author: HESTER, Judge: KELLY, Judge, WIEAND, Judge,

text:
    543 A.2d 1169
    COMMONWEALTH of Pennsylvania v. Ford HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1987.
    Filed June 6, 1988.

      Bruce A. Franzel, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before WIEAND, KELLY and HESTER, JJ.
   HESTER, Judge:

Following a jury trial held December 6-28, 1985, Ford Howard, appellant, was convicted of first degree murder, criminal conspiracy and possession of an instrument of crime. At the penalty hearing held December 31, 1985, the jury imposed a life sentence on the murder conviction. At the formal sentencing on September 3, 1986, the trial court denied post-trial motions and imposed the judgment of sentence of life imprisonment for murder, ten to twenty years imprisonment for conspiracy and two and one-half to five years imprisonment for possession, all sentences to be served consecutively. On reconsideration, the sentencing court reduced the conspiracy sentence to five to ten years and suspended the possession sentence. This appeal followed. Appellant raises seven allegations of trial error, all of which we reject. We affirm.

Five men conspired in the murder of James “Muscles” Reynolds, who died in the early morning hours of September 1, 1983, of seven gunshot wounds, three to the head and four to the body. The five men involved in the murder include: Craig Murphy (who was separately tried and convicted of first degree murder), appellant, Rodney Wells, Esau Burroughs and Morris Willis.' The latter four were tried together subsequent to Murphy’s trial. The murder was motivated by the victim’s drug dealings with Murphy, who was characterized as the principal in the shooting. Murphy, appellant and Wells actually shot the victim, and Burroughs was involved in planning the murder, as was Willis, who arranged to have the victim meet his executioners in a deserted playground in the early morning of September 1, 1983.

Commonwealth witness Keith Johnson testified that at approximately 10:30 p.m. on August 31, 1983, he overheard Murphy talking with appellant, Burroughs and Wells in the Motorcycle Club in Philadelphia. The four were plotting the manner in which they were going to murder a man referred to as Muscles. Murphy and appellant displayed their guns to Wells and Burroughs. Johnson heard appellant say “I’m going to kill the [expletive]” and “[I’m] not going to be playing.” N.T., 12/11/85 vol. 2, at 6-8. Murphy, appellant and Wells then departed, and when Johnson asked Burroughs if the three actually intended to shoot someone, the latter answered affirmatively. Murphy, appellant and Wells returned to the club at 2:00 a.m., displaying their guns. Johnson overheard appellant say to Burroughs that he had shot the victim in the head. All four left after learning that police were investigating the crime.

Commonwealth witness Bernard Williams testified that he had gone to the Motorcycle Club with Murphy early in the evening of the murder and had left that club to go to a different club across the street. Williams was leaving the second club just as Murphy, appellant and Wells were leaving the Motorcycle Club. Murphy told Williams to accompany the three men, and Williams complied. During the car ride, Williams heard Murphy discussing drug matters which he had “to take care of” with Muscles and appellant. N.T., 12/16/85, at 223-225. The four men went to the vicinity of the playground where the shooting occurred. Wells and appellant exited the car, which Murphy then parked. Murphy left Williams in the car, and Williams heard gunshots several minutes later. Soon afterward, Murphy returned to the car, informing Williams that he had “taken care of business.” N.T., 12/17/85 vol. 1, at 44, 46. Williams testified that he was never informed of the murder plot.

The victim’s wife, Sonia Mackie, testified that at around midnight on August 31, 1983, she received a call from co-defendant Willis, who informed her that she and Muscles were to meet him in the playground where the shooting later occurred in order to pick up drug money. Mackie decided to stay home while Muscles left for his rendezvous with death. Willis subsequently telephoned Mackie with the news of Muscle’s death. Sometime later, appellant admitted to Mackie that he was present at the murder, showing her the gun that he had used and admitting that Murphy had ordered him to kill her.

Appellant first alleges that he was improperly denied access to written reports made by two police witnesses as well as to grand jury testimony of several other witnesses. Two police witnesses, along with several others, testified solely to establish a relationship among the victim and the five men involved in the murder. Appellant conceded that the police witnesses’ written reports to which he was denied access related to the events surrounding the arrest of Murphy and Wells on September 5, 1983, for a different murder. See N.T., 12/11/85 vol. 1, at 52-57; N.T., 12/13/85, at 25-31. Thus, it is clear that the reports did not contain information either relevant to this murder that would be beneficial to appellant or upon which he could have based cross-examination. Furthermore, the two officers’ testimony was cumulative to that of several other witnesses as well as tangential to the evidence upon which appellant’s conviction rests. Accordingly, if error occurred, we find that such error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); cf. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).

Appellant also complains that the trial court erred in giving him edited portions of testimony of several of the Commonwealth witnesses who testified before an investigating grand jury. The trial court reviewed the grand jury testimony of those witnesses, omitted the portions relating to other investigations and gave appellant the portions relating to this murder. Although appellant speculates that the omitted portions of testimony relating to other investigations may have been helpful in his cross-examination of the witnesses, no trial error occurred. Pa.R.Crim.P. 263(b)(2); Commonwealth v. Kelly, 245 Pa.Super. 351, 369 A.2d 438 (1976), aff'd, 484 Pa. 527, 399 A.2d 1061, appeal dismissed, Kelly v. Pennsylvania, 444 U.S. 947, 100 S.Ct. 417, 62 L.Ed.2d 317 (1979).

Appellant’s next allegation is that the trial court incorrectly failed to give an accomplice charge with respect to both Keith Johnson and Bernard Williams. He argues that Williams and Johnson were accomplices in the murder and testified to avoid criminal liability. An accomplice charge with respect to a witness is warranted when the evidence at trial either requires or permits the inference that the witness may have been a participant in the crime. Commonwealth v. Smith, 343 Pa.Super. 435, 495 A.2d 543 (1985). In this case, there simply was no evidence to link Williams and Johnson to the crimes. Both unequivocally denied any involvement in planning or perpetrating the murder, and no other witnesses tied them to the crime. Presence at a crime scene and association with criminals are insufficient bases upon which criminal culpability may be predicated. Presence and association are the only pieces of evidence presented by appellant in support of his position that they were accomplices. We conclude that the trial court correctly determined that Williams and Johnson were not accomplices to the murder, and accordingly, the trial court did not commit error in refusing to so charge the jury. Commonwealth v. Smith, id.; Commonwealth v. Hines, 341 Pa.Super. 456, 491 A.2d 907 (1985); Commonwealth v. Richey, 249 Pa.Super. 365, 378 A.2d 338 (1977).

Appellant’s third argument is that he was denied his constitutional right to confront witnesses when the trial court failed to delete certain hearsay statements contained in a statement made by co-defendant Willis to the police. Detective Joseph Brignola testified that the day after the shooting, Willis described what he had observed the evening of the murder. Willis stated as follows. Willis called Muscles and asked to meet him at Willis’ house, which is near the playground where Muscles was murdered. Willis met the victim at the designated rendezvous point; the two men injected heroin together and walked toward the playground. Muscles went into the playground alone after Willis was called back home. Once Willis arrived home, he heard shots and left the house again, yelling for a woman named Francine, who was with a woman named Toby. Willis inquired concerning the shots, and Toby answered that she had seen “three guys in the park” and that “Muscles didn’t come out.” N.T., 12/10/25, at 113.

Appellant objects to the quoted language as inadmissible hearsay and requests a new trial on grounds that he was denied the opportunity to confront the hearsay declarant. We find that the declarations were admissible under the present sense impression exception to the hearsay rule and that no trial error occurred. Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985).

