Com. v. Jubilee

• Citation: 589 A.2d 1112,403 Pa.Super. 589
• Parties: COMMONWEALTH of Pennsylvania v. Dennis JUBILEE, Appellant.
• Decision Date: 14 May 1991
• Court: Pennsylvania Superior Court

Page 1112

589 A.2d 1112

403 Pa.Super. 589

COMMONWEALTH of Pennsylvania v. Dennis JUBILEE, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 9, 1990.

Filed March 7, 1991.

Reargument Denied May 14, 1991.

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, KELLY and CERCONE, JJ.

WIEAND, Judge:

Dennis Jubilee was tried by jury and was found guilty of rape and corruption of a minor in connection with a sexual assault upon his six year old niece. Post-trial motions were denied, and Jubilee was sentenced to serve consecutive terms of imprisonment for not less than ten (10) years nor more than twenty (20) years on the rape conviction and for not less than two and one-half (2 1/2) years nor more than five (5) years for corrupting a minor. A motion to modify sentence was denied without hearing, and Jubilee appealed. He contends that (1) he was denied his constitutional right to a public trial when the trial court ordered the courtroom locked during jury instructions; (2) the trial court erred in denying defense motions for mistrial following prosecutorial misconduct during closing argument; (3) the trial court committed error when it allowed the prosecution to introduce prior consonant statements of the victim; and (4) the trial court erred when it required appellant's mother to read to the jury during cross-examination a letter containing references to her son's sins and use of drugs. We conclude that there is merit in several of these arguments. Therefore, we will reverse and remand for a new trial.

The criminal charges against appellant arose from an incident which occurred in June or July, 1986, while appellant was living at the home of his sister, Lydia Jubilee, and her five children. Late one evening, six year old Keia Jubilee left her bedroom and went downstairs to the living room to watch television. While she had been sitting on the couch, she said, appellant had removed his pants and "jumped" on top of her, forcing his penis "a little bit" into her vagina and causing her to cry. He told her, she said, that he would kill her mother if she reported what he was doing. When appellant heard one of the victim's sisters moving about upstairs, he got off her, and she ran back upstairs to her bedroom.

A short time later, the child attempted to tell her mother, but her words were ignored. However, in December, 1986, the mother questioned the victim about whether she had been sexually abused by her uncle. The victim then denied twice that she had been abused. Later the same day, however, she related to her mother the incident for which appellant was prosecuted. She also related the details of the assault to two social workers from the Department of Human Services and to a police officer.

At trial, the defense contended that the victim's mother had forced the victim to make false accusations against appellant so that the mother could extort money from her family. Therefore, the victim was vigorously cross-examined regarding her initial denials that she had been assaulted and was asked whether she had been pressured by her mother to accuse appellant. The victim said that she had been initially reluctant to tell her mother what happened because she feared that appellant would make good on his threat to kill the mother. After the victim had concluded her testimony, the Commonwealth presented the testimony of two social workers and the policeman to whom the victim had reported the assault. These witnesses testified to the victim's description of the assault, which was generally consistent with the version which she had told her mother.

Prior to charging the jury, the trial court ordered that the courtroom doors be locked to prevent children, who had been present at the trial, from causing a disturbance by running in and out of the courtroom. Defense counsel objected. ¹ On appeal, the defendant argues that by closing the courtroom doors the trial court denied him the constitutionally guaranteed right to a public trial. We disagree. The decision of the Superior Court in Commonwealth v. Bullock, 384 Pa.Super. 269, 282-283, 558 A.2d 535, 541-542 (1989) is controlling of this issue. There, the trial court had ordered that spectators not be permitted to enter or leave the courtroom during the jury charge because squeaky courtroom doors would have caused a disturbance. In rejecting the argument that the trial court's action had denied the defendant a public trial, the Superior Court observed: "Members of the public were free to remain in the courtroom during the court's charge. Thus, the protections guaranteed by the right to a public trial were not offended...." Commonwealth v. Bullock, supra at 283, 558 A.2d at 542.

