Commonwealth v. Hubbard

MANDERINO, Justice,

dissenting.

I must dissent. There was no reasonable basis for trial counsel’s failure to object to the prosecution’s prejudicial and inflammatory remarks about appellant’s credibility. The prosecution referred to appellant’s version of the facts as a “lie” which “kept getting bigger and bigger.” There is no question that it is improper for the prosecutor to express a personal opinion about a defendant’s guilt or credibility. See Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978). This Court has said:

“The ABA Standards Relating to the Prosecution Function expressly state: ‘It is unprofessional conduct for the *359prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence . of the defendant.’ ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution and Defense Function § 5.8(b) (Prosecution Function) (Approved Draft 1970.) The ABA Code of Professional Responsibility also provides that ‘. . .a lawyer shall not . . . (4) Assert his personal opinion ... as to the credibility of a witness . . .” ABA Special Committee on Evaluation of Ethical Standards, Code of Professional Responsibility, DR 7-106(C)(4) (1969). These standards are in response to the view that ‘. . ; the cause should turn on the evidence, not on the standing of the advocate, and the witnesses must stand on their own.’ ABA Standards, Prosecution, supra at 5.8(b) (Commentary).
The prosecutor, in branding appellant’s testimony as a ‘malicious lie’ exceeded the permissible bounds of cross-examination. Furthermore, he injected his highly prejudicial personal opinion of appellant’s credibility into evidence, thereby clearly and improperly intruding upon the jury’s exclusive function of evaluating the credibility of witnesses. See United States v. Schartner, 426 F.2d 470, 478 (3d Cir. 1970); People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967); Commonwealth v. Maloney, 365 Pa. 1, 5, 73 A.2d 707, 709 (1950); People v. Reese, 220 Cal.App.2d 143, 33 Cal.Rptr. 561 (1963); People v. Hickman, 34 A.D.2d 831, 312 N.Y.S.2d 644 (1970).”

Commonwealth v. Potter, 445 Pa. 284, 286-7, 285 A.2d 492, 493 (1971). We have also said that:

“Our decisions have firmly established that the prosecutor may not express his personal opinion regarding a defendant’s guilt, credibility or trial strategy. Nor may the prosecutor intentionally misstate the evidence given at trial in order to mislead the jury or refer to words a decedent-victim might have uttered were he still alive. We have ruled that ‘[t]he determination of guilt must not be the product of fear or vengeance, but rather intellectu*360ally compelled after a disinterested, impartial and fair assessment of the testimony that had been presented.’ ” (Footnotes omitted.) (Emphasis in original.)

Commonwealth v. Gilman, supra, 470 Pa. at 189, 368 A.2d at 258.

In this case, defense counsel’s failure to object to the prosecution’s remarks as to appellant’s credibility constituted the ineffective assistance of counsel, and appellant is entitled to a new trial.