CIRILLO, Judge:
This is an appeal from the judgments of sentence, dated February 27, 1979, of the Court of Common Pleas of Philadelphia County.
On February 2, 1978, three men armed with guns entered the B & D Variety Store at 51st and Brown Streets in Philadelphia and robbed eight persons of money, watches, wallets and other personal possessions. The appellant, Mark Nicholson, was arrested on May 19, 1978 in connection with this incident. Each of the victims testified at the trial and all were able to identify the appellant, either subsequent to the incident or at trial, as one of the robbers. Their testimony established that the store was well-lighted, that they had an excellent opportunity to observe the unmasked faces of the intruders, and that the robbery lasted more than thirty minutes. Additionally, the victims testified that they had seen the appellant in the neighborhood on previous occasions.
[373]*373The appellant denied culpability and alleged that the victims conspired to falsely identify him as one of the perpetrators. He sought to support this hypothesis by establishing that none of the victims immediately identified him, either my name or by nickname, to the first police officers on the scene, although he was known by some of the victims. Furthermore, the appellant introduced evidence that he and one of the victims, Jasper Golatt, had belonged to rival gangs earlier and therefore, he contended, Golatt was responsible for the alleged fabrication.
The appellant was convicted by a jury of eight counts of robbery. He subsequently filed post-trial motions for a new trial and in arrest of judgment, which were denied. Following a presentence investigation and a neuropsychiatric examination, the Honorable Curtis C. Carson, Jr. sentenced the appellant to concurrent terms of imprisonment of not less than five years nor more than ten years. The appellant’s appeal from these judgments of sentence was argued before a panel of this Court, and was reargued before the Court en banc.1 We affirm the judgments of sentence of the lower court.
The appellant’s first contention on appeal is that certain remarks of the trial judge, made in the presence of the jury, were prejudicial and require the granting of a new trial.2
The appellant sought to ascertain whether police, when first arriving on the scene, had asked the victims if they knew who committed the robbery. During the cross-examination of Harry Singleton, one of the robbery victims, the following occurred:
[374]*374Q. And when the police came in the store, there was no discussion with the police with you about what had happened and who the people were; is that right?
A. Right.'
Q. In fact there was no discussion between the police and the other people, other than you—
THE COURT: How can he testify to that?
DEFENSE COUNSEL: If he was there, your Honor.
THE COURT: Well, that doesn’t make any difference. He doesn’t know what the police asked the other people and I wish you would correct the cross examination to bring out the facts. He doesn’t know what the police said to somebody else not in his presence.
DEFENSE COUNSEL: Could we have a sidebar conference?
THE COURT: No.
DEFENSE COUNSEL: I have an objection to make.
THE COURT: Make your objection.
DEFENSE COUNSEL: That wasn’t his testimony, my objection is that he was there—
THE COURT: He cannot testify—how does that man know what the police said to other people? According to his testimony, there were nine other people involved in this, the victims of this holdup. Now, how can he tell what the police asked other people?
DEFENSE COUNSEL: My objection respectfully is, your Honor, that that is the proper response to give if he doesn’t know what was said, then he says T don’t know what was said.’
THE COURT: Are you taking into consideration the intelligence of this young man who is on the stand? He’s not a lawyer like you. He doesn’t know the well-termed phrases. It takes no great shakes to confuse this man and take advantage of his inarticulation [sic],
DEFENSE COUNSEL: I’m not doing that, your Honor.
THE COURT: You are.
[375]*375DEFENSE COUNSEL: Most respectfully, I object, your Honor, and I feel that I would like to make some argument out of hearing of the jury. I want to protect my client’s interest—
THE COURT: I know what your objection is. I want you to proceed with your questioning.
DEFENSE COUNSEL: I have a motion as well.
THE COURT: That’s denied, too.
Cross-examination of the witness then immediately continued:
Q. Mr. Singleton, was there any conversation between the police and any of the other people in your presence?
A. No, not that I know of.
The appellant concedes that the intervention by the trial judge did not harm his cross-examination. Rather, he argues that the judge’s remarks castigated his counsel, bolstered the credibility of witness Harry Singleton, portrayed his counsel as a “trickster”, and may have influenced the attempted impeachment of other Commonwealth witnesses.
“It is a maxim of our jurisprudence that a trial judge occupies an exalted and dignified position and that absolute impartiality in the conduct of the trial is expected of him.” Commonwealth v. England, 474 Pa. 1, 16, 375 A.2d 1292, 1299 (1977); See also, Commonwealth v. Nesbitt, 276 Pa. Super. 1, 419 A.2d 64 (1980). However, as this Court has articulated:
Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.
