Commonwealth v. Caesar

387 A.2d 471, 478 Pa. 575, 1978 Pa. LEXIS 653

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1978
• Docket: 41
• Status: Published

Opinions

OPINION OF THE COURT

LARSEN, Justice.

This is an appeal from appellant’s conviction of charges arising out of a drugstore robbery which took place in Philadelphia on November 3, 1970. Appellant contends that his trial counsel was ineffective because he failed to raise in post-verdict motions an issue concerning improper remarks made by the prosecutor during his closing argument. Specifically, appellant points to the following portion of the transcript:

“Mr. Cannon: [prosecutor] . . . Grady Caesar did enter that store; he did rob, along with Frank Hairston and Joyce Turner, Harold Cohen. He has lied to you before—

Mr. Capone: [defense counsel] Objection and move for a mistrial.

The Court: Sustain your objection, deny your motion for a mistrial. I will instruct the jury at the time of my charge that the question of credibility is within their province and they will have to examine all of the testimony in the case, and then make their final determination.

You should consider the arguments of counsel, but I will give you the law on the question of who is a credible witness and what tests you may wish to apply to determine whether a witness is credible or not. My statement of the law may or may not agree with what counsel in their closing arguments have said to you the law is, but you will disregard what either counsel said to you as to what the law is if it conflicts with what I tell you the law is. You will follow my instructions as to what the law is.

You may proceed.

(Mr. Cannon concludes addressing the jury on behalf of the Commonwealth.)”

We agree that trial counsel’s failure to raise this issue in post-verdict motions constituted ineffective assistance of counsel. In Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971) we held that a prosecutor’s comment of this type on the testimony of a defendant was so highly prejudicial that it could be remedied only by the granting of a new trial. Thus, using the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we find no reasonable basis for trial counsel not to have raised the Potter issue in post-verdict motions.

Judgment of sentence vacated and new trial ordered.

POMEROY, J., filed a dissenting opinion. NIX, J., dissents.