Commonwealth v. Perillo

• Decision Date: 17 August 1977
• Citation: 474 Pa. 63,376 A.2d 635
• Parties: COMMONWEALTH of Pennsylvania v. Salvatore PERILLO, Appellant.
• Court: Pennsylvania Supreme Court

376 A.2d 635

474 Pa. 63

COMMONWEALTH of Pennsylvania v. Salvatore PERILLO, Appellant.

Supreme Court of Pennsylvania.

August 17, 1977

Argued Jan. 18, 1977.

Nino V. Tinari, Stephen P. Patrizio, Philadelphia for appellant.

F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst Dist. Atty., Chief, Appeals Div., William J. Stevens, Jr., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX and MANDERINO, JJ.

OPINION

EAGEN, Chief Justice.

Salvatore Perillo was convicted by a jury in Philadelphia of murder of the first degree. Post-verdict motions were denied and judgment of sentence of life imprisonment was imposed. This appeal followed.

Perillo advances seven assignments of error as grounds for the grant of a new trial. ^[1] Of the seven assignments of error five involve alleged prosecutorial misconduct at various stages of the proceedings, one involves the trial court's instructions to the jury concerning proof beyond a reasonable doubt, and one involves the manner in which the Commonwealth proved Perillo's prior criminal record.

Initially, we must determine if the assignments of error now advanced are properly preserved for review since the Commonwealth maintains they are waived because Perillo failed to assert them in written post-verdict motions. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Written post-verdict motions of the "boiler-plate" variety were filed on February 6, 1975 and contained the following:

"The defendant reserves the right to file Additional and Supplemental Reasons for New Trial and Arrest of Judgment when the Notes of Testimony taken at the trial have been transcribed and a copy thereof made available to counsel for defendant."

Thereafter, on June 2, 1975, at the time of argument on post-verdict motions, Perillo filed a brief setting forth specifically each and every assignment of error now advanced and legal argument in support thereof. The court en banc entertained and considered each and every one of these assignments of error. Under the circumstances, we believe the requirement, that post-verdict motions and all assignments of error be in writing, Pa.R.Crim.P. 1123, has been substantially complied with. ^[2]

Since it is clear from the record that the prosecuting attorney was guilty of misconduct which precluded a fair trial and the rendition of an objective decision by the jury, we will order a new trial on this basis without reaching the other assignments of error.

The relevant facts are as follows:

On July 28, 1973, at approximately 11:45 a. m., John Benkert was fatally wounded by a gunshot while seated in his car at a highway intersection in south Philadelphia. At trial, two eyewitnesses identified Perillo as the person who shot Benkert. Perillo was also connected to the killing through a fingerprint, and through ballistic tests which compared cartridge casings of bullets found at the scene of the crime with cartridge casings of bullets fired from a .25 caliber pistol owned by Perillo and seized by police pursuant to a search warrant. The defense disputed the validity of the Commonwealth's evidence concerning the fingerprint and the validity of the conclusions which were drawn from the ballistics tests. Additionally, the defense presented various witnesses in an attempt to establish Perillo was not at the scene of the crime at the time Benkert was shot. In this connection, the defense called Daniel Murtha who testified, in effect, that he saw a person with a gun fleeing the scene of the killing and that Perillo was not this person.

During cross-examination of Murtha, the following occurred:

"(By the Commonwealth:)

"Q. Now, Mr. Murtha, yesterday you were telling us about your conversations with the defendant. Sir, in your conversations with this defendant did this defendant give you a description of an eyewitness who testified in this court just three weeks ago against him, sir?

"(Defense Counsel:) Objection, Your Honor.

"The Court: Objection overruled.

"A. No, sir.

"Q. And, did he tell you in this conversation, sir, that it was his intention, through his private investigator, to bribe this particular witness had failed

"(Defense Counsel:) Objection.

"Q. and he needed you to turn the tables on the witness?

"(Defense Counsel:) Objection, Your Honor.

"The Court: Objection sustained. The Jury will ignore it. As I told you before, and I am instructing you again, testimony comes from the mouths of witnesses not from the statements of counsel.

"(By the Commonwealth:)

"Q. Did he tell you, sir, that he needed you to come in here and lie as a fancy trick to turn the tables and turn the thing around

"(Defense Counsel:) Objection.

"Q. because he couldn't succeed in what he was trying to do with this particular eyewitness ?

"(Defense Counsel:) Objection. I move for a mistrial, Your Honor.

