author: CAVANAUGH, Judge: OLSZEWSKI, Judge,

text:
    498 A.2d 378
    COMMONWEALTH of Pennsylvania, Appellee, v. John HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 8, 1985.

      Pamela P. Cohen, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

John Harvey appeals from the judgment of the Philadelphia County Court of Common Pleas imposing concurrent sentences of life imprisonment and from two and one half to five years on convictions for first degree murder and possession of an instrument of crime. These convictions arise from the strangulation death of Denise Madison on February 4, 1983. In a bench trial the appellant contended that the victim had been choking on an unknown object and that he had accidentally strangled her in an attempt to remove the obstruction from her throat. On appeal, Harvey presents two issues for our consideration: (1) whether he was prejudiced at trial by misconduct on the part of the prosecutor? and (2) whether the evidence was sufficient to sustain his conviction for first degree murder? For the reasons set forth in this opinion, we vacate the sentences imposed and remand for a new trial.

The tendency in our courts has been to afford to the prosecutor a fair degree of latitude in trying criminal defendants. As it is often stated, not every intemperate, irrelevant, unwise or improper remark by a prosecuting attorney is grounds for a mistrial. See, e.g., Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Green, 321 Pa.Super. 246, 467 A.2d 1346 (1983). “Although a prosecutor’s statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor’s remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict.” Maxwell, 505 Pa. at 166, 477 A.2d at 1316-17 (citing Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 92 (1982)). Where the defendant is tried before a judge sitting alone, the standard for proving harm from prosecutorial transgressions is perhaps even more stringent, for the law of this Commonwealth frequently presumes that the trial judge will disregard any inadmissible evidence or improper argument. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Glover, 266 Pa.Super. 531, 405 A.2d 945 (1979).

Nevertheless, “[t]here are times when evidence is so prejudicial that we cannot assume that the trier of fact will be able to put the evidence aside and arrive at an impartial adjudication.” Commonwealth v. Conti, 236 Pa.Super. 488, 495, 345 A.2d 238, 242 (1975). As the court in Conti stated, “judges are subject to the same emotions and human frailties as affect all persons, lay jurors or not.” Id., 236 Pa.Superior Ct. at 499, 345 A.2d at 244. This court in Conti reviewed the rationale underlying a rule of presumed judicial detachment. In conclusion we said:

It is plain from the cases cited that in some instances due process requires that we not simply rely on the fiction of a judicial blindside. It is also plain, when cases like Berkery [200 Pa.Super. 626, 190 A.2d 572 (1963) ] and Mangan [220 Pa.Super. 54, 281 A.2d 666 (1971)] are compared with cases like Rivers [218 Pa.Super. 184, 279 A.2d 766 (1971)], that at least in Pennsylvania no fixed rule has been announced for determining when a trial judge will be regarded as having been able to maintain his impartiality after hearing incompetent evidence. We do not undertake to announce such a rule now. Instead, we shall continue to decide each case according to its particular facts. In so doing, however, we do explicitly recognize that two factors will be considered of critical import. One factor will be the inherently prejudicial quality of the specific evidence involved. This, as indicated, was determinative in Rivers. There the evidence was “so prejudicial” that the risk of improper adjudication could not be ignored. In contrast, when the risk is not of emotional impact but rather of intellectual error in tracing a chain of inferences or in recognizing the pitfalls of double hearsay, greater weight will be given to judicial expertise. See Levin and Cohen, [The Exclusionary Rules in Nonjury Criminal Cases, 119 U.Pa.L.Rev. 905 (1971) ]; Davis, [Hearsay in Nonjury Cases, 83 Harv.L.Rev. 1362 (1970) ]. The other factor will be the importance of the evidence to the particular case. Suffice it to say that when, as in Berkery, the other evidence is overwhelming, we shall be less sensitive to the risk of harmful prejudice below.

Conti, 236 Pa.Super. at 501, 345 A.2d at 245.

Furthermore, it is the burden of the Commonwealth to establish that its misconduct did not affect the outcome of the trial. See Commonwealth v. Bricker, 506 Pa. 571, 589-591, 487 A.2d 346, 355 (1985). The supreme court has outlined the reviewing court’s inquiry:

We must first be able to declare a belief that the error was harmless beyond a reasonable doubt before it will be held harmless and a judgment of sentence affirmed. Furthermore, the burden of establishing that the error was harmless beyond a reasonable doubt must be borne by the prosecution. Applying this two part analysis in Davis we said that if there is a reasonable possibility that the error “might have contributed to the conviction ... might have moved ‘the minds of an average jury’ toward conviction ...” the error cannot be held harmless.

Commonwealth v. Collins, 462 Pa. 495, 503, 341 A.2d 492, 495 (1975) (quoting Commonwealth v. Davis, 452 Pa. 171, 177, 305 A.2d 715, 719 (1973) (footnote omitted)).

In the present case, our review of the record indicates that the misconduct of the prosecutor may have had serious consequences in unfairly prejudicing the judge and denying the appellant his right to a fair trial. Just as the supreme court found in Collins,

[a] reading of the record discloses that the misconduct of the prosecutor was not limited to isolated moments of error in the heat of trial advocacy. The record is replete with instances of prosecutorial misconduct which permit only one reasonable conclusion: from the very beginning of the trial, the prosecutor adopted a strategy calculated to try the case on his own terms rather than within the rules of evidence and the standards of professional conduct.