Commonwealth v. Axe, 285 Pa.Super. 289, 294, 427 A.2d 227, 230 (1981); Commonwealth v. Wright, 279 Pa.Super. 608, 421 A.2d 365, 368 (1980); Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). This [376]*376standard has also been adopted by the Pennsylvania Supreme Court in the case of Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).
In Commonwealth v. Davis, 497 Pa. 335, 440 A.2d 1185 (1981), the subsequent dialogue transpired:
BY THE COURT:
Q. What was he talking to you about?
A. He wasn’t talking about too much. Just about my case, that is all.
Free access — add to your briefcase to read the full text and ask questions with AI
CIRILLO, Judge:
This is an appeal from the judgments of sentence, dated February 27, 1979, of the Court of Common Pleas of Philadelphia County.
On February 2, 1978, three men armed with guns entered the B & D Variety Store at 51st and Brown Streets in Philadelphia and robbed eight persons of money, watches, wallets and other personal possessions. The appellant, Mark Nicholson, was arrested on May 19, 1978 in connection with this incident. Each of the victims testified at the trial and all were able to identify the appellant, either subsequent to the incident or at trial, as one of the robbers. Their testimony established that the store was well-lighted, that they had an excellent opportunity to observe the unmasked faces of the intruders, and that the robbery lasted more than thirty minutes. Additionally, the victims testified that they had seen the appellant in the neighborhood on previous occasions.
[373]*373The appellant denied culpability and alleged that the victims conspired to falsely identify him as one of the perpetrators. He sought to support this hypothesis by establishing that none of the victims immediately identified him, either my name or by nickname, to the first police officers on the scene, although he was known by some of the victims. Furthermore, the appellant introduced evidence that he and one of the victims, Jasper Golatt, had belonged to rival gangs earlier and therefore, he contended, Golatt was responsible for the alleged fabrication.
The appellant was convicted by a jury of eight counts of robbery. He subsequently filed post-trial motions for a new trial and in arrest of judgment, which were denied. Following a presentence investigation and a neuropsychiatric examination, the Honorable Curtis C. Carson, Jr. sentenced the appellant to concurrent terms of imprisonment of not less than five years nor more than ten years. The appellant’s appeal from these judgments of sentence was argued before a panel of this Court, and was reargued before the Court en banc.1 We affirm the judgments of sentence of the lower court.
The appellant’s first contention on appeal is that certain remarks of the trial judge, made in the presence of the jury, were prejudicial and require the granting of a new trial.2
The appellant sought to ascertain whether police, when first arriving on the scene, had asked the victims if they knew who committed the robbery. During the cross-examination of Harry Singleton, one of the robbery victims, the following occurred:
[374]*374Q. And when the police came in the store, there was no discussion with the police with you about what had happened and who the people were; is that right?
A. Right.'
Q. In fact there was no discussion between the police and the other people, other than you—
THE COURT: How can he testify to that?
DEFENSE COUNSEL: If he was there, your Honor.
THE COURT: Well, that doesn’t make any difference. He doesn’t know what the police asked the other people and I wish you would correct the cross examination to bring out the facts. He doesn’t know what the police said to somebody else not in his presence.
DEFENSE COUNSEL: Could we have a sidebar conference?
THE COURT: No.
DEFENSE COUNSEL: I have an objection to make.
THE COURT: Make your objection.
DEFENSE COUNSEL: That wasn’t his testimony, my objection is that he was there—
THE COURT: He cannot testify—how does that man know what the police said to other people? According to his testimony, there were nine other people involved in this, the victims of this holdup. Now, how can he tell what the police asked other people?
DEFENSE COUNSEL: My objection respectfully is, your Honor, that that is the proper response to give if he doesn’t know what was said, then he says T don’t know what was said.’
THE COURT: Are you taking into consideration the intelligence of this young man who is on the stand? He’s not a lawyer like you. He doesn’t know the well-termed phrases. It takes no great shakes to confuse this man and take advantage of his inarticulation [sic],
DEFENSE COUNSEL: I’m not doing that, your Honor.
THE COURT: You are.
[375]*375DEFENSE COUNSEL: Most respectfully, I object, your Honor, and I feel that I would like to make some argument out of hearing of the jury. I want to protect my client’s interest—
THE COURT: I know what your objection is. I want you to proceed with your questioning.
DEFENSE COUNSEL: I have a motion as well.
THE COURT: That’s denied, too.
