Commonwealth v. Molinari , 179 Pa. Super. 427 ( 1955 )

Opinion by

Gunther, J.,

The defendant, a magistrate in the City of Philadelphia, was indicted, tried and convicted of subornation of perjury. The evidence on behalf of the Commonwealth disclosed the following situation. On December 20, 1952, Anderson Sayles was arrested on a lottery charge, as was Benjamin DeStefano shortly thereafter. upon Sayles’ identification of him as the person to whom he turned, in numbers slips. Sayles later signed and swore to a writing identifying DeStefano. The following day at his hearing Sayles denied knowledge of DeStefano and stated that he turned his slips in to a colored man. He repeated this story when he pleaded guilty to the lottery charge in Quarter Sessions Court. In this trial he testified that he had lied when he denied knowing and working with DeStefano and that he changed his story at the instance of defendant. At the time of Sayles’ first hearing on December 21, 1952, he was introduced to defendant by DeStefano just outside the hearing magistrate’s office. The three men, together with Clarence Arthur who had been arrested with Sayles, went into a room in the office of a bondsman. In that room, immediately prior to Sayles’ hearing, the defendant allegedly told Sayles to deny knowing DeStefano, that he turned numbers slips over to a colored man, and that the gang would pay all his expenses. The defendant sat on the bench with the hearing magistrate at Sayles’ hearing. Sayles continued to deny any connection with DeStefano until he was indicted for perjury. He testified that De-Stefano later paid his fine and gave him a retainer for a lawyer.

The defendant denied the charges. He explained his presence at Sayles’ hearing by stating that he was then a new magistrate, needed experience, and had been invited to that particular court on that day to learn procedures. He admitted conversing with Sayles in the bondsman’s office, but contended that he merely recommended bail procedures. DeStefano refused to testify as to the conversation. Arthur testified that although he was in the same room he failed to hear the conversation.

Numerous allegations of error are made by defendant. Some of them, such as the admissibility of certain evidence and the proof of perjury under oath, are without merit and need not be detailed here in view of our decision. However there are several allegations of error in respect to prejudicial remarks and questions by the district attorney which have merit. This trial engendered considerable public interest and heat and was fraught with political connotations. The result was a series of charges and counter charges and personal recriminations throughout the course of the trial. While cross examining one of the defendant’s witnesses, the district attorney asked the witness if he didn’t know a certain Bruno, reputed head of a criminal gang and an intimate friend of the defendant. There had been no testimony concerning this person theretofore. A similar question was asked of a character witness for defendant in respect to an alleged killer. Objection was sustained but the implication of the question remained. Altercations frequently ensued between defense counsel and the district attorney. In one of these the latter referred to the fact that the former had once been locked in jail while a public official and had been reprimanded as an attorney by the Supreme Court of Pennsylvania. At another point the district attorney expressed the hope that a Commonwealth witness would slap defense counsel between the eyes. The record is replete with similar improper statements and remarks and there is no need to repeat each one in detail.

In addition the district attorney in his summation to the jury engaged in a highly emotional and improper appeal the gist of which was that defendant was a corrupt politician in alliance with the underworld and that the district attorney and his staff were risking their lives and futures in an effort to clean up the situation. The summation included a clear appeal to passion and fear by statements that there had been threats of reprisal. A great deal of this was unsupported by any evidence whatsoever.

The Commonwealth argues that the obviously improper remarks by the district attorney throughout the trial were provoked by defense counsel. There is much truth in that argument and the record discloses many equally improper remarks by him. There is also some merit to the argument that the district attorney’s political remarks, as in his summation, were warranted because defense counsel had clearly stated that the entire case was motivated by the district attorney’s political ambitions. However, the retaliation was excessive in the extreme. Many of the district attorney’s remarks did not directly follow provocative conduct by defense counsel but occurred after considerable intervals. A reading of the record clearly reveals that the entire trial was characterized by extreme bitterness between counsel and violent, emotional and abusive conduct. The whole atmosphere was one of highly charged emotion, passionate and personalized attacks and appeals to fear. A fair trial under the evidence does not ensue in such a situation. ' The conduct of both counsel went beyond the bounds of propriety.

In order to justify a reversal, the language of the prosecuting officer must have been such that its unavoidable effect was to prejudice the jury and to inflame them with passion and bias so that they could not fairly reach a true verdict, under the law and the evidence. Commonwealth v. Meyers, 290 Pa; 573, 139 A. 374; Commonwealth v. Balles, 160 Pa. Superior Ct. 148, 50 A. 2d 729. Although each individual remark or statement made by the district attorney would perhaps' not cause a reversal standing alone, particularly those in retaliation to defense counsel, the entire weight of all the objectionable and improper remarks could only have had the effect of inflaming and prejudicing the jury. It is true that the trial judge in his charge warned the jury not to heed the objectionable phases of the trial and to render a verdict based solely upon the law and the evidence. Improper remarks can generally be cured by the instructions to the jury, unless the remarks and statements are too flagrant. Commonwealth v. Wilcox, 316 Pa. 129, 173 A. 653. We are of the opinion that the nature, frequency and weight of all the objectionable remarks in this trial were so flagrant and improper as to render the charge inadequate to correct their cumulative effect. We are mindful that a long and expensive trial should not be repeated because of a few remarks by an overzealous prosecutor, especially where defense counsel’s conduct is also unbecoming and provocative. However, the defendant is entitled to a trial free of personal bitterness, continuous contumely, passion, fear and prejudice. These elements were unfortunately present in abundance and a new trial should be awarded to afford a more rational atmosphere for the determination of guilt or innocence.

Judgment of sentence reversed and a new trial awarded.