Commonwealth v. Ferguson , 289 Pa. Super. 163 ( 1981 )

VAN der VOORT, Judge:

Appellant was charged with several counts of possession and delivery of cocaine, methamphetamine, and marijuana. At appellant’s jury trial the Commonwealth presented evidence that on three separate occasions appellant had sold the above-mentioned drugs to an undercover officer of the Pennsylvania State Police. Appellant admitted making the sales, but attempted to show that he had been entrapped. Specifically, appellant introduced evidence that his father had been in jail at the time of the sales, and that his father’s paramour, working in concert with the State Police, had allegedly induced appellant to sell the drugs to raise enough money to secure his father’s release on bail. Appellant was convicted of three counts of possession and three counts of possessing with intent to deliver and delivery of a controlled substance. Appellant has filed this direct appeal alleging the trial court committed six errors, which he claims entitles him to a new trial.

I. Appellant’s main contention is that the trial judge usurped the function of the jury in his charge on entrapment. The lower court instructed the jury generally on entrapment and included in its instructions the following statement: “Now, does it make any difference that your father’s in jail and you were asked to do something illegal and as a result he would get help? That’s not enough. A lot of people have that situation but I am going to leave it for you.” (N.T. Jury Charge p. 2). The appellant extracts these few comments out of the charge as a whole and claims the court improperly interfered with the jury.

We must review the court’s charge to the jury in its entirety. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). In at least ten different points in the charge the court clearly told the jury that it, the jury, exclusively, must decide appellant’s guilt or innocence. (N.T. Jury Charge, pp. 2, 3, 11, 12, 14, 15, 16 and 23). The trial judge commenced his charge and completed it by informing the jury that it was solely responsible for adjudging the appellant. In the midst of this the court made one reference to one of the pertinent issues and expressed its opinion on the issue.

A court may clarify the issues that are before the jury. Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974); Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980); and Commonwealth v. Cameron, 247 Pa.Super. 435, 372 A.2d 904 (1977). We believe the court’s question: “Now, does it make any difference that your father’s in jail and you were asked to do something illegal and he would get help?”, was a concise, accurate and fair phrasing of the entrapment issue faced by the jury.

A court may express its opinion on the evidence so long as it emphasizes that its opinion is only the opinion of the court and is not binding upon the jurors who are the sole judges of the defendant’s guilt. Commonwealth v. Austin, 274 Pa.Super. 1, 417 A.2d 1220 (1980); Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). We realize that the line between permissible and impermissible comment is not clearly defined. However, we believe the court did not exceed its permissible limits.

A judge who at the end of the formal charge stated that in his opinion the defendant if guilty at all was guilty of first degree murder was held to have interfered with the jury’s duty. Commonwealth v. Goins, 457 Pa. 594, 321 A.2d 913 (1974). The judicial statement that “I think it would be a miscarriage of justice to find the defendant not guilty,” was held to be impermissible. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). While in Commonwealth v. Ott, 417 Pa. 269, 207 A.2d 874 (1965) the Supreme Court held it impermissible for a judge to tell the jury that he had a duty to tell them that in his opinion the defendant was guilty. In Commonwealth v. Austin, supra, this court held that the lower court erred in instructing the jury that the weapon “certainly is an offensive one”, when “offensiveness” was one of the elements of the crime charged. There are numerous cases dealing with this issue; the four above are representative of cases where the reviewing court found the comment to be reversible error.

Cases where the comment was held permissible include Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978) where the court in charging on the voluntariness of the defendant’s statement, mentioned that the court had found it to be voluntary in determining its admissibility. The court however clearly stated that it was the jury’s obligation to determine the voluntariness of the statements. The Supreme Court found it “inconceivable” that the charge as a whole had interfered with the jury’s function. Similarly, the Supreme Court in Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974) found that the trial court had not exceeded its bounds when it stated in the charge “now if you believe beyond a reasonable doubt that the defendant shot and killed the victim under the circumstances as the Commonwealth has proved to you.” (emphasis added by Supreme Court) and held that this statement simply indicated what the Commonwealth’s evidence if believed tended to establish.

We find the present case to be more in line with Walker and Woodward. The court succinctly stated the issue before the jury and then made a passing comment as to its opinion, immediately followed by a statement that it was for the jury to determine. The court continually, throughout its charge noted that the jury was the sole factfinder. Accordingly, we find no reversible error; even if the comment: “That’s not enough”, was improper, it clearly was harmless beyond a reasonable doubt when considered in the context of the whole charge.

II. Appellant’s second assignment of error is that the lower court incorrectly instructed the jury on the definition of reasonable doubt. The court defined reasonable doubt as that doubt which “would cause you to hesitate and prevent you and restrain you from acting”. (N.T. Jury Charge, p. 8). The court repeated the above definition one time. The court in expounding further on reasonable doubt limited the definition to “cause you to hesitate”. The appellant argues that the earlier use of the word “prevent” instead of just hesitate requires us to grant a new trial. The identical issue was before this court in Commonwealth v. Middleton, 260 Pa.Super. 571, 578, 394 A.2d 1293, 1297 (1978). There we found the argument to be “a non sequitur and is totally meritless”. We agree, and hold likewise here.

