Com. v. Crawford

• Decision Date: 04 May 1973
• Citation: 452 Pa. 326,305 A.2d 893
• Parties: COMMONWEALTH of Pennsylvania v. Arthur CRAWFORD, Appellant.
• Court: Pennsylvania Supreme Court

Page 893

305 A.2d 893

452 Pa. 326

COMMONWEALTH of Pennsylvania v. Arthur CRAWFORD, Appellant.

Supreme Court of Pennsylvania.

May 4, 1973.

Rehearing Denied June 29, 1973.

Frank M. Jackson, John D. Egnal, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Edward G. Rendell, Asst. Dist. Atty., Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY, Justice.

Arthur Crawford, the appellant, was convicted by a jury in Philadelphia of second degree murder and conspiracy to commit murder and was sentenced to a term of ten-to-twenty years' imprisonment. Following denial of post-trial motions, appellant brought this direct appeal. We will reverse and remand for a new trial.

It is necessary to discuss only one of appellant's three allegations of error. ¹ The victim of the crime, Jesse Fisher, a fifteen-year old boy, was beaten and shot to death on August 12, 1969 by a number of youths, members of a rival street gang, as he slept on a step near the intersection of 15th and Clymer Streets in Philadelphia. Arthur Crawford was arrested and (along with others) charged with the crime after he gave an inculpatory statement to police authorities. The voluntariness of that statement was disputed at trial and appellant, corroborated by members of his family, testified that he had been at home at the time of the shooting.

One of the Commonwealth's witnesses was a fellow gang member of the defendant, one Ernest Downing, who testified at trial that he had overheard a conversation between two other members of the gang, Paul Geiger and Walter Westbrook:

'Paul Geiger and Walter Westbrook were talking about going over to 15th Street and move on somebody. Pual Geiger, I called him, Taboo, he was saying, 'you all going over?' He was talking to all the guys around there.'

In its charge to the jury, the trial judge summarized the above quoted evidence as follows:

'Ernest Downing said that this defendant was present and you will recall that he testified what he said; the defendant said, 'let's go over and get them.' And they all went over and fifteen of them or so went across Broad Street.'

The court then related how after further verbal assaults directed to the victim by the gang, the defendant, according to Downing 'pulled out his gun and shot the deceased several times'. The court then charged:

'That testimony alone, if you believe the testimony of Ernest Downing, will be sufficient to convict the defendant of one of the degrees of murder.'

At the conclusion of the charge defense counsel objected to and moved to strike the above quoted portion of the charge erroneously attributing to appellant the words of Geiger on the ground that it had defendant uttering damning words which no witness had placed in his mouth. The trial judge declined on the ground that he had frequently in his charge explained to the jurors that it was their recollection of the evidence that controlled, and that this was sufficient to cure whatever inaccuracies might have found their way into his review of the evidence. ²

We disagree, and find this particular misstement, timely objected to and not corrected, to have been prejudicial error.

It is true, of course, that it is within the discretion of the trial judge in Pennsylvania to summarize for the benefit of the jury the evidence adduced at trial. Commonwealth v. Westley, 300 Pa. 16, 150 A. 94 (1930); Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299 (1898). In doing so, however, the judge must bear in mind that his 'influence . . . on the jury is necessarily and properly of great weight . . . and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge's last word is apt to be the decisive word.' Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). It is therefore vital that the trial judge in his summary avoid material misstatements of the evidence in the case as well as avoid comments which would be taken as indicating the court's opinion on the question of guilt or innocence. Cf. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 5.6(a), at 68 (Approved Draft, 1972).

On at least one occasion in the past this Court has found it necessary to reverse a criminal conviction because the trial judge misstated the evidence in the case. In Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244 (1933), in which the defendant was convicted of bribery, the lower court misquoted the words attributed by a witness to the defendant. Mr. Justice Drew, writing for a unanimous court, observed:

'This variance between the testimony of the witness and the judge's account of it was of such nature as seriously to prejudice the interests of the defendant and to deprive him of a fair trial.'

Id. at 545, 168 A. 244 Mr. Justice von Moschzisker, in Commonwealth v. Colandro, 231 Pa. 343, 356, 80 A. 571 (1911), had earlier cautioned:

'It is only in exceptional instances, where, for example, it plainly appears that the charge is misleading, or that it has a tendency to withdraw the attention of the jury from material evidence, or to magnify the importance of the proofs on one side and belittle those on the other, that a trial judge will be reversed for inadequacy of charge in reviewing the evidence.'

More recently the Superior Court in Commonwealth v. Zeger, 200 Pa.Super. 42, 186 A.2d 922 (1962), has found reversible error in a situation analogous to O'Brien, supra. In the Zeger case the trial judge had inaccurately summarized the testimony of witnesses who had related conversations with the defendant, then on trial for unlawful solicitation of political contributions from governmental employees ('macing'). The Superior Court there said:

'However, in a case such as this where the fulcrum is what precisely was said by the defendant and what meaning a reasonable person could infer from it, it is necessary that any review of the...