Commonwealth v. Nicholson

SPAETH, Judge,

dissenting:

The judgment of sentence should be reversed and the case remanded for a new trial.

The majority says that “[it] find[s] that nothing which happened in the jury’s presence undermined counsel’s believability, impugned the appellant’s case or witnesses, evidence bias on the part of the court, or suggested that counsel could not continue as an effective spokesman for his client.” At 586. But what we find depends upon what we see. And what we see depends upon how we ¿pproach the problem at hand. Our findings, in other words, are controlled by our standards, and our standards, in turn, are disclosed by our findings. When we listen to music, and announce that we find it beautiful, we disclose our standard of beauty. When an appellate court reads a record, and announces that it finds that the trial was fair, it discloses its standard of fairness. I admit to feelings close to heartbreak at the majority’s disclosure today of this court’s standard of fairness.

1

The reason the majority has gone so wrong is that it has forgotten the fundamental principle of appellate decision: an appellate court mustn’t even start to read a record until it determines the appropriate standard of review. What makes this principle fundamental is that the result of the case will depend upon the standard of review chosen; if the appellate court chooses the wrong standard, it will almost certainly come to the wrong result.

This is readily seen by reference to the civil side. For example: In an equity case, we must regard the chancel *388 lor’s findings, when affirmed by the court en banc, as equivalent to a jury’s verdict. Eddystone Fire Co. No. 1 v. Continental Insurance Companies, 284 Pa.Super. 260 , 425 A.2d 803 (1981); Johnston Truck Rental Co., Inc. v. Fowler-McKee Co., 281 Pa.Super. 271 , 422 A.2d 164 (1980). In a default judgment case, we must decide whether, when all the circumstances have been weighed one against the other, it appears that the lower court abused its discretion. Provident Credit Corp. v. Young, 300 Pa.Super. 117 , 446 A.2d 257 (1982) (collecting cases); Funds for Business Growth, Inc. v. Woodland Marble & Tile Co., 443 Pa. 281 , 278 A.2d 922 (1971); James v. Reese, 250 Pa.Super. 1 , 378 A.2d 422 (1977). In a child custody case, we must make an independent judgment of what is in the child’s best interests. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa. Super. 63 , 434 A.2d 130 (1981); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91 , 432 A.2d 1066 (1981) (quoting Commonwealth ex. rel. Pierce v. Pierce, 493 Pa. 292, 296 , 426 A.2d 555, 557 (1981)). And so on. If in any of these cases we choose the wrong standard of review—if we feel too free in an equity case, or too restricted in a child custody case—our decision will also almost certainly be wrong.

The same holds true on the criminal side. There, roughly speaking, there are three standards of review, which may be distinguished from each other according to the attitude that the appellate court will take toward the defendant, as it applies one standard or another.

By the first standard, the court will, so to speak, ignore the defendant. For even though it is plain from the record that the defendant is guilty, the standard may require the court to discharge him. Two such cases commonly occur. The defendant may have been caught with contraband in his possession, and yet, if the police have gotten the contraband as the result of an unlawful arrest or search of the defendant, the court must suppress the contraband, knowing that the result of its order will be the defendant’s eventual discharge. Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 *389 L.Ed.2d 1081 (1961); Commonwealth v. Diggs, 260 Pa.Super. 349 , 394 A.2d 586 (1978). Or the defendant may have been convicted, on overwhelming evidence, and yet, if his trial was not held within the period specified by Pa.R. Crim.P. 1100, the court must order him discharged. Commonwealth v. Ehredt, 485 Pa. 191 , 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa.Super. 535 , 390 A.2d 1366 (1978).

