Arnold v. Zangrilli

KELLY, Judge,

dissenting:

I respectfully dissent. For the reasons which follow, I would find merit in appellant’s first contention and reverse and remand for a new trial.1

Appellant contends that the trial court erred in permitting appellee’s counsel to assert his personal opinion as to appel*107lee’s credibility when the entire defense rested upon the issue of appellee’s credibility. Appellant asserts that the prejudicial impact of appellee’s counsel’s objectionable remarks regarding appellee’s credibility was exacerbated by the trial court when counsel’s proper objection was denied, and the trial court’s instruction left the clear, yet unquestionably incorrect impression that counsel’s expression of faith in his client’s credibility was a fact to be considered by the jury.

At trial, appellee based his defense upon the fact that he had informed Mr. Arnold, the decedent, that his practice was limited to urology and that he had informed Mr. Arnold that he should go to another doctor. (N.T. 9/23/87 at 133-134, 156, 162.) As a practical matter, the appellee’s primary defense rested upon appellee’s uncorroborated testimony that he properly advised Mr. Arnold to seek alternative care. Thus, appellee’s credibility was the lynchpin of his defense.

During closing arguments, appellee’s counsel made the following statement:

Before I get to that, I’m asking you to a great extent on this message here about this conversation, this byplay, this face-to-face, this interaction between physician and patient. I’m asking you to believe Dr. Zangrilli. I do and I think there is no reason not to. If the suggestion—

(N.T. 9/25/87 at 21.) (emphasis added).

At that point, appellant’s counsel objected to appellee’s counsel’s expression of personal belief: “Your Honor, I object. It’s not important what he believes or what I believe. It’s important what the evidence is and I object to him constantly saying what he believes.” (N.T. 9/25/87 at 21-22.) (emphasis added). The trial court overruled appellant’s counsel’s objection, stating: “It’s within the bounds. This is argument.” (N.T. 9/27/87 at 22.) Appellee’s counsel then continued, “Thank you, Your Hon- or. So I’ve asked you to believe him. That’s essentially this case.” (N.T. 9/27/87 at 22.) (emphasis added).

*108In Abrams v. Philadelphia Suburban Transportation Company, 438 Pa. 115, 264 A.2d 702 (1970), our Supreme Court, stated:

Whether a lawyer’s argument to the jury transgresses the bounds of legitimate advocacy is primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused. Leasure v. Heller, 436 Pa. 108, 258 A.2d 855 (1969).

264 A.2d at 704. See Harvey v. Hassinger, 315 Pa.Super. 97, 461 A.2d 814 (1983); see also Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504 (1987) (plurality).

Instantly, I find that the trial court’s broad discretion was abused. Credibility was the lynchpin upon which appellee’s defense relied. Counsel’s remark went straight to the issue of credibility. By clearly and unequivocally expressing his personal opinion as to appellee’s credibility, appellee’s counsel in effect switched from the role of advocate to the role of unsworn witness in violation of Pa.R.P.C. 3.4, the advocate/witness rule, the restrictions upon lay or expert opinion evidence as to credibility, and the statutory requirement that all witnesses make an appropriate oath or affirmation to tell the truth before testifying.2

I am mindful that comment on the credibility of a witness by itself does not invariably constitute reversible error. See Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129 (1989); see generally Annotation, Propriety and Preju*109dicial Effect of Comments by Counsel Vouching for Credibility of Witness-State Cases, 45 A.L.R. 4th 602 (1986 & 1988 supp.). As Justice McDermott stated in his concurrence in Commonwealth v. Graham, supra:

... it is counsel’s function to comment, criticize, expose the content of the evidence of a witness to its own inconsistency, improbability, interest, conflict with other evidence, physical, chemicals, the common sense of the occasion and any other epistemological defect. So long as he does not offer it as true because he personally believes it to be true, his argument has few limits in the search for truth.

560 A.2d at 130 (Slip opinion at 11-12) (emphasis added). In the case sub judice, counsel did precisely what is not permitted; he plainly vouched personally for his witness’ credibility.

Even an objectionable improper comment on the credibility of a witness may not require a new trial, however, if the trial court responds promptly to opposing counsel’s objection and provides an adequate curative instruction to the jury. Accord United States v. Modica, 663 F.2d 1173 (2nd Cir.1981). This did not occur here however.

In fact, appellee’s counsel’s patently improper argument/testimony regarding his personal belief in appellee’s credibility was improperly endorsed rather than properly censored by the trial court’s remark that such an expression of counsel’s personal belief was within the bounds of argument. The jury could reasonably have concluded from those remarks that the appellee’s counsel’s statements regarding his belief in appellee’s credibility was properly before them for consideration during jury deliberations. I find, therefore, that appellee’s counsel’s remark could reasonably have prejudiced the jury, and thereby tainted the verdict. See Draper v. Airco, Inc., 580 F.2d 90 (3rd Cir. 1978).