Commonwealth v. Collins, 462 Pa. at 499, 341 A.2d at 493. Moreover, the misconduct of the prosecutor in this case was “so prejudicial” that we cannot assume that the trial judge was unaffected. As distinguished by the court in Conti, the impact of many of the instances of prosecutorial misconduct here was of a highly emotional nature rather than being confined to matters of the intellect. Thus, on the particular facts of this case, it is not sufficient to rely merely on an unchallenged presumption of judicial detachment as argued by the Commonwealth.

Our prosecuting attorneys are vested and bound by certain obligations inherent in their position.

“The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the Commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate____” Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737 [(1889)].

Commonwealth v. Tumpson, 242 Pa.Super. 1, 5, 363 A.2d 1129, 1131 (1976) (quoting Commonwealth v. Toth, 455 Pa. 154, 158-59, 314 A.2d 275, 278 (1974)). See also Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). In accord with this view our courts have expressly adopted the ABA Standards Relating to the Prosecution Function. See Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978). Those Standards provide in part:

Presentation of evidence
(b) It is unprofessional conduct for a prosecutor knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.

ABA Standards for Criminal Justice, The Prosecution Function, § 5.6 (1982) [hereinafter ABA Standards].

Argument to the jury
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.

Id. § 5.8. Although this latter section relates specifically to argument to the jury, we feel that its admonitions to prosecutors apply also in non-jury cases, particularly where the misconduct reaches the level contemplated in Conti.

Prosecutors are expressly directed “not [to] use arguments calculated to inflame the passions or prejudices of the jury.” Commonwealth v. Bricker, 506 Pa. 571, 586, 487 A.2d 346, 353 (1985) (quoting ABA Standards § 5.8(c)). They are further admonished to “refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law____” ABA Standards § 5.8(d). See Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). In spite of these controlling standards of permissible trial conduct, the assistant district attorney engaged in the following exchanges on cross-examination of the appellant:

Q So that you were able to, as it were, con and deceive people and by stealth remove this quantity of money, were you not?[]
A No, sir.
Q You were honest with the people in the way that you removed the money?
A No, sir. I pled guilty.
Q Did you put on any kind of act or lie to them in any way in order to get into the vault and remove, how much was it, $30,000 or $50,000 altogether?
A I don’t really remember.
Q But you did some pretty fast talking, didn’t you, sir?
A Repeat that?
Q I say you did some pretty fast and slick talking, didn’t you, to get into that vault to get that $30,000 or $50,000, whatever it was?
A No, there was no talking done.
Q Did you have to cry for them or anything or put on any kind of act of any kind as part of your deception to obtain this money?
A No, sir.
Q But you did con them into getting into that vault, did you not, sir?
MR. PHILLIPS: Objection.
THE COURT: Yes. Sustained.
Q Sir, let me ask you this question: When you heard the testimony that that heroin that you were so concerned about, that she didn’t swallow it but it fell down behind that bureau, didn’t you say to yourself, “Oh, I killed a woman for nothing.” Did you realize that, sir?
A I didn’t kill her. I loved Denise. I didn’t kill her. I was trying to help her.
Q Sir, is this the way you express your love? You put this thing around her neck? Did you, sir?
A Not with the intention to kill her.
Q Did you put it around her neck, sir?
A Yes, sir.
Q And when you squeezed it, sir, as the doctor said, with enough force to put a half-inch groove all the way around her neck and crush the organs of her neck, was that an expression of your love, sir, for this woman that you are crying about? Is that the manner in which you express love, sir?
Q Now, sir, when you were applying that kind of pressure that the doctor described, crushing, putting a 1-inch groove in her neck and crushing the organs of her neck so that she couldn’t breathe and she was spitting up blood, did you cry for her at that time, sir, as you cried for yourself in this courtroom today?
MR. PHILLIPS: Objection, Your Honor.
THE COURT: Yes. Sustained.
Q Of course not saying whether or not you are a heroin addict, but do you know, sir, from your experience of being in drug treatment programs that sometimes heroin addicts when they don’t get their heroin and they may have a tremendous hunger for heroin that they will seek it and get desperate in trying to obtain it? Do you know anything about that, sir?
MR. PHILLIPS: Objection, Your Honor.
THE COURT: Yes. Sustained.
Q Sir, my question to you is this, sir: Didn’t you squeeze her around the neck before she even went to the bathroom with sufficient pressure to bring blood out of her mouth and still weren’t satisfied that she didn’t have that heroin in there and when she went to the sink, she spit up to show there was no heroin and the blood came out, and then you brought her back and continued to squeeze until you squeezed the life out of her body? That’s what I am talking about, sir.
A No, sir.
Q But that didn’t happen, did it?
A No, sir.
Q No, it didn’t happen. But when you were squeezing, sir, with that ligature and with your hands, didn’t you see the blood as you were squeezing and as she was telling you, “Harvey, I can’t breathe,” and as you were squeezing, didn’t you see the blood come out of her mouth from her lungs and her nose when you were squeezing, sir?
Q Sir, let me ask you this: As you were making this valiant attempt to get this unknown thing out of Denise’s mouth and you were squeezing, tell me, as you were squeezing with your hands and with this ligature with sufficient force to cause the damage that the doctor described, didn’t Denise say anything to you like, “Harvey, you are hurting me. You are killing me. I can’t breathe. Stop it”?
A No, she didn’t.
Q She didn’t say that. And you just kept on squeezing away and she never protested once; is that right?
A I didn’t squeeze like that. It wasn’t like that.
Q Oh, I see. So while you were squeezing, she didn’t say one word, not even, “Please, Harvey. I can’t breathe.”

