the district attorney would have introduced that fact by way of impeachment.
In deciding whether curative instructions were adequate, attention must be given to a number of factors. Prompt instructions coupled with a reinforcing charge can obviate the prejudicial effect of an improper statement by a prosecutor, see, e.g., Commonwealth v. Martinolich, 456 Pa. 136, 150-151 n.11, 318 A. 2d 680, 688 n.11 (1974), provided the instruction and charge are neither vague nor indefinite, but sufficiently specific to permit “one [to] say with any degree of certainty that the jury must have understood their application or that they cured the harm complained of.” Commonwealth v. Shoemaker, 240 Pa. 255, 260, 87 A. 684, 686 (1913). “The instruction should preferably be given immediately after the prejudicial event and repeated in the charge to the jury. It should be specifically tied to the facts, and, it should clearly and firmly advise the jury that the prejudicial event must be disregarded.” Commonwealth v. Talley, 456 Pa. 574, 584, 318 A. 2d 922, 927 (1974) (dissenting opinion by Roberts, J.).
The instruction here was specifically tied to the district attorney’s improper statement, and it did advise the jury to disregard the statement. However, it did not make clear why the statement should be disregarded. Nothing was said either about the statement’s being without foundation in the evidence or about the irrelevance of whether a defendant was
The remaining question is whether the evidence was so substantial that the prejudice resulting from the district attorney’s statement was harmless. The evidence may be summarized as follows. On July 10, 1971, around 11:00 p.m., a Pennsupreme Grocerette on Roseville Road in Lancaster County was robbed by three black men. One of the men (“robber No. 1”), who was armed, directed the actions of the three people — two employees and a customer — who were in the store at the time. The second man (“robber No. 2”) assisted him, and the third man (“robber No. 3”) stood by the door. Robber No. 1 and robber No. 2 each wore a gray stocking mask. No direct evidence, such as fingerprints or possession of proceeds of the robbery, linked appellant to the robbery. One of the employees identified appellant as one of the robbers. She said the masks two of the robbers wore blurred their features, but not their bone structures or the general shape of their heads. From this data she concluded that appellant was robber No. 2. This identification conformed with previous ones made by her. About two months
Thus the case against appellant was not overwhelming. On the Commonwealth’s side the jury was presented with contradictory evidence of whether appellant was in fact robber No-. 2, one witness saying he was not, and another, whose testimony was arguably not reliable, saying he was; and on appellant’s side the jury was presented with alibi evidence. While the Commonwealth’s evidence would suffice were this a case where the defendant was challenging the sufficiency of the evidence, it was not substantial enough to permit the conclusion that the district attorney’s improper statement was error harmless beyond a reasonable doubt. Commonwealth v. Diaz, 438 Pa. 356, 264 A. 2d 592 (1970); Commonwealth v. Robinson, 430 Pa. 188, 242 A. 2d 266 (1968).
I would reverse the judgment of sentence and remand the matter for a new trial.
According to § 5.9 of the ABA Standards, supra: “It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowl
Reference
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- Commonwealth v. Wiggins, Appellant
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