Com. v. Rhone

• Decision Date: 27 January 1993
• Citation: 619 A.2d 1080,422 Pa.Super. 521
• Parties: COMMONWEALTH of Pennsylvania v. Joseph RHONE, Appellant.
• Court: Pennsylvania Superior Court

Page 1080

619 A.2d 1080

422 Pa.Super. 521

COMMONWEALTH of Pennsylvania v. Joseph RHONE, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 14, 1992.

Filed Jan. 27, 1993.

Norris E. Gelman, Philadelphia, for appellant.

Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, BECK and BROSKY, JJ.

BECK, Judge:

We decide, inter alia, whether the district attorney's closing statement alluding to appellant's failure to testify constituted prosecutorial misconduct. We find it did not. Because we find no merit in any of appellant's challenges, we affirm the judgment of sentence.

Appellant was sentenced to life in prison for first degree murder, five to ten years for conspiracy, and two and one half to five years for possession of an instrument of crime. The case against appellant was based entirely on circumstantial evidence.

On November 5, 1975, Herschel Williams, also known as the Jolly Green Giant, was shot to death as he entered his car with his two young children in front of their home. Very shortly after the shooting, appellant and two other men were arrested for Williams' murder. After a suppression hearing in which the court ruled that some of appellant's statements to police would be admissible at trial, appellant failed to appear for trial. After nearly thirteen years of attempting to locate appellant, police discovered him in Philadelphia and he was brought to trial in 1991.

Several civilian and police witnesses testified for the Commonwealth. The civilian witnesses established that on the day of the murder, three men in a green cadillac were present on the street where Williams lived. Two of the men wore brown hats; one of the hats was identified as a brown jeff cap. The two men who wore hats left the car and were seen approaching Williams from opposite sides of the street, whereupon they shot him repeatedly. None of the witnesses was able positively to identify appellant as one of the shooters. Within minutes of the shooting, a call went over police radio describing the vehicle involved in the shooting. Police stopped a car matching the description and arrested its occupants, including appellant. At the time of his arrest, appellant was wearing a brown jeff cap. In addition to testimony regarding the events on the day of the shooting, the Commonwealth offered police testimony that appellant had been seen the day before, in the same green cadillac, driving behind the victim's car.

At the time of his arrest, appellant acknowledged in a statement to police that he was present at the scene of the shooting, but claimed to have been in the car the entire time. He stated that he heard the gunshots but did not witness Williams' murder. When apprehended thirteen years later in his daughter's home, appellant reached for a loaded gun on the mantle in response to the forced entry of police into the home. Appellant did not testify at trial.

Appellant's first allegation of error is that in his closing, the prosecutor improperly referred to appellant's failure to testify at trial, and that such reference constitutes reversible error. The prosecutor's comments must be placed in context. In his summation to the jury, the defense attorney made remarks which are pertinent to appellant's claim of error. Therefore, a review of defense counsel's closing statements, as well as those of the prosecutor, is necessary. Referring to inconsistencies in two statements of appellant admitted at trial, defense counsel, Norris Gelman, stated:

Now, Mr. Rhone gives this statement and he waives his right to a lawyer, says I don't want to remain silent, I will talk to you. And he talks. Now, admittedly the second statement to [Detective] Stephans is inconsistent with the first statement to [Detective] Muldoon. Not so bad. He didn't trust him. Muldoon was much brighter than he was, he didn't really approach him properly. Plus people lie when they are in police custody and told we are talking to you about the murder of the Jolly Green Giant. People don't want to talk about their friends, people don't want to talk about who got out of the car. It's very natural. That's a natural reaction.

At the end of his summation, defense counsel Gelman made the following statement:

I can do no more. We trust juries to keep us safe. You have to be sure before you can convict a person of murder. It is as Mr. Casey [assistant district attorney] says the most serious crime. My client pled not guilty, he meant it. He meant it. This evidence, ensconced in this evidence is not just a reasonable doubt--one reasonable doubt is enough not to convict--but several.

When the assistant district attorney, Mr. Casey, delivered his closing to the jury, he made the following statements:

I of course have a closing that I prepared. We don't just wander in off the street and talk to you. But before I go into the the closing I have prepared, the defense attorney said several things that I want to address immediately before going into a prepared closing.

