OPINION OF THE COURT
The appellant, Max H. Homer, was tried to a jury in the United States District Court for the Western District of Pennsylvania and convicted on two counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1970) (counts I and II of the indictment), and on one count of perjury in violation of 18 U.S.C. § 1623 (1970) (count V of the indictment).
Appellant, who during the time covered by the indictment against him represented the Stowe Rox area near Pittsburgh in the Pennsylvania House of Representatives, was charged in count I of the indictment
Count V of the indictment charged the appellant, who had appeared before a grand jury investigating alleged violations of section 1951, with testifying falsely concerning the Gordon transaction. Specifically, the indictment charged that appellant made a false material declaration to the grand jury when he testified on August 29, 1974, that he had requested Ernest Bulgarelli, a Safety Inspector for the Commonwealth of Pennsylvania, to furnish construction plans to J. J. Balobeck, the architect for the Gordon warehouse.
Appellant asserts that he had nine witnesses who were prepared to testify at trial that in 1971, when the offenses of extortion charged in count I of the indictment were alleged to have occurred, Patsy Bruno, the treasurer of the Stowe Rox Democratic Party organization for the 1971 general election, told each of them that Gordon had made a $5,000 political contribution to the Democratic Party through Homer.
The trial judge ruled that he "might" permit the nine witnesses to be called in the event that the Government challenged a record of the Allegheny County Department of Elections which the defense had introduced into evidence and which listed the $5,000 contribution from Gordon as campaign income. Homer insists that the Government did in fact challenge this record at least three times. The appellant contends that during the cross-examination of Mrs. Patsy Bruno, widow of the party treasurer, the prosecutor asked a series of questions implying that the election record was incomplete and that the $5,000 contribution recorded in the county election report was never received by the Democratic Party. Homer alleges that another inferential attack on the completeness of the record occurred when he himself was cross-examined by the prosecutor. Finally, asserts the appellant, the Government challenged the election record in its closing to the jury, when the prosecutor argued that Patsy Bruno's personal records showed no receipt of $5,000 from Homer or from anyone else. Homer therefore concludes that the condition set by the trial judge for the admission of the testimony of the nine witnesses was met and that the judge erred in excluding it. In addition, the appellant maintains that the testimony of those witnesses was admissible under Rules 804(b)(3), 804(b)(5), and 803(24) of the Federal Rules of Evidence.
The trial judge excluded the testimony of the nine witnesses for two reasons. First, he had already allowed the defense to introduce a photocopy of the official election record, signed by Bruno, which reflected the information to which the nine witnesses would purportedly have testified. Second, he found that the testimony lacked the circumstantial guarantees of trustworthiness required by the Federal Rules of Evidence for the admissibility of such hearsay. Fed.R.Evid. 803(24), 804(b)(3), 804(b)(5).
We need not decide whether the hearsay testimony of the nine witnesses was admissible under Rules 803(24), 804(b)(3), or 804(b)(5). That testimony was offered not as a defense to the extortion counts on which the appellant was convicted, but solely as a defense to the income tax evasion charges of which he was acquitted. In arguing for the admissibility of the testimony,
Inasmuch as the appellant was acquitted of the income tax evasion counts, we find no reversible error in the exclusion of testimony offered as a defense to those charges.
The appellant's contention that the trial judge erred in refusing to grant the defense motion for a mistrial is based on the following comment in the prosecutor's closing argument:
Citing the American Bar Association Standards Relating to the Prosecution Function
In recent years we have had the occasion to admonish counsel for thoughtless and inappropriate remarks made in the course of heated and vigorously contested trials. At times, extemporaneous comments in a closing argument may exceed the bounds of good taste or propriety without necessarily rising to the level of reversible error. At other times, the comments are so grossly improper as to prejudice a defendant and deny him a fair trial. We have held remarks reflecting the prosecutor's personal opinion on the guilt of a defendant based on evidence not in the record to be per se reversible error. United States v. Schartner, 426 F.2d 470, 478 (3d Cir. 1970); see United States v. Benson, 487 F.2d 978, 981 (3d Cir. 1973). This, however, is not such a case.
We acknowledge that the prosecutor's remarks were rash and inappropriate. As we have previously stated, however,
The prosecutor's questionable comment constituted two small paragraphs in the sixty pages of his closing argument. He had previously cautioned the jury not to consider his remarks as evidence. The remarks were not so shocking as to suggest to the defense that it seek curative instructions immediately. Moreover, in response to defendant's subsequent complaint, the trial judge admonished the jury that they should determine the issues of fact "without bias or prejudice or sympathy as to any party." He further informed them that our legal system "does not permit jurors to be governed by sympathy, bias, or prejudice, or even public opinion." Finally, after admonishing the jury not to convict the defendant unless his guilt was proven beyond a reasonable doubt, the trial judge told the jury, "Keep constantly in mind you may not find the defendant guilty upon anything other than the evidence in this case."
We conclude that under these circumstances, the remarks of the prosecutor were not so pervasive, gross, or inflammatory as to constitute prejudicial error.
We have also carefully considered each of the remaining contentions urged by the appellant and find them without merit, to wit:
(1) that the court erred in refusing to permit the defense to call two witnesses, each of whom would have testified that he had been advised by one or more of the Ciamaccos that arrangements had been made to frame the appellant through the use of an oil company man and a heating and air conditioning man;
(2) that the court erred in admitting the evidence of a One Thousand Five Hundred Dollar ($1,500) check made payable to Dr. Homer by J. J. Balobeck Associates, Government Exhibit 19;
(3) that the court erred in refusing appellant's motion for mistrial when Government counsel cross-examined the appellant's witness, Beaver Parillo, on whether he and his brother were in debt for gambling;
(4) that the court erred in permitting the case to be submitted to the jury on the theory of appellant's conduct while acting under color of official right;
(5) that the court erred in failing to grant a severance of the extortion and false declaration counts.
The judgment of the district court will be affirmed.