Appellant’s fourth allegation of trial error, that he was restricted in his cross-examination of the victim’s wife, is clearly meritless. Appellant tried to establish that Mackie testified solely to gain leniency in a pending drug proceeding that had been instituted against her. He cross-examined her on this issue extensively. N.T., 12/16/85, at 17-23, 44, 75. She denied that her testimony about her husband’s murder was motivated by promises or threats from the district attorney’s office about her drug case. Furthermore, her attorney’s testimony establishes that the district attorney’s office made no promises or arrangements. N.T., 12/19/85, at 61-67, 72-74, 80-87. That testimony also reveals that any expectations in that regard were not based on statements by any district attorney, but were based on Mackie’s attorney’s hopes that the possibility of leniency existed. Thus, appellant’s efforts to cross-examine Mackie on this issue were not curtailed; there was no independent evidence to establish that leniency was promised, and no trial error occurred. Cf Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

Appellant also complains that a statement made by co-defendant Wells to a man named Charles Harris implicated him in the murder and was introduced in violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Charles Harris testified that he had loaned his brown Toyota to Craig Murphy at the end of the summer of 1983. When Murphy returned the car to Harris at the beginning of September, 1983, Harris discovered blood on the right hand passenger’s seat as well as a half-filled box of bullets inside the glove compartment. After the police informed Harris that his car had been used in a homicide, Harris ran into Wells at the Philadelphia Detention Center. At trial, Harris related the conversation that he had had with Wells. During the conversation, Harris accused “them” of using his car for a murder, and Wells reassured Harris that “they” had not used Harris’ car, that “they” had used Murphy’s car and that police were incorrect. N.T., 12/17/85 vol. 1, 188-190; N.T., 12/17/85 vol. 2, at 207.

Appellant posits that it is clear that Wells’ use of the word “they” implicated him specifically in the murder and was introduced at trial in violation of Bruton. We disagree. Commonwealth v. Sanford, 323 Pa.Super. 436, 470 A.2d 998 (1984) (co-defendant’s redacted confession containing “we” and “us,” instead of specific names, admissible under Bruton); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980) (introduction of co-defendant’s confession containing plural pronouns in reference to other participants in crime was not a violation of Bruton); see also Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979).

Appellant also requests a new trial on the basis of two instances of alleged prosecutorial misconduct, described as follows. First, when appellant’s counsel asked if he could handle and examine three bullets from the victim’s body, the prosecutor objected, stating that he did not “trust” counsel and asking that someone from ballistics handle the bullets. N.T., 12/9/85, at 126. Second, during a sidebar proceeding, the prosecutor called appellant’s counsel a “sucker.” N.T., 12/19/85, at 56. We disagree with appellant’s contention that these remarks require a new trial, which is warranted only if the unavoidable effect of the prosecution’s remarks is to prejudice the jurors, forming in their minds bias and hostility toward the defendant to such an extent that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986). As to the first remark, the prosecution was expressing concern over the handling of vital, sensitive Commonwealth evidence, and we do not view his comments as rising to the requisite level of prejudice such as to require a new trial. As to the second remark, appellant failed to establish that the jury heard the remark. The record clearly indicates that the remark was made beyond the hearing of the jury, which cannot be prejudiced by something it did not hear. Appellant failed to ask the jurors if they heard the remark. A new trial is not warranted on the basis of these two remarks.

Appellant also argues that the prosecutor committed reversible error: 1) during his closing statement with the comment that: “We don’t need any new witnesses. We will go with what has brought us this far. And let’s talk about one down and four to go,” N.T., 12/27/85, at 8; and 2) when he hammered his fist on a large file box while repeating, “One down and four to go.” On the side of the box facing the jury appeared the names of Craig Murphy, appellant and the three co-defendants. There was a check mark next to Craig Murphy’s name. According to appellant, by allowing the jury to see this box and by the prosecutor’s statements, the message to the jury was, in effect, a directive to the jury to find appellant and his co-defendants guilty just as Craig Murphy had been found guilty by another jury.

In assessing appellant’s contentions, we are mindful that a prosecutor must limit his statements to the facts introduced at trial and the legitimate inferences therefrom. Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (plurality opinion). Moreover, the Commonwealth is afforded reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986). The Pennsylvania Supreme Court recently reaffirmed that we must apply the “unavoidable prejudice test” as articulated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), in determining the impact of prejudice in closing arguments.

[W]here .the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). 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. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.

Commonwealth v. Johnson, 516 Pa. 527, 532-34, 533 A.2d 994, 997 (1987). The Johnson court further advised: “Under this test, we are required to judge whether the mental bias of the jury has been so ‘fixed’ as to implicate the truth-finding function itself.” Id.

First, we address the issue of the prosecutor’s use of the file box. In Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984), and Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984), our supreme court condemned the prosecution’s use of a file box. In Beasley, a box was transported into the courtroom bearing the label, “Police shooting, homicide of police officer.” The trial court did not order a mistrial, finding that the label was not readable from the bench. The supreme court did not reverse, as it found no adequate basis upon which to determine the exact position of the box or the length of time the box was present. Nor could it conclude that the label could be read by any of the jurors. The court wrote:

Nevertheless, the prosecutor’s blatant and inexcusable inattention in bringing the labeled box into the courtroom is to be most strongly condemned. Such conduct needlessly injected this case with an issue that, under less speculative circumstances, could be deemed to have impaired the integrity of the trial. In the present case, however, any prejudice to the defense is of such a speculative nature as not to require that a new trial be granted.

Commonwealth v. Beasley, supra, 505 Pa. at 286, 479 A.2d at 463-64.

In Commonwealth v. Clayton, supra, 506 Pa. at 34 n. 1, 483 A.2d at 1350 n. 1, the supreme court reversed on other grounds, but noted:

The Appellant has raised the issue of whether the presence of a box on the prosecutor’s table marked with red lettering stating, “Willie Clayton-Murder, Robbery”, was a denial of his right to a fair trial. The box contained the trial file in this matter. Although we decline to address the issue at this point, we will take this opportunity to note that the preferable practice is to avoid actions which have the potential to affect a verdict against the defendant on appeal where precautionary measures may be taken effortlessly. Our concern is engendered by the fact that this claim is not founded on an isolated incident. In Commonwealth v. Beasley, [505] Pa. [279], 479 A.2d 460 (1984), we condemned similar needless conduct by a prosecutor and now; reiterate the concerns expressed therein.

In the instant case, we agree with the trial court that it was imprudent for the prosecutor to have utilized the file box in the manner in which it did, but we also agree with the trial court that a new trial is not warranted on this basis. Upon a defense objection to the box, the trial court observed it and noted it was difficult to see the lettering clearly, although it stated it could see the check next to Craig Murphy’s name. The defense objection at trial indicated that the file box was “right in front” of the jury. Regardless of whether the jury could clearly read the lettering on the box, it would be speculative to conclude that the box so prejudiced appellant as to warrant a new trial. The Clayton court declined to rest its holding on the presence of a similar box. We think it fair to note that, given our supreme court’s condemnation of the use of such heavy handed tactics, the prosecution’s actions have brought this case to the brink of reversal and display an irresponsibility which conflicts with the public trust placed in its office.

Nevertheless, viewing the overall atmosphere of the trial, a finding that appellant was fatally prejudiced is not appropriate. The trial was conducted over the course of many days. The jury considered great quantities of evidence, including appellant’s admissions to two witnesses that he had shot the victim. The lettered box, displayed in an isolated portion of the proceedings, also presented information about which the jury had already been made aware by the defense. It was the defense which had told the jury that Craig Murphy had been convicted, prior to the closing argument. We, therefore, agree with the conclusion of the trial court that that the presence of the box did not so sway the passions of the jury as to have rendered them incapable of weighing the evidence and rendering a true verdict.