Cross-examination of the witness then immediately continued:
Q. Mr. Singleton, was there any conversation between the police and any of the other people in your presence?
A. No, not that I know of.
The appellant concedes that the intervention by the trial judge did not harm his cross-examination. Rather, he argues that the judge’s remarks castigated his counsel, bolstered the credibility of witness Harry Singleton, portrayed his counsel as a “trickster”, and may have influenced the attempted impeachment of other Commonwealth witnesses.
“It is a maxim of our jurisprudence that a trial judge occupies an exalted and dignified position and that absolute impartiality in the conduct of the trial is expected of him.” Commonwealth v. England, 474 Pa. 1, 16, 375 A.2d 1292, 1299 (1977); See also, Commonwealth v. Nesbitt, 276 Pa. Super. 1, 419 A.2d 64 (1980). However, as this Court has articulated:
Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial, that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.
Commonwealth v. Axe, 285 Pa.Super. 289, 294, 427 A.2d 227, 230 (1981); Commonwealth v. Wright, 279 Pa.Super. 608, 421 A.2d 365, 368 (1980); Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). This [376]*376standard has also been adopted by the Pennsylvania Supreme Court in the case of Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973).
In Commonwealth v. Davis, 497 Pa. 335, 440 A.2d 1185 (1981), the subsequent dialogue transpired:
BY THE COURT:
Q. What was he talking to you about?
A. He wasn’t talking about too much. Just about my case, that is all. About my case, like when I get on the stand for me to tell what I know about the case. What happened to me. That’s what I’m doing.
Q. That’s what your [sic] doing now?
A. Yes.
Q. Did he tell you to say anything that you are not saying now?
A. No.
Q. Did he tell you to say anything that was not part of your case?
MR. SAGEL: Judge, may I interrupt and—
THE COURT: Never interrupt the court. Sit down.
MR. SAGEL: I respectfully—
THE COURT: Sit down.
MR. SAGEL: I respectfully object, Sir.
THE COURT: I said to you to sit down.
MR. SAGEL: I must object—
THE COURT: Sheriff, take him into custody. We’ll stand in recess, members of the jury.
The Supreme Court held that the impact of this incident was prejudicial to the appellant and, therefore, a new trial was awarded. In his majority opinion, Mr. Justice Nix observed:
It was a situation likely to leave an indelible impression upon the viewers. The severity of the court’s responses would suggest to the uninitiated that counsel’s conduct represented a grave departure from the conduct expected of one in his position. There was a reasonable probability the incident may have distracted the jury from an objec[377]*377tive appraisal of those legitimate issues presented on the question of guilt or innocence.
Discord between the trial court and defense counsel is also likely to affect the client’s cause. The client’s position may be deemed less worthy in the eyes of the jury, by their translating the court’s displeasure as an indication of the’ lack of substance in the client’s cause. The fact that counsel is perceived by the jury as having engaged in some serious misbehavior may suggest to the jury that he was forced to resort to such behavior because of the hopelessness of his client’s case. The lack of respect for counsel, which may well have been engendered, would necessarily diminish his effectiveness as a persuasive advocate of his client’s positions.
497 Pa. at 341-342, 440 A.2d at 1188.
Likewise, in Commonwealth v. Horvath, 446 Pa. 11, 285 A.2d 185 (1971), the Supreme Court held that the defendant was deprived of a fair and impartial trial where the trial judge engaged in extended, critical and unnecessary discussion with defense counsel in the presence of the jury.3 In [378]*378granting a new trial, the majority stated (per Justice O’Brien):
When a judge subjects counsel for one of the litigants to undeserved oral criticism, the delicate balance upon [379]*379which the creation of such an atmosphere depends may be affected. The jury is bound to remember the incident and the danger is too great that the part represented by the lawyer thus criticized may be prejudiced.
446 Pa. at 18, 285 A.2d at 188.
However, in the case of Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977), the grant of a new trial was denied by the Supreme Court despite the following remarks of the trial judge:
THE COURT: I know your name is Joe McGraw; but I really don’t. I surmise it. You have always been known to me by that name; but I really don’t know that is your name if you want to be strict about it. And we went through this thing a day ago of trying to take a word that in the ordinary use of the English language the ordinary person uses one meaning, and then you try to twist it around to a specific, narrow meaning, and try to make somebody untruthful in doing it; and this is not kosher. I blew my stack that day, and I will be doing it if you persist in this technique.
MR. McGRAW: Your Honor, the only thing, time is very, very loose—
THE COURT: I know what the man says, how he arrives; and then repeating, and repeating does not change the situation one iota.
MR. McGRAW: Thank you, Your Honor.
