Commonwealth v. Scarfo

FORD ELLIOTT, Judge,

dissenting.

I must respectfully dissent. As to the majority’s first ground for reversal, while I agree that there must be a further inquiry to determine the extent, if any, of the intrusion into the strategies of the defense caused by the testimony of Eugene Milano, I would limit relief at this time to a hearing to determine whether, in fact, any strategic or defense information was relayed.

As to the majority’s determination that prejudicial error was committed by the admitted references to “Made” Membership in the Mafia, I cannot agree that such evidence was inadmissible and nonprobative. As set out by the majority, evidence of other crimes is admissible when it tends to establish motive or is so intertwined or interrelated to the present offense such as to show common plan, scheme or design. I accept the Commonwealth’s explanation for both the relevancy and the admissibility of the challenged evidence and adopt from the Commonwealth’s brief as follows:

Similarly, evidence that under Scarfo participation in a killing was a prerequisite to Mafia membership was also admissible because it provided strong evidence of motive, incentive and reward. For three defendants, Philip Nar *417 ducci, Ligambi and Nicolos Milano, the D’Alfonso murder was their ticket to induction into the Mafia. Scarfo promised to initiate them when the killing was accomplished, and he later fulfilled that promise by formally inducting them at ceremonies after D’Alfonso’s death. Moreover, co-defendant Larry Merlino, although already a capo in the Mafia, specifically shared this initiation motive when he nominated his friend Ligambi for the team of killers in order to insure Ligambi’s Mafia induction. While other defendants who were already Mafia members, may not have personally shared this initiation incentive for their participation in the D’Alfonso killing, they implicitly adopted this goal on behalf of the others by supervising the murder plan, as in the cases of defendants Iannarella, underboss Salvatore Merlino and witness Thomas Del Giorno, or by assisting in the stalking and murder so that their brothers would be inducted, as in the cases of defendant Frank Narducci, brother of defendant Philip Narducci, and witness Gino Milano, brother of defendant Nicolos Milano.

Finally, despite defense assertions to the contrary, there was no undue prejudice as a result of evidence referring to participation in murder as a Scarfo membership rule. Not only was there testimony from Gino Milano that mob rules were often broken but consistent with the defense request, the trial judge, in his final jury charge, explicitly instructed the jurors as to the limited purpose for which evidence of other offenses and organizational affiliation had been introduced and could be considered. Defendants did not object to this instruction, which comported with the applicable law and adequately instructed the jury as to their duty in evaluating this evidence. Commonwealth v. Billa, supra. Accordingly, defendants’ claim that ‘other crimes’ evidence was wrongly introduced at trial must be denied.

Appellee’s brief at 54-56 (Notes of testimony citations omitted).

*418 Likewise, I must disagree with the majority’s grant of relief based on prosecutorial misconduct. At oral argument, I, too, expressed my serious concerns about what I considered to be the District Attorney’s unnecessary conduct which allowed for allegations of misconduct to be raised with ease and numerosity. I was challenged by the very able appellate advocate representing the Commonwealth, to carefully review the entire context of the closing arguments before coming to any conclusions on the merits of the allegations. This I have done and now conclude that while the references made by the Commonwealth upon which the majority reverses may have been unnecessary and risky, I cannot find them to be wholly inappropriate based upon the evidence presented at trial and the closing arguments of defense counsel. Commonwealth v. Badman, 398 Pa.Super. 315 , 580 A.2d 1367 (1990); Commonwealth v. Phillips, 398 Pa.Super 58, 580 A.2d 840 (1990), appeal denied, 527 Pa. 643 , 593 A.2d 417 (1991); Commonwealth v. Goins, 508 Pa. 270 , 495 A.2d 527 (1985); Commonwealth v. Johnson, 336 Pa.Super. 1 , 485 A.2d 397 (1984).

The prejudice attending the District Attorney’s remarks must be weighed within the context of a given case. While I find the metaphoric “wolfpack” references utilized by the district attorney to be hard hitting and compelling rhetoric, I must also find it to be within the bounds of responsive comment to the biblical references utilized by defense in closing argument. Additionally, the context of the district attorney’s remarks, albeit very graphic, were directly related to the Commonwealth’s theory of the conspiratorial nature of the murder involved. In the recent case of Commonwealth v. Jones, 530 Pa. 591 , 610 A.2d 931 (1992), our supreme court had occasion to review a claim of prosecutorial misconduct which involved the prosecutor’s references to defendants in closing argument as “murdering, child-killing, backshooting trio” likening them also to “slaughterers” or “executioners.” Therein the supreme court stated: “We have reviewed all nineteen of the ex *419 cerpts cited by appellant and find none which would warrant relief. Nearly all of the comments were justified as having a reasonable basis in the record and as being within the bounds of vigorous oratory permitted a prosecutor in closing argument.” Id., 530 Pa. at 617 , 610 A.2d at 943 .

I would affirm the judgments of sentence.