Com. v. Cooper

• Decision Date: 21 June 1974
• Parties: COMMONWEALTH of Pennsylvania v. Robert COOPER, Appellant.
• Court: Pennsylvania Superior Court

Page 255

323 A.2d 255

229 Pa.Super. 52

COMMONWEALTH of Pennsylvania v. Robert COOPER, Appellant.

Superior Court of Pennsylvania.

June 21, 1974.

Petition for Allowance of Appeal Denied Sept. 13, 1974.

JACOBS, Judge:

The appellant was convicted following a nonjury trial of aggravated robbery, and thereafter sentenced to a term of imprisonment of 18 months to 5 years. In this appeal he alleges that the court denied him his basic constitutional right to effective assistance of counsel when it announced its verdict prior to giving counsel an opportunity to present his closing argument.

At the conclusion of the evidence, the following colloquy took place:

'THE COURT: Any other witnesses?

MR. STANSHINE (defense counsel): No, Your Honor. The defense rests.

THE COURT: Any rebuttal? Let me see the bills of indictment? Sir, as to Bill 951, July Term, 1972, the verdict is not guilty as to the charges of burglary. As to Bill 950, July Term, 1972, charging you with aggravated robbery, the verdict is guilty.

MR. STANSHINE: Would Your Honor care to hear argument?

THE COURT: If you want to make argument. You didn't indicate you wanted to make argument.'

Thereafter, defense counsel moved for a mistrial which was denied. The court then vacated its judgment, so as to permit closing argument, noting for the record: 'after both sides rested, counsel and the defendant approached the Court, and the Court pronounced its judgment. At no time did the defense counsel indicate that he wanted to be heard or make argument. When the Court was advised that defense counsel wanted to make argument, we vacated the judgment and asked counsel to proceed with his legal argument.' (N/T 80)

Argument was heard the following morning; and, thereafter, the appellant was pronounced guilty.

The absolute right to counsel proclaimed in Douglas v. California,372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), includes the right to have counsel make a closing argument prior to the verdict. This right to summation prior to verdict is a well established legal concept in Pennsylvania which dates back nearly a hundred years. Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887). 'Arguments of counsel are an integral part of a jury trial. They are not mere trial trappings which a judge is at liberty to dispense with . . ..' United States ex rel. Wilcox v. Pennsylvania, 273 F.Supp. 923, 924 (E.D.Pa.1967), Quoting Commonwealth v. Brown, 309 Pa. 515, 521, 164 A. 726, 728 (1933). The right to summation, which is recognized as an essential element of the right to full and effective representation by counsel, Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973), is equally applicable to nonjury trials, Commonwealth v. McNair, 208 Pa.Super. 369, 222 A.2d 599 (1966), and is recognized, whether the trial is jury or nonjury, as an important substantive right.

However absolute this substantive right may be, it still must be viewed through a glass tempered with the experience of nonjury trials and colored by the facts of the case. Argument in a nonjury case is frequently a right not asserted because of the simplicity of the case or because of the experience and knowledge of the trial judge. Where argument is made it is almost always less formal than in a jury case. It is often in the nature of a discussion with the court rather than one-sided argument.

The case before us shows no intent by the court to foreclose to the appellant his right to be heard by counsel prior to verdict. It indicates at most a...