Commonwealth v. Baranyai
Decision Date | 12 March 1982 |
Citation | 296 Pa.Super. 342,442 A.2d 800 |
Parties | COMMONWEALTH of Pennsylvania v. Frank BARANYAI, Appellant. |
Court | Pennsylvania Superior Court |
Argued April 12, 1979.
Bruce E. Dice, Pittsburgh, for appellant.
Kemal Mericli, Asst. Dist. Atty., Pittsburgh, for Commonwealth appellee.
Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
This is not the first time this matter has been before the Superior Court. When it was previously here, an opinion was filed and an order entered which set aside appellant's conviction on a general charge of official oppression but affirmed the judgment of sentence imposed following conviction of a specific assault and act of official oppression by appellant a policeman, against one Dave Stier. See: Commonwealth v Baranyai, 278 Pa.Superior Ct. 83, 419 A.2d 1368 (1980). In affirming the latter judgment of sentence, we decided, inter alia, that the closing remarks of the prosecuting attorney had not been preserved for appellate review because they had not been recorded and because defense counsel had failed to interpose any objection to the prosecutor's closing argument. Only after the jury had left the courtroom and counsel had adjourned to the trial judge's chambers did counsel complain and move for a mistrial. On allocatur to the Supreme Court, the matter was "remanded to the Superior Court for consideration of the merits of Mr. Baranyai's objections to the closing remarks of the attorney for the Commonwealth at trial."
Following closing arguments of counsel, but prior to the court's jury instructions, counsel retired to the judge's chambers. There, the following occurred:
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"He called him Buford Puser (sic), Clint Eastwood; that, again, is shocking and prejudicial. 'To get out of town;' and comments about New York-I thought those were highly prejudicial.
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.... "So, on the basis of the above-called him a paper hanger, also-that's prejudicial.
Because the closing arguments of counsel were neither recorded nor transcribed, [1] we are unable to ascertain the context in which these alleged remarks were made. Nevertheless, in order to comply with the Supreme Court's mandate, we accept as correct the assertions made by defense counsel and not denied or otherwise explained in chambers by the prosecuting attorney.
Frank Baranyai was a police officer in the Borough of Millvale, Allegheny County. He was charged with and tried for various alleged instances of assault and official oppression, i.e., police brutality. During the trial, the Commonwealth attempted to show that appellant had pursued a course of conduct in which he arrested people without cause, frequently abusing them physically during the course thereof. The defense countered by showing that the arrests had been legal and that the force used, if any, had been necessary to effect the arrest. It was against this background that counsel for the Commonwealth charged that the appellant was a "punk behind a badge," a "Buford Pusser," a "Clint Eastwood," a "paper hanger," who employed "Gestapo tactics."
The Supreme Court has made clear "... that the prosecuting attorney enjoys an office of unusual responsibility, and that his trial conduct should never be vindictive or attempt in any manner to influence the jury by arousing their prejudices." Commonwealth v. Potter, 445 Pa. 284, 287, 285 A.2d 492, 494 (1971); Commonwealth v. Toney, 439 Pa. 173, 180, 266 A.2d 732, 736 (1970). With respect to closing argument by the lawyer for the Commonwealth, the Supreme Court has adopted the rationale of the ABA Standards Relating to the Prosecution Function. See: Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978). See also: Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). These Standards include the following: ABA Standards Relating to the Prosecution Function, Section 5.8. See also: Commonwealth v. Starks, supra at 56, 387 A.2d at 831-832.
Nevertheless not every intemperate or improper remark by the prosecutor requires a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). Before a new trial is required, the language must be such that its "unavoidable effect ... 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 and render a true verdict." Commonwealth v. Mikesell, 475 Pa. 589, 595, 381 A.2d 430, 433 (1977); Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975); Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Youngkin, 285 Pa.Superior Ct. 417, 429, 427...
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