In his closing argument to the judge, the prosecutor continued:

What more cruel than to do this to this woman in the presence of that young child? Do you think that that child is ever going to forget that in his presence his mother met such a grisly death, a death by strangulation? Do you think that that child will ever forget his mother pleading for life? “Harvey, I can’t breathe.”
Now, if Your Honor thinks that those words will ever leave the mind of that child, then Your Honor is sorely mistaken. Those words are burned into the mind of that child and will be there forever. It will be in that child’s nightmares as long as he exists on this planet. He will hear in his mind all his life, “Get off of me, Harvey. Harvey, I can’t breathe.”

Unquestionably these comments exceeded the permissible bounds of argument as set forth in the ABA Standards and adopted by our courts.

It is firmly settled that “[a] reference, either expressly or by reasonable implication, to prior criminal activity, which does not qualify as a recognized exception to the general rule excluding evidence of an accused’s prior criminal convictions ... is impermissible.” Commonwealth v. Percell, 499 Pa. 589, 592, 454 A.2d 542, 544 (1982) (citing Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982); Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975)). Accord Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (“a testimonial reference indicating to the jury that the accused has been engaged in other criminal activity, denies the accused a fair trial ... ”); Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978) (“Evidence of prior criminal activity ... is probably only equalled by a confession in its prejudicial impact upon a jury”). The import of this rule is no less in non-jury trials:

We have previously held that a trial judge, sitting without a jury, may not consider a defendant’s prior criminal record in determining whether defendant is guilty beyond a reasonable doubt of the offense for which he is presently charged____ We also feel that there is little if any reason for relaxing, in non-jury criminal trials, the exclusionary rule that is applied to evidence of defendant’s prior criminal record when a jury is the trier of fact.

In re Johnson, 445 Pa. 270, 275, 284 A.2d 780, 783 (1971) (citing Commonwealth v. Oglesby, 438 Pa. 91, 263 A.2d 419 (1970); Levin & Cohen, The Exclusionary Rule in Nonjury Criminal Cases, 119 U.Pa.L.Rev. 905 (1971)). Notwithstanding this evidentiary rule and the clear admonitions against offering inadmissible evidence and asking legally objectionable questions, ABA Standards § 5.6(b), the prosecutor in the present case engaged in the following impermissible cross-examination of the appellant:

Q Have you been under treatment, dope treatment programs?
MR. PHILLIPS: Objection, Your Honor.
THE COURT: Overruled.
A Yes.
Q And that was a halfway house in New Jersey, was it not, sir?
A Yes, sir.
Q As a matter of fact, you were required to report there every night because you were supposedly an inpatient for treatment for drug addictions; isn’t that correct, sir?
A Yes, sir.
Q And you were there, as a matter of fact, by order of the Court; isn’t that right?
A Yes, sir.

“It is long settled that a prior inconsistent statement may be used to impeach a witness.” Commonwealth v. Brown, 302 Pa.Super. 391, 400, 448 A.2d 1097, 1102 (1982) (quoting Commonwealth v. Hensley, 295 Pa.Super. 225, 233, 441 A.2d 431, 435 (1982) (citations omitted)). However, when attempting to discredit a witness’ in-court testimony, there must be evidence that the prior inconsistent statement was made or adopted by the witness whose credibility is being impeached. See Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981); Commonwealth v. Brown, supra.

At trial in the instant matter, the prosecutor attempted to impeach the appellant on cross-examination by referring to a statement allegedly given by Deborah Parker to the police relating a conversation between her and the appellant. When asked if he had ever spoken to Ms. Parker about the events of February 4, 1983, however, the appellant unequivocally stated: “I didn’t tell her nothing.” Nevertheless, in spite of this denial of making a prior statement and notwithstanding the Commonwealth’s failure to present extrinsic evidence of those alleged prior statements, the prosecutor posed the following questions to the appellant:

Q And you didn’t tell Deborah Parker that, did you?
A No, I didn’t.
Q “He could see the heroin in her Adam’s apple and he was pushing it up with his hands by squeezing her neck. He said the blood came out of her nose and her mouth.” You didn’t tell her that?
A No, sir.
Q Did you tell Deborah Parker that you left 4 grains of heroin on the dresser before you went downstairs and when you came back it was gone?
A No, I didn’t.
Q Did you tell her that you looked at Niecy and she was trying to swallow the heroin that you had put on the dresser?
A No, I didn’t.
Q You didn’t say that to her.
A No.
Q Did you say to her that when you grabbed her by the neck, you could see the heroin in her Adam’s apple and that you were pushing it up with your hands, squeezing her by the neck, and then the blood came out of her nose and her mouth and you stuck your hands down her throat and you had two fingers on the bag but you could just not get it? Did you tell her that?
A No, I didn’t.
Q By the way, you have seen this statement of Deborah Parker, have you not?
A The first page of it.
Q You went over it with your lawyer. Did you read the part in here on Page 4 where she said she didn’t believe your story? “See, I knew because he told me that he murdered her.”
MR. PHILLIPS: Objection, Your Honor.
THE COURT: Sustained.