By the second standard, the court will be, if not unreceptive to, at least skeptical of, the defendant’s arguments. Again, two such cases commonly occur. If the defendant argues that he was unlawfully arrested, the court will only ask whether a reasonable police officer could have believed that the defendant was engaged in criminal activity. Commonwealth v. Bartlett, 486 Pa. 396 , 406 A.2d 340 (1979); Commonwealth v. Stokes, 480 Pa. 38 , 389 A.2d 74 (1978). It may well be, and the court will concede, that the officer might have been mistaken, and that in fact the defendant is innocent. But that possibility won’t matter to the court’s decision on the legality of the arrest. Or the defendant may argue that the evidence was insufficient to support his conviction. In fact, most of the evidence may appear to the court, as it examines the record, to favor the defendant. Nevertheless, the court will discount, even ignore, that evidence, instead examining the record in the light most favorable to the Commonwealth. Commonwealth v. Boone, 467 Pa. 168 , 354 A.2d 898 (1975); Commonwealth v. Chapman, 255 Pa.Super. 265 , 386 A.2d 994 (1978). Although the majority does not acknowledge the fact, this is its approach to the record here: whatever doubts are suggested as to whether the trial was fair are dispelled in favor of the Commonwealth.

By the third standard, the court assumes that the defendant is innocent, and examines the record from that perspective. A noble statement of this standard may be found in People v. Zackowitz, 254 N.Y. 192 , 172 N.E. 466 (1939) (CARDOZO, CH.J.) There the issue was the admissibility of evidence of prior crime. The court reversed and ordered *390 a new trial, holding that admission of the evidence was contrary to the general rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it an issue. Explaining this rule, the court said: “In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar.” Id. at 197 , 172 N.E. at 468 .

It is this third standard that we should apply here. When appellant stood‘before the jury below, he was an innocent man. He was starting his life afresh. Accordingly, when we examine the record of what ensued, we should ask whether, as an innocent man, he received a fair trial.

This does not mean that we should ask whether the trial was without any error. The right to a fair trial is not, it has been properly said, the right to a perfect trial. Commonwealth v. McQuaid, 273 Pa.Super. 600 , 417 A.2d 1210 (1980); Commonwealth v. Grimm, 249 Pa.Super. 441 , 378 A.2d 377 (1977). In almost every trial, error will occur, and it would be intolerable to require that a trial be repeated, and re-repeated, until no error occurred. Accordingly, the question is not whether there was error, but whether the error was so serious as to deprive the defendant of his right to a fair trial. See, e.g., Commonwealth v. Snopek, 200 Pa.Super. 455 , 190 A.2d 161 , cert. denied, 375 U.S. 933 , 84 S.Ct. 338 , 11 L.Ed.2d 265 (1963); Commonwealth v. Harris, 195 Pa.Super. 606 , 171 A.2d 850 (1961).

The best, indeed, I think the only, way to answer this question is to assume that we were the ones on trial. Suppose that we, who know we are innocent, had been convicted. Would we say something like this? “The jury has wrongly found me guilty. And the judge made mistakes in conducting the trial. Still, the evidence against me was strong, the judge’s mistakes were not serious, and I can see why the jury found me guilty. Although I am bitterly disappointed, as a reasonable person I admit that I got a fair trial.” Only by such a standard can we ensure that “the presumption of innocence” is a presumption; that it is not an empty phrase but a source of protection; and *391 that when he stands before a jury, a defendant really does start his life afresh.

2

If one examines the record by the proper standard—from the perspective of an innocent man—one cannot, I submit, escape the conclusion that appellant was denied his right to a fair trial.

The prerequisite of a fair trial is that the trial judge conduct the trial with absolute impartiality. The judge must not, by his comments, or demeanor, or in any other way, display any partiality to or prejudice against either party or either attorney. Commonwealth v. Davis, 497 Pa. 335 , 440 A.2d 1185 (1981); Commonwealth v. England, 474 Pa. 1, 15 , 375 A.2d 1292, 1299 (1977); Commonwealth v. Williams, 468 Pa. 453 , 364 A.2d 281 (1976); Commonwealth v. Goosby, 450 Pa. 609 , 301 A.2d 673 (1973); Commonwealth v. Stallone, 281 Pa. 41 , 126 A. 56 (1924).

