Commonwealth v. Baranyai

419 A.2d 1368, 278 Pa. Super. 83
CourtSuperior Court of Pennsylvania
DecidedMarch 13, 1981
Docket1061
StatusPublished
Cited by15 cases

This text of 419 A.2d 1368 (Commonwealth v. Baranyai) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Baranyai, 419 A.2d 1368, 278 Pa. Super. 83 (Pa. Ct. App. 1981).

Opinions

WIEAND, Judge:

Frank Baranyai, a policeman in the Borough of Millvale, Allegheny County, was tried by a jury and found guilty of one count of assault and another count of official oppression arising out of an incident with one David Stier. He was also found guilty on a general charge of official oppression involving numerous persons. He was acquitted of twenty-six other charges. Post trial motions were denied, and a sentence of probation was imposed. This appeal followed.

The facts, as set forth in the opinion filed by the court below, are as follows: “On March 25, 1977, David Stier, [87]*87after having lunch and a few drinks with his business partner at the VIP Bar and Cousin’s Lounge, went to his pickup truck. His partner had parked his truck so close behind Stier’s truck that Stier was unable to get his truck out of the parking space. Stier put his truck in reverse, backed up, thereby bumping the truck behind him in an effort to move the other truck. The truck did not move and, instead, Stier’s actions resulted in the spinning of his truck wheels, a screeching noise and a cloud of smoke. At this time defendant Baranyai, on his way home from work and still dressed in his uniform, came upon Mr. Stier and stopped. The defendant asked Stier what he was doing and Stier replied that he was trying to get out of the parking space. Baranyai got out of his car and went over to Stier asking him to get out and walk to the rear of his truck and back again. Stier complied at which time Baranyai told him to lean against the truck and spread out. Stier had his hands on the cab of the truck and tried to turn around three or four times in order to tell the officer that the truck behind Stier belonged to his partner, but each time Stier turned, the defendant pushed him back and told him to shut up. A handcuff was placed on Stier’s right wrist and again he tried to turn around at which time Baranyai threw him to the ground. The officer sat on top of Stier and as the victim tried to raise himself up, the defendant put his hand around the victim’s throat and three times hit his head against the pavement. The officer then took Stier’s right elbow and pushed it toward the left shoulder to such a degree that an observer expected it to snap. Baranyai then called to a man sitting in the defendant’s car and asked him to bring his nightstick which the man did. The defendant raised his nightstick and told the complainant to ‘stop it or I’ll split your head open.’ (T.T. 51). Two other officers arrived on the scene, picked Stier up off the ground and placed him in their cruiser. Stier was charged with Drunk Driving and Resisting Arrest. His case was accepted for the Accelerated Rehabilitative Disposition Program.

[88]*88“The general charge of Official Oppression listed fifteen individuals1 who at various times over a period of years claimed that they had been oppressed by Officer Baranyai. The facts involved in each of those cases are too numerous to set forth here. Testimony was presented at trial in regard to all of the incidents. Generally, the complainants charged the defendant with mistreatment, harassment, false arrests and assaults.”

Appellant has not questioned the sufficiency of the evidence to sustain the verdicts. He does raise many other issues, which we will consider seriatim.

He argues, first, that the trial court erred in refusing a mistrial because of prejudicial remarks allegedly made by the District Attorney during closing argument. This issue, however, has not been preserved for appellate review. Counsels’ closing arguments were not recorded. Appellant interposed no objections during the District Attorney’s closing argument and made no request to place on the record those remarks alleged to be objectionable. After the arguments had been concluded and during a conference between counsel and the trial judge in chambers, appellant for the first time complained of alleged prosecutorial overreaching and moved for a mistrial.

“Where the argument is not recorded, there is a need to require an objection during the argument so that the remarks may be placed in the record at or about the time they are made and thereby ensure accuracy. Otherwise, the recollection of both counsel and the court at the conclusion of the argument may differ and thereby result in unnecessary factual disputes.” Commonwealth v. Adkins, 468 Pa. 465, 472, 364 A.2d 287, 291 (1976). See also: Commonwealth v. Gilman, 470 Pa. 179, 187, n.4, 368 A.2d 253, 256, n.4 (1977).

In the instant case, counsel failed to establish a record sufficient to permit an appellate court to make an intelligent judgment as to the nature of the District Attorney’s re[89]*89marks, the context in which they were made, or their possible effect upon the jurors. Commonwealth v. Banks, 454 Pa. 401, 410, 311 A.2d 576, 580 (1973); Commonwealth v. Kollock, 246 Pa.Super. 16, 22-23, 369 A.2d 787, 790-91 (1977); Commonwealth v. King, 227 Pa.Super. 168, 172, 323 A.2d 260, 262 (1974).

In preparing a record for post trial proceedings, the parties elected not to transcribe the testimony of Assistant Attorney General Michael Louik. Consequently, we are unable to ascertain, as appellant urges us to do, that his testimony implied that appellant had been involved in additional offenses which had not been prosecuted.

Next, appellant argues that the trial court erred in denying a motion for mistrial after the testimony of a Commonwealth witness had varied from an offer of proof made by the District Attorney. The offer had been to show a threat made by appellant to a witness that the witness should “get out of my town” and that appellant would “get him” if he “testified or appeared in town again.” The witness testified only that appellant had told him to stay out of town. The variance was harmless. This testimony was less damaging than that suggested by the offer, and it is difficult to understand in what manner appellant was prejudiced thereby. It did not require the granting of a mistrial.

A mistrial was also requested when the District Attorney asked appellant, on cross-examination, “Do you remember yourself telling Mr. Hersick2 that ‘if I’m found not guilty, I’m going to press charges against all the witnesses against me’?” The trial court ruled the question irrelevant, sustained a defense objection thereto and instructed the jury to disregard it. The motion for mistrial, however, was denied. The appellant argues that this was error.

There is no merit in this argument. It has been held that it is proper for the Commonwealth to show an attempt by a [90]*90defendant to intimidate its witnesses. See: Commonwealth v. Kramer, 247 Pa.Super. 1, 8, 371 A.2d 1008, 1011 (1977); Commonwealth v. Petro, 115 Pa.Super. 388, 394, 176 A. 46, 48 (1934). In the instant case, we need not decide whether the inquiry proposed by the prosecuting attorney was a bona fide attempt to show such intimidation, for the trial court sustained an objection thereto and instructed the jury to disregard the question.

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Bluebook (online)
419 A.2d 1368, 278 Pa. Super. 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-baranyai-pasuperct-1981.