* * * * * *

A couple of other things the defense attorney said is that the Defendant pled not guilty and he meant it. I don't know if he meant it or not. He pled not guilty. If he hadn't pled not guilty you would not be here. Saying you are not guilty is the way you get this case to trial; that's what it means, it is not testimony under oath. I can't cross-examine him, I could say, hey, pal, you pled not guilty, tell me about this gun that you reached for on the mantle, what do you think about that, were you trying to continue your flight. I can't do that and you can't hold it against the Defendant--

Mr. Gelman: Objected to. That is objected to.

The Court: Let him finish what he was saying.

Mr. Casey: You can't hold it against the Defendant that he didn't testify. But, but keep in mind that he did not testify, it is the defense attorney who has said these things. The defense attorney, not the Defendant. Because you have seen cross-examination--

Mr. Gelman: That is objected to again, Your Honor, and move to strike.

Mr. Casey: The defense attorney didn't say that?

Mr. Gelman: I said he pled not guilty.

Mr. Casey: And that he meant it. That is the way we got to trial.

Mr. Gelman: I object and I move to strike.

The Court: Well, he is answering what you said about he meant it, okay.

Mr. Gelman: We object and move to strike.

The Court: Well ...

Mr. Casey: I assume I can proceed?

The Court: Whenever you say something he has a right to answer it.

Mr. Casey: He also said, well, it is a natural reaction for people to lie to the police. It is? What is that, Psychology 302? Only the guilty hide and lie, that is part of concealment. Kid walks by a cookie jar, knocks it off the table, says it wasn't me, mom, it was Charlie. Because they have something to hide they lie. That's why people lie: They are concealing things. The judge is going to tell you flight, concealment, give rise to an inference of a guilty mind. The Defendant didn't say that when he was talking to the police, it was just a natural reaction to lie. Once again the defense attorney said that to you. So everything the defense attorney said that the Defendant thought or believed is not evidence. Because it came from the defense attorney's mouth, not from the defendant's mouth. And once again you can't hold it against the Defendant and I absolutely believe--

Mr. Gelman: That is objected to again.

Mr. Casey: If he don't want to--

Mr. Gelman: Move to strike, motion for mistrial.

The Court: Denied.

Despite the Commonwealth's argument to the contrary, we do not believe that appellant's challenge to these statements is waived merely because counsel failed to request a prompt curative instruction. We find that defense counsel's objections, motion to strike and request for a mistrial were sufficient to preserve the issue for appeal.

Under the authority of the United States Constitution and Pennsylvania law, counsel is prohibited from commenting on a defendant's decision not to testify at trial. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (fifth amendment prohibits prosecutor from commenting that defendant refused to tell his side of the story, notwithstanding state statute that allowed such comment); 42 Pa.C.S.A. § 5941 (prohibiting comment on criminal defendant's exercise of right to remain silent at trial). Permitting such comments allows the prosecutor to use a defendant's failure to take the stand as evidence against him, "which in the minds of the jurors would be indicative of guilt." Commonwealth v. Henderson, 456 Pa. 234, 238, 317 A.2d 288, 291 (1974). In Henderson, the prosecutor told the jury that all of the witnesses cooperated in the trial process by coming in to testify and "doing what they're supposed to do." He then noted that the defendant looked harmless because "he [hadn't] said a word and [was] quiet." Id. at 236-37, 317 A.2d 288. The court found that the statements by the prosecutor tended to indicate that the defendant had some sort of duty to testify and that because he did not testify, the jury could infer that he was guilty. Id. at 238, 317 A.2d 288. Other statements by prosecutors have been ruled improper because the inference of guilt was obvious. See Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976) (prosecutor delivered lengthy commentary on the possible explanations for defendant's not guilty plea); Commonwealth v. Russo, 283 Pa.Super. 421, 424 A.2d 536 (1980) (prosecutor challenged defendant to testify in presence of jury).

While the rule prohibiting comments is clear, the fact that this case falls within an exception to the rule is equally clear. A comment regarding a defendant's failure to take the witness stand is proper if it is made fairly and is not an attempt to raise an adverse inference in the mind of the jury. Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (1965). In Commonwealth v. Hess, 378 Pa.Super. 221, 548 A.2d 582 (1988), appeal...