The majority seeks to justify the trial judge’s comments as within the scope of his discretion to control the scope and manner of cross-examination. At 381. A trial judge does, of course, have the authority in appropriate circumstances to limit cross-examination. But that authority must be exercised in a manner consistent with the judge’s duty to conduct the trial with absolute impartiality. Here, without question, the trial judge did not so exercise his authority. For when the judge said, “It takes no great shakes to confuse this man and take advantage of his inarticulation [sic],” he announced to the jury his opinion, not only that appellant’s counsel was taking advantage of the witness, but also, that any testimony elicited by counsel in support of appellant’s position was not to be credited because it came from a confused, inarticulate witness. Thus the judge made plain to the jury his own belief that appellant was guilty.

Perhaps the jury would have found appellant guilty anyway. It seems likely that they would have. For appellant’s defense that the robbery victims had fabricated their identification of him at the prompting of an old gang rival seems *392 weak, given the unanimous identification testimony by victims who had a good look at the robbers. Nevertheless, it was appellant’s only defense, and he was entitled to pursue it. The fact that the victims did have such a good look at the robbers cuts both ways. If appellant was so well known, and so plainly seen, by the victims, why did not at least one of them identify him to the police on the scene when the police asked for information about the robbery? It was in any event no part of the trial judge’s duty to undermine the defense by showing that he didn’t accept it.

In Commonwealth v. England, supra, the defendant, who was found guilty of first degree murder, objected to several intemperate remarks by the trial judge. There, after sustaining several objections to defense counsel’s use of leading questions, the trial judge said, “We don’t need any speeches Mr. Evans ... I have permitted great latitude now. I think we have gone far enough ____and after sustaining a Commonwealth objection to a question posed to defendant’s father concerning his son’s prison experience, “We are trying the events of January 24, 1971, not the entire prison system, Mr. Evans----and following defense counsel’s glance at a clock, “That clock won’t help you back there, Mr. Evans. It is about 3:12 now.” Id. 474 Pa. at 15 -16 n. 8, 375 A.2d at 1299 n. 8. In concluding that the defendant was not entitled to a new trial, the Supreme Court said:

Here, after a careful review of the record before us, we are satisfied that these isolated comments, which were directed solely to counsel and not his client, did not reach the level where it could be reasonably concluded that appellant was deprived of a fair and impartial trial. Appellant complains of no extended, aggressive or partisan examination of himself, Commonwealth v. Williams, 468 Pa. 453 , 364 A.2d 281 (1976); Commonwealth v. McCoy, 401 Pa. 100 , 162 A.2d 636 (1960), no indication of the opinion of the court on the merits of the case, Commonwealth v. Motley, 448 Pa. 110 , 289 A.2d 724 (1972); no expressions of doubt as to the credibility of a witness, *393 Commonwealth v. Butler, 448 Pa. 128 , 291 A.2d 89 (1972); and no independent manifestation of bias in favor of the prosecution, Commonwealth v. Hales, 384 Pa. 153 , 119 A.2d 520 (1956); Commonwealth v. Trunk, 311 Pa. 555 , 167 A. 333 (1933). Additionally, the court in its instructions properly charged that the jury was the sole judge of the facts and the arbiter of the truth. Under these circumstances we cannot say that the remarks of the court so tainted the proceeding as to require a reversal of the judgment of sentence. See Commonwealth v. Myma, [ 278 Pa. 505 , 123 A.2d 486 ], supra.

Id., 474 Pa. at 17 , 375 A.2d at 1300 .

Here, in contrast, there was “indication of the opinion of the court on the merits,” and an “independent manifestation of bias in favor of the prosecution.”

