Commonwealth v. West

518 A.2d 307, 358 Pa. Super. 609, 1986 Pa. Super. LEXIS 12936

• Court: Superior Court of Pennsylvania
• Decided: November 12, 1986
• Docket: No. 01094
• Status: Published

Opinions

ROBERTS, Judge:

This is an appeal from a judgment of sentence for first-degree murder and related offenses. At closing argument, the prosecutor told the jury “if you acquit, (these defendants) go never to come back ..., never to have to answer again, (but) ... if you convict ... there are appeals and there may be reversals ... ”. Because this argument improperly urged upon the jury a bias in favor of conviction, appellant was denied his right to a fair trial. Accordingly, we vacate the judgment of sentence and remand for a new trial.¹

Appellant and his co-defendant, Derrick Simmons, were charged with homicide, conspiracy and possession of an instrument of a crime in the November, 1979 stabbing death of William Grant Johnson. Michele Williams, who was 14 years old when the stabbing occurred, testified for the Commonwealth that she watched from the front door of her house as across the street appellant, his co-defendant and possibly others, stabbed Johnson.² Appellant introduced the conflicting testimony of Aliene Freeman, who said that she saw the victim, already stabbed, stagger from the corner of Ms. Williams’ street to the front of her residence. Appellant also introduced two alibi witnesses, who testified that they were with appellant at his mother’s funeral when the stabbing was alleged to have occurred.

During closing argument at their July, 1983 trial, the prosecutor told the jury

if you acquit both these gentlemen, they go never to come back, never to see this charge and never to have to answer again. This is final. If you convict them of first-degree murder or a lesser degree depending upon your own view and based on the evidence, of course, there are appeals and there may be reversals later on because of evidentiary problems....

The trial court immediately interrupted the prosecutor’s closing, saying: “Excuse me, Mr. McGill (the prosecutor). I really do think that you ought to add that the implications of a verdict should play no role in their reaching a verdict.” The court’s remarks clearly were directed to the prosecutor, not to the jury.

After the prosecutor completed his closing argument, both defendants objected at side bar to his statement that their convictions could be reversed on appeal. The trial court agreed that the statement was improper, telling the prosecutor that “you can’t tell them (the jury) that if you find these people not guilty, they are going to be set free, which is what you said.” It held, however, that its interruption cured whatever prejudice the remark caused.

The issue which these facts squarely present is the propriety of prosecutorial argument to the jury that an acquittal is final while its decision to convict may be reversed on appeal. Appellant contends that the argument “wrongly indicate(s) to the jurors that if they have any doubt, to find the defendants guilty so that an appellate court can dispose of the matter.” The Commonwealth dismisses the remark as a “parenthetical reference to a defendant’s right to appeal.”

Our courts have consistently recognized the impropriety of a prosecutor’s reference to the consequences of the jury’s verdict. In Commonwealth v. Floyd, 506 Pa. 85, 94-95, 484 A.2d 365 (1984), the Supreme Court vacated a death sentence where the prosecutor commented upon the appellant’s chances for parole if he was given a sentence of life imprisonment. See also Commonwealth v. Aljoe, 420 Pa. 198, 207-8, 216 A.2d 50 (1966), Commonwealth v. Earnest, 342 Pa. 544, 551, 21 A.2d 38 (1941). Similarly, in Commonwealth v. Shaffer, 224 Pa.Super. 564, 307 A.2d 394 (1973), this court granted a new trial where the prosecutor in a bastardy case told the jury that failure to convict would require either the taxpayers or the unemployed mother to support the child. Cf. Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974) (arguments which invite the jury to consider dangerous conditions on the streets divert the jury’s inquiry away from a factual determination; hence, they are improper).³

Moreover, it is well settled that a prosecutor may comment only on the facts established at trial and legitimate inferences therefrom. See Commonwealth v. Brown, 489 , 414 A.2d 70 (1980); Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300 (1972). This rule is based on the prosecutor’s responsibility to be both an objective administrator and a zealous advocate, Revty, supra, and on the defendant’s constitutional right to a jury which determines culpability based solely on the evidence of record. See Holbrook v. Flynn, — U.S. —, —, 106 S.Ct. 1340, 1344, 89 L.Ed.2d 525 (1986); Commonwealth v. Bruno, 466 Pa. 245, 262, 352 A.2d 40 (1976). Accordingly, “the prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict,” ABA Standards for Criminal Justice, Standard 3-5.8(d) (1980) (emphasis added). The comment to ABA Standard 3-5.8(d) clearly contemplates a limit of prosecutorial remarks concerning the consequences of conviction. It provides that “references to the likelihood that other authorities, such as the governor or the appellate courts, will correct an erroneous conviction are impermissible efforts to lead the jury to shirk responsibility for its decision.” Accord Commonwealth v. Mills, 350 Pa. 478, 487-88, 39 A.2d 572 (1944) (trial court’s instructions regarding the possibility of parole “constitute an implied invitation to the jury to transfer to the Board of Pardons an unpleasant responsibility which it is the jury’s sworn duty to discharge”).