Because the Commonwealth did not offer evidence that the statements allegedly made to Deborah Parker were “made or adopted by the witness whose credibility is being impeached”, this mode of cross-examination was plainly improper. As such, the conduct of the prosecutor was contrary to the ABA Standards which provide: “It is unprofessional conduct for a prosecutor knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.” ABA Standards § 5.6(b). See also Model Code of Professional Responsibility DR 7-106(C)(l) (“In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.”)

Moreover, in his closing speech before the bench, the assistant district attorney also expressed the following:

If Your Honor please, basically I think what Your Honor has to decide in this case is an issue of credibility. I think what we have is a situation here where either this defendant, John Harvey, is telling the truth or he’s not telling the truth.
It is the Commonwealth’s position that Mr. Harvey has lied, Your Honor.
Again, the absence of something is telling Your Honor something. The absence of that evidence is saying to Your Honor that Mr. Harvey is not telling the truth. There is no way to escape that.
And I think Mr. Harvey’s version of what happened, what caused the death of that woman stretches all credulity. And I would say this to Your Honor, that this is also a case where the absence of evidence makes Mr. Harvey out to be less than a teller of truth.

It is clearly improper for the prosecuting attorney “to express his personal belief or opinion as to the truth or falsity of any testimony or evidence on the guilt of the defendant.” ABA Standards § 5.8(b). See also Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (it is misconduct for a prosecutor to express a personal opinion of a defendant’s guilt or credibility); Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972); Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971); Commonwealth v. Hickman, 319 Pa.Super. 261, 466 A.2d 148 (1983). Accord Model Code of Professional Responsibility DR 7-106(C)(4) (“In appearing in his professional capacity before a tribunal, a lawyer shall not: ... (4) assert his personal opinion ... as to the credibility of a witness, ... or as to the guilt or innocence of an accused....”).

Finally, yet another episode of prosecutorial misconduct transpired during the assistant district attorney’s closing argument when he propounded the following:

Now, I think Your Honor that if this heroin belonged to this defendant, and if as the child said when he went upstairs, this woman was coughing for whatever reason people sometimes cough, goes over to the bureau, and there is no heroin because it fell down behind the bureau, this woman is coughing, this man has a hunger for heroin in a paranoia that goes along with it might have in his mind conceived the idea that she had taken this heroin into her mouth either to swallow it or to hide it or for whatever reason. And in his paranoia and in his heroin starvation paranoia, he wouldn’t accept any explanation, “I don’t have any. Look, there’s nothing in my mouth.”

The only reference to the appellant’s alleged use of heroin came on cross-examination by the prosecution:

Q Sir, at this time you were a heroin addict, were you not?
A I never was a heroin addict.
Q Sir, are you saying that you have no background in terms of heroin?
MR. PHILLIPS: Objection. He said he never was a heroin addict, Your Honor.
THE COURT: That is sustained.

In light of this unequivocal denial of heroin addiction, the prosecutor’s argument that the appellant was acting “in his heroin starvation paranoia” is plainly beyond the realm of “reasonable inferences from the record” and also goes beyond the central issues in the case. See ABA Standards § 5.8(a), (c). See also Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (a prosecutor must limit statements to facts in evidence and legitimate inferences therefrom); Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978) (“the fact that an issue is before the jury does not justify counsel’s over-emphasis of an illegal and socially reprehensible activity in a manner calculated to arouse the prejudice of the jury in resolving the ultimate issue of the guilt or innocence of the defendant with respect to the murder and firearm charges”); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976) (new trial required where prosecutor in his closing argument ascribed to a homicide defendant a motive that could not reasonably be drawn from the evidence).

We agree with the court in Commonwealth v. Starks “that the district attorney must have ‘reasonable latitude in fairly presenting a case to the jury, and that the trial judge must have reasonable discretion in deciding whether the bounds of propriety have been exceeded.’ ” 479 Pa. at 59, 387 A.2d at 833 (quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975)). We also acknowledge that perhaps latitude may be broader in cases tried before a judge alone. Nevertheless, as the court concluded in Starks, “we cannot avoid the conclusion that the aggregate of the remarks by the district attorney in the instant case was of such a nature as to deprive the appellant of a fair trial.” Id. 479 Pa. at 59-60, 387 A.2d at 833 (footnote and citations omitted). See also Commonwealth v. Hickman, 319 Pa.Super. 261, 466 A.2d 148 (1983) (new trial mandated where cumulative effect of the district attorney’s remarks so prejudiced the defendant that a fair trial was impossible); Commonwealth v. Reynolds, 254 Pa.Super. 454, 386 A.2d 37 (1978) (reversible error exists where the cumulative effect of improper statements made by the prosecuting attorney so prejudices the jury as to prevent a fair trial).