Regarding the prosecutor’s comment about the witnesses having testified during Murphy’s successful prosecution and his use of the phrase “one down and four to go,” we again note that it was the defense that introduced evidence that Craig Murphy had been convicted of first degree murder for Muscles’ death. It was also the defense that repeatedly brought to the jury’s attention that these witnesses were the same people who testified at Murphy’s trial. Portions of their testimony at Murphy’s trial were used during cross-examination. Thus, the defense was responsible for initially informing the jury that Murphy was convicted on the basis of these witnesses’ testimony.

Moreover, even if the prosecutor’s remarks were intemperate, we cannot say that appellant was prejudiced. The remarks were made in the following context:

It was rather ironic ladies and gentlemen, the tack that was taken by the defense in this case. It was ironic in the sense that very seldom does the defense put before you the fact that someone has been convicted. And they put before you that the reputed head of this group, Craig Murphy, had already been convicted of murder in the first degree. Now, I told you initially that I would not apologize for any of my witnesses. Thousands of words have been written, been taken down, been made exhibits. You have the final word in this trial, in this drama, this drama that the defense would have you believe, as per their opening, came from some fantasy world and they paraded before you testimony from two other proceedings and preliminary hearings and said this is fantasy. But, they contradict that by saying Craig Murphy has already been convicted on the testimony of the witnesses that you heard. Does that make sense?
[Defense objection.]
We didn’t invent these witnesses. We didn’t create them. We don’t need any new witnesses. We will go with what has brought us this far. And let’s talk about one down and four to go.

N.T., 12/27/85, at 6-8 (emphasis added).

Thus, the objected-to portion of the argument merely repeated information already presented to the jury by the defense and was made in response to defense tacts. It was therefore proper. Commonwealth v. Nenninger, 359 Pa. Super. 444, 519 A.2d 433 (1986).

We also repeat that the isolated remarks relied upon by appellant to sustain his allegation of error came at the conclusion of a lengthy trial. They could not have so prejudiced the jury as to render them incapable of weighing the evidence objectively and returning a true verdict. Appellant is not entitled to a new trial on this basis.

Appellant’s final argument is that Rule 1100 was violated when his trial was delayed on July 22, 1985, due to the fact that the trial court had not decided the Commonwealth’s motion to consolidate appellant’s trial with that of Rodney Wells.

At the Rule 1100 hearings on October 7 and 10, 1985, the Commonwealth established that it had filed a motion to consolidate appellant’s trial with that of his co-defendants. The Commonwealth was prepared to proceed to trial but for the fact the court had not yet ruled on this motion. N.T., 10/7/85, at 5.

Appellant erroneously argues that the court’s unavailability to hear the motion for consolidation is irrelevant. Appellant’s complaint is that the consolidation motion delayed his trial; therefore, the trial court’s unavailability to hear the motion due to its heavy docket justified the grant of the Commonwealth’s petition to extend. See Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984) (judicial delay justifies a Rule 1100 extension). The Commonwealth had no control over when the trial court would decide the motion, and its reasonable attempts to obtain a ruling on the consolidation motion constitute due diligence. Commonwealth v. Simkins, 297 Pa.Super. 258, 443 A.2d 825 (1982) (delay in starting trial for court to consider suppression motion is judicial delay and extension is proper); see also Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).

Judgment of sentence affirmed.

KELLY, J., filed a concurring opinion.

WIEAND, J., filed a dissenting opinion.

KELLY, Judge,

concurring:

I join in the majority opinion. I write separately to explain my reasons for concluding that the prosecution’s improper statements made during its closing argument do not require a new trial.

During the course of the trial, the attorneys for the four co-defendants made liberal use of prior grand jury and trial testimony in the Craig Murphy case to develop their collective defense that: the principle Commonwealth witnesses were nefarious characters who were lying to cover their own involvement in the murder and to curry favor with the prosecution to gain leniency on outstanding charges; the criminal investigation had uncovered insufficient evidence to link the co-defendants to the crime; and, the present case was grounded on character assassination of the co-defendants and general reliance on guilt by association.

The tenor of the defense may be accurately gathered from their closing arguments. In her closing argument, counsel for Rodney Wells set the stage as follows:

You know exactly where he was killed and you know precisely when he was killed and you know that he was in fact killed. This is not a situation where there is a question as to suicide or an accident. You also know something that is often not known to jurors at the beginning. You know who killed him. You know that Craig Murphy killed Muscles Reynolds and another jury has already convicted Mr. Craig Murphy and so that is not a question that you even have to spend time thinking about. The only question for you, at the bottom is whether or not Craig Murphy had someone else with him. And if he did, who those other persons or who that person was. But, it’s clear, the killer was Craig Murphy.

(N.T. 12/26/85 at 7). (Emphasis added). In challenging the Commonwealth’s case, she repeatedly expressed her personal opinion that Commonwealth witnesses lied, despite objections by the prosecution and admonitions by the trial court to refrain from the improper expression of personal opinions. (N.T. 12/26/85 at 21-22, 27, 31-32, 42-43). She also argued:

Even the fact of seven gunshots doesn’t tell you, if there were seven gunshots, who if anyone was with Craig Murphy on that night.
The theory that makes the most sense is that it was Bernard. Bernard is in that car. He has to admit to you that he is in that car. Why would anybody take Bernard along just for the ride and I think that Keith Johnson had, a role in this too. I think that you may decide that Keith Johnson had a role in this.

(N.T. 12/26/85 at 50). (Emphasis added).

Counsel for Esau Burroughs followed-up on her arguments as follows:

Now, I want to draw your attention to a point in this that may even upset the Commonwealth when they decided they were going to pay Mr. Burroughs back for testifying in this case. [Referring to Craig Murphy’s trial]
* * * * * *
His nickname is the Devil, Okay?
Now, what does that mean? That he is from hell, [Hades]? What does that mean? I had a friend who was called Chumpy and he is about this big. I have people called Lightening who were as slow as [molasses]. I don’t know what devil means in this context.
[It’s] consistent with this theory of just putting everything that you have into this to give the worst impression that you can [possibly] give about this man and maybe they will pull him right along with everything else. That is what they are trying to do and it’s obvious.
})S * * * *
The only person who said that he had anything to do with dope was Keith Johnson. And Keith Johnson was put here to bury him. To say anything he had to say, to bury Esau Burroughs. That’s sad.
I’m arguing this case, I entered this case with a heavy heart when I found out what they were trying to do to Esau Burroughs.
* * * Si! * *
The Commonwealth took almost two years to decide to arrest Esau Burroughs in this case after having Keith Johnson’s statement that put Esau Burroughs in it. So, that has to say something to you. Either they didn’t believe him or they had no other information that put Esau Burroughs in this case.

(N.T. 12/26/85 at 69-70, 73, 75, 78). (Emphasis added).

Counsel for Morris Willis continued the themes set by preceding co-counsel:

Conjecture and guilt by association are not the basis upon which you arrive at your conclusion. Indeed, to base your decision on anything other than evidence from that witness stand, has no place in our system of justice.
% Sjt ÍT* * * *
Only by [innuendo] and conjecture can you conclude that Murphy called Willis.
Ladies and gentlemen, don’t allow your intelligence to be insulted by the Commonwealth.
* * * * * *
Now, there have been several grand jury proceedings about this case. A preliminary hearing and a trial. It has never been proven that Murphy was ever seen with my client that night at any time. Bear that point in mind.
# * * if. * *
Moreover, the Commonwealth has had, has presented no more evidence here, in the month of December, of 1985, than it had on September 1st of 1983, as to Morris Willis.
* * * * * *
So ladies and gentlemen, the Commonwealth is bottoming its case in part on a witness that even other Commonwealth witnesses don’t believe. That’s incredible. Quite incredible.

