Commonwealth v. Wiggins , 231 Pa. Super. 71 ( 1974 )

Opinion by

Jacobs, J.,

The appellant herein was convicted of armed robbery¹ and sentenced to a term of imprisonment of 2% to 5 years. In this appeal he alleges that the court committed reversible error in refusing to grant a mistrial when the district attorney in opening statement and closing argument suggested that the defendant had the burden of presenting a defense and characterized the appellant as a “dangerous man.” We have carefully reviewed the record and find that the court acted properly and that the appellant was not prejudiced by the remarks. We accordingly affirm the judgment of sentence.

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 of proving Ms guilt beyond a reasonable doubt.” Commonwealth v. Miller, 205 Pa. Superior Ct. 297, 303, 208 A.2d 867, 870 (1965). Therefore, a suggestion by the district attorney that a defendant has a burden of presenting a defense is manifestly erroneous. The Commonwealth bears a never shifting burden of proving each and every essential element of the crime charged and the defendant need not offer any defense whatsoever. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974).

However, the fact that the statement was erroneous does not necessitate the conclusion that the error was of reversible dimensions.² Here the judge immediately instructed the jury that the statement misquoted the law and was to be disregarded. The court stated: “[M]embers of the jury, the Court instructs you any remarks made by [the district attorney] do not change the theory of the law that the burden is on the Commonwealth to prove the guilt of the Defendant beyond a reasonable doubt at all times and that burden never shifts. [T]here is no requirement of any Defendant to take the witness stand. [A]nd no implication of guilt by failure of the fact that the Defendant does not take the stand [may be drawn].” Additionally, the defendant did take the stand and presented an alibi defense, and the judge properly charged the jury with regard to the defense. In light of the judge’s immediate instructions to disregard the erroneous statement by the district attorney, and because the defendant introduced a defense as to which the jury was properly charged we cannot find that the appellant suffered any prejudice. See Commonwealth v. Lowery, 440 Pa. 361, 269 A.2d 724 (1970).

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.”

The remark of the district attorney was improper, and we cannot condone it. “A district attorney holds an office of unusual responsibility, and he must exercise his duties with complete impartiality.” Commonwealth v. Toth, 455 Pa. 154, 158, 314 A.2d 275, 277 (1974). “[I]n his official capacity, clothed with the gravest responsibilities, and exercising functions in a measure judicial, the district attorney should ever be cautious in expressing to a jury his belief in the guilt of the accused.” Commonwealth v. Bubnis, 197 Pa. 542, 550, 47 A. 748, 749 (1901).

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 guilt³ or was “calculated to inflame the passions or prejudices of the jury,”⁴ nor did it so infect the case that it could not be excised by the immediate and later repeated curative instructions of the trial judge.⁵ In Commonwealth v. Hoffman, 439 Pa. 348, 354, 266 A.2d 726 (1970), the Court held that references by the district attorney in opening statement to the defendant as a man with the “heart of a sadist” and as a man with a “sadistic” heart did not require a new trial. In Commonwealth v. Smith, 270 Pa. 583, 588, 113 A. 844 (1921), the Court held that the district attorney’s remark in his closing address that the defendant “didn’t have the heart of a man, or the soul of a man,” did not require reversal. Recently, in Commonwealth v. Talley, 456 Pa. 574, 577, 318 A.2d 922 (1974), the Court held that a statement by the district attorney in closing argument that the defendant “has just committed murder,” did not require reversal.

“[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); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).

Judgment affirmed.

1 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.

2 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).

3 Compare Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974) with Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974).

4 ABA Standards for Criminal Justice, The Prosecution Function, § 5.8 (Approved Draft, 1971).

5 “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).