THE COURT: Now, let us try the case; and instead of trying to play games with semantics—
The Supreme Court, in Rolison, held that the statements made by the trial judge did not deprive the appellant of a fair and impartial trial. Rather, the judge was merely reproving counsel in that instance, a proper procedure as expressed by the Superior Court in Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979).4
[380]*380In the present matter, we find that nothing which happened in the jury’s presence undermined counsel’s believability, impugned the appellant’s case or witnesses, evidenced bias on the part of the court, or suggested that counsel could not continue as an effective spokesman for his client. At most, the trial judge in the instant matter suggested that the phrasing of one question, by counsel for the appellant, was confusing and might mislead the witness, in part because of the witness’ poor language skills. Judge Carson certainly acted within his authority since the scope and manner of cross-examination are within the sound discretion of the trial judge. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1979).
Additionally, we note, that on several occasions, cautionary instructions had been given in this case to insure that any statements made by the trial judge would not prejudice the parties. See: Commonwealth v. Ferguson, 289 Pa.Super. 163, 432 A.2d 1103 (1981); Commonwealth v. Marvel, 271 Pa.Super. 11, 411 A.2d 1254 (1979).5 In particular, on the day following this incident, Judge Carson advised the jurors:
At the time I give you instructions, I’m going to again remind you that you are to determine this case soley [sic] from the testimony. I don’t want you to consider the rulings of the court, the actions of the court, the actions of counsel, any other displays. I don’t want you to decide this case on emotion or that you feel sorry for someone. I want you to focus soley [sic] on the facts and the evidence that you will have with you at the time.
[381]*381The trial judge also gave the following instruction during his charge to the jury:
... And I feel good about this system because I try to treat everyone fairly, I try to treat people and the people that appear before me in much the same fashion that I wanted to be treated for the 25 years that I was a trial lawyer. Sometimes I’m impatient with counsel. But, members of the jury, all of this is human. That’s why I’m saying to you, from what you have seen or heard me do or say in this courtroom, don’t take that, please, don’t take that as an indication that I have a conviction one way or the other; because you will never know because I will never comment to you. And I want this to be your own independent judgment.
Having carefully reviewed the challenged remarks in the context of the trial and in light of the cautionary instructions,6 we are satisfied that these comments, which were directed only to counsel and not to his client, did not reach the level where it could reasonably be concluded that the appellant was deprived of a fair and impartial trial. See: Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979). Accordingly, we reject this initial contention of the appellant.
The appellant next contends that the testimony of victim Milton Taylor and Officer Robert Prendergast created an inference of prior criminal activity by the appellant, thus warranting a new trial. On cross-examination, Commonwealth witness Milton Taylor testified as follows:
DEFENSE COUNSEL:
Q. You say that you also remember the face. I want to make sure you understand the testimony. You didn’t say anything on direct examination about that, but is it your testimony that my client was there inside the store.
A. Yes.
[382]*382Q. And you’re making an identification based on what you saw, is that right?
A. Yes.
Q. And before the robbery itself on February 2nd, 1978, you knew his name was Bucky, is that right?
A. Yes.
Q. And did you tell the detectives down at the Detective Division that you knew his name was Bucky? Did you tell them that?
A. No, they showed us some slides.
The appellant argues that a prior criminal record was suggested when the witness testified that “[police] showed us some slides.” It has been well stated by Pennsylvania appellate courts that:
The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference____
Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); Commonwealth v. Krasner, 285 Pa.Super. 389, 409, 427 A.2d 1169, 1179 (1981).
The witness never testified that he identified the appellant from the slides mentioned, or for that matter, from any photographic array.7 Under the circumstances, we find it unlikely that the jury could infer from the [383]*383witness’ passing “slide” reference that the appellant had engaged in prior criminal conduct.
Likewise, the testimony of Officer Prendergast, that the appellant, Jerry Nicholson, also used his brother’s name, Mark Nicholson, did not raise an implication of past criminal involvement. The appellant was arraigned under the name of Mark Nicholson, yet one of the witnesses identified the appellant, at trial, as Jerry Nicholson. This reference by the officer merely helped to resolve the jury’s confusion over whether the appellant was in fact Jerry or Mark Nicholson.8 See: Commonwealth v. Miller, 268 Pa. Super. 123, 407 A.2d 860 (1979).