The second issue raised by the appellant is whether the evidence presented by the Commonwealth is sufficient to sustain the verdict. Here, the evidence in the record, read in light most favorable to the Commonwealth, refutes appellant’s contention that the evidence was insufficient to prove intent and malice aforethought. The testimony establishes that the appellant knew the force and instrument used (a purse strap) were likely to kill and the trial court could properly infer the requisite intent from the circumstances and use of the instrument. See Commonwealth v. Clark, 270 Pa.Super. 441, 411 A.2d 800 (1979) (malice may be shown by the defendant’s use of a dangerous instrument on a vital part of the victim’s body). However, this finding of sufficiency does not disturb our conclusion that the appellant is entitled to a new trial on the grounds of prosecutorial misconduct. Cf. Commonwealth v. Swift, 291 Pa.Super. 90, 435 A.2d 234 (1981).

The judgment of sentence is reversed and the case remanded for a new trial. Jurisdiction is relinquished.

OLSZEWSKI, J., files dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s opinion granting appellant a new trial. I would affirm the judgment of sentence.

The court, sitting as the trier of fact, is presumed to be able to ignore inflammatory evidence or impermissible argument. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Glover, 266 Pa.Super. 531, 405 A.2d 945 (1979). The majority acknowledges the court’s detachment, yet in this case holds that the statements at issue were so prejudicial as to overcome that detachment.

Merely because prosecutorial statements are “highly emotional” does not mean they should be presumed to prejudice the court. I would require the appellant to show the prejudicial effect of inflammatory evidence or impermissible argument, evidenced by statements made by the court, before granting a new trial in cases such as the one at bar. Accordingly, since appellant has not shown such an effect, I would affirm the judgment of sentence.

      . On direct examination, the appellant testified that in 1975 he pleaded guilty and was sentenced for two bank larcenies. Those charges, accordingly, were not before the court in the instant litigation.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    498 A.2d 387
    Forrest DORSEY, Appellant, v. NATIONWIDE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 8, 1985.

      James Womer, Philadelphia, for appellant.
    Robert Keller, District Attorney, Philadelphia, for appellee.
    Before WIEAND, WATKINS and GEISZ,  JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

This is an appeal from an order refusing to vacate an arbitration award which determined that the appellant, Forrest Dorsey, was not entitled to recover uninsured motorist benefits from his automobile insurance carrier. We affirm. However, a separate court order which imposed personal liability upon appellant’s counsel for payment of the fee of the neutral arbitrator must be reversed.

Forrest Dorsey was injured on September 2, 1980 when the automobile which he was driving was hit in the rear by another motorist near the intersection of Second and Race Streets in Philadelphia. Dorsey alleged that he had been forced to stop suddenly because two cars preceding him had stopped unexpectedly. Appellant filed a claim with his automobile insurance carrier, Nationwide Insurance Company (appellee herein), for uninsured motorist benefits. He asserted that the accident had been caused by an unidentified driver who went through a red light at Race and Second Streets, forcing appellant and the two drivers in front of him to stop suddenly. When the insurer denied his claim, appellant petitioned the court to compel arbitration. The parties were unable to agree upon a third, neutral arbitrator, and the court appointed Joseph M. Smith, Esquire, a member of the bar who practiced in Montgomery County. Smith served as chairman of the panel. A hearing was held on February 16, 1984, and a majority of the panel found in favor of the insurer. Appellant filed exceptions to the arbitrators’ decision and a motion to vacate the award. The exceptions were dismissed and the motion to vacate was denied on April 12, 1984. Appellant filed a petition for reconsideration, based on additional depositions, but the court continued to deny relief. Appellant then filed an appeal from the order denying his motion to vacate. (No. 1369 Philadelphia, 1984).

While that appeal was pending, it came to the court’s attention that Smith had not been paid the part of his fee which, under the contract of insurance, appellant was obligated to pay. A hearing was held on June 20, 1984, after which the court found that appellant had no assets with which to pay Smith. The court also found that appellant had never been informed by his counsel, Allen Feingold, Esquire, that appellant would be obligated to pay one-half of the neutral arbitrator’s fee. The Court ordered Feingold to pay the $190.00 owed by his client to Smith. A separate appeal has been taken by Feingold from that order. (No. 1865 Philadelphia, 1984).

The parties are agreed that the arbitration clause of the insurance contract between appellant and appellee provided for common law arbitration. The contract of insurance did not refer to statutory arbitration. Rather, the agreement provided for arbitration according to the rules of the American Arbitration Association. The agreement, therefore, directed common law arbitration. See: Gentile v. Weiss, 328 Pa.Super. 475, 477 A.2d 544 (1984). “The decision of the arbitrator in a common-law arbitration is binding and cannot be attacked unless it can be shown by clear, precise and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award.” Gentile v. Weiss, supra, 328 Pa.Superior Ct. at 479, 477 A.2d at 546, quoting Cargill v. Northwestern National Insurance Co., 316 Pa.Super. 139, 143, 462 A.2d 833, 834-835 (1983).

