Commonwealth v. Lowery
Commonwealth v. Lowery
Opinion of the Court
Opinion by
Appellant, Douglas Lowery, was arrested on March 14, 1965, for the murder of James Young, which killing
No attack is made on the basis of the sufficiency of the evidence or error during the course of the trial, either during the presentation of the evidence, the closing statements or the court’s charge to the jury. Instead, in the appeal from the denial of his posttrial motions, which had been delayed until April 8, 1969, due to dissatisfaction with various court-appointed counsel, appellant emphasized only the remarks of the district attorney, which, it is alleged, so tainted the trial wih constitutional error that for this reason alone, appellant is entitled to a new trial.
The following colloquy occurred during the district attorney’s opening remarks: “Me. Heckscher [the district attorney]: Sir, could I briefly discuss the problem of premeditation with them? The Court : Yes, you may proceed on this. Mr. Heckscher : I believe His Honor will charge you that where a killing is accomplished by premeditation, that that killing, such a killing is mur
Although counsel’s objection at the time of trial concerned the district attorney’s reference to appellant’s personal character, appellant now emphasizes that particular part of the district attorney’s remarks wherein he told the jury that they should listen closely to the testimony of “the defendant himself, if he gets on the stand that will show this defendant’s callous attitude . . .” (Emphasis supplied.)
The appellant argues that this remark was equivalent to a comment on the failure of the appellant to take the stand in his own defense and was, therefore, an abridgment of the appellant’s constitutional rights under the Fifth Amendment of the United States Constitution.
We do not agree. The objection of appellant’s counsel at the time of trial was clearly not made on Fifth Amendment grounds. In our opinion, the fact that appellant’s counsel did not make such an objection, rather than being indicative of incompetent counsel, as appellant now suggests, was instead a clear indication that neither the appellant nor his counsel believed that the quoted language in any way acted as a challenge to appellant to take the stand or was an adverse comment on his refusal to do so. Since neither the counsel for the appellant nor the trial judge perceived any such challenge being directed towards appellant, we do not believe that the jury, far less sensitive to such constitutional issues, could have perceived such a challenge either.
If, by the slightest chance, the suggestion of a possible adverse inference from the appellant’s refusal to
The cases cited by the appellant in support of his contention, Commonwealth v. Zukovsky, 324 Pa. 588, 188 Atl. 349 (1936), Commonwealth v. Wilcox, 316 Pa. 129, 173 Atl. 653 (1934), Commonwealth v. Green, 233 Pa. 291, 82 Atl. 250 (1912), and Commonwealth v. Foley, 24 Pa. Superior Ct. 414 (1904), involved comment by a district attorney in his closing statement rather than his opening remarks. Usually they referred to a specific piece of evidence which had been offered. Consequently, they carried a much greater impact. The likelihood that a defendant’s Fifth Amendment right not to testify would be adversely affected was much greater.
In the instant c'ase, however, no such likelihood exists. First, we do not believe a noticeable adverse inference was created. Second, if even the slightest trace of such an inference was suggested, it was erased by the three-day trial and the judge’s charge. Third, if the district attorney’s statement was error, considering the immense weight of evidence against the appellant and the very slight degree of chance which exists that any juror was affected by the district attorney’s
Judgment of sentence affirmed.
Concurring Opinion
Concurring Opinion by
I can only concur in the majority’s result, for I believe this case is yet another instance where the majority demonstrates its inability to apply its basic and fundamental error “test” consistently.
Seemingly a comment by the prosecution on the defendant not taking the stand, even if it occurs at the outset of the trial, is an error in violation of the Fifth Amendment, and thus should be basic and fundamental. See Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965). However, previous applications of the doctrine by the majority have been uneven. Compare Commonwealth v. Myers, 439 Pa. 381, 266 A. 2d 756 (1970) (holding damaging error in charge could not be raised on appeal, since it was not objected to at trial) and Commonwealth v. Scoleri, 432 Pa. 571, 248 A. 2d 295 (1968) (holding that deprivation of right to assistance of counsel not basic and fundamental error and hence would not be considered for first time on appeal) with Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) (holding that unobjected to error in charge could be raised on appeal).
In my view, appellant has waived his right to challenge the district attorney’s statement, because appellant did not object at the time of trial. The efficient and proper administration of justice dictates that this Court not consider issues on appeal which were not raised at trial when the trial court could have corrected the error had it been brought to that court’s attention. See Commonwealth v. Simon, 432 Pa. 386, 248 A. 2d
Reference
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- Commonwealth, v. Lowery, Appellant
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