We also find that Officer Prendergast’s testimony that he knew the appellant as “Bucky” and the co-defendant as “Tick” prior to the date of arrest, did not imply that the appellant had a past criminal record. The officer never explained how he had become familiar with the appellant’s nickname, nor did he describe the nature of their relationship. There is no basis from which to conclude that the jury would speculate, based merely on the officer’s knowledge of the appellant’s nickname, that Officer Prendergast had known the appellant due to past criminal activity, especially since the officer had been assigned to this neighborhood for a long period of time. See: Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979). Moreover, several of the victims had testified that the appellant was known in the locale as “Bucky”. The testimony of the officer that he, too, knew the appellant as “Bucky” was, therefore, probative of the appellant’s identity as one of the robbers and did not suggest that the appellant had a previous criminal record. Commonwealth v. Oglesby, 274 Pa.Super. 586, 418 A.2d 561 (1980).
[384]*384The appellant further contends that the comments by the assistant district attorney during his closing argument, concerning the appellant’s gang affiliation, constituted prosecutorial misconduct. During closing arguments, the prosecutor must limit his or her statements to the facts in evidence and legitimate inferences from those facts. Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980); Commonwealth v. Williams, 295 Pa.Super. 369, 441 A.2d 1277 (1982); Commonwealth v. Leymeister, 285 Pa.Super. 539, 428 A.2d 176 (1981). “Comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974); Commonwealth v. Boone, 287 Pa.Super. 1, 6, 428 A.2d 1382, 1389 (1981). Furthermore, allegedly prejudicial remarks must be read in the context of the case as a whole. Commonwealth v. Raffensberger, 291 Pa.Super. 193, 435 A.2d 864 (1981).
This Court has recognized that “... it is very difficult and often impossible, to assess the atmosphere of a trial simply by reading a printed record.” Commonwealth v. Coleman, 235 Pa.Super. 379, 386, 341 A.2d 528, 532 (1975). Under the attendant circumstances, this dilemna is particularly pointed. After the defense attorney concluded his unrecorded summation, he then requested, outside of the Court’s hearing, that the prosecutor’s closing argument be recorded by the court stenographer. Counsel thus created a situation where an appellate court, reviewing the assistant district attorney’s summation, would be unable to determine from the record whether that argument fairly responded to comments made by defense counsel during his closing address.
Throughout the trial, the defense sought to focus the jury’s attention on the witnesses’ failure to identify the [385]*385appellant from the outset of their contact with the police. In the Opinion of the Court below, Judge Carson stated:
In closing summation to the jury, the defense attorney referred to the defendant’s gang activity in support of his argument that one of the eleven witnesses of the Commonwealth allegedly belonged to a rival gang and hence supplied the motivation for false accusation. He further argued to the jury that this witness orchestrated the identification of the other Commonwealth’s witnesses concluding that this was why his client was identified by all persons, who based their identifications on “having seen defendant in the neighborhood.”
(Trial Ct. Slip Op. at 13).
The prosecutor suggested in his closing that the witnesses were perhaps reluctant to immediately identify the appellant to police because of his known gang affiliation. Unquestionably, this reference was reasonable in view of the evidence on record concerning the appellant’s past gang affiliation, as well as the closing argument of defense counsel as recalled by the trial judge. We find that the assistant district attorney’s remarks did not prejudice the appellant and, therefore, did not constitute prosecutorial misconduct.9
Finally, the appellant contends that reversible error was committed when a detective was permitted to testify that Preston Satterfield, a victim who did not identify the appel[386]*386lant at trial, had provided police with the appellant’s nickname shortly after the robbery occurred.10
The Commonwealth presented a compelling case in which six victims identified the appellant as one of the three males who robbed them at gunpoint. Mr. Satterfield was not asked to make an in-court identification of the appellant, presumably because of the suppression of his out-of-court identification. In the case of Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), the Pennsylvania Supreme Court (per Mr. Justice Hutchinson) stated:
Under the test adopted by this court in Commonwealth v. Story (citations omitted), evidence improperly admitted can be treated as harmless on any one of three grounds, namely, that the evidence of guilt, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to it, that the tainted evidence was merely cumulative of other proper persuasive evidence on the issue for which it is offered, or that it was so slight or tangential in its effect that its influence on the jury can be determined to have been de minimis, (emphasis added).
498 Pa. at 317, 446 A.2d at 250.
In the case at bar, the detective’s testimony corroborated six pieces of similar and already admitted evidence. Since the challenged testimony was merely cumulative of this other properly admitted and persuasive evidence, we find that the admission of the detective’s hearsay state[387]*387ment, although error, was harmless error. See: Commonwealth v. Norris, supra; Commonwealth v. Story, supra.
Accordingly, we affirm the judgments of the sentence of the court below.
SPAETH, J., files a dissenting opinion, in which CER-CONE, President Judge, concurs in the result.