Commonwealth v. Hustler

JACOBS, Judge:

This appeal is brought from the conviction of appellant and a co-defendant, by a jury, of the rape of a 17 year old girl. In his brief to this Court, appellant raises four arguments asserting error by the lower court. We find appellant’s contentions without merit and will affirm.

Appellant’s first two arguments, alleging improper prejudicial statements by both a witness and the lower court judge in his charge, are not supported by the record and need not be discussed. Appellant’s third assignment of error concerns the trial judge’s refusal to permit the use of a written report made by the investigating detective to impeach the complaining witness. It has been held that relevant pretrial statements of witnesses must be made available to the accused upon request during the trial. Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971). In the present case, a formal statement by the witness was made and transcribed shortly after the incident. This transcription was made available to the defense during the trial and was used in the cross examination of the witness. In addition, a report was made by the investigating detective in the course of his investigation which was based on this formal statement. The detective testified, out of the hearing of the jury, that the report did not consist of verbatim notes of the witness’s own words, but was only a summary of her formal statement along with notes on interviews with other individuals. As such, it cannot be considered a statement of the witness which could be properly used by the defense for cross examination, particularly when the formal statement, upon which the report was based, was already made available. Commonwealth v. Morris, 444 Pa. 364, 281 A.2d 851 (1971).

Finally, the appellant argues that certain statements made by the attorney for the Commonwealth were improper and prejudicial. It is well settled that in order to preserve a claim for appellate review it is necessary not only to object specifically to the error when it is made, but also to raise the objection in support of post trial motions. Commonwealth v. Irwin, 460 Pa. 296, 333 A.2d 735 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974). In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), decided January 27, 1975, the Supreme Court stated that from that date Pa. R.Crim.P. 1123(a), requiring written post trial motions, would be strictly enforced. Any issues not presented in compliance with this rule were not to be considered by courts on the trial or appellate level. In those cases arising prior to the decision in Blair, the practice of relying on oral motions continued to be recognized by appellate courts and the issues presented therein were considered if the lower court accepted and ruled upon the motions. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975).

Appellant in the present case objected on numerous occasions to the prosecutor’s closing remarks but filed only boilerplate motions on January 22, 1975, reserving the right to file additional motions upon receipt of the notes of testimony. Although the Blair decision was handed down on January 27, 1975, five days later, appellant failed to file additional motions. This in itself might be considered sufficient to hold that appellant waived his objections to the closing remarks. However, even if we should give appellant the benefit of the doubt and review those issues raised orally, and accepted and ruled upon by the lower court, we find that the only objection discussed in the court’s opinion was to the prosecutor’s use of the terms “immunity” and “gangbang.”¹ Apparently, any objection to the prosecutor’s suggestion that appellant or his witnesses had lied was not raised even in oral motions to the court below. Thus our review is limited to those objections of which there is some record. Commonwealth v. Jones, 460 Pa. 713, 334 A.2d 601 (1975); Commonwealth v. Smalls, 460 Pa. 436, 333 A.2d 853 (1975); Commonwealth v. Polof, 238 Pa.Super. 565, 362 A.2d 427 (1975).

We agree with the lower court that the comments complained of were not such that their “ ‘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)”; Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873, 882 (1975). The language used here was not so strong and abusive as to rise to the level of that hitherto found to be “clearly inclined to create prejudice or calculated to distract or mislead the jury.” Commonwealth v. Chandler, 237 Pa.Super. 19, 346 A.2d 579 (1975). The expression “gangbang” is simply a colloquialism for the conduct of which the appellant and his co-defendant were accused and the district attorney should be expected to mention it. The reference to immunity is at worst confusing. The lower court believed the remark was mistaken for an improper comment on the right of the accused to refuse to testify. Since the appellant herein did testify, it can hardly be considered prejudicial.

Judgment of sentence affirmed.

PRICE, J., files a dissenting opinion in which HOFFMAN and CERCONE, JJ., join.

1 . The statements were recorded as follows: “What we are trying is the ugliness of the aspect of a gangbang . . . that was forced upon this girl and the ugliness of it, until every piece of her dignity was in shreds. And the ugliness that they can sit and believe that they can be immuned from the processes of law.” “Well, the immunity, the immunity of gangsterism . . . the immunity of safety ends here upon the facts that you hear from that witness stand.”