Com. v. Hodge

• Decision Date: 18 February 1977
• Citation: 246 Pa.Super. 71,369 A.2d 815
• Parties: COMMONWEALTH of Pennsylvania v. Patrick HODGE, Appellant.
• Court: Pennsylvania Superior Court

Page 815

369 A.2d 815

246 Pa.Super. 71

COMMONWEALTH of Pennsylvania v. Patrick HODGE, Appellant.

Superior Court of Pennsylvania.

Submitted June 14, 1976.

Decided Feb. 18, 1977.

Joseph L. Ditomo, Jr., Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., and F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge:

The appellant, Patrick Hodges, files the instant direct appeal to our Court following his conviction after jury trial on charges of robbery, aggravated assault and battery, rape, forcible rape with serious bodily injury, solicitation to commit sodomy, assault with intent to commit sodomy and sodomy. All charges arose out of a sordid incident in which appellant and several other persons savagely attacked, beat, raped and otherwise sexually assaulted a woman in January, 1972. During this incident, the victim was brutally abused and humiliated in a series of events which included torture and threats of disfigurement. Post-trial motions were heard and denied and no December 5, 1975, appellant was sentenced to a term of fifteen to forty years of imprisonment.

The appellant's first claim is that his rights were violated by an unduly suggestive identification procedure. The record shows that during the investigation of the crime, police showed the victim a number of photographs, including a photograph of appellant. The victim identified appellant's photograph as one of the participants in the attack. This was the sole display of such a photograph to the victim.

Prior to trial, appellant filed a motion to suppress the evidence of the pre-trial photographic identification and the victim's identification testimony at trial. The court granted the suppression of testimony concerning the pre-trial photographic identification. Such ruling was proper since the Commonwealth failed to retain the photographs which were utilized and thus made it impossible under the circumstances to review the fairness of the procedure challenged. See Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974). Contrary to appellant's argument, we also find that the lower court acted properly in permitting the in-court identification by the victim in the instant case.

The record shows that the identification provided by the victim was of an independent source and in no way tainted by the photographic display even if we assume that such single pre-trial photographic identification was improper. The victim expressed no doubt about her belief that appellant was one of her attackers. She had seen him on two occasions prior to the assault. During that unfortunate incident she was in his presence at close range for approximately four hours. She was even aware of his nickname. Under these circumstances, the testimonial identification by the victim was clearly an untainted one and was properly admitted by the trial court. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).

Next, appellant claims that reversible error occurred when the district attorney allegedly commented adversely on the failure of the defendant to testify when he stated that certain information could only come from the 'lips of the defendant.' Our review of the record shows that the comment in question, when examined in the context of the whole colloquy in which it occurred, did not comprise an inference or suggestion to the jury concerning any failure to testify by appellant. Such a suggestion would have, of course, been improper and violative of the Fifth Amendment rights of the accused if made. See also 19 P.S. § 631; Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); Commonwealth v. Reichard, 211 Pa.Super. 55, 233 A.2d 603 (1967).

At trial in the instant case, defense counsel, on redirect examination of a defense witness, was attempting to elicit a statement from the witness concerning what the accused had told him. The district attorney properly objected that such question appeared to be a solicitation of hearsay testimony. In making this contention, the district attorney stated:

If I may be heard, sir, I believe that this is testimony--based upon the circumstances of the questioning and the previous testimony--that has to have come only from the lips of the defendant. I won't say anything more at this point, but I think its blatant hearsay.

This remark was addressed to the court and could not be construed in the light argued now by appellant. The comment clearly related to the testimony sought from the defense witness and was not an adverse comment on a failure to testify on the part of the accused. Moreover, the jury could not have been misled in view of the following clear instruction given by the trial judge:

It's entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the Constitution, to remain silent. You must not draw any inference of guilt from the fact that the defendant did not testify.

It is well established that such remedial instructions to the jury can operate to rectify prior prejudicial error. Commonwealth v. Lopez, 455 Pa. 353, 318 A.2d 334 (1974). Thus even assuming Arguendo that the comment could have created an adverse inference, such curative instruction leads us to reject appellant's claim of improper prosecutorial comment.

Next, appellant contends that reversible error occurred when the court permitted to police officer to testify that he knew the appellant by the nickname 'Crazy Wolf' as a result of prior contacts with him. It is claimed that such testimony was lacking in probative value but allowed the jury to speculate that the appellant had a prior criminal record which made him and his nickname familiar to the officer. The record positively refutes such claims. First, the nickname was relevant since the victim recalled hearing the other attackers refer to appellant by that name during the criminal incident. Second, no inference of a prior criminal record was possible as the officer was thereafter asked directly if his prior contacts with the accused, during which he gained knowledge of the nickname, had occurred when the appellant was being arrested for any crime or even under investigation for any crime. The officer replied in the negative. It is apparent that no prejudicial inference of prior criminal activity could have arisen as a result of the testimony at issue. Cf. Commonwealth v. Carlos, 462 Pa. 262, 341 A.2d 71 (1975) and Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972) (both cases concerning references to photographs of an accused).

Appellant next contends that he was denied a public trial as a result of the alleged exclusion of certain spectators from his trial. This claim is patently frivolous. At the outset of testimony by the victim, and as a result of the pending description of the sordid details of the sexual assault by that witness, the district attorney sought to have a visiting group of high school students leave the courtroom. The district attorney noted not only the delicate nature of the testimony to be offered, but also the emotional distress possible to the witness from the large crowd of students who might hear of her tribulations. Pursuant to the request of the Commonwealth, the trial judge informed the students' teacher of the situation, whereupon she Voluntarily removed her class from the courtroom. Under these circumstances, the claim of denial of public trial must be summarily rejected.

Appellant argues that the trial judge exhibited partisanship in favor of the prosecution in asking certain questions of a single defense witness concerning flight by the accused after the Commonwealth had rested its case and had not presented evidence touching of flight. It is well settled that a trial court always has the right, and sometimes even the duty to interrogate witnesses in order to clarify evidence, so long as the questioning is not biased or unduly protracted. See Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971); Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970); Commonwealth v. Lanza, 228 Pa.Super. 300, 323 A.2d 178 (1974). The record shows that a defense witness, a man who claimed that appe...