Com. v. Nicholson

• Court: Superior Court of Pennsylvania
• Citation: 308 Pa.Super. 370,454 A.2d 581
• Parties: COMMONWEALTH of Pennsylvania v. Mark NICHOLSON, Appellant.
• Decision Date: 23 December 1982

Page 581

454 A.2d 581 308 Pa.Super. 370 COMMONWEALTH of Pennsylvania
v.
Mark NICHOLSON, Appellant. Superior Court of Pennsylvania. Argued June 24, 1982.
Filed Dec. 23, 1982.

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[308 Pa.Super. 372] Dennis J. Cogan, Philadelphia, for appellant.

Gaele M. Barthold, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.

CIRILLO, Judge:

This is an appeal from the judgments of sentence, dated February 27, 1979, of the Court of Common Pleas of Philadelphia County.

On February 2, 1978, three men armed with guns entered the B & D Variety Store at 51st and Brown Streets in Philadelphia and robbed eight persons of money, watches, wallets and other personal possessions. The appellant, Mark Nicholson, was arrested on May 19, 1978 in connection with this incident. Each of the victims testified at the trial and all were able to identify the appellant, either subsequent to the incident or at trial, as one of the robbers. Their testimony established that the store was well-lighted, that they had an excellent opportunity to observe the unmasked faces of the intruders, and that the robbery lasted more than thirty minutes. Additionally, the victims testified that they had seen the appellant in the neighborhood on previous occasions.

[308 Pa.Super. 373] The appellant denied culpability and alleged that the victims conspired to falsely identify him as one of the perpetrators. He sought to support this hypothesis by establishing that none of the victims immediately identified him, either my name or by nickname, to the first police officers on the scene, although he was known by some of the victims. Furthermore, the appellant introduced evidence that he and one of the victims, Jasper Golatt, had belonged to rival gangs earlier and therefore, he contended, Golatt was responsible for the alleged fabrication.

The appellant was convicted by a jury of eight counts of robbery. He subsequently filed post-trial motions for a new trial and in arrest of judgment, which were denied. Following a presentence investigation and a neuropsychiatric examination, the Honorable Curtis C. Carson, Jr. sentenced the appellant to concurrent terms of imprisonment of not less than five years nor more than ten years. The appellant's appeal from these judgments of sentence was argued before a panel of this Court, and was

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reargued before the Court en banc. ¹ We affirm the judgments of sentence of the lower court.

The appellant's first contention on appeal is that certain remarks of the trial judge, made in the presence of the jury, were prejudicial and require the granting of a new trial. ²

The appellant sought to ascertain whether police, when first arriving on the scene, had asked the victims if they knew who committed the robbery. During the cross-examination of Harry Singleton, one of the robbery victims, the following occurred:

308 Pa.Super. 374] Q. And when the police came in the store, there was no discussion with the police with you about what had happened and who the people were; is that right

A. Right.

Q. In fact there was no discussion between the police and the other people, other than you--

THE COURT: How can he testify to that?

DEFENSE COUNSEL: If he was there, your Honor.

THE COURT: Well, that doesn't make any difference. He doesn't know what the police asked the other people and I wish you would correct the cross examination to bring out the facts. He doesn't know what the police said to somebody else not in his presence.

DEFENSE COUNSEL: Could we have a sidebar conference?

THE COURT: No.

DEFENSE COUNSEL: I have an objection to make.

THE COURT: Make your objection.

DEFENSE COUNSEL: That wasn't his testimony, my objection is that he was there--

THE COURT: He cannot testify--how does that man know what the police said to other people? According to his testimony, there were nine other people involved in this, the victims of this holdup. Now, how can he tell what the police asked other people?

DEFENSE COUNSEL: My objection respectfully is, your Honor, that that is the proper response to give if he doesn't know what was said, then he says 'I don't know what was said.'

THE COURT: Are you taking into consideration the intelligence of this young man who is on the stand? He's not a lawyer like you. He doesn't know the well-termed phrases. It takes no great shakes to confuse this man and take advantage of his inarticulation [sic].

DEFENSE COUNSEL: I'm not doing that, your Honor.

THE COURT: You are.

[308 Pa.Super. 375] DEFENSE COUNSEL: Most respectfully, I object, your Honor, and I feel that I would like to make some argument out of hearing of the jury. I want to protect my client's interest--

THE COURT: I know what your objection is. I want you to proceed with your questioning.

