Commonwealth v. McHugh

• Decision Date: 14 November 1958
• Citation: 145 A.2d 896,187 Pa.Super. 568
• Parties: COMMONWEALTH of Pennsylvania v. Joseph J. McHUGH and Robert K. Malloy, Appellants.
• Court: Pennsylvania Superior Court

145 A.2d 896

187 Pa.Super. 568

COMMONWEALTH of Pennsylvania v. Joseph J. McHUGH and Robert K. Malloy, Appellants.

Superior Court of Pennsylvania.

November 14, 1958.

Application for Allocatur Denied Jan. 5, 1959. [Copyrighted Material Omitted]

Joseph P. Brennan, Scranton, for appellants.

Carlon M. O'Malley, Dist. Atty., William J. Kearney, First Asst Dist. Atty., Scranton, for appellee.

Before RHODES, P. J., and HIRT, WRIGHT, WOODSIDE, ERVIN and WATKINS JJ.

RHODES President Judge.

Joseph J. McHugh and Robert K. Malloy appealed from judgments of sentence imposed by the Court of Quarter Sessions of Lackawanna County after their conviction, together with certain other defendants, of the crime of conspiracy. The indictment charged defendants, Joseph Bartell [Bartel], Philip E. Brady, Joseph J. McHugh, and Robert K. Malloy, with conspiring to unlawfully, willfully, wantonly, and maliciously damage and destroy and cause to be damaged or destroyed a certain partially built and constructed building in the City of Scranton. All the defendants were convicted on the charge of conspiracy; the jury returned a verdict of not guilty, however, on another indictment charging malicious mischief.

Appellants contend that they did not receive a fair and impartial trial because of the closing argument of the district attorney which is alleged to have been inflammatory and prejudicial, and because of the charge of the court which is alleged to have been argumentative in favor of the Commonwealth.

Appellants and their co-defendants were officials of various labor unions in the Scranton area. In 1953, a nonunion construction company from Luzerne County contracted to build a house for Joseph and Ellen Denny on Seymour Avenue in the City of Scranton. Work was started on December 29, 1953. On December 31, 1953, as the work progressed, Joseph Bartell, one of the defendants who has not appealed, appeared on the job. His home joins the rear of the Denny property. Bartell was business agent for the local carpenters' union and was president of an organization of trade unions called the Scranton Building Trades Council. Bartell asked who was doing the work and whether it was a union job; upon being told that it was not a union job he said that it had better be. Work continued on the building, and McHugh placed a picket from the teamsters' union at the job.

On January 15, 1954, a group consisting of twenty to forty men appeared at the premises. They climbed on the scaffolding, forced off the men working on the building, removed the mixing tool from the workman at the mortar box, and surrounded a truck which was delivering material. The workmen were warned that there would be trouble if any more work was done on the building. After the work had been gorcibly stopped, appellants McHugh and Malloy appeared at the premises.

On January 17, 1954, appellants were among those who met with approximately twenty-five men who were connected with labor unions in Scranton. Malloy announced that the purpose of the gathering was to do a job on the nonunion construction, and that they were going to damage the foundation walls. He further stated that the nonunion contractor had a nerve to construct a building practically in the back yard of President Bartell of the Scranton Building Trades Council, and that they were going to teach the contractor a lesson. The group then obtained wrecking bars, and between 10:30 and 11:00 o'clock that evening they proceeded to the Denny property. Appellants and the co-defendants were present and participated in damaging and destroying the property. Malloy destroyed the cement; McHugh used a crowbar to punch holes in the cinder block wall. Other members of the group participated in the criminal acts, which reveal the antecedent conspiracy.

The sufficiency of the evidence to sustain convictions is not questioned by appellants on these appeals. The questions raised are limited to the district attorney's closing address to the jury and to the charge of the court.

The closing remarks of the district attorney are alleged by these appellants to have been improper, inflammatory, and prejudicial. A district attorney is a quasi judicial officer charged with important duties which include the proper presentation of the case for the Commonwealth as the circumstances demand. Com. v. Exler, 61 Pa.Super. 423, 437. A district attorney in his closing address or argument may properly 'state reasonable inferences from the facts and comment with some severity, in proper cases, upon the credibility of defendant's testimony. * * * [He] may press with zeal the commonwealth's case and by fair arguments discredit that of the prisoner; * * *.' Com. v. Crittenton, 326 Pa. 25, 30, 191 A. 358, 361. A district attorney in fairly presenting the case of the Commonwealth may urge upon the jury any deductions from the evidence which are legitimate, and he may point out to the jury the evidence which would justify the conviction of the defendants. Com. v. Bubnis, 197 Pa. 542, 550, 47 A. 748; Com. v. Nicely, 130 Pa. 261, 270, 18 A. 737. If it appears that the remarks may have been intemperate, the question arises whether they had prejudicial effect. 'Language of a prosecuting officer which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh the evidence and render a true verdict. Commonwealth v. Flaherty, 167 Pa.Super. 19, 74 A.2d 506.' Com. v. Drischler, 175 Pa.Super. 74, 78, 103 A.2d 467, 469. It must be recognized that where, under all the circumstances, the verdict rendered is a just one the language of the district attorney which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury. Com. v. Meyers, 290 Pa. 573, 581, 139 A. 374.

Bearing in mind these basic principles, we examine the specific remarks of the district attorney in this case to which objection is made. In the first part of his argument the district attorney stated to the jury: 'God forbid that the house wasn't built when that swarm of people went over that night, or they would have flattened it to the earth!' In commenting upon this remark, the court below said in its opinion: 'In closing defense counsel implored the jury not to brand defendants as criminals for $35 worth of building materials and characterized the crime as noting 'more serious than a Halloween prank.' It was, therefore, proper for the District Attorney to point to evidence that the property destroyed was worth hundreds of dollars; to assert that it was a serious matter; and to argue that the violent and lawless nature of the events indicated that more destruction would have been accomplished had the construction progressed further toward completion at the time. This was fair comment.' Appellants cannot complain of remarks which were invited or provoked by the argument of the defense, where such remarks were not excessive but were justified replies. Com. v. Sloat, 298 Pa. 10, 16, 147 A. 834; Com. v. Patskin, 372 Pa. 402, 422, 93 A.2d 704; Com. v. Grosso, 169 Pa.Super. 606, 611, 84 A.2d 239. In any event, after the attempt by defense counsel to minimize the destructive action of the defendants, it was proper for the district attorney to review the matter and to bring it into its proper perspective. See Com. v. Del Giorno, 303 Pa. 509, 518, 154 A. 786. Moreover, this remark was directed primarily...