Appellant in the instant case received a full hearing before the arbitrators. He has not alleged or proved that there was any fraud, misconduct or corruption which resulted in an unjust, inequitable or unconscionable award. “In an arbitration proceeding, an irregularity refers to the process employed in reaching the result of the arbitration, not to the result itself.” Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, 328 Pa.Super. 357, 362, 477 A.2d 482, 485 (1984). There was no irregularity here. Appellant’s contention that the evidence was uncontroverted in favor of his position is an attack on the result and not on the process. The credibility of the testimony was for the arbitrators, and their determination was based thereon. This is not a basis for vacating the arbitrators’ award. The order denying the motion to vacate, therefore, will be affirmed.

The arbitration clause in the insurance contract provided: “Each party will pay its chosen arbitrator, and bear equally expenses for the third and all other expenses of arbitration.” Appellant agreed, by these terms, to bear a portion of the fee of the third arbitrator. Appellant’s counsel was not a party to the contract of insurance. There is no evidence that he promised his client, the appellee insurer, or the arbitrator that he would pay the costs of arbitration. The trial court ordered Feingold to pay one-half of the third arbitrator’s fee because Feingold, after requesting the appointment of a neutral arbitrator, had then refused to pay him when the disposition of the case by the arbitrators failed to meet with his favor.

Although Feingold did in fact request the appointment of an arbitrator, he did so on behalf of and as counsel for his client. If a fee is due the neutral arbitrator, that obligation belongs to the client who contractually agreed to pay it, not his attorney. When an attorney is engaged to represent a client in litigation, he becomes the manager of the litigation, and his client is bound by counsel’s decisions. Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 130-181, 216 A.2d 57, 59, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966). An attorney has implied authority to bind his client for the payment of expenses properly incurred or made in connection with the conduct of the case. 7A C.J.S. Attorney & Client § 212 (1980). Unless Feingold violated his client’s instructions by proceeding as he did, or unless he promised that he would personally pay the arbitrator’s fee, he cannot be held personally liable for the costs of litigation pursued on behalf of his client. See: Revere Press, Inc. v. Blumberg, 431 Pa. 370, 373, 246 A.2d 407, 409 (1968); Kennedy v. Faush, 217 Pa.Super. 13, 16, 268 A.2d 209, 211 (1970). Feingold’s petition for the appointment of a neutral arbitrator was a strategic move taken on behalf of his client. See: The Stardust, Inc. v. Commonwealth, Pennsylvania Liquor Control Board, 30 Pa.Cmwlth. 569, 571, 374 A.2d 989, 990 (1977). Therefore, it was the client and not the attorney who was liable for the costs thereof.

We are in sympathy with the trial judge who, according to his opinion, has repeatedly been required to deal with an attorney who refuses to pay arbitrators’ fees in cases where the award fails to meet with his approval. The solution, however, is not a rule of law allowing the imposition of personal liability on the attorney. Requiring a pre-appointment deposit of sufficient funds to cover anticipated fees and costs would be more in keeping with the intention of the parties and consistent with legal principles. If counsel engages in a course of conduct deemed unethical, moreover, the court may refer the matter to the Disciplinary Board.

The order denying the motion to vacate the award of arbitrators, appealed at No. 1369 Philadelphia, 1984, is affirmed. The order imposing costs upon counsel personally, appealed at No. 1865 Philadelphia, 1984, is reversed and set aside.


text:
    498 A.2d 389
    COMMONWEALTH of Pennsylvania, Appellee, v. Lewis Michael MOLER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 8, 1985.

      Paul R. Gettleman, Zelienople, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.
    Before SPAETH, President Judge, ROWLEY and WIE-AND, JJ.
   WIEAND, Judge:

Lewis Moler entered negotiated pleas of guilty to charges of theft by receiving stolen property, solicitation to commit murder and attempted bribery of the District Attorney of Mercer County. After he had been sentenced to consecutive terms of imprisonment totalling not less than eleven years nor more than twenty years, appellant obtained new counsel and filed a petition to withdraw his pleas of guilty. He alleged that his pleas had been entered involuntarily and unknowingly and that his guilty plea counsel had been ineffective. A motion was also filed to modify the sentence. Both motions were consolidated for hearing, after which the trial court modified the sentence for solicitation to commit murder to not less than five nor more than ten years in prison, thus reducing the total sentence to not less than ten nor more than twenty years. All other relief was denied. Moler appealed. We affirm.

A petition to withdraw a plea of guilty after sentence has been imposed will not be allowed unless there is a showing of prejudice on the order of manifest injustice. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). This requires a review of all circumstances surrounding the entry of the plea. Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).

Appellant argues that his plea of guilty in the instant case was involuntary because it was entered to prevent prosecution of charges against his father. In this respect, it may be observed that appellant’s father had suffered a heart attack and, as per finding of the post-trial hearing court, appellant had been informed that “all charges were being dropped against the defendant’s father for medical reasons.” (Finding of fact No. 14). The court further found:

11. Although the defendant would not have entered guilty pleas if the charges had not been dismissed against his father, this was not the only precipitating reason of the defendant for entering guilty pleas. The defendant also entered the guilty pleas because he wanted to get the matter over with, he was satisfied with the Judge assigned to his case, and that he was concerned as to the safety of his family if it became known that he was cooperating with authorities while in the Mercer County Jail and he acknowledged that he was guilty.