(N.T. 12/26/85 at 83, 85, 87, 94, 95-96). (Emphasis added).

Counsel for appellant closed defense arguments with the following:

The facts of the case, the important facts of the case focus on what happened that night. The Commonwealth, however, has attempted and I think you will use your judgement in this, in some respect to divert your attention from that and that brings us to the next category of witnesses they called. Witnesses that, for lack of a better term, I would catalog the guilty by association witness. That parade of witnesses who were called to this witness stand to say I have seen Ford Howard out there on the street from time to time with Craig Murphy. It was a parade of witnesses, that I suggest to you, would have made Senator Joe McCarthy proud.
What I say to you is, try to remember the feelings that you had as you sat here, as jurors and listened to Keith Johnson. Try to remember the mental processes that you went through as he testified and as Bernard Williams testified and Sonja Mackie testified. Go back in time and ask yourselves: as I sat here listening to them, was I laughing at them? That they were so unbelievable? Was I thinking to myself, how could anyone expect us to deal with the fate of human beings lives based on testimony such as this?
Because, I think when you do that, if you go back in time and remember your feelings, from that actual moment when they were before you, you will realize that what you said to yourselves then was no, no way.

(N.T. 12/26/85 at 110, 115). (Emphasis added).

The prosecutor then responded with the following argument:

It was rather ironic ladies and gentlemen, the tack that was taken by the defense in this case. It was ironic in the sense that very seldom does the defense put before you the fact that someone has been convicted. And they put before you that the [reputed] head of this group, Craig Murphy, had already been convicted of murder in the first degree. Now, I told you initially that I would not apologize for any of my witnesses. Thousands of words have been written, been taken down, been made exhibits. You have the final word in this trial, in this drama, this drama that the defense would have you believe, as per their opening, came from some fantasy world and they paraded before you testimony from two other proceedings and preliminary hearings and said this is fantasy. But, they contradict that by saying Craig Murphy has already been convicted on the testimony of the witnesses that you heard. Does that make sense?
MR. HAMILTON: Objected to, Your Honor.
MR. GREEN: Objection, Your Honor.
THE COURT: Proceed.
MR. KING: We didn’t invent these witnesses. We didn’t create them. We don’t need any new witness. We will go with what has brought us this far. And let’s talk about one down and four to go—
MR. GREEN: Objection.
MR. HAMILTON: Objection.
MR. FRANZEL: Objection.
MR. GREEN: Improper argument, Your Honor.
THE COURT: Proceed.
MR. KING: Let’s talk about one down and four to go.
Mr. Green stood up before you and asked you where was the beef. I stand here and tell you we know where the beef is____

(N.T. 12/27/85 at 6-8). Elsewhere in his closing argument, the prosecutor repeated the phrase “one down four to go” three times. (N.T. 12/27/85 at 29, 32-33, 38). There is no doubt that these remarks constituted improper argument to the extent that they suggest to the jury that another jury had convicted Craig Murphy on the same evidence. Cf. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984); Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984).

Nonetheless, the issue on appeal is not whether the remarks were improper, but whether the trial court abused its discretion in concluding that the improper remarks did not unavoidably prejudice the jury so as to require a new trial. In reviewing the trial court’s decision, we must consider the context in which the remarks were made. Commonwealth v. Johnson, 516 Pa. 527, 532, 533 A.2d 994, 997 (1987), citing Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421, 425 (1962). As the foregoing excerpts indicate, the challenged remarks were preceded by-closing arguments by co-defense counsel who took full advantage of the loose rein held by the trial judge over those arguments. We must also consider the trial court’s superior vantage from which to view the remarks. The trial court saw and heard the entire proceedings, including the challenged remarks; we attempt to resurrect their meaning and effect from a cold transcript. Cf. Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986) (recognizing the trial court’s “... unique opportunity to hear subtleties of answers and movements of witnesses and parties not viewable from the cold record”).

Upon review of the record, I do not find that the improper remarks resulted in unavoidable prejudice. The prior conviction of Craig Murphy and the testimony of various witnesses at the prior proceedings were properly presented to the jury by the co-defense counsel before the improper remarks by the prosecutor were made. Though I agree the remarks should not have been made, I have full confidence in the trial court’s conclusion that, in the peculiar context of this case, they were not such as would sweep the jury away in a tide of emotion and prejudice. Hence, I agree that no new trial is required on account of the remarks.

WIEAND, Judge,

dissenting:

I respectfully dissent. Although I agree with the majority that the tactics employed by the prosecuting attorney evinced “an irresponsibility which conflicts with the public trust placed in its office,” I am unable to agree that the prosecutor’s misconduct was harmless. Not only did the prosecuting attorney blatantly display to the jury his file box which listed the names of Craig Murphy and four other defendants, with a check mark in front of Murphy’s name, but counsel for the Commonwealth repeatedly argued to the jury that there was “one down and four to go.” This was more than an error of judgment. It was an intentional series of remarks calculated to impair the defendant’s right to a fair trial by having the jury focus on an irrelevant and highly prejudicial fact, namely, that another jury had found Murphy, a confederate, guilty “on the testimony of the witnesses that you heard.” See: Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984). Cf. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984).

In my judgment, it was also error for the trial court to refuse a defense request, made after Officer William Thomas and Sgt. William Schmid had testified, to require the Commonwealth to produce for examination by defense counsel the written statements which these witnesses had given to police who were investigating the homicide. See: Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977); Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976).

Finally, I am of the opinion that the extrajudicial statements made by Toby that she had seen “three guys in the park” and that “Muscles didn’t come out” were hearsay and did not fall within any exception to the hearsay exclusion. In the final analysis, however, these statements were so insignificant as to be inconsequential. The erroneous receipt of evidence of these statements, therefore, was harmless.

That appellant is guilty of participating in the taking of Reynolds’ life is probably true. In that event, he will be found guilty upon a retrial. In the meantime, my belief that he is probably guilty cannot be permitted to override my observation that he was denied a fair trial according to established legal principles. If the judiciary becomes so result oriented that it begins to shortcut established principles of law in order to achieve desired results, we will all be the poorer for it. In that event, the rule of law of which we are so proud will be brought into disrepute, and a government under law will be replaced by a government of men and women. I am of the opinion that appellant was deprived of a fair trial in this case. Therefore, I would reverse the judgment of sentence and remand for a new trial.

       I note that as to both defense counsel and prosecutors, trial courts may impose direct contempt sanctions on offending counsel for misconduct instead of or in addition to granting motions for mistrial. The appropriateness of such sanctions in particular cases is, of course, left to the discretion of the trial courts.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    543 A.2d 1181
    Rolf LARSEN, Appellant, v. PHILADELPHIA NEWSPAPERS, INC., Knight-Ridder Newspapers, Inc., PG Publishing Co., William Block, Paul Block, Jr., Daniel R. Biddle, Edwin Guthman, Sam S. McKeel, Fritz Uysman, Eileen Foley, John G. Craig, Jr., and Robert Surrick.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1987.
    Filed June 2, 1988.

      David J. Armstrong, Pittsburgh, for appellant.
    Samuel E. Klein, Philadelphia, for Philadelphia Newspaper, etc., appellees.
    Walter T. McGough, Pittsburgh, for PG Pub., etc., appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, OLSZEWSKI, DEL SOLE, KELLY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from an interlocutory order granted by permission of the Superior Court to the appellant, Rolf Larsen. See Pa.R.App.P. 312; 42 Pa.C.S. § 702(b).

