Commonwealth v. Mika

Opinion by Mr. Justice Maxey, This is an appeal from the judgment and sentence of the Court of Oyer and Terminer of Philadelphia County upon a verdict of murder in the first degree with the penalty fixed at death. The facts of the murder of which appellant stands convicted are set forth in the opinion filed by us this day in the case of Com. v. William Talarico, 317 Pa. 481. Mika was arrested in Yonkers, N. Y., on September 6th. He made a confession in which he admitted pointing his gun at the officer’s back and shooting him as the officer turned around and as he was lying on the steps of the bank. He implicated four others in the crime. The first assignment of error relates to certain remarks of the prosecuting attorney, as follows: “Supposing you had been there that night, supposing you had been crossing the street there, if you had a gun in your hand, if you as a decent citizen saw this man murdered, if you had a *489 gun in your band and you shot tbis defendant for bis crime, if you bad taken tbe life from bim wbicb be bas forfeited by bis own act, if you bad shot bim as be fled from tbe scene, you would have been applauded by all tbe citizens and tbe coroner would have given you a certificate of credit for your conduct in tbis matter.” While sucb remarks by prosecuting attorneys are not found in models of court-room arguments, they do not constitute reversible error. Furthermore, these remarks were not properly objected to at tbe time they were made nor were exceptions taken to them. There is an established method of procedure wbicb must be followed by a party who wishes to make objectionable remarks of counsel a basis for an appeal. Following tbe objection and request for tbe withdrawal of a juror, the court should direct tbe stenographer to place upon tbe record tbe remarks as tbe court understood them; on bis failure to do so, counsel may place tbe remarks on tbe record by affidavit. Whichever course is pursued tbe objection and request for the withdrawal of a juror should be made at once, as soon as tbe objectionable language is used. See Com. v. Weber, 167 Pa. 153, 31 A. 481, and Com. v. Wilcox, 316 Pa. 129, 173 A. 653. Tbe second assignment of error is based on tbe court’s permitting the assistant district attorney to display tbe clothing of tbe deceased and tbe firearms used in tbe homicide. Tbis clothing and tbe firearms being in evidence in tbis case, there was no error in tbe district attorney’s referring to and handling them during bis address. It was tbe duty of the trial judge to see that tbis was done within tbe limits of court-room propriety. We find nothing in tbe record of tbis case wbicb indicates that tbe clothing and tbe firearms were exhibited in any improper manner. Tbis assignment is overruled. We find nothing in tbe other assignments of error wbicb requires discussion. In killing Officer Wilson, appellant and bis confederate William Talarico committed a cruel and cowardly mur *490 der for which any penalty short of death would he inadequate. While this court will ever be vigilant in safeguarding the fundamental right to due process of law of those on trial for any crime, no matter how atrocious, it will not impede the march of just retribution by magnifying slight errors and possible breaches of good taste into reversible errors. All of the assignments of error are overruled. The judgment is affirmed and the record remitted for the purpose of execution.