Com. v. Anderson

Decision Date27 May 1983
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Bennie ANDERSON, Appellant.
CourtPennsylvania Supreme Court

Robert B. Lawler, Chief, Appeals Div., Sarah B. Vanderbraak, Asst. Dist. Attys., Philadelphia, for appellee.



LARSEN, Justice.

On February 25, 1979 at 3:10 a.m., defendant and two other males knocked on the door of a residence at 2833 West Diamond Street in Philadelphia. The second-floor of the residence was operated as a speakeasy by Mrs. Lorraine Rambert who was present at that time along with several of her children, grandchildren and a man named John Farrell.

Mr. Farrell went down the stairs to answer the knock on the door. Several members of the Rambert family testified that a man then came up the stairs with a shotgun in his hand, followed by appellant who had grabbed Farrell around the neck and held a gun against his back, and a third male. The third man entered the second floor speakeasy rooms, warned everyone present not to move, and took or moved Mrs. Rambert's purse. Appellant, still holding Mr. Farrell around the neck, then followed the first man up the stairway toward the third floor. According to the witnesses, there were two shots and Farrell fell down the stairs, fatally wounded.

One of the witnesses saw appellant fire his weapon and saw a flash from the gun held by the man at the top of the stairs. Appellant was also wounded by one of the discharges. He stumbled down the stairs and into the street, where he received prompt assistance from a police officer who had been across the street in a patrol car and who called for a unit to transport appellant to a nearby hospital.

Appellant was charged with murder, robbery, criminal conspiracy and related offenses, and was tried in October, 1979 in the Court of Common Pleas of Philadelphia County. Appellant's defense was that he was an innocent bystander. Appellant testified that he had been at a party earlier that evening, had left the party to obtain some marijuana, and had met up with one Elijah Dennison and some other men who took appellant to 2833 West Diamond in an attempt to purchase the marijuana. Once inside, according to appellant, the other men pulled guns (to appellant's complete surprise), there was shooting and appellant was injured by the first shotgun blast. Appellant testified he had no intention of committing a robbery or of shooting anyone when he went to the speakeasy.

The jury disbelieved appellant's version of the events and returned a verdict of murder of the second degree, robbery, criminal conspiracy and possession of an instrument of a crime. Post-verdict motions were filed by trial counsel asserting only the standard "boiler-plate" allegations in support of a new trial (i.e., challenges to the weight and sufficiency of the evidence). Additionally, appellant filed a pro se motion for a new trial and in arrest of judgment which alleged the ineffectiveness of trial counsel, and sought the appointment of new counsel.

The lower court granted the pro se motion for appointment of new counsel who filed supplemental post-trial motions. New counsel represented appellant on May 6, 1980 at an evidentiary hearing held before the Honorable Theodore B. Smith, Jr., who was also the presiding judge at appellant's trial. On August 20, 1980, the post-trial motions were denied and appellant was sentenced to life imprisonment on the murder conviction and to lesser concurrent terms on the remaining convictions. Direct appeal was then taken to this Court. 1

Appellant first argues that he was unduly prejudiced by certain remarks made by the prosecutor in his closing argument and that the court's curative instructions were inadequate to dispell the prejudice. We disagree.

During his closing, the prosecutor made the following remarks in commenting upon appellant's "innocent bystander" defense:

Now, what did [appellant] say? He took the stand. He didn't say I wasn't there. What does he tell you? Is it out of Grimm's? Is it out of Mother Goose? Where is it from? Notes of Testimony (N.T.) at 1011.

Trial counsel immediately objected. The trial court sustained the objection and rendered the following cautionary instructions to the jury:

The Court: I'll sustain the objection. You [the prosecutor] may not characterize the defendant's testimony in such a fashion, and the jury will disregard that characterization entirely, the suggestion that the defendant's testimony was out of some fairytale. You heard the defendant's testimony. It's to be treated like any other witness's testimony and may not be characterized in that fashion. Do not use such expressions again. And you will disregard that characterization entirely, ladies and gentlemen.

The Prosecutor: May I continue, sir.