Because the appellant challenges the grant of the appellees’ preliminary objections in the nature of a demurrer to his amended complaint, we must accept as true all well-pleaded facts in his amended complaint and the reasonable inferences to be drawn therefrom. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Further, a demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). In accordance with those standards; the factual allegations in the amended complaint must be examined to determine whether reasonable men might infer a libelling of the appellant and/or an invasion of his privacy by the appellees has transpired.

On December 5, 1980, as a result of various articles appearing in The Philadelphia Inquirer and The Pittsburgh Post-Gazette, in which the appellant claims he was portrayed as being involved in “political activity, racism, favoritism, and influence peddling”, the then Chief Justice of our Supreme Court, Henry X. O’Brien, indicated to the appellees that he was requesting the Judicial Inquiry and Review Board (JIRB) to initiate an investigation of the matters which were published.

On or about June 1, 1982, the JIRB commenced formal hearings concerning the appellant, the conclusion of which occurred on May 5, 1983, and led to an exoneration of the appellant and a JIRB vote, of 5-3, that the entire record of the investigation, including its findings, be sealed forever.

During the course of the hearings, the appellant charges, the appellees published numerous articles: some allegedly placed him in a false light, others attributed to him the violation of the Code of Judicial Conduct and, lastly, others contained purported confidential information (e.g., testimony given by witnesses) of what transpired during the JIRB inquiry, the latter allegedly in violation of the state constitution (Article V, Section 18(h)), a statute (42 Pa.C.S. § 3334) and the JIRB rules of procedure (Rule 20).

Following these publications, the appellant filed a seven-count, 129-paragraph complaint in equity.

In Count I, the appellant sought a permanent injunction against the appellees from continuing to publish or republish articles libelling the appellant and/or all or portions of the supposedly confidential transcript and record of the JIRB proceedings.

Counts II and III claimed the appellant was defamed by the articles published and asked ior damages, as was the case in all subsequent counts, in excess of $20,000 for the injuries incurred; Count IV’s cause of action was rooted in Restatement (Second) of Torts § 652B, 42 Pa.C.S. § 3334, the state constitution (Article V, Section 18(h)) and JIRB’s Rule 20, i.e., intrusion of the right of privacy; Count V’s contention was premised on Restatement (Second) of Torts § 652E, i.e., invasion of privacy: false light, by the appellees’ purported selective publication of confidential excerpts from the JIRB proceedings; Count Vi’s request for relief was grounded upon the appellees’ failure to respect the inherent right of the appellant to his reputation, as allegedly protected by Article I, Section 1, Article V, Section 18(h) of the state constitution, and 42 Pa.C.S. §§ 3334, 8341 et seq.; and Count VII rested upon a right of action purportedly existing in 42 Pa.C.S. § 4135 for the claimed defamatory publications by the appellees.

Preliminary objections in the nature of a demurrer followed and culminated in the submission of an amended complaint, which was similar in substance to the original one presented, by the appellant. What followed was an order of court, accompanied by a 49-page opinion, which, as is herein germane to the matter on appeal, (1) sustained the demurrer to Count IV, but granted leave to file a second amended complaint to the appellant to substantiate his cause of action under Section 652B of the Restatement (Second) of Torts, (2) sustained the demurrer to Count V and granted leave to the appellant to amend to plead facts giving rise to a cause of action under Section 652E of the Restatement (Second) of Torts, (3) sustained the demurrer to Count VI and (4) sustained the demurrer to Count VII.

Thereafter, the order entered was amended to read that the paragraphs recited above involved controlling questions of law as to which there was substantial ground for a difference of opinion and that an immediate appeal from the original order might materially advance the ultimate determination of the matter. This Court, upon petition of the appellant, granted permission to appeal the interlocutory order at issue. With the submission of briefs by all concerned and the presentment of oral argument before this Court sitting en banc, the matter is now ripe for resolution.

The first issue to be addressed is whether the court below erred in sustaining the demurrer to Counts IV and VI of the amended complaint on the basis that the appellant did not have a cause of action against the appellees for their purported violation of the confidentiality mandated in Article V, Section 18(h) of the Pennsylvania Constitution, 42 Pa.C.S. § 3334 and Rule 20 of the Supreme Court Rules governing JIRB proceedings.

It is the appellant’s position that without engrafting a private cause of action entitling one to the recoupment of damages for violation of the confidentiality provisions of the Pennsylvania Constitution, statute and JIRB rule governing judicial inquiries, “the confidentiality provisions lose all meaning and their purpose cannot be effectuated.” This is so, argues the appellant, since the various provisos requiring confidentiality make no reference as to how a violation of the confidentiality is to be treated or whether any type of sanction was ever contemplated by the drafters of the respective regulations.

In response, the appellees contend that the violation of the confidentiality provisions cannot give rise to a private cause of action for a breach thereof. If this were to occur, they urge, such an interpretation would violate their First Amendment rights under the United States Constitution and under Article I, Section 7 (Freedom of the press) of the Pennsylvania Constitution.

Preliminarily, prior to reaching the question of whether a private cause of action exists so as to afford the appellant the right to sue the appellees for damages, via the Pennsylvania Constitution, statute and rule proffered for alleged damages arising out of the publication of what took place at the JIRB proceedings, we find it prudent to address the question of whether the appellees had a right to publish the information generated during the JIRB hearings. For if, as we see it, the appellees had a constitutionally-based right to print the information secured by them, (the methodology by which this occurred is not discernible from the pleadings before us) then, absent “actual malice” in the publication, the appellees would be immune from liability, at least to the extent that recovery would be premised upon the specific provisions of the Pennsylvania Constitution, statute and rule argued by the appellant.

We begin our discussion with Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), in which the United States Supreme Court was faced with the issue of whether the Commonwealth of Virginia could subject individuals, including newspapers, to “criminal” sanctions for disclosing information presented before a state judicial review commission authorized to hear complaints as to judges’ misconduct, given that such proceedings were declared to be "confidential” by the State Constitution (Article 6, § 10), statute (§ 2.1-37.13) and rule of the commission (No. 10).

It appears that a Virginia newspaper printed an accurate article on a pending inquiry by that State’s Judicial Inquiry and Review Commission (JIRC) investigating a judge's conduct. Thereafter, the newspaper was indicted for divulging the information submitted to the JIRC as violative of the State’s statute which implemented the constitutional mandate of confidentiality. The two were consistent with the JIRC’s Rule No. 10 on confidentiality, save for the Rule’s imposition of a misdemeanor status for its violation.

The managing editor, albeit cognizant of the possible criminal repercussions, decided to publish the article in the belief that the matter was of public importance and should be brought to the readers’ attention. Also, the editor testified that no member of his staff was summoned before the JIRC to give testimony in connection with what appeared in the article.

After trial, in which the newspaper was found guilty and ordered to pay a $500 fine, the Supreme Court of Virginia upheld the conviction on appeal. It did so in the belief that:

... absent a requirement of confidentiality, the [JIRC] could not function properly or discharge effectively its intended purpose.[] Thus, sanctions [we]re indispensable to the suppression of a clear and present danger posed by the premature disclosure of the Commission’s sensitive proceedings — the imminent impairment of the effectiveness of the Commission and the accompanying immediate threat to the orderly administration of justice.

217 Va. 699, 712, 233 S.E.2d 120, 129.

On certiorari to the United States Supreme Court, the decision was reversed and review was restricted to the narrow issue of whether the First Amendment condones criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the JIRC.

In making its determination, the United States Supreme Court concluded that:

... the publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.