This case is very similar to some of the cases cited by the Supreme Court in Commonwealth v. England, supra, in particular, Commonwealth v. Butler, 448 Pa. 128 , 291 A.2d 89 (1972), and Commonwealth v. Hales, 384 Pa. 153 , 119 A.2d 520 (1951).

In Butler , the trial judge was alleged to have made an “extended grimace of surprise” in response to a statement by an alibi witness. The defendant argued that this “conduct of the trial judge deprived him of a fair trial by subtly conveying the Court’s own views on th[e] case, particularly on the credibility of the witnesses.” Id., 448 Pa. at 133, 291 A.2d at 92 . The trial judge responded to this argument by stating, “It is my opinion the Trial Judge has a right, if people are lying, as he believes, to examine him.” Id., 448 Pa. at 134, 291 A.2d at 92 (quoting transcript). The Supreme Court, however, emphatically disagreed with this opinion, stating:

Credibility is solely for the jury. Just as a trial judge is not permitted to indicate to the jury his views on the verdict that they should reach in a criminal case, Commonwealth v. Motley, 448 Pa. 110 , 289 A.2d 724 (1972); Commonwealth v. Archambault, 448 [Pa.], 90, 290 A.2d 72 (1972), similarly he is not permitted to indicate to a *394 jury his views on whether particular witnesses are telling the truth.

Id., 448 Pa. at 134-35, 291 A.2d at 92 .

The Supreme Court denied defendant’s request for a new trial, but only because the record did not support his allegation of an “extended grimace.” It is clear that if the trial judge had in fact grimaced, the Court would have ordered a new trial. Id., 448 Pa. at 136, 291 A.2d at 93 .

In Hales , the defendant’s conviction of first degree murder was overturned and the Court did order a new trial because of the trial judge’s remarks. There, defense counsel, on cross-examination of the chief of county detectives, asked about the circumstances of the defendant’s confession. The trial judge, after questioning counsel’s motives in asking the questions, said, “We are not going to permit that in this court room by innuendo, that these police officers and these county detectives deliberately try to trick any defendant____” 384 Pa. at 155 , 119 A.2d at 524 .

The majority suggests that the prejudicial impact of the trial judge’s remarks was mitigated by the judge’s cautionary instructions, the context of the trial, and the fact that the remarks were addressed to counsel, rather than to appellant. At 586.

First, the judge’s cautionary instructions could not, I suggest, begin to dispel the impression already given by the judge that he believed appellant guilty. “[The] trial judge is the person to whom the jurors look for guidance.” Commonwealth v. Stallone, supra, 281 Pa. at 43 , 126 A. at 57 . While jurors may understand that it is their responsibility to determine the facts, in exercising that responsibility they will almost certainly be influenced by the opinion of the trial judge, who will be seen by them as someone who has had far more experience than they in trying to determine the truth from the conflicting testimony often elicited at trials.

Second, the context of the trial did not mitigate but instead aggravated the prejudicial impact of the trial judge’s remarks. The incident of the inarticulate witness *395 was not the only time the trial judge disclosed his feelings about the case.

For example: When appellant’s counsel, on cross-examination of one of the police officers who had responded to the robbery, attempted to elicit an explanation for the lack of identification by the victims, the following occurred:

Q. My question to you is that: knowing that the robbery had just been committed a short time before that in that area, in the area where the store was, because it was committed at the store, weren’t you concerned about whether or not they could identify anyone and find those people while the trial \sic; “trail?”] was still fresh and send out flash information?

THE COURT: Are you concerned about what he should have done?

Now, he’s just told you [what is] on the [police report sheet] and are you going to go over what he should have been concerned with?

MR. COGAN [defense counsel]: No, because—

THE COURT: You’re making argument. What you’re trying to extract from this witness is what he did, not what he should have done, or what was better to do.

MR. COGAN: I’m not attacking him for what he did, your Honor.

THE COURT: You shouldn’t attack him for anything.

MR. COGAN: That’s not the point.

