Summary
holding exclusion of defendant's polygraph examination results from evidence at murder trial not erroneous
Summary of this case from Commonwealth v. A.R.Opinion
May 21, 1973.
October 3, 1973.
Criminal Law — Practice — Argument to jury — Allegedly prejudicial remarks of prosecutor — Statement that defendant and a witness lied to the jury — Reference to defendant's dishonorable discharge from the army — Evidence — Results of polygraph test.
Defendant, convicted of murder in the first degree and sentenced, contended on appeal that (1) remarks made by the district attorney were so prejudicial as to deny him a fair trial, particularly when the district attorney told the jury, in his closing remarks, that a particular witness and defendant had lied to them, (2) the closing remarks of the district attorney required reversal because he referred to defendant's dishonorable discharge from the army because he had been AWOL, and (3) the trial court committed error when it prohibited defendant from introducing the results of his polygraph test.
It was Held on appeal that the judgment of sentence should be affirmed.
Mr. Justice O'BRIEN filed an opinion in which he rendered the judgment of the Court, and stated, inter alia, the following:
Since the trial judge clearly instructed the jury that they were the sole judges of credibility of each and every witness, and since the offensive statement as to the credibility of defendant and his witness was not objected to, it did not require reversal. However, the prosecuting attorneys must again be admonished that (in the words of the ABA Standards Relating to The Prosecution Function) it is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence of the defendant. The circumstances of defendant's discharge from the army were deliberately brought out by defendant's counsel in his direct examination of defendant, and the fact that defendant's counsel failed to object to the remarks of the prosecutor indicates that, at the time they were made, he too did not consider them prejudicial.
The results of polygraph tests have never been admissible in a court of law because the scientific reliability of such tests has not been established.
Mr. Justice ROBERTS filed a concurring opinion, in which Mr. Chief Justice JONES joined.
Mr. Justice EAGEN and Mr. Justice MANDERINO concurred in the result.
Argued May 21, 1973. Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 11, May T., 1973, from judgment of sentence of Court of Common Pleas of Dauphin County, No. 87 of 1971, in case of Commonwealth of Pennsylvania v. Wayne Eugene Brooks. Judgment of sentence affirmed.
Indictment charging defendant with murder. Before LIPSlTT, J.
Verdict of guilty of murder in the first degree. Defendant's motions for new trial and in arrest of judgment denied and judgment of sentence entered. Defendant appealed.
Howard B. Krug, with him John W. Purcell, for appellant.
James G. Morgan, Jr., Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
On August 12, 1970, Mrs. Ethel Mumma, sixty-seven-year-old motel owner, was robbed, beaten and shot to death. Her body was found in her apartment above her establishment the following day. During the course of a police investigation of the crime, a weapon was recovered which was traced to one Nancy Hopewell, who was living with appellant in Indianapolis, Indiana. On or about August 20, 1970, members of the Lower Paxton Township Police Department and a Pennsylvania State Policeman went to appellant's home in Indianapolis with a warrant for the arrest of Nancy Hopewell on a credit card violation, unrelated to the murder. While effecting this arrest, one officer observed bullet holes in the walls of the residence. Accordingly, on August 22, 1970, Pennsylvania law enforcement officials again went to appellant's home in Indianapolis, this time with a search warrant for the removal of the bullets in the walls. The bullets were removed and returned to Harrisburg, where they were later matched with the bullets that killed Mrs. Mumma. Later, after being arrested on a fugitive warrant for the crime of burglary, unrelated to the murder of Mrs. Mumma, and being returned to Dauphin County, appellant was formally charged with the murder of Mrs. Mumma. A jury found appellant guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
Appellant does not question the existence of probable cause for his arrest on the murder charge.
Appellant's main allegations of error center around the trial conduct of the prosecuting attorney. Appellant alleges that remarks made by the district attorney during appellant's trial were so prejudicial as to deny him a fair trial, particularly when the district attorney told the jury, in his closing remarks: "I say to you, Nancy lied to you. I say to you, Wayne Brooks lied to you. . . ."
Appellant premises his argument on Commonwealth v. Potter, 445 Pa. 284, 287, 285 A.2d 492 (1971), where we stated: "The prosecutor, in branding appellant's testimony as a 'malicious lie' exceeded the permissible bounds of cross-examination. Furthermore, he injected his highly prejudicial personal opinion of appellant's credibility into evidence. . . ." See also Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972).
However, unlike Potter and Revty, appellant failed to object to the offensive statement of the district attorney when it was made. Since the trial judge clearly instructed the jury that they "were the sole judges of credibility of each and every witness who has testified" and since the offensive statement was not objected to, we do not believe that it requires reversal. However, we must again admonish prosecuting attorneys that, in the words of the ABA Standards Relating to Prosecution Function: "It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence . . . of the defendant." Commonwealth v. Potter, supra, at 286.
Appellant also argues that the closing remarks of the district attorney require reversal because he referred to appellant's dishonorable discharge from the army because he had been AWOL. However, the circumstances of appellant's discharge were deliberately brought out by appellant's counsel in his direct examination of appellant. Consequently, while the prosecution may be criticized for over-trying his case, we fail to see any prejudice resulting from this conduct. The fact that appellant's counsel failed to object to these remarks indicates that, at the time they were made, he too did not consider them prejudicial.
Appellant next alleges that the trial court committed error when it prohibited appellant from introducing the results of his polygraph test. We do not agree. The results of polygraph tests have never been admissible in a court of law because the scientific reliability of such tests has never been established. See Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956).
Appellant raises other allegations of error that need not concern us because appellant's counsel did not note his exception to the alleged errors at the proper time and these errors were not of a basic and fundamental nature.
Judgment of sentence affirmed.
Mr. Justice EAGEN concurs in the result.
Mr. Justice MANDERINO concurs in the result
I concur in the result because counsel interposed no timely objections. Appellant is therefore precluded from raising the presently asserted claims of error. See, e.g., Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).
Mr. Chief Justice JONES joins in this concurring opinion.