DEFENSE COUNSEL: I have a motion as well.

THE COURT: That's denied, too.

Cross-examination of the witness then immediately continued:

Q. Mr. Singleton, was there any conversation between the police and any of the other people in your presence?

A. No, not that I know of.

The appellant concedes that the intervention by the trial judge did not harm his cross-examination. Rather, he argues that the judge's remarks castigated his counsel,

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bolstered the credibility of witness Harry Singleton, portrayed his counsel as a "trickster", and may have influenced the attempted impeachment of other Commonwealth witnesses.

"It is a maxim of our jurisprudence that a trial judge occupies an exalted and dignified position and that absolute impartiality in the conduct of the trial is expected of him." Commonwealth v. England, 474 Pa. 1, 16, 375 A.2d 1292, 1299 (1977); See also, Commonwealth v. Nesbitt, 276 Pa.Super. 1, 419 A.2d 64 (1980). However, as this Court has articulated:

Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.

Commonwealth v. Axe, 285 Pa.Super. 289, 294, 427 A.2d 227, 230 (1981); Commonwealth v. Wright, 279 Pa.Super. 608, 421 A.2d 365, 368 (1980); Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). This [308 Pa.Super. 376] standard has also been adopted by the Pennsylvania Supreme Court in the case of Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).

In Commonwealth v. Davis, 497 Pa. 335, 440 A.2d 1185 (1981), the subsequent dialogue transpired:

BY THE COURT:

Q. What was he talking to you about?

A. He wasn't talking about too much. Just about my case, that is all. About my case, like when I get on the stand for me to tell what I know about the case. What happened to me. That's what I'm doing.

Q. That's what your [sic] doing now?

A. Yes.

Q. Did he tell you to say anything that you are not saying now?

A. No.

Q. Did he tell you to say anything that was not part of your case?

MR. SAGEL: Judge, may I interrupt and--

THE COURT: Never interrupt the court. Sit down.

MR. SAGEL: I respectfully--

THE COURT: Sit down.

MR. SAGEL: I respectfully object, Sir.

THE COURT: I said to you to sit down.

MR. SAGEL: I must object--

THE COURT: Sheriff, take him into custody. We'll stand in recess, members of the jury.

The Supreme Court held that the impact of this incident was prejudicial to the appellant and, therefore, a new trial was awarded. In his majority opinion, Mr. Justice Nix observed:

It was a situation likely to leave an indelible impression upon the viewers. The severity of the court's responses would suggest to the uninitiated that counsel's conduct represented a grave departure from the conduct expected of one in his position. There was a reasonable probability the incident may have distracted the jury from an objective[308 Pa.Super. 377] appraisal of those legitimate issues presented on the question of guilt or innocence.

Discord between the trial court and defense counsel is also likely to affect the client's cause. The client's position may be deemed less worthy in the eyes of the jury, by their translating the court's displeasure as an indication of the lack of substance in the client's cause. The fact that counsel is perceived by the jury as having engaged in some serious misbehavior may suggest to the jury that he was forced to resort to such behavior because of the hopelessness of his client's case. The lack of respect for counsel, which may well have been engendered, would necessarily diminish his effectiveness as a persuasive advocate of his client's positions.

497 Pa. at 341-342, 440 A.2d at 1188.

Likewise, in Commonwealth v. Horvath, 446 Pa. 11, 285 A.2d 185 (1971), the Supreme Court held that the defendant was deprived of a fair and impartial trial where the trial judge engaged in extended, critical and unnecessary discussion with defense

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counsel in the presence of the jury. ³ In [308 Pa.Super. 378] granting a new trial, the majority stated (per Justice O'Brien):

When a judge subjects counsel for one of the litigants to undeserved oral criticism, the delicate balance upon [308 Pa.Super. 379] which the creation of such an atmosphere depends may be affected. The jury is bound to remember the incident and the danger is too great that the part represented by the lawyer thus criticized may be prejudiced.

446 Pa. at 18, 285 A.2d at 188.

However, in the case of Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977), the grant of a new trial was denied by the Supreme Court despite the following remarks of the trial judge:

THE COURT: I know your name is Joe McGraw; but I really don't. I surmise it. You have always been known to me by that name; but I really don't know that is your name if you want to be strict about it. And we went through this thing a...