Commonwealth v. Mathis

SPAETH, Judge,

concurring and dissenting:

I agree with the majority that the lower court sentenced appellant improperly. As the majority correctly holds, it was a manifest abuse of discretion for the court to sentence a defendant without considering the character of the defendant, as well as the particular circumstances of the offense, in light of the legislative guidelines for sentencing. See, e. g., Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). Furthermore, the court was required to impose the minimum sentence consistent with the protection *68of the public, the gravity of the offense, and the rehabilitative needs of the defendant, and to state on the record its reasons for the sentence imposed. See, e. g., Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Bolyard, 256 Pa.Super. 57, 389 A.2d 598 (1978); The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S.A. § 1321(b) (Supp. 1979-80). Because the court failed to follow mandatory sentencing procedures, instead stating summarily that it thought that “under the circumstances the sentence of 5 to 10 years in the State Correctional Institution [was] appropriate . . ..” Majority Op. at 65, vacation of appellant’s sentence is necessary.

I disagree, however, with the majority’s conclusion that the lower court correctly denied appellant’s motion for a mistrial because of the district attorney’s comments during closing argument.

Appellant was tried together with his three co-defendants, and did not testify. During closing argument the district attorney stated:

Ladies and gentlemen, let me suggest to you that you should not allow the smoke created by defense counsel’s questions, innuendos, suggestions, opening speeches that are uncorroborated, unfulfilled, that is what I should refer to as smoke.
And the smoke is the whole business about Will Goldsmith, which is created entirely out of the defense questions, really.
But, not entirely. Because the first time that you heard about Will Goldsmith was from Mr. Moldovsky [counsel for co-defendant Howzell] in his opening. He said that, “My client [Howzell] is going to tell you that Will Goldsmith — ”
MR. HOLT [also counsel for co-defendant Howzell]: Objection, your Honor.
*69MR. FINEMAN [counsel for another co-defendant]: Your Honor, at this time we move for a mistrial.
MR. HOLT: Move for a mistrial.
THE COURT: Motion denied.
MR. CARPENTER [the district attorney]: Ladies and gentlemen, you were here. You heard it. He said, “My client is going to testify that Will Goldsmith is boyfriend — ”
MR. FINEMAN: Your Honor, I don’t want to interrupt at all. I think that the record should be clear that any reference at all—
MR. HOLT: Same motion.
THE COURT: Overruled.
MR. CARPENTER: That was the first reference that you heard about Will Goldsmith. That came from Mr. Moldovsky, whose professional reputation is at stake, according to the defense.
Mr. Moldovsky told you that his man would tell you that Will Goldsmith gave the keys to Wilmer Wilson, and that they then went to the apartment. That was the defense.
Has the defense produced Will Goldsmith to testify?
MR. SPAULDING [counsel for another co-defendant]: Objection your Honor.
THE COURT: Overruled.
MR. CARPENTER: Has the defense produced the testimony Mr. Moldovsky told you they were going to do?
MR. HOLT: Objection.
THE COURT: Overruled.
N.T. Yol. 5 at 66-68.

It was improper for the district attorney to ask the jury to draw an adverse inference of guilt against appellant because appellant had not called his co-defendant Howzell to testify. The fact that Howzell’s attorney had claimed in his opening statement that he would call Howzell to testify is immaterial; appellant had no power to compel Howzell’s testimony, *70and it was improper for the district attorney to suggest that he did. Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974); Commonwealth v. Reed, 212 Pa.Super. 11, 240 A.2d 390 (1968).1

In the circumstances of this case the trial judge’s error in overruling defense counsels’ objections2 to the district attorney’s argument was not error harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). After overruling the objections, the judge gave no curative instructions. The judge did instruct the jury near the end of his charge that it would be improper to draw an unfavorable inference from the defendants’ failure to testify, but this instruction was general only, and without reference to the district attorney’s argument that the jury could draw such an inference — an argument that the jury must have thought proper, since it had seen and heard the judge permit it over defense counsels’ objections.

For these reasons, I should reverse judgment and remand for a new trial.

. I recognize that the district attorney did not specifically refer to appellant, instead stating his rhetorical question generally: “Has the defense [referring to all four defendants] produced the testimony Mr. Moldovsky told you they were going to do?” The generality of phrasing, however, in no way diminished the force of the district attorney’s suggestion that appellant had the power to call Howzell; it amounted to saying that appellant and his co-defendants all had that power. Moreover, in Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973) (plurality opinion), the Supreme Court held that a new trial is required when a district attorney calls to the stand a co-defendant, knowing that the co-defendant will invoke his privilege against self-incrimination. See also Commonwealth v. Wright, 456 Pa. 511, 321 A.2d 625 (1974); Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973). Here, the district attorney did not attempt to call Howzell as a witness, yet when the district attorney commented on Howzell’s failure to testify, appellant suffered the same kind of prejudice the defendant in Terenda suffered.

. As shown by the quotation from the transcript, supra, immediate objections and motions for new trial were made by counsel for appellant’s co-defendants. After these objections were overruled and the district attorney had completed his closing, appellant’s counsel moved for a mistrial on the basis of the remarks. N.T. Vol. 5 at 89.