Commonwealth v. Rodgers , 259 Pa. Super. 376 ( 1978 )

PER CURIAM:

This is an appeal from the judgment of sentence of the Criminal Division of the Court of Common Pleas of Philadelphia County by the appellant, Granfort Rodgers, following his conviction in a jury trial of the charges of robbery and simple assault. Timely filed post verdict motions were denied. Thereafter this appeal.

The facts are as follows: Appellant was arrested on August 12, 1976 and charged with robbery and related offenses. At trial, the complainant, Abis Looser, testified that he was accosted by a man on Mt. Vernon Street in Philadelphia and following a short struggle, complainant was robbed of $8 in cash, cigarettes and his eye glasses. Complainant subsequently recovered his eye glasses. Complainant followed appellant to a vacant house on Twelfth and Green Streets where the police met the complainant who directed them to the house in which appellant had entered. Finding nobody in that house, the police were told by complainant that his assailant had entered another house. When the police emerged from the second house, they had appellant in custody. The complainant identified appellant as his assailant at that time.

At trial, both complainant and a second floor eye witness identified appellant as the assailant.

On February 9, 1977, the jury returned verdicts of guilty on both charges.

Appellant posits two trial errors: first, that the court failed to give appropriate cautionary, jury instructions concerning complainant’s in-court identification of the appellant as mandated by Commonwealth v. Kloiber;¹ and second, the court erred in refusing to grant appellant’s motion for a mistrial following the district attorney’s alleged improper and inflationary closing to the jury.

With appellant’s contentions, we do not agree. Judgment of sentence affirmed.

The Kloiber court stated at page 424, 106 A.2d at page 826:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution — indeed the cases say that “ ‘his [positive] testimony as to identity may be treated as the statement of a fact’ ”: [citations omitted]

On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

The above standard for cautionary instructions has been reaffirmed in Commonwealth v. Wilkerson, 204 Pa.Super. 213, 203 A.2d 235 (1964) and Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974).

In its charge, the trial court more than adequately satisfied Klolher when it included, inter alia:

In determining whether to accept as accurate the identification testimony of Mr. Looser and Mr. Pulido, that is the man upstairs, using caution for the reason I just mentioned, you must also take into consideration the following matters: Whether the testimony of the identification witness is generally believable. Whether his opportunity to observe was sufficient to allow him to make an accurate identification. How the identification was arrived at. All the circumstances indicating whether or not the identification was accurate. And, also, whether the identification testimony is supported by other evidence and you must conclude that it is so supported before you can accept it as being accurate. (T. 202-203)

Tangential to the argument above, appellant contends that the district attorney acted improperly by intimating in his closing to the jury that that portion of the transcript of the preliminary hearing which had not been read to them, if read to them, would have bolstered and supported complainant’s in-court identification of the appellant when, in fact, the district attorney knew, or should have known, that it would not (See N.T. at 80-85).

We have reviewed the dialogue in question (N.T. 174) and conclude that same likely did not mislead the jurors into drawing an unwarranted or erroneous inference from the fact that they were not privy to the entire preliminary hearing transcript.

Lastly, appellant argues that he is entitled to a new trial as a result of certain inflammatory and stigmatizing remarks contained in the district attorney's closing to the jury. See Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974) and Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975).

However, as is stated in Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975):

“. . . [E]ven where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its ``unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.' Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Myers [sic], 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court.”

We have reviewed the portion of the closing objected to by appellant (T. 187 — 9) as well as the closing in its entirety to determine if same may have inflamed the passions of the jurors so as to possibly have effectively denied appellant a fair trial. Despite some questionable comments and unnecessary remarks, we conclude that same did not rise to such a degree as to constitute reversible error and warrant the grant of a new trial.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion, in which JACOBS, President Judge, joins. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . 378 Pa. 412, 106 A.2d 820 (1954).