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Commonwealth v. Ogrod12/30/2003
a. 1975). The trial court is merely required to explain clearly and accurately the law to the jury; the court is not required to use the form requested by a party. Commonwealth v. Jones, 683 A.2d 1181, 1196 (Pa. 1996).
We examine the charge in its entirety to determine if it accurately and fairly sets forth the law to the jury. Commonwealth v. Faulkner, 595 A.2d 28 (Pa. 1991), cert. denied 503 U.S. 989 (1992). This charge clearly advised the jury that identification testimony is not sacrosanct and that it should be received with caution where it is qualified or weakened through cross-examination or a failure to identify the witness on occasion. N.T. 10/7/96 at 84-85. Although the Kloiber charge by the court did alert the jury to its duty to receive equivocal identification testimony with caution, this is not directly applicable to Appellant's claim, which concerned identification evidence tending to suggest that another person --namely, Ross Felice -- committed the crime. We note, however, that Appellant does not cite any authority to support the position that the Court was required to give the instruction he requested. In its general instruction on the requirement that a conviction be based upon proof of guilt beyond a reasonable doubt, moreover, the judge charged the jury that " reasonable doubt must fairly arise out of the evidence that was presented, or out of the lack of evidence with respect to some element of the crime." N.T. 10/6/1996 at 92. By indicating that a reasonable doubt could arise out of affirmative "evidence that was presented," this charge fairly subsumed Appellant's proof that someone else may have committed the offense. Accordingly, Appellant is not entitled to relief on this issue.
Child Pornography References
Appellant claims that the prosecutor made "repeated remarks concerning the defendant and child pornography" notwithstanding that the Commonwealth did not present any evidence concerning whether Appellant had a proclivity for child pornography. Brief of Appellant at 30. Appellant argues that the references prejudiced him, were more prejudicial than probative of any relevant purpose, and implicitly avers that the references had the "unavoidable effect" of preventing the jury from rendering a true verdict. Jones, 683 A.2d at 1199.
Appellant fails to provide references to locations in the transcript where the prosecutor made these "repeated" statements. Additionally, Appellant does not set forth precisely what he claims the prosecutor said that was inappropriate. Pennsylvania Rules of Appellate Procedure 2119(c) and 2132 require an Appellant who makes an argument based on the record to provide "immediately" a reference to the page within "the record where the matter referred to appears." Pa.R.A.P. 2119(c). "References in the briefs to parts of the record appearing in a reproduced record filed with the brief of the appellant shall be to the pages in the reproduced record where those parts appear." Pa.R.A.P. 2132. Appellant has entirely failed to comply with these provisions.
It is equally incorrect, however, for the Commonwealth to state that the prosecutor did not make any such references or to imply that defense counsel admitted that the prosecutor made no such statements. What defense counsel actually said during the post -sentence motion hearing was that while he did not have a specific recollection of the comments, he said that the prosecutor "may well have" made comments regarding child pornography. N.T. 12/20/99 at 30.
From our independent review of the record, two things are clear: (1) there was evidence in the record regarding Appellant and pornography and that Appellant was sexually aroused by children; and
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