These findings are supported by evidence presented at the post-trial hearing and, therefore, are binding upon a reviewing court. Commonwealth v. Byrd, 493 Pa. 178, 183, 425 A.2d 722, 724 (1981); Commonwealth v. Mack, 313 Pa.Super. 372, 376, 459 A.2d 1276, 1278 (1983); Commonwealth v. Johnson, 310 Pa.Super. 385, 391, 456 A.2d 988, 991 (1983). During the guilty plea colloquy, moreover, appellant had assured the court that his pleas were being entered voluntarily. This appears at page 41 of the guilty plea record as follows:

THE COURT: In your mind, have [sic] there been any threat against you of any type to make you come here today to enter these guilty pleas?
MR. MOLER: No, sir.
THE COURT: Are you entering these of your own free will and accord?
MR. MOLER: Yes, sir.
THE COURT: Are there any questions on anything that you have said or that I’ve said to you or your attorney has said that you want cleared up before you enter these guilty pleas?
MR. MOLER: No, sir.

It seems clear, therefore, that neither appellant’s concern for charges pending against his father nor the District Attorney’s decision to drop them rendered appellant’s guilty pleas involuntary. Neither suggested prejudice on the order of manifest injustice. The trial court correctly refused to allow appellant to withdraw his pleas of guilty for this reason.

Appellant also contends that his guilty pleas were invalid because he did not knowingly waive his right to trial by jury. The record colloquy, he contends, failed to include an instruction that he would be able to participate in the selection of the jury. The guilty plea court instructed appellant in part as follows:

You should understand that you are presumed to be innocent throughout all of this as you sit there right now, as innocent as any person in this room with those charges, and only after a full trial after twelve jurors are selected from all walks of life of Mercer County and are duly sworn and all the evidence is received and the attorneys are given the opportunity to argue their case to the jury, and the Judge charges the jury and they retire to deliberate, when the last of the twelve jurors says guilty when they come in an[d] announce their verdict in open court, then and only then are you guilty and not at any time to that. So you have what is called a presumption of innocence, and it’s up to the government to prove beyond a reasonable doubt each and every element of these crimes that I am going to give to you if they expect to get a conviction. If there is a reasonable doubt as to any element of any crime, then the jury is obligated to find you not guilty of that charge. If you elect to go to trial, that is, plead not guilty, you have an absolute right to a jury trial, and you have an absolute right to take the stand and tell your side of the story, and that cannot be taken away from you____

Appellant’s counsel, moreover, had informed appellant prior to his tendering of guilty pleas that he had the right to address questions to the jury during voir dire and to challenge jurors for cause depending upon their answers. Appellant had also been instructed by trial counsel that he had the right to exercise seven peremptory challenges. (Post-trial hearing court finding No. 13).

Following examination of the total circumstances, as mandated by the Supreme Court, the conclusion is inescapable that appellant’s guilty pleas were entered knowingly, intelligently and voluntarily. There were no defects in the guilty plea proceedings of sufficient magnitude to warrant a post-sentencing withdrawal of appellant’s pleas. See: Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983); Commonwealth v. Harris, 311 Pa.Super. 216, 457 A.2d 572 (1983); Commonwealth v. Herberg, 306 Pa. Super. 245, 452 A.2d 536 (1982). See also: Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983). Even now, appellant does not aver his innocence.

During the guilty plea colloquy pertaining to the charge of attempted bribery of the District Attorney, Moler explained to the court that a person named Charles, who in reality was an undercover police officer, had told him he could take care of his other problems. The following dialogue then occured:

