dissenting.
In the presence of the jury, the prosecuting attorney asked appellant, “[the victim] can’t be here to tell these people what took place, can he?” Mr. Chief Justice O’Brien correctly concludes that this questioning was improper. Cf. Commonwealth v. Black, 480 Pa. 394, 390 A.2d 750 (1978) (condemning prosecutorial tactic of directing jurors’ attention to rear of courtroom to wait for deceased to walk through door). Yet he concludes that the improper questioning does not constitute reversible error, “especially since *535the trial court immediately cautioned the jury to disregard the remarks.” I must dissent.
On no reading of the record can it be said that the court adequately cautioned the jury. The court told the jury, “it’s more a matter for argument than anything else.” Contrary to the assertion of the trial court, the prosecuting attorney’s remark that the victim “can’t be here to tell these people what took place” is not a matter for argument, or any other aspect of the prosecution’s case. The Supreme Court of the United States often has repeated that
“a prosecutor ‘is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a particular and definite sense the servant of the law....’”
Gannett Co. v. DePasquale, 443 U.S. 368, 384 n.12, 99 S.Ct. 2898, 2908 n.12, 61 L.Ed.2d 608 (1979), quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). So too, this Court has stated: “In advocating the cause for this Commonwealth, prosecutors are to seek justice, not only convictions.” Commonwealth v. Cherry, 474 Pa. 295, 301, 378 A.2d 800, 803 (1977).
The American Bar Association’s Standards Relating to the Prosecution Function provide:
“The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.”
ABA Project on Standards for Criminal Justice, § 5.8(c) (Approved Draft, 1971). And we held that “[t]he determination of guilt must not be the product of fear or vengeance, but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that had been presented.” Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). Because the prosecuting attorney’s improper remark frustrated a disinterested, impartial and fair assessment, appellant must be awarded a new trial.