435 U.S. at 838, 98 S.Ct. at 1541 (Citation omitted). Elaborating further, the Court engaged in a discussion recounting the traditional belief that the law affords “ ‘[jjudges as persons ... no greater immunity from criticism than other persons or institutions.’ ” Id. at 839, 98 S.Ct. at 1541, quoting Bridges v. California, 314 U.S. 252, 289, 62 S.Ct. 190, 206, 86 L.Ed. 192 (1941). This precept is embedded in the understanding that the judicial conduct of judges is a matter of the “utmost public concern.” And, to effectuate this belief, the press is “ ‘regarded as the handmaiden of effective judicial administration____ [and] guards against the miscarriage of justice by subjecting the ... judicial process to extensive public scrutiny and criticism.’ ” Id., quoting Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966).

The fact that the JIRC was under examination entitled it to no less exposure than the operation of the judicial system itself. Both were held to be a “matter of public interest, necessarily engaging the attention of the news media.” Id. at 839, 98 S.Ct. at 1542. As such, the publication by the newspaper satisfied those concerns of informing the public and prompting discussion of governmental affairs which the First Amendment was written to protect. See New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964).

The assertion of the attorneys for the Commonwealth of Virginia that criminal sanctions were necessary to ensure the guarantee of confidentiality and that anything less would render such secrecy no more than an empty promise was likewise rejected by the Court as being buttressed by little more than assertion and conjecture.

To the same extent, we find that the appellant’s contention that a refusal by this Court to acknowledge and legitimize a private cause of action for violation of the particular provisions of the Pennsylvania Constitution, statute and rule cited earlier would render the “confidentiality” aspect of each nugatory is no more persuasive.

The incantations of the appellant as to the protections sought to be afforded those subject to the scrutiny of the JIRB, being, essentially, similar to those voiced to the United States Supreme Court (see note 5, supra) as warranting the enforcement of a violation of Virginia’s “confidentiality” provision, cannot be endorsed without running afoul of Landmark. The Supreme Court’s profound concern with having the First Amendment’s freedom of the press to scrutinize and discuss governmental, as well as judicial, matters is pristinely clear and takes precedence over the breach of a “confidentiality” proviso associated with a judicial inquiry board’s function and operation.

As to one’s recourse for a breach of such a “confidentiality” proviso, it was noted in passing that the use, by the more than 40 other States having similar commissions, of contempt charges was deemed an appropriate tool to giving effect to the confidentiality provisions associated with such inquiry boards. See Landmark, supra, 435 U.S. at 841 n. 12, 98 S.Ct. at 1542-43 n. 12.

What is to be gleaned from the Landmark case is that neither the protection of a judge’s reputation nor the preservation of the integrity of the courts is sufficient to condone the subsequent punishment of the press when it comes to recounting what transpired before a judicial inquiry and review board, even assuming that, for example, criminal sanctions do in fact enhance the guarantee of confidentiality.

The Landmark Court conceded that some risk of injury to a judge under inquiry may be posed by premature disclosure. Nonetheless, before punishment can be imposed for utterances made with regard to proceedings held before a judicial inquiry and review board, “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished____” Bridges v. California, supra, 314 U.S. at 263, 62 S.Ct. at 194. In the view of the Court in Landmark, the confidentiality claim and its effectuation fell short of such a requirement.

We find Landmark to be controlling here.

Instantly, as in Landmark, premature disclosure of information before an inquiry board hearing testimony regarding a judge’s alleged misconduct was published by a newspaper. Similarly, as in Pennsylvania, the Virginia inquiry board drew its authoritative “confidentiality” requirement from the State’s Constitution, statute and rule, all of which are similar in substance to those in Pennsylvania and presented by the appellant as grounds for invocation of a private right of action for the violation of the same.

The only difference between the two sets of provisions, of any material worth, appears to be that the Virginia version imposes criminal sanctions whereas Pennsylvania’s does not.

Notwithstanding the variance in the sanctions to be imposed by both sets of provisions to enforce a violation of the “confidentiality” aspect of the inquiry boards’ proceedings, we find that the imposition of monetary damages (civil sanction) can be just as inimical to and an encroachment of one’s First Amendment guarantees as criminal sanctions. Cf. Alim v. Superior Court (Atlee), 185 Cal.App.3d 144, 229 Cal.Rptr. 599, 605 (1986) (“If the need for publication of information about public officials warrants a privilege against criminal sanctions it must also warrant a privilege against civil sanctions.” (Citations omitted)).

Additionally, we note that if the Legislature had intended to permit the recoupment of damages for violation of 42 Pa.C.S. § 3334, it could have very easily expressed such an intention, as is the case in 42 Pa.C.S. § 8351(a), which explicitly addresses the subject of liability for wrongfully instituting or pursuing civil proceedings. See Lindsay v. Thomas, 77 Pa.Cmwlth. 171, 174, 465 A.2d 122, 123 (1983).

Consistent with the aforesaid is the decision of the Third Circuit Court of Appeals in The First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467 (1986), wherein it was observed that nothing in Pennsylvania’s Constitution bars the dissemination of information which the press has received.

Thus, nothing in the text of the provisions relied upon by the appellant or the case law reviewed suggests that this Court should create a civil remedy not otherwise expressly mentioned in the relevant provisions, and we have been presented with no persuasive argument to the contrary. Accordingly, the appellant’s request that we endorse a private cause of action for a violation of the respective provisions of the Pennsylvania Constitution, statute and rule, mentioned previously, will not be entertained on the authority proffered to us at this time.

We now turn to the appellant’s second contention on appeal. It alleges the commission of error by the court below in sustaining the demurrer to Count IV since the amended complaint did state a cause of action for invasion of privacy under § 652B of the Restatement (Second) of Torts.

Section 652B provides for a cause of action against one who intrudes upon the privacy of another; to-wit:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.

Violation of Section 652B is an actionable tort in Pennsylvania. Marks v. Bell Telephone Co. of Pa., 460 Pa. 73, 331 A.2d 424 (1975).

In its opinion, the court below concluded that the appellant had satisfied two of the three prongs necessary to make out a cause of action under Section 652B, i.e., the appellees (1) intentionally intruded upon (2) the private affairs of the appellant by publication of “any” portion of the JIRB proceedings prior to that point in time when they would become a matter of public record with their submission to the Supreme Court of Pennsylvania for consideration of disciplinary action against the party being investigated. We only find fault with the conclusion that “any” portion of the JIRB proceedings being published prior to a set point in time would be actionable. See note 7, infra.

Recently, a California appeals court interpreted various United States Supreme Court rulings, which included Landmark, on the subject of the liability aspect of the news media in disclosing confidential information gathered by a review board assessing the qualifications of a candidate for judicial office. In doing so, the court concluded that the news media should be insulated from civil liability in publishing information protected by a state’s laws from disclosure, with the caveat that the methods implemented to secure the data had to be consistent with “routine reporting techniques.” Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509, 223 Cal.Rptr. 58, 64 (1986). In particular, the Nicholson court wrote:

While the government may desire to keep some proceedings confidential and may impose a duty upon participants to maintain confidentiality, it may not impose criminal or civil liability upon the press for obtaining and publishing newsworthy information through routine reporting techniques. (See Landmark Communications, Inc. v. Virginia, supra, 435 U.S. at pp. 837-838, 98 S.Ct. at 1340-41, 56 L.Ed.2d at p. 9.)

