Commonwealth v. Wiggins

Dissenting Opinion by

Spaeth, J.:

I believe that the district attorney’s characterization of appellant as a “dangerous man” in closing argument was sufficiently prejudicial (and unprofessional) to warrant the granting of a new trial.

The limits of permissible argument by a prosecutor to a jury are set forth in ABA Standards, The Prosecution Function §5.8 at 126:

“(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

“(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

“(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

“(d) 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 mailing predictions of the consequences of the jury’s verdict.” In the present case these limits were transgressed.

“The application of epithets to a defendant on trial . . . [has] no legitimate place in a district attorney’s argument.” Commonwealth v. Capalla, 322 Pa. 200, 206, 185 A. 203, 206 (1936). “It is no part of a district attorney’s duty, and it is not his right, to stigmatize a defendant.” Id. at 204, 185 A. at 205. *79In Capalla, the Supreme Court concluded that a district attorney’s reference to the defendant as a “cold-blooded killer” constituted reversible error because it represented an expression by the district attorney of his personal belief that the defendant was guilty. Very recently the court relied on Capalla in finding reversible error in a prosecutor’s reference to the defendant and his accomplices as “hoodlums” and “animals.” Commonwealth v. Lipscomb, 455 Pa. 525, 317 A. 2d 205 (1974). Through such epithets, said the court, “the assistant district attorney interjected his personal belief in the guilt of the accused.” Id. at 528, 317 A. 2d at 207. And see Commonwealth v. Russell, 456 Pa. 559, 322 A. 2d 127 (1974) (testimony by assistant district attorney that defendant was not arrested until “there was no doubt, no doubt whatsoever” of guilt).

The district attorney here not only suggested his personal belief in appellant’s guilt, as in Capalla, Lipscomb, and Russell, but he did so in such a way as to appeal to the “passions or prejudices of the jury,” ABA Standards, supra, and, further, he asked the jury to base its verdict not on the evidence but on his personal assertion that two of the defendants were “dangerous.” Generally, evidence of a defendant’s character is irrelevant, Commonwealth v. Wable, 382 Pa. 80, 114 A. 2d 334 (1955), but assuming relevance, here there was no evidence of character; there was no testimony that appellant had a reputation for violence; and since appellant testified, it may be assumed that if he had had a serious criminal record, the district attorney would have introduced that fact by way of impeachment.1

*80This case is unlike Capalla and Lipscomb in that here, in contrast to those cases, the trial judge immediately responded to the improper statement. In such circumstances it must be determined whether “[the] curative instructions . . . [were] adequate to fully protect the rights of the accused.” Commonwealth v. Russell, supra, at 565, 322 A. 2d at 130.

In deciding whether curative instructions were adequate, attention must be given to a number of factors. Prompt instructions coupled with a reinforcing charge can obviate the prejudicial effect of an improper statement by a prosecutor, see, e.g., Commonwealth v. Martinolich, 456 Pa. 136, 150-151 n.11, 318 A. 2d 680, 688 n.11 (1974), provided the instruction and charge are neither vague nor indefinite, but sufficiently specific to permit “one [to] say with any degree of certainty that the jury must have understood their application or that they cured the harm complained of.” Commonwealth v. Shoemaker, 240 Pa. 255, 260, 87 A. 684, 686 (1913). “The instruction should preferably be given immediately after the prejudicial event and repeated in the charge to the jury. It should be specifically tied to the facts, and, it should clearly and firmly advise the jury that the prejudicial event must be disregarded.” Commonwealth v. Talley, 456 Pa. 574, 584, 318 A. 2d 922, 927 (1974) (dissenting opinion by Roberts, J.).

The instruction here was specifically tied to the district attorney’s improper statement, and it did advise the jury to disregard the statement. However, it did not make clear why the statement should be disregarded. Nothing was said either about the statement’s being without foundation in the evidence or about the irrelevance of whether a defendant was *81“dangerous.” Nor were these inadequacies in the instruction cured by the charge. Nowhere in the charge was there any specific reference to the statement; there was only generalized comment about the attention to be paid to the arguments of counsel and about the sort of verdict that should be returned. One cannot say “with any degree of certainty that the jury must have understood” from such comment that the district attorney’s statement was improper and was to be ignored. Commonwealth v. Shoemaker, supra. Moreover, certain generalized instructions usually given were not given here. Although the judge did say that the verdict should be “fair and just” and “factual,” he gave no admonition that it should not be based on prejudice or passion, nor did he say that it had to be based only on the evidence.

The remaining question is whether the evidence was so substantial that the prejudice resulting from the district attorney’s statement was harmless. The evidence may be summarized as follows. On July 10, 1971, around 11:00 p.m., a Pennsupreme Grocerette on Roseville Road in Lancaster County was robbed by three black men. One of the men (“robber No. 1”), who was armed, directed the actions of the three people — two employees and a customer — who were in the store at the time. The second man (“robber No. 2”) assisted him, and the third man (“robber No. 3”) stood by the door. Robber No. 1 and robber No. 2 each wore a gray stocking mask. No direct evidence, such as fingerprints or possession of proceeds of the robbery, linked appellant to the robbery. One of the employees identified appellant as one of the robbers. She said the masks two of the robbers wore blurred their features, but not their bone structures or the general shape of their heads. From this data she concluded that appellant was robber No. 2. This identification conformed with previous ones made by her. About two months *82after the robbery she identified appellant as one of the robbers from a photograph included in a pack shown her, and then she picked appellant out of an eight-man corporeal lineup. She also identified appellant at his preliminary hearing. In fact, she stated at trial that she was more certain of her identification after the preliminary hearing. The second employee identified one of appellant’s co-defendants as robber No. 1, and stated that he had previously identified the other of appellant’s co-defendants as robber No. 2. The third eyewitness made no identification.

Thus the case against appellant was not overwhelming. On the Commonwealth’s side the jury was presented with contradictory evidence of whether appellant was in fact robber No-. 2, one witness saying he was not, and another, whose testimony was arguably not reliable, saying he was; and on appellant’s side the jury was presented with alibi evidence. While the Commonwealth’s evidence would suffice were this a case where the defendant was challenging the sufficiency of the evidence, it was not substantial enough to permit the conclusion that the district attorney’s improper statement was error harmless beyond a reasonable doubt. Commonwealth v. Diaz, 438 Pa. 356, 264 A. 2d 592 (1970); Commonwealth v. Robinson, 430 Pa. 188, 242 A. 2d 266 (1968).

I would reverse the judgment of sentence and remand the matter for a new trial.

HofPMAN, J., joins in this opinion.

According to § 5.9 of the ABA Standards, supra: “It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowl*80edge based on ordinary human experience or matters of which the court may take judicial notice.”