THE COURT: Don’t argue what should have been done, we are concerned with getting identification descriptions down. He didn’t do it.

THE COURT: Rephrase your question, Mr. Cogan. And listen to the witness, what he did.

N.T. 511-512.

It seems to me most unfortunate that a trial judge should, sua sponte, instruct defense counsel that he “shouldn’t attack [the prosecution’s witness] for anything,” for surely, in the jury’s eyes, that puts the judge on the prosecution’s side.

*396 Another example: During the Commonwealth’s cross-examination of appellant, appellant’s counsel requested a sidebar. The court denied the request, and the Commonwealth proceeded with its questioning. The following then occurred:

MR. COGAN: Your Honor, most respectfully as an offi-. cer of the court, I would ask to see you at sidebar. I assure you it’s not dilatory. I have a reason to see you at sidebar.

N.T. 676.

At sidebar appellant objected to “the district attorney sitting there for the last several minutes with a police criminal record in front of him in plain view of the jury.” Id. Counsel also moved for a mistrial. The trial judge acknowledged that the district attorney had a file in which “it might be possible there is a criminal record,” but concluded that it would have been impossible for the jury to have seen it, id. at 677, and therefore overruled counsel’s objection and denied his motion for mistrial. I don’t question the correctness of this ruling. But immediately after the sidebar, the following occurred in open court:

THE COURT: Counsel, I don’t want any more dialogue. Did both you gentlemen understand that? I don’t permit dialogue at the time court is in session.

MR. BOOKER [counsel for appellant’s co-defendant]: Sir?

THE COURT: Did I advise you, Counselor, I don’t want dialogue going on while the court is in session unless you ask permission?

MR. BOOKER: No, sir, you didn’t ever say that.

THE COURT: I’m sure I did.

MR. BOOKER: You mean between myself and co-counsel?

THE COURT: Yes, indeed.

MR. BOOKER: You never advised us of that sir.

THE COURT: Will you please discontinue it.

MR. BOOKER: I will abide by it, sir.

Id. at 678-79.

*397 From this the jury must have gotten the impression that appellant’s counsel’s entirely proper request for a sidebar had in fact been improper and that during sidebar, appellant’s counsel and his co-defendant’s counsel had done something that required them to be scolded before the jury.

Other instances might be cited of conduct manifesting irritation with the defense. N.T. 217-19; 263-65; 293-94; 492-93; 701-08; 807. However, I put no particular weight on these instances; they weren’t all in the presence of the jury, and in any case, there is no requirement that a trial judge be unfailingly sweet-tempered. In my view, the incident of the inarticulate witness was by itself reversible error. I have only cited other instances in response to the majority’s suggestion that the incident of the inarticulate witness was an isolated instance, the prejudicial impact of which was mitigated by the context of the entire trial.

Finally, I fail to see the relevance of the majority’s observation that the trial judge’s remarks were addressed to counsel, rather than to appellant. The point is that the remarks, with their implications regarding the judge’s opinion of appellant’s guilt, were made within the hearing of the jury. The prejudicial impact of the remarks was in no way diminished—it may even have been enhanced—by being addressed to counsel, rather than to appellant.

3

I admitted at the beginning of this opinion to feelings close to .heartbreak. I suppose that statement seems somewhat overwrought, but I don’t think it is.

I have little doubt that appellant is guilty, and I fully expect that after a fair trial he would be convicted again. But appellant’s guilt isn’t what this case is about. It’s about whether we mean what we say, when we say that every defendant is entitled to a fair trial. “Words, words, words!” said Eliza Doolittle. “Don’t talk to me of love! Show me!” It’s what we do that counts, not what we say. Every form of art, every intellectual discipline, is weakened *398 when its fundamental principles are ignored—when we say they are important, but by our actions show they are not.

The judgment of sentence should be reversed and the case remanded for a new trial.

CERCONE, President Judge, concurs in the result.