"In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made." Commonwealth v. Williams, 346 Pa.Super. 456, 459, 499 A.2d 1089, 1091 (1985), overruled on other grounds, Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989). See also: Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Toledo, 365 Pa.Super. 224, 236, 529 A.2d 480, 486 (1987). "Generally, 'comments by the district 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. Strong, 522 Pa. 445, 454, 563 A.2d 479, 483 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also: Commonwealth v. D'Amato, 514 Pa. 471, 490, 526 A.2d 300, 309 (1987); Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986). The initial determination whether the prosecutor's remarks were unfairly prejudicial rests within the sound discretion of the trial court, and "our inquiry of necessity must turn to whether an abuse of discretion was committed." Commonwealth v. Strong, supra, citing Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). See also: Commonwealth v. D'Amato, supra, 514 Pa. at 491, 526 A.2d at 310; Commonwealth v. Ellis, 398 Pa.Super. 538, ----, 581 A.2d 595, 606 (1990) (en banc).

The first portion of the prosecutor's closing argument to which appellant objected was as follows:

Let's think about something else. The defense attorney in his opening statement indicated he would present two little girls to say how Keia said to them this is all a lie. He said he would present Tamika and he said he would present Rashanna. Well Rashanna, ladies and gentlemen, never showed up to testify, as far as I can see.

MR. MAAS: Objection, Your Honor.

THE COURT: Sustained.

MS. PERLIS: Rashanna did not testify, and I suggest to you the reason for that. The reason is that with Angela Jubilee and Tamika Jubilee testifying he got two different stories.

MR. MAAS: I object. She was available--

THE COURT: Sustained.

MR. MAAS: --to the Commonwealth.

MS. PERLIS: I suggest that would have been a third, would have been a third story.

I also suggest, ladies and gentlemen--

MR. MAAS: I object to that. The Commonwealth could have called that witness.

We find no abuse of discretion in the trial court's denial of a defense motion for a mistrial on the basis of the above quoted remarks of the prosecuting attorney. Where the prosecutor merely challenged the defendant's failure to produce a witness who allegedly would have provided favorable testimony, the comments were not improper. See: Commonwealth v. Yarris, 519 Pa. 571, 597, 549 A.2d 513, 526 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989); Commonwealth v. Johnson, 457 Pa. 554, 561-562, 327 A.2d 632, 636-637 (1974); Commonwealth v. Womack, 307 Pa.Super. 396, 406, 453 A.2d 642, 647 (1982). In this case, in any event, the trial court sustained objections to the prosecuting attorney's remarks. The denial of the defense motion for additional relief in the nature of a mistrial was not error.

Later remarks by the prosecuting attorney present a different and more difficult issue. She said:

Furthermore, [the victim] went and talked to a judge once before, and you heard the defense attorney cross-examine her about some minor points that she said differently to the first judge than she did to you. Well, in that entire packet from that first hearing you can assume that all the rest of it was consistent, because if it wasn't, the defense attorney would have picked it out.

MR. MAAS: Objection, Your Honor.

THE COURT: Sustained.

MS. PERLIS: So, in other words, what she said at the preliminary hearing was consistent with what she said at the trial.

MR. MAAS: Objection, Your Honor.

THE COURT: Overruled.

Appellant argues that by these comments the prosecutor improperly bolstered the victim's credibility by referring to facts not in evidence.

It is well settled that "[t]he district attorney must limit [her] remarks to facts in evidence and legitimate inferences therefrom." Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980). See also: Commonwealth v. D'Amato, supra 514 Pa. at 489, 526 A.2d at 309; Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 235 (1983); Commonwealth v. Glass, 486 Pa. 334, 347, 405 A.2d 1236, 1243 (1979). Here, the record of the preliminary hearing was not in evidence. Therefore, it was improper for the prosecuting attorney to suggest to the jury that the victim's trial testimony was consistent with the testimony which she had given at the preliminary hearing. By this statement the prosecuting attorney attempted improperly to bolster the victim's credibility by asserting that she had previously told a consistent story. Where, as here, the...