223 Cal.Rptr. at 64.

From our reading of the pleadings peculiar to Count IV, the appellant charges the appellees, in paragraph 115, with acting “in concert with one another to illegally procure, publish, republish or cause to be published the purported confidential transcript” from the JIRB proceedings. This attribution of “illegality” would appear to negate, at least at first blush, the use of proper methodology in the gathering of information which would render immune from suit the news media. This is in accord with the precept that a “publisher of a newspaper has no special immunity from the application of general laws[, since h]e has no special privilege to invade the rights and liabilities of others.” The Associated Press v. Nat. Lab. Rel. Bd., 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). Stated differently, “[cjrimes and torts committed in news gathering are not protected[, and this] is no threat to a free press in requiring its agents to act within the law.” Galella v. Onassis, 487 F.2d 986, 995-996 (2d Cir.1973). Accord Landmark, supra; Nicholson, supra, 223 Cal.Rptr. at 63.

However, our dilemma is that we are unable to ascertain the thrust of the appellant’s “illegality” argument, i.e., we know not whether it relates to a purported violation of the Pennsylvania Constitution, statute and rule of confidentiality covering JIRB proceedings (which, this day, we have found to be wanting), or whether it encompasses the use of subterfuge in obtaining the information published which goes beyond the acceptable bounds of news gathering techniques and exposes news media defendants to liability for torts committed in pursuit of information. See Nicholson, supra.

Accordingly, we find that the court below did not err in sustaining the appellees’ preliminary objection in the nature of a demurrer as to Count IV as written and affording the appellant the opportunity to amend, for a second time, his contention surrounding his Section 652B claim. (See Order of Court dated May 16, 1984, paragraph 2) In particular, he will be required to elaborate on the “illegality” assertion to hurdle the legitimate methods open to the press to obtain information and avoid civil liability for what it prints. See Landmark, supra; Nicholson, supra. Consequently, if the appellant drafts his amended complaint to aver the appellees’ engagement in illegal conduct in the securement of the JIRB transcripts, one cannot arguably deny that a “reasonable” person would be offended by such a course of conduct aimed at exposing personal information to the public. See Alim, supra.

The third protestation by the appellant centers upon alleged court error in sustaining the appellees’ preliminary objections as to Count V (Invasion of Right of Privacy: False Light under Restatement (Second) of Torts § 652E).

Our review of the first paragraph in Count V indicates that incorporated therein by the appellant is a majority of the preceding 115 paragraphs of the amended complaint. As such, we conclude that a “false light” claim under Section 652E has been made out as to all of the articles assailed by the appellant as being actionable as a tort. In support of such a finding, we will discuss a portion of the pleadings which we believe is reflective of the particularity with which Count V was drafted so as to hurdle the appellees’ preliminary objections in the nature of a demurrer. However, before engaging in such a discussion, we deem it advisable to set forth the status of a “false light” cause of action in this jurisdiction.

It is beyond peradventure that the tort of invasion of privacy does exist in this Commonwealth. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974). Even though the contours of this tort remain amorphous, see Marks v. Bell Telephone Co. of Pa., supra, Superior Court has adopted the definition of the tort of invasion of privacy promulgated by the Restatement (Second) of Torts §§ 652B-E. See Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985) (reargument denied). Moreover, it has been observed that the cause of action for invasion of privacy is actually comprised of four analytically distinct torts: 1) intrusion upon seclusion, 2) appropriation of name or likeness, 3) publicity given to private life, and 4) publicity placing a person in false light. Marks v. Bell Telephone Co. of Pa., supra.

Instantly, the appellant contends that his privacy was invaded by the appellees’ publication of articles which placed him in a false light. Under Section 652E of the Restatement (Second) of Torts, the tort is defined as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

As is so clearly stated in Section 652E, a publication is actionable if it is not true, is highly offensive to a reasonable person and is publicized with knowledge or in reckless disregard of its falsity. See Comments a, c & d. Further, to constitute a tortious invasion of privacy an act (publication) must “ ‘cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ” Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 99, 125 A.2d 644, 646 (1956), quoting Smith v. Doss, 251 Ala. 250, 252-53, 37 So.2d 118, 120-21 (1948).

Moreover, our review of the writings and case on the subject at hand also gives credence to the tenet that recovery in tort for the disclosure of public, as well as private, facts, even though they be true, is warranted to protect a claimant’s right to be free from being placed in a false light and incurring the resultant mental suffering, shame or humiliation which may be caused by the discriminate publication of such facts. See Prosser, Privacy, 48 Cal.L.Rev. 383, 416 (1960); Fogel v. Forbes, 500 F.Supp. 1081, 1087 (E.D.Pa.1980); Hull v. Curtis Publishing Co., supra.

Allowing the individual a cause of action in instances like that in the case before us, where the media allegedly selectively excerpts and publishes portions of the truth, finds support in the law of defamation. For example, in Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982), the Court ruled that a finding of falsity might be drawn from the true, factual statements, if those factual statements implied falsehoods. “Literal accuracy of separate statements will not render a communication ‘true’ where as here the implication of the communication as a whole was false.” Id., 301 Pa.Superior Ct. at 493, 448 A.2d at 15. Accord McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980); Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978); Kapellas v. Kofman, 1 Cal.3d 20, 459 P.2d 912, 81 Cal.Rptr. 360 (1969).

The falsity with which we are concerned arises from the inference derived from published statements, whether those statements are actually true or not. We find that the element of falsity is met if the plaintiff alleges that the defendant knowingly or recklessly selectively printed or broadcast true statements or pictures in a manner which created a false impression. To permit an editor to publish misleading portions of the truth is the equivalent of sanctioning the promulgation of falsehoods under the guise of the First Amendment. This was never the intention of the drafters of the Constitution nor has the First Amendment been interpreted to insulate one from any and all complaints premised upon the publication of false or misleading information. See Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986); McCormack, supra. This is evident from the fact that in the print media, “the passages selected for deletion and modification ... can cause a dramatic change in the impression which the final article will generate in the minds of the average reader. And these editing decisions are calculated ones made by the editors to comport with the tone of the magazine desired.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 446, 273 A.2d 899, 916 (1971). Accord Sprague, supra.

In other words, despite the accuracy of the facts disseminated, discrete presentation of information in a fashion which renders the publication susceptible to inferences casting one in a false light entitles the grievant to recompense for the wrong committed. See Bell v. Birmingham Publishing Co., 266 Ala. 266, 96 So.2d 263 (1957); Anderson v. Low Rent Housing Commission, 304 N.W.2d 239 (Iowa 1981); McCormack, supra.

At bar, the appellant’s incorporation of almost all of the previous 115 paragraphs into Count V necessitates that those paragraphs (and the material facts asserted therein) be viewed as a whole and are to be given every reasonable inference deducible therefrom in assessing the preliminary objections of the appellees in regard thereto. Sinn v. Burd, supra. As such, we find that Count V withstands the challenge of the appellees’ preliminary objections.

To explain, The Post-Gazette articles of November 19, 20 of 1982 & March 9 of 1983 were alleged to have accused the appellant of lying under oath before the JIRB as to his supposed encouragement of Allegheny County District Attorney Robert Colville to run for the Pennsylvania Supreme Court. (Paragraphs 30, 32 & 34)

The appellant asserted that the November 19 and 20 articles were “false” in that he did not deny under oath that he visited the district attorney in 1980. (Paragraphs 35 & 36) Further, according to the appellant, the two articles were printed by The Post-Gazette knowing that they were false or in reckless disregard of their truth or falsity. (Paragraph 37)

In addition, as we read on in the complaint, we learn that The Inquirer published an article titled: “Now the people will judge”, on May 8, 1983, recounting that the appellant had taken part in the Pennsylvania Supreme Court’s rejection of a JIRB member’s request that the records of the Larsen inquiry be opened to the public or the high Court consider the matter for review. (Paragraph 59) Again, reports in the May 13 & 29, 1983 editions of The Inquirer recited essentially the same information. (Paragraphs 61 & 63) Likewise, on June 15 & 18 of 1983, The Post-Gazette is charged by the appellant with recapitulating the identical story accusing him of voting in a matter concerning his inquiry. (Paragraphs 65 & 67)

Of interest in our assessment of the propriety of the preliminary objections granted by the court below is the fact that, at paragraph 71, the appellant specifically denied “deliberating] or vot[ing] on a matter involving] himself”, as referred to in paragraphs 59, 61, 63, 65 & 67. Nor, the appellant continues to aver in paragraph 71, was the subject of the review before the Supreme Court on a petition to take jurisdiction of the case. Rather, it was merely an application for leave to file a petition.