The majority cites Commonwealth v. Sparks, supra and Commonwealth v. Gay, supra, to support the proposition that while “counsel should not comment on the credibility of *110witnesses by stating for the jury his or her personal belief about a witness’ credibility, such an error does not always require a new trial.” Majority Opinion, supra, at 105. The majority finds that appellee’s counsel’s comment that he believed appellee “was little more than the logical conclusion to the argument being made” and, in context, “was not so egregious or prejudicial as to warrant a new trial.” Id., at 866. For the reasons which follow, I find that both of the criminal cases cited above may be distinguished from the case sub judice, and that the majority’s reliance on those cases is misplaced.

In Commonwealth v. Sparks, supra, the appellant was convicted of aggravated assault and rape. The appellant contended that the prosecutor, during closing argument, improperly conveyed personal belief regarding the complaining witness’ credibility. Specifically, appellant objected to the following statements: “[s]he was honest, she was credible and she was candid,” and “[s]he was candid and honest, brutally honest.” Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 326, 505 A.2d at 1005. This Court found that the statements were not expressions of counsel’s personal belief, “but when read in context, were part of a larger argument based on the observable events at trial and designed to persuade the jury that the witness deserved to be believed.” Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 327, 505 A.2d at 1006. Excerpts from the prosecutor’s closing argument support this finding:

Try to remember, and I am sure you can, because you were all listening very attentively when Miss Daingerfield (sic) was on the stand, how she appeared. Forget about my questioning her for the moment, but how she appeared when Mr. Perez questioned her. Remember her, she was unflappable. Her story didn’t change one iota. He could not impeach her. He could not destroy her. She was too real. She was honest, she was credible and she was candid.
*111Another thing I want you to remember that she said, besides admitting that she might have been naive in staying there and a little idealistic about believing in him. What did she say? Remember she said on the witness stand, “I trusted him.” Who did she look at when she said, “I trusted him?” She looked at him, right at him. You can’t beat a witness like that. She was candid and honest, brutally honest. By the way, all those responses were given, I noted, on cross-examination. That means Mr. Perez elicited them through his own questioning.

Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 326-327, 505 A.2d 1005-1006. The prosecutor based her argument exclusively on events to which the jury itself observed. In the instant case, on the other hand, appellee’s counsel’s personal comments as to the witness’ credibility referred to testimony by appellee regarding an alleged conversation between appellee and the decedent which the jury was obviously not able to observe and assess for itself.

Moreover, in Commonwealth v. Sparks, supra, the complaining witness’ testimony was substantially corroborated. In the case at bar, appellee’s crucial testimony was wholly uncorroborated and thus appellee’s credibility was in fact the lynchpin of the defense. Appellee’s counsel’s improper comments as to his personal opinion of appellee’s credibility, which were endorsed by the trial court as proper for jury consideration, were of greater significance in this case than were the far less objectionable remarks in Sparks.

In Commonwealth v. Gay, supra, the appellant was convicted of aggravated assault, recklessly endangering another person, possession of an instrument of crime, and carrying a firearm without a license on a public street as a result of a nonfatal shooting during a group altercation at a carnival. The only two persons who identified appellant were both on juvenile probation. Defense counsel, at trial, offered their probationary status as evidence and the trial court disallowed its admission. This Court reversed and remanded for a new trial, relying on Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

*112In dicta, this Court stated that the prosecutor should not have told the jury in closing argument that he believed the two identification witnesses. However, this Court found that such a statement, though in error, was not so egregious that standing alone it would require a new trial. Even accepting the persuasive validity of the dicta generally, Gay is otherwise distinguishable. In the instant case, the statements made by appellee’s counsel might not have been so egregious, standing alone, as to warrant the grant of a new trial. However, these statements coupled with the trial court’s effective approval of appellee’s counsel’s statements may have had a significant effect upon the jury. The combined effect could quite possibly have tainted the jury deliberations, and therefore warrants the grant of a new trial.

In conclusion, I would find merit in appellant’s first contention, and would reverse and remand for a new trial. Accordingly, I dissent.

. I note that I agree with the majority as to the disposition of appellant’s other claims on appeal.

. Pa.R.P.C. 3.4, "Fairness to Opposing Party and Counsel," provides in pertinent part:

A lawyer shall not:
(c) when appearing before a tribunal, assert the lawyer’s personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein; or____

See also Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988) (advocate/witness rule); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (expert testimony regarding witness credibility); 42 Pa.C.S.A. § 5901 (every witness must take a judicial oath before giving any testimony).