“THE COURT: Did you know what he meant when he said we’ll take care of the problem that you had?
“MR. MOLER: Not yet. Okay, then we went from the truckstop,—oh, he spoke that he had a guy from the District Attorney’s Office that would take money to sabotage the case, or take money for Judge Acker, yourself and to retaliate the case to return it through trial, but have mistakes to make it so that it would be thrown out of Court. And this was in the car, he told me on the way over. He went up,—I wouldn’t go into Pennsylvania. I stopped on the Pennsylvania line and told him I wouldn’t go into Pennsylvania, and he walked up to the car about a hundred yards into Pennsylvania and walked back to my car and we spoke that the guy wanted a thousand, he wanted eight thousand in three different payments at different times of trial.
“THE COURT: Okay.
“MR. MOLER: But he wouldn’t come back to the car. So he walked back up to talk to him some more and come back and asked if it was all right that this Charlie guy come back to my car. I pulled my car off approximately forty yards and my father walked back to the car, and then they both came back to my car and my father handed me an envelope and I handed it to the Charlie guy.
“THE COURT: Did you know what was in the envelope?
“MR. MOLER: Money.
“THE COURT: You walked across the state line into Pennsylvania.
“MR. MOLER: Drove.
“THE COURT: Drove?
“MR. MOLER: Correct.
“THE COURT: Uh-huh.
“MR. MOLER: I was probably thirty yards into Pennsylvania.
“THE COURT: What was in that envelope?
“MR. MOLER: A thousand dollars, I think. Yes.
“THE COURT: Did you see that before you handed it over. Did you look into it, or—
“MR. MOLER: He had the money in his hand and I assumed the money was definitely in the envelope.
“THE COURT: And you could feel money?
“MR. MOLER: Sure.
“THE COURT: And knew it was money you were passing?
“MR. MOLER: Yeah.
“THE COURT: And at the time that you passed it then, what did you think you were buying?
“MR. MOLER: That he was going to sabotage my case somehow.
“THE COURT: And did you think it was going to go to trial and that errors would be made in the course of the trial to wreck the case?
“MR. MOLER: Correct.
“THE COURT: That was your thought of how it was going to go?
“MR. MOLER: Yes.
“THE COURT: Now, was that supposed to be the first payment of three payments?
“MR. MOLER: Yes, sir.
“THE COURT: Was that Eight Thousand Dollar deal still on as far as you knew?
“MR. MOLER: Total. Yes, sir.
“THE COURT: This was but one thousand?
“MR. MOLER: Yes, sir.
“THE COURT: Wasn’t it that you were to pay two thousand dollars?
“MR. MOLER: Yes, sir. That’s all the money we had.
“THE COURT: Did you tell him that?
“MR. MOLER: Uh—I can’t say that I told him because I wasn’t in the car and I never spoke with the man. I think I said seven words to him.
“THE COURT: And then they arrested you immediately upon your passing the money over?
“MR. MOLER: He went back to his car and flashed his lights on the car, and in the meantime I was backing away and getting ready to go and U-turn in the interstate and traffic was a little moderate and a car came up from behind and two guys walked up to the car and told us to get out of the car with shotguns and two police cars come to the middle of the road and stopped, marked state highway patrol cars and Officer Grolemund came out of the weeds beside the car.
“THE COURT: All right. Let’s go back to make sure we have all the elements. You did in fact offer and did in fact deliver a thousand dollars to a person with the belief at least that you were going to be able to affect the case in such a manner that you would not be convicted?
“MR. MOLER: Correct.
“THE COURT: Now, did you feel that you were buying out both of these charges or all?
“MR. MOLER: All of the charges.
“THE COURT: Against you to that point?
“MR. MOLER: Yes, sir. All the charges.
“THE COURT: All right. Did you have any reason to believe that this was going to work?
“MR. MOLER: I wasn’t sure. I just, I don’t know. I watch TV.
“THE COURT: Did anybody represent to you, did anybody from the existing District Attorney’s Office or any of the police other than these undercover officers represent to you that they had an entree or an entry into the Courts that they could pull this off?
“MR. MOLER: Just from his words, Charles Toth.
“THE COURT: Just the undercover agent?
“MR. MOLER: Charles, and then this Jim guy.
“THE COURT: All right. Questions by either counsel or both?
“MR. McCANN: No, your Honor.
“MR. LAMANCUSA: I have nothing, your Honor.”

Appellant now argues that his guilty plea counsel rendered ineffective assistance because he failed to request the trial judge and the prosecuting attorney, an assistant district attorney, to recuse themselves. The trial court found that such a request would have been meritless and that counsel should not be deemed ineffective for failing to make such a useless motion. We agree.

The District Attorney, who had been the object of the attempted bribe, did not participate personally in the prosecution of criminal charges against appellant. The prosecution was handled exclusively by an assistant district attorney. Even if there were reason for disqualification of the District Attorney, the law is clear that disqualification of his entire staff was not required. Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980). Appellant has failed to show that he was prejudiced in any way by virtue of the fact that the prosecution was handled by an assistant district attorney. The record does not even imply that the prosecuting assistant district attorney failed to perform his duties impartially in keeping with professional, prosecution standards.

Moreover and in any event, appellant did not create a conflict of interest requiring the District Attorney to recuse himself from his role as prosecutor merely because appellant believed—and attempted to act on his belief—that the District Attorney could be bribed. Any rule requiring recusal under such circumstances would contain the potential for havoc in cases being prosecuted by District Attorneys in this Commonwealth. Where, as here, a District Attorney’s role in the prosecution function is not impaired by a defendant’s attempt to bribe him, there is no necessity for recusal. See and compare: Commonwealth v. Stoner, 264 Pa.Super. 136, 399 A.2d 703 (1979) (no conflict where prosecuting attorney represented victim of embezzlement in civil action against same defendant).

Similarly, appellant’s testimony that he subjectively believed that some of the money paid would reach the trial judge did not create a conflict of interest requiring the judge to recuse himself from accepting appellant’s guilty pleas or from imposing sentence. In Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), the trial judge, as district attorney, had previously prosecuted the defendant on unrelated charges. The Supreme Court held that “[ajbsent some showing of prejudgment or bias we will not assume a trial court would not be able to provide a defendant a fair trial based solely on prior prosecutorial participation.” Id., 501 Pa. at 22, 459 A.2d at 731. See also: Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976) (recusal unnecessary where trial judge presiding over homicide trial had been mourner at victim’s funeral); Commonwealth v. Schwartz, 178 Pa.Super. 434, 115 A.2d 826 (1955) (recusal unnecessary in bribery trial where trial judge had been informed pre-trial by District Attorney that investigation of bribery of public officials was underway). We reject emphatically the per se rule advocated by appellant that a judge accepting a guilty plea can be compelled to recuse himself or herself whenever a defendant, during the plea colloquy, articulates a subjective belief that the judge is corrupt or otherwise unworthy of hearing the case. The subjective belief of the defendant, without more, that his criminal charges could be fixed by bribing the trial judge, does not require recusal of the judge.

The order refusing to allow appellant to withdraw his pleas of guilty is affirmed.