"May we see you at side-bar? There is a case exactly on point concerning this kind of cross-examination.

"The Court: All right.

"(Whereupon a discussion was held at side-bar as follows:)

"(Defense Counsel:) Judge, the kind of cross-examination wherein there is in the question itself inflammatory statements such as being made has already been ruled upon by the Supreme Court in this Commonwealth. They are sufficient, in and of themselves, to cause a reversal. I would ask the Court, at this time, to admonish the Assistant District Attorney in that regard. He can certainly ask the questions all he wants, but not by certain inflammatory remarks. That is the testimony that he is giving and I

"The Court: All right. Mr. Campolongo, you cannot render your opinion either to the Jury during closing or by the nature of the questions you ask as to what weight, if any, should be given to any witness' testimony. By the type of questions you are asking you are advising the Jury your opinion that you don't believe this witness and, therefore, he is lying. I am instructing you, at this time, to stop that kind of questioning. It is prohibited and not allowed.

"I am going to instruct the Jury to disregard it again. Now, please cross-examine in accordance with the rules.

"(The Commonwealth:) Yes, sir.

"(Whereupon the following took place in open court before the Jury:)

"(By the Commonwealth:)

"Q. Now, let me ask you about

"The Court: Wait a minute. Just a moment, Mr. Campolongo.

"(The Commonwealth:) Yes, sir.

"The Court: Ladies and gentlemen of the Jury, again I want to remind you and instruct you that evidence comes from the mouths of witnesses and not from statements made by counsel, and even if there are questions that indicate certain matters, that is to be ignored by you and certainly the questions of the District Attorney are to be ignored by you and disregarded.

"You may proceed, Mr. Campolongo.

"(By the Commonwealth:)

"Q. Now, did you have a conversation, sir, with Mr. Tinari, the attorney who represents the defendant prior to your coming to testify?

"A. No.

"Q. You had no conversation with him at all

"A. I met him in his office

"Q. is that correct?

"A. I met him in his office one time and that was it, which was on

"Q. You said good morning to him; is that correct?

"A. I told him my name and who I was and what I was here for. Other than that I had no other conversations.

"Q. You had no other conversations. You just told him your name when you went to his office; is that correct?

"A. Yes.

"Q. When was that?

"A. Tuesday.

"Q. Tuesday?

"A. Yes.

"Q. You made a special trip to go in to see him on Tuesday to tell him what your name was; is that correct, sir?

"A. Well, I told him who I was and what I was there for.

"Q. What you were there for?

"A. Yes.

"Q. You didn't talk to him about the case; is that correct?

"A. Right, No.

"Q. For example, he didn't tell you that he was present in court when an eyewitness testified. He didn't tell you anything about what this eyewitness looked like because he, Mr. Tinari, was sitting right there when the eyewitness testified.

"A. Sir

"(Defense Counsel:) Objection. He knows there was a sequestration order.

"Q. The witness was sitting right there.

"The Court: Just a moment, gentlemen. You are going into an area of what he might or might not have said. Mr. Tinari, this is proper cross-examination.

"(Defense Counsel:) What Mr. Tinari said? That is the problem. It's hearsay.

"The Court: What he said to Mr. Tinari.

"(Defense Counsel:) I'm sorry, Your Honor.

"(By the Commonwealth:)

"Q. Mr. Tinari, didn't he give you the description of a Mr. Stea, and didn't Mr. Tinari say to you, 'Look '

"A. I don't "Q. ' I want you to describe this guy because he's going to be another eyewitness and we're going to do a neat trick. We're going to turn the tables around and you'll get money for it.'?

"(Defense Counsel:) Objection.

"Q. Is that what he told you?

"A. I told him what I seen and heard.

"The Court: Just a moment.

"(Defense Counsel:) It's the same thing.

"The Court: Mr. Campolongo, I think I have already instructed you as to what is allowable for cross-examination purposes of a witness, and I am instructing you again to follow the rules.

"I am advising the Jury, again, to disregard any statements by counsel.

"Now, let's go forward and let's do it appropriately." (Emphasis added.)

The Commonwealth concedes, as it must, that the above quoted questions were improper because they implied the witness had been bribed to perjure himself. See, e. g., Commonwealth v. Lipscombe, 455 Pa. 525, 317 A.2d 205 (1974); Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971). But the Commonwealth argues that: 1) the trial court's instructions were adequate to dispel any possible prejudice which resulted from the improper questions; and/or 2) the improper questions by the Commonwealth's attorney ^[3] were: a) in response to equally...