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Commonwealth v. Ogrod12/30/2003
. Felice committed the crimes, implying that the police now had the wrong person. Brief of Appellant at 23. However, at trial, Appellant presented the testimony of police witnesses who admitted that they had suspected Mr. Felice and had, in fact, followed him undercover for six months. N.T. 10/4/96 at 99-114. Additionally, in his closing argument Appellant's attorney argued that the composite sketch police had obtained of the person carrying the box was similar to Mr. Felice and not Appellant. N.T. 10/7/96 at 31-32. Because the Commonwealth did supply summaries of the activity sheets, it included at least some of the activity sheets, and because Appellant failed to explain how the summaries differed from the activity sheets or how he was prejudiced by not having the activity sheets themselves, we reject Appellant's claim of error.
Trial Errors
Admission of Appellant to His Fellow Inmate That Appellant's Neighbor and His Mother Suspected that Appellant Killed Barbara Jean
Appellant posits that the closing argument of the prosecutor during the second trial, where Appellant elected not to testify, impermissibly commented on the silence of Appellant. During closing argument the prosecutor stated, "the defendant admitted to his mother that he killed Barbara Jean and threatened his own mother; there had been no denial of that." N.T. 10/7/96 at 65. Appellant then: (1) cites law that provides that no adverse inference may be taken from a defendant's decision not to testify; and (2) demands a new trial.
The Commonwealth counters by pointing out several important facts that Appellant omitted. First, the prosecutor made her comments in response to the closing arguments of Appellant's attorney. In closing, defense counsel discussed Appellant's statements to Mr. Banachowski. Counsel explained to the jury that:
the prosecutor might argue to you and come to you and say, well, gee, Ladies and Gentlemen, if Walter Ogrod did not tell Jason Banachowski these things that Banachowski testified to, how did he know about Walter Ogrod's mom?
N.T. 10/7/96 at 25. As the trial transcript records, the prosecutor responded:
This defendant and no one else admitted to Jason Banachowski that he killed Barbara Jean Horn. The defendant said that he was beaten up by Chuck because Chuck suspected he did it, there has been no denial of that. The defendant admitted to his mother that he killed Barbara Jean and threatened his own mother; there has been no denial of that.
Id. at 65 (emphasis added). What Appellant did not state in his brief is that his attorney timely objected at trial and the trial court sustained his objection. Id. at 65. Subsequently, defense counsel addressed the issue in chambers as follows:
Defense Counsel: Judge, I wanted to put something on the record.
Trial Court: Go ahead.
Defense Counsel: I think Ms. Rubino made a couple of allusions to Mr. Ogrod not denying certain things or there was nothing in contradiction to certain statements that were in the evidence. I think that that is an improper comment on the Fifth Amendment, but I am not going to ask for a mistrial because I know that the Court will tell the jury, and I'm asking the Court to tell the jury that the defendant has no obligation to present the testimony.
Trial Court: I've got that on there two or three times. Defense Counsel: I've made a tactical decision, even though Ms. Rubino said that, not to ask for a mistrial because I know that the Court is going to do that and I've conferred with Mr. Ogrod and he agrees.
N.T. 10/7/96 at 69-70 (emphasis added). The Commonwealth submits that because co
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