III. The next allegation of error is that the court should have permitted defense counsel to comment to the jury on the inference that may be drawn from a party’s failure to call a favorable witness. Appellant claims that his father’s paramour whom the state police used as an intermediary in the drug transactions was unavailable to testify on his behalf because she had entered into a plea bargain with the Commonwealth. Appellant does not claim that he was unable to subpoena her or that he did not know her identity or whereabouts or that the Commonwealth prevented him from calling her. A witness cannot be deemed unavailable unless the party has exerted a good faith effort to produce him or her. Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). Appellant cannot now claim that a known witness was unavailable merely because she had entered into a plea bargain. See also Commonwealth v. Brown, 267 Pa.Super. 530, 407 A.2d 36 (1979).

IV. The fourth issue appellant raises is that the trial court “berrated [sic] counsel” in front of the jury when counsel attempted to get the appellant to answer questions more calmly and clearly.¹ It is argued that this demonstrated the court’s bias against appellant. However, not every indication of ill-will, rudeness or impatience directed at counsel will justify a reversal of the trial courts.

While we do not condone a display of impatience [or a berating] by a trial judge, even where he may have been provoked by counsel’s dilatory tactics, we recognize that judges are also subject to the failings of human beings and cannot be expected to be devoid of emotion in the trying or vexing situations they may be called upon to confront. Here, we are satisfied that these isolated comments, which were directed solely to counsel and not his client, did not reach the level where it could be reasonably concluded that appellant was deprived of a fair and impartial trial. Appellant complains of no extended, aggressive or partisan examination of himself, Commonwealth v. Williams, 468 Pa. 453, 364 A.2d 281 (1976); Commonwealth v. McCoy, 401 Pa. 100, 162 A.2d 636 (1960), ... no expressions of doubt as to the credibility of a witness, Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89 (1972); and no independent manifestation of bias in favor of the prosecution, Commonwealth v. Hales, 384 Pa. 153, 119 A.2d 520 (1956); Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333 (1933). Additionally, the court in its instructions properly charged that the jury was the sole judge of the facts and the arbiter of the truth. Under these circumstances we cannot say that the remarks of the court so tainted the proceeding as to require a reversal of the judgment of sentence. See Commonwealth v. Myma, [278 Pa. 505, 123 A. 486 (1924)].

Commonwealth v. England, 474 Pa. 1, 17, 375 A.2d 1292, 1300 (1977).

In the circumstances of this case, the court’s admonishment of counsel did not so taint the proceedings as to require us to reverse here. This was an isolated incident, and the court adequately charged the jury to overlook comments made either by the court or counsel.²

V & VI Appellant’s fifth and sixth claims of error are that the court erred in preventing defense counsel, in closing argument, from commenting on appellant’s lack of profit motive and lack of prior history of drug dealing. It is appellant’s contention that these two factors go to his motivation, which should have been considered in deciding upon his entrapment defense. Appellant argues that the court improperly instructed the jury that profit and prior drug dealings do not enter into the consideration of the entrapment issue.

In Commonwealth v. Clawson, 250 Pa.Super. 422, 378 A.2d 1008 (1977) (plurality opinion by Spaeth, J.) this court held that the lower court erred in failing to instruct the jury on entrapment. If the jury had been so instructed then it may have found that evidence of no previous drug trafficking and the lack of a profit motive supported a defense of entrapment. In this current appeal the jury was instructed as to the defense of entrapment, and it was free to consider appellant’s motivation. The question however is whether a court should allow counsel to comment on the lack of profit and the lack of prior dealings and whether the court may instruct the jury to disregard counsel’s comments. The actual instructions in this case were as follows: “You don’t have to be a dealer. You can procure drugs one time and you would be guilty if you didn’t come within the entrapment provision. So, dealing has nothing to do with it.” (N.T. Jury Charge, p. 15). “[PJrofit has nothing to do with it. He’s guilty if he delivered. . . . The law doesn’t talk about profit. He’s not guilty if he was entrapped.” (N.T. Jury Charge, p. 16).

The lower court was in the difficult position where it had to prevent misleading and incorrect instructions on delivery while at the same time properly instruct on the entrapment defense. The court properly prevented derivation from its definition of delivery; a defendant’s profit motive or lack of prior experience are irrelevant. See Commonwealth v. Webb, 254 Pa.Super. 429, 386 A.2d 25 (1978) (opinion in support of affirmance); and Commonwealth v. Cameron, supra. In this situation we do not believe appellant suffered reversible harm. His alleged motivation was that the profits realized were to be used to meet his father’s bail; that was his claimed sole purpose for becoming involved. The court did not deny counsel the opportunity to comment on his express desire to assist his father. The court when cautioning the jury to not consider the profit motive and prior dealings in regards to delivery then directed the jury back to the entrapment defense. So, in this situation we do not believe the trial court erred in its instruction to the jury.

Judgment of sentence is affirmed.³

WICKERSHAM, J., files a concurring statement. HOFFMAN, J., files a dissenting opinion.

1 . The notes of testimony of the actual trial have not been transcribed due to appellant’s apparent failure to abide by the local rules in timely fashion in requesting such transcripts. To conserve judicial resources we here assumed that appellant’s factual allegations are true.

2 . While we do not condone such judicial behavior before the jury, we must note in passing that defense counsel was subjected to contempt proceedings for his earlier handling of this case; apparently counsel had also been cited for contempt on numerous prior occasions in Delaware County.

3 . The Dissent expresses concern over the court’s general instructions on entrapment. However, appellant has neither preserved such issue for appeal by taking an exception to the court’s charge, or by claiming such in post-verdict motions, nor has he questioned such on this appeal.