As for Count V’s incorporation of paragraphs 59, 61, 63, 65 & 67, we deem each sufficient to allege a cause of action under Section 652E and to withstand a demurrer. Tne same can be said with regard to the entire Count V segment of the appellant’s complaint. Accordingly, the appellant need not amend Count V. To the extent that the court below so directs, its order is reversed.

The last issue to which we respond is the error allegedly committed by the court below in sustaining the demurrer to Count VII, wherein 42 Pa.C.S. § 4135 was stated as the basis for a cause of action against the appellees for the various articles that they published.

Section 4135 reads:

(a) General rule. — Publication out of court respecting the conduct of judges, district justices, other system or related personnel, jurors or participants in connection with any matter pending before any tribunal shall not be construed as a contempt of court on the part of the author, publisher or other person connected with such publication.
(b) Civil and criminal liability not affected. — If any publication specified in subsection (a) shall improperly tend to bias the minds of the public, or of the tribunal, other system or related personnel, jurors or participants in connection with any matter pending before any tribunal, any person aggrieved thereby may proceed against the persons responsible for the publication by appropriate civil action or criminal proceeding.

The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended and renumbered § 4135 on December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S. § 4135 (Supp.1987).

In paragraph 128, the appellant propounds that:

The aforementioned publication and republication by [the appellees] has caused extreme and irreparable harm to [the appellant’s] interest in (1) having the matters resolved by individuals who have not been exposed to such publications and republications of [the appellees]; (2) having justice administered without any question of bias or suggestion of bias; (3) having justice administered by individuals who are not predisposed; and (4) having the resolution of the matter presented to a public and electorate which has not been exposed to [the appellees’] publications.

Our review of the law interpreting the statute in question reveals the absence of informative material on the subject. Thus, given the void, we will resort to the Statutory Construction Act to aid us in our effort to decipher the intent of the Legislature in enacting Section 4135. To begin with, we look to 1 Pa.C.S. § 1921, which provides:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by-considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

The Act of December 6, 1972, P.L. 1339, No. 290, § 3. Next, we examine 1 Pa.C.S. § 1922, and it reads:

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
(4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the sáme construction to be placed upon such language.
(5) That the General Assembly intends to favor the public interest as against any private interest.

The Act of December 6, 1972, P.L. 1339, No. 290, § 3.

To start with, a common sense reading of subsection (b) of Section 4135 indicates that its purpose and objective is to be informational. For example, it advises “any person aggrieved” by the out-of-court publication of his or her conduct in connection with any matter pending before any tribunal can seek redress “by appropriate civil or criminal proceeding^].”

As an adjunct to this observation, we note that the 1982 amendments to Section 4135 removed “or criminal action or proceeding as in other cases of wrongful publication” and substituted the verbiage “action or criminal proceeding”. Thus, we interpret the clear intent of the Legislature to be to foreclose any separate cause of action for “wrongful publication” under the guise of Section 4135.

Further, we find that Section 4135, rather than being the engine that provides the force for one’s complaint, is merely a directional signal which lights the way for one to pursue once he/she believes that an out-of-court publication respecting conduct being heard before any tribunal biases him/her in the eyes of the public, the tribunal hearing the matter or other participants involved in the process under review.

It is not as though the appellant were without any recourse in his claimed suit against the appellees; we are merely holding that Section 4135 is not a basis for a separate cause of action independent of the “appropriate” civil or criminal remedies that abound in the civil area of the law, e.g., defamation.

Therefore, we are in agreement with the court below that the demurrer to Count VII is to be sustained without leave to amend since it is obvious to this Court that there is no legal basis for relief under Section 4135.

We, having reviewed the various issues presented for our consideration in this interlocutory appeal granted by permission, now affirm in part and reverse in part the order of the court below.

KELLY, J., concurs in the result.

ROWLEY and DEL SOLE, JJ., recused themselves and did not participate in the consideration or decision of this appeal.

      . The appellees/defendants consist of Philadelphia Newspapers, Inc., Knight-Ridder Newspapers, Inc., PG Publishing Co., William Block, Paul Block, Jr., Daniel R. Biddle, Edwin Guthman, Sam S. McKeel, Fritz Huysman, Eileen Foley, John G. Craig, Jr. and Robert Surrick.

      . The appellee Knight-Ridder Newspaper, Inc., a corporation, owns, operates and controls Philadelphia Newspapers, Inc., which, in turn, publishes The Philadelphia Inquirer. As for The Pittsburgh Post-Gazette, it is owned and published by the appellee/corporation PG Publishing Co.

      . Article V, Section 18(h) of the Pennsylvania Constitution reads: Suspension, Removal, Discipline and Compulsory Retirement Section 18.
      * sV * >V * *
      (h) The Supreme Court shall review the record of the board’s proceedings on the law and facts and may permit the introduction of additional evidence. It shall order suspension, removal, discipline or compulsory retirement, or wholly reject the recommendation, as it finds just and proper. Upon an order for compulsory retirement, the justice or judge shall be retired with the same rights and privileges were he retired under section sixteen of this article. Upon an order for suspension or removal, the justice or judge shall be suspended or removed from office, and his salary shall cease from the date of such order. All papers filed with and proceedings before the board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character. The filing of papers with and the giving of testimony before the board shall be privileged.
      42 Pa.C.S. § 3334 provides:
      All papers filed with and proceedings before the Judicial Inquiry and Review Board shall be confidential but upon being filed by the board in the Supreme Court, the record shall lose its confidential character. 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.
      Rule 20 of the Judiciary Inquiry and Review Board reads:
      All papers filed with and proceedings before the Board shall be confidential until a record is filed by the Board in the Supreme Court.

      . Parenthetically, the appellees (as non-participants in the JIRB proceedings) allegedly did no more than report (in a substantively correct manner) what took place before a board of record. See generally Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986).

      . These purposes were defined as: (a) protection of a judge’s reputation from the adverse publicity which might flow from frivoltus complaints, (b) maintenance of confidence in the judicial system by preventing the premature disclosure of a complaint before the JIRC had determined that the charge was well founded, and (c) protection of complainants and witnesses from possible recrimination by prohibiting disclosure until the validity of the complaint had been ascertained.

      . At bar, our reading of the pleadings does not indicate the source of the appellees’ information/transcripts regarding the JIRB proceedings. Thus, it is not presumptuous for us to equate third-party/non-participatory status with the appellees, as occurred in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

      . We caution that, in drafting the amended complaint, the appellant must realize the impact of the recent Third Circuit decision condoning the restriction on the divulging of information heard before the JIRB, but not to the extent that a witness testifying before the JIRB is precluded from speaking to the press about what he testified to at . he proceedings. See The First Amendment Coalition v. Judicial Inquiry and Review Board, 784 F.2d 467 (3rd Cir.1986). This, the Third Circuit concluded, would be violative of the First Amendment freedom of speech, and, therefore, was accessible to the news media through its legitimate news-gathering tactics and a proper subject of publication.