The Court: Yes, with the admonition I have given you. N.T. at 1011-12.

Certainly, it is improper for a prosecutor to express a personal belief or opinion as to the truth or falsity of evidence of defendant's guilt, including the credibility of a witness. Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979) (where defendant's version of events was branded a "big lie"); ABA Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8(b) (Approved Draft, 1971). However, it is equally clear that comments by the Commonwealth's attorney do not constitute reversible error unless the "unavoidable effect of such comments 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 objectively and render a true verdict." Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, 1176 (1979) (citations omitted). Moreover, whether this standard has been violated is, in the first instance, a determination within the trial court's discretion, to be reversed on appeal only upon abuse of that discretion. Id.

While the prosecutor's comments may have been improper, we cannot say that the trial court abused its discretion in finding that there was no fixed bias or hostility formed in jurors' minds as a result of the comments, especially in light of the immediate, emphatic instructions to the jury and admonition to the prosecutor.

Appellant next argues that he was unduly prejudiced by an improper leading question asked of him by the prosecutor. During cross-examination, the following colloquy took place:

Q. [BY THE PROSECUTOR]: What kind of a shotgun did the other man have?

A. [BY APPELLANT]: They were shotguns. I saw them. They was long. That's why I say they was shotguns. I remember that one and a brown one.

Q. By the way, Mr. Anderson, what is your nickname?

A. Gage.

Q. Okay. Gauge like in 12-gauge shotgun, right?

A. No, it's not.

DEFENSE COUNSEL: Objection, your Honor.

PROSECUTOR: Thank you, Mr. Anderson.

APPELLANT: Not a 12-gauge shotgun.

DEFENSE COUNSEL: I ask that that be stricken. That's very improper for the District Attorney to--

THE COURT: He means is it spelled the same way.


THE COURT: How do you spell your nickname?


THE COURT: Very well. I'll--

APPELLANT: Come with a friend of mine, his name--

THE COURT: He's explained. It's not spelled the same way at all. It's the General Gage of revolutionary time.

DEFENSE COUNSEL: That's still a very improper remark, your Honor.

THE COURT: No--you mean, what he said?

DEFENSE COUNSEL: What the District Attorney just said.

THE COURT: He asked him is it spelled the same way as gauge in shotgun and he has said no, it's spelled G-A-G-E, not G-A-U-G-E.


THE COURT: Are you quarreling with my spelling of gauge for shotgun? How would you spell it?


THE COURT: What did I say?


THE COURT: Excuse me. We won't get into semantics in spelling.

Very well, we'll recess.

(A luncheon recess was held.) N.T. at 958-60.

It is asserted that the prosecutor's question "Gauge like in 12-gauge shotgun, right?" was a question with no probative value designed only to bias the jury by suggesting that appellant was the sort of person who might use or be familiar with shotguns, and that the prejudice engendered by this question deprived appellant of a fair trial. Again, we disagree.

This Court stated in Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521, 528 (1979):

We acknowledge that every improper and inflammatory leading question by a district attorney does not necessarily require a new trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Furthermore, the trial court has discretion in granting a mistrial, and instructions to the jury to disregard an improper and inflammatory question are adequate in many instances. However, we also acknowledge the effect of an improper and inflammatory leading question posed by a prosecutor "depends upon the atmosphere of the trial." See Stoltzfus, supra.

After reviewing the instant trial record up until the question which resulted in the mistrial request, (citation omitted), we conclude the "atmosphere of the trial" was such that the "unavoidable effect" of the improper and inflammatory leading question ... was to form in the minds of the jury bias and hostility ... and thus prevent an objective verdict.

In the instant case, the trial court acknowledged that, in retrospect, the prosecutor's question was probably a "heavy-handed attempt to point to the defendant as one habituated to the carrying of firearms, particularly in view of the non-evidentiary significance, otherwise, of whatever the nickname may have been." Lower court slip opinion at 10. Nevertheless, we agree with the trial court that the harm, if any, was de minimis. The atmosphere of this trial was a far-cry from the inflammatory trial in Hoskins, where...

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