A prosecutor’s argument to the jury that “if you acquit this defendant he goes never to have to answer again ... (but) if you convict there are appeals and there may be reversals” invites the jurors, as in Mills, to “shirk” their responsibility as factfinders, by urging that the easier course of action is to err on the side of conviction, because only conviction keeps the defendant in the criminal justice system. In effect, the prosecutor tells the jury that its deliberative process should include a bias for conviction, regardless of the facts. This argument is, of course, contrary to the constitutional rule that a guilty verdict must be supported by proof beyond a reasonable doubt. See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. McNeil, 461 Pa. 709, 715, 337 A.2d 840 (1975); Commonwealth v. Bryant, 341 Pa.Super. 123, 129, 491 A.2d 181 (1985). The essence of the prosecutor’s argument is that even where the jury has a reasonable doubt, it should return a verdict of guilty to keep the defendant in the system. But Winship and its progeny, far from requiring conviction in such circumstances, mandate acquittal.

In this case, the likelihood is considerable that the prosecutor’s argument urging a bias toward conviction infected the jury’s deliberations. The evidence at trial was clearly disputed; even the eyewitnesses did not agree on the events about which they testified. The record also indicates that the jury deliberated three days before reaching a verdict. Moreover, the court merely suggested to the prosecutor that he amend his remarks, rather than directly instructing the jury to disregard them and to consider only the evidence developed during the trial. See Commonwealth v. Bruno, supra 466 Pa. at 263-64, 352 A.2d 40. Also, the court’s statement concerned the consequences of verdicts generally and was not specifically addressed to the prosecutor’s argument improperly urging the jury to convict. Cf. Commonwealth v. Sargent, 253 Pa.Super. 566, 573, 385 A.2d 484 (1978) (where prosecutor told jury that the defense attorneys are “paid to acquit their clients” and trial judge’s instruction to jury dealt only with the comment that defense attorneys are paid, court’s attempted curative instruction was generalized and abstract to the point of inaccuracy).⁴

The prosecutor’s statement to the jury that its deliberations should be based on a bias for conviction clearly prejudiced this appellant.⁵

Judgment of sentence vacated. Reversed and remanded for new trial.⁶

POPOVICH, J., files a dissenting opinion.

1 . Because of our disposition, we do not reach the other issues which appellant raises.

2 . This evidence, if believed by the jury, would be sufficient to sustain guilty verdicts against appellant.

3 . See abo Trimble v. Merloe, 413 Pa. 408, 197 A.2d 457 (1964) (lawyer’s remark in closing argument barred by well-settled rule prohibiting comment about defendant’s ownership of a policy of liability insurance). Cf. Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) (unfamiliarity with verdict of not guilty by reason of insanity justifies informing jury of the consequences of such a verdict).

4 . We do not hold that sua sponte interruption by a trial court is improper. Indeed, trial court action on its own motion is often required. See ABA Standards for Criminal Justice, Special Functions of the Trial Judge, standard 6-1.1(a) (1980). We only hold that this interruption was flawed, because it was neither addressed to the jury, nor specific enough to mitigate the prejudice of the prosecutor’s argument.

5 . The Commonwealth relies on Commonwealth v. Connors, 311 Pa.Super. 553, 563-64, 458 A.2d 190 (1983). There, a panel of this court held that the unavoidable effect of a statement that “a verdict of not guilty would acquit appellant and render the Commonwealth powerless to retry him” was not to prejudice appellant, since the statement was not part of an "impassioned plea to convict,” id. Unlike Connors, the prosecutor’s argument here was part of an “impassioned plea to convict.” It persuaded the jury with rhetoric ("never to come back, never to see this charge and never to have to answer again”), and it included, along with a reference to acquittal, a discussion of the appellate consequences of conviction. Clearly, the "unavoidable effect” of the prosecutor’s argument was to fix an improper bias in favor of conviction in the minds of the jurors. See Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669 (1974).

6 . This opinion was originally filed on June 11, 1986. Twelve days later, our Supreme Court held that defense counsel's failure to object to a similar closing argument did not amount to ineffective assistance of counsel. See Commonwealth v. Baker, 511 Pa. 1, 16-19, 511 A.2d 777, 785-86 (Pa.1986). Cf. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Baker, supra, 511 Pa. 20-28, 511 A.2d 787-791 (prosecutor’s statement during death penalty hearing, that defendant may appeal from jury’s determination held improper). We have sua sponte reconsidered our decision in light of the Court’s opinion in Baker. The Baker court recognized that the question of whether a prosecutor’s misstatement is grounds for a new trial necessarily depends on the individual circumstances of each case. The Court said:

Even where the language of a prosecutor is “intemperate, uncalled for, and improper, a new trial is not required unless 'its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ ” Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615 (1980), quoting, Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).

In Baker, the Court was persuaded by facts which indicated that the prosecutor’s statement was made in rebuttal to a statement by defense counsel during his closing. Moreover, the trial judge "clearly and succinctly” instructed the jury that statements by counsel could not be considered as evidence. Here, the comment was not made in rebuttal, nor can it fairly be said that the trial judge’s statement to the prosecutor serves as a "clear and succinct” curative instruction.