Commonwealth v. Brenizer , 467 Pa. 347 ( 1976 )

OPINION OF THE COURT

O’BRIEN, Justice.

On February 11, 1975, appellant, Enos Brenizer, was convicted by a jury of murder in the second degree and kidnapping. Post-trial motions were filed and denied by a court en banc. On April 8, 1975, the court imposed a sentence of life imprisonment for second-degree murder and a concurrent term of not less than ten nor more than twenty years’ imprisonment on the kidnapping indictment. Appellant appealed the murder conviction to this court and also appealed the kidnapping conviction to the Superior Court, which in turn certified the record to this court on July 3,1975.

The facts surrounding this appeal are as follows. On August 31, 1974, appellant, accompanied by four companions, went to the Cove Bar in Plum Borough, outside Pittsburgh, to meet the decedent, Michael Nelson, who was a bartender at the Cove Bar. The purpose of the meeting was to confront the decedent concerning the alleged rape of one of the group’s girlfriends. Two witnesses testified that they saw the decedent being beaten by appellant and his companions and also witnessed the decedent being forced into an automobile by the group. Nelson’s body was found early the following morning and appellant and four members of the group that accompanied him to the bar were arrested for the homicide.

Appellant argues that the district attorney’s “explanations” of appellant’s not-guilty plea in his summation were improper and prejudicial comments upon appellant’s not taking the stand in his own defense. We agree. The following is the complained of portion of the district attorney’s closing remarks:

“This defendant has pleaded not guilty. I for one wonder just exactly how that applies in this case. Evidentally [sic] he says he didn’t do anything, that he is no way involved or culpable. I guess that’s what we can discern from this plea.

“But really what does it mean? Does it mean that he wasn’t there at all ? Does it mean, ‘I’ve never seen these people before in my life, I wasn’t out there on the Saturday evening, I wasn’t with Lamonna?” Seriously, I don’t think that it means that because we have witnesses here, some disinterested witnesses, who saw him in the bar, saw him in that car. So I take it it doesn’t mean that.

“Well, what does it mean? Does it mean, ‘Well, I was there but I didn’t know what was going to happen. I just happened to be an innocent bystander. Oh, I got blood on my pants because I was standing next to him. That’s all. It got all the way up to my knees. From his head and face somehow it got down to my ankles, my calf, my knees. I didn’t have anything to do with it. I was just standing next to him?’

“Perhaps it means, ‘I was with Lamonna, that bad guy with the blood on his hands and on his chest. I was here with him but I didn’t help him. I was present when he went to get the bullets, but I had my ears plugged. I didn’t hear anything and I wasn’t a party to that. I didn’t aid or abet him. I was just there and I didn’t hear a word.’

“Well, how does that explain this defendant being in the presence of Richard Seachrist and Donald Lamonna when they approached McDade at about 7:00 o’clock?” (Emphasis supplied.)

We are of the opinion that the above comments by the district attorney as to possible “explanations” of appellant’s plea of not guilty, when coupled with the fact that appellant did not take the stand or offer any evidence in defense, constitutes impermissible and prejudicial comment on appellant’s Fifth Amendment right under the United States Constitution and Art. I, § 9, of the Pennsylvania Constitution, not to have any adverse comment on his not taking the witness stand.

This court in Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973), in disapproving of a district attorney’s use of the words “uncontroverted evidence,” when coupled with appellant’s failure to testify, stated:

“Here, where appellant neither testified at trial nor offered any other defense, the ‘ . . . prosecutor’s statement [s] implied that the . . . [defendant himself was] the only [one] who could and should have denied the charges against [him]. The jury might reasonably have inferred from [these] statement [s] that [his] failure to do so was evidence of [his] guilt.’ Commonwealth v. Reichard, 211 Pa.Super. 55, 60, 233 A.2d 603, 606 (1967). Such an inference is patently contrary to the mandate of Griffin [v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)].” At page 174, 305 A.2d at page 717.

“Not only were appellant’s rights under the United States Constitution violated, but also his rights under Article 1, § 9 of the Pennsylvania Constitution, and the Act of May 23, 1887 which implements it. It is well settled that any comment by the prosecution or the court violates the Act of 1887 if it ‘ . draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth’s case. . . . ’ Reichard, supra, 211 Pa.Super. at 58, 233 A.2d at 604. It is obvious, on this record, that the prosecutor’s comments clearly did that which is prohibited by the Act. ‘We think the assistant district attorney went too far, both under the Act of 1887 and under the Fifth Amendment proscription as enunciated in Griffin. Commonwealth v. Camm, 443 Pa. 253, 268, 277 A.2d 325, 333 (1971).” At pages 176-77, 305 A.2d at pages 718-719. (Emphasis in original.)

In the instant case, because of the district attorney’s offering of varying interpretations of appellant’s not-guilty plea, the jury “might reasonably have inferred” that appellant’s failure to offer any explanation of the plea or any evidence was because of his guilt and that if he were not guilty he would have testified in his own defense in order to establish his innocence.

The Commonwealth argues the remarks were harmless error beyond a reasonable doubt. We do not agree. The district attorney’s remarks reasonably may have contributed to the guilty verdict and as such cannot be said to be harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Commonwealth v. Davis, supra.

Appellant raises other allegations of error which we need not discuss because of the resolution of the above issue.

Judgments of sentence reversed and case remanded for a new trial.

POMEROY, J., filed a dissenting opinion.