Commonwealth v. Brown

OPINION

KAUFFMAN, Justice.

After a 1977 jury trial in Philadelphia, appellant, Daniel Brown, was convicted of murder of the third degree and *564possession of an instrument of crime. Appellant’s post-verdict motions were denied, and he filed this appeal.1 We affirm.

The trial evidence discloses that on the evening of July 8, 1977, appellant’s sister, Trudy Brown, and a neighbor, Veronica Jackson, became involved in a violent argument, causing a crowd to gather in front of appellant’s home. A policewoman arrived, and the fight was broken up with the help of neighbors. Ms. Brown was forcibly removed to her home, screaming. Within minutes Ms. Brown ran from the house brandishing a knife and stabbed Veronica Jackson’s mother, Mrs. Rebecca Jackson, as she sat with friends on a stoop directly across the street from appellant’s home. Once again, the police arrived, and Ms. Brown was again forcibly removed to her home where she continued screaming and “acting like a wild woman.”

Shortly thereafter, appellant told the police to leave since, in his view, the situation had calmed sufficiently. After the police departed, appellant’s friend, James Hayes, arrived. Hayes warned that if the Jacksons’ dispute with the Browns could not be settled, they would “shoot it out.” Hayes then entered the appellant’s home with the briefcase which he had been carrying. Immediately thereafter, appellant ran from the house and fired four shots from a .38 caliber revolver into the nearby crowd. Two of the bullets struck nineteen year old Sharon Sampson in the back and killed her.

The Commonwealth sought to prove at trial that appellant told the police to leave so that he could carry out his plan to shoot the Jacksons and their neighbors as they stood on the stoop and street in front of his home. Two of the shots fired into the crowd struck the decedent instead.

The defense contended that the crowd outside appellant’s home had grown violent, and that after several visits, the police refused protection for the Brown family. Thus, ap*565pellant, in an effort to protect his home and family, shot over the crowd and accidentally hit decedent.

I.

Appellant first contends that he was prejudiced by prosecutorial misconduct. We disagree.

Appellant argues that the Commonwealth presented materially different versions of the Sampson shooting at the suppression hearing and at trial. Since this claim was not raised at trial, it has been waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant next asserts that the prosecutor concealed the discovery of three spent .25 caliber casings near the scene of the shooting. He argues that this evidence would have corroborated his testimony that he shot over the crowd only after he had heard shots fired at his home. The record, however, reveals no such concealment. Quite to the contrary, the discovery of the cartridges was disclosed to appellant both before and during trial.

Appellant further claims that he was prejudiced when the prosecutor briefly cross-examined his sister, Trudy Brown, regarding her use of drugs on the night of the shooting. A police officer testified that Ms. Brown appeared to have been drinking that night. Moreover, on cross-examination, Ms. Brown admitted that she had been drinking earlier in the evening. Several witnesses also testified that Ms. Brown’s behavior that night had been extremely irrational and violent. During her direct trial testimony, Ms. Brown attempted to corroborate her brother’s version of the shooting, describing in detail how the crowd “attacked” her home. The prosecutor sought to determine if Ms. Brown was inebriated or drugged when she made these observations. The trial court did not abuse its discretion in ruling that there was ample evidentiary support for the prosecutor’s questions. See generally McCormick, Evidence at 49, § 22 (Cleary ed. 1972).

*566Appellant next claims that defense witness James Hayes was improperly confronted on cross-examination with a prior statement inconsistent with his trial testimony. During his direct examination, Hayes testified that on the night of the shooting, an unidentified individual pointed a gun at him while he was attempting to mediate the dispute outside the Brown home. The prosecutor cross-examined Hayes with the statement he made immediately after the shooting that he had seen no one with a gun. This use of a prior inconsistent statement was well within the bounds of appropriate cross-examination. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).

Finally, appellant contends that in her closing argument the prosecutor improperly described the Sampson shooting as an “execution” and a “slaughter.”2 In evaluating similar misconduct claims, we have held that the allegedly improper comments must be read in their full context, including the defense closing. We may thus determine if the comments were made in fair response to defense argument. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); ABA Project on the Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 5.8 (Approved Draft, March 1971) (commentary) (“[A] prosecutor may be justified in making a reply to an argument by defense counsel which may not have been proper if made without provocation.”)3

*567The defense argued below that because the police would not permanently calm the “mob” outside appellant’s home, he was compelled to shoot over the crowd to protect his family and property and that Ms. Sampson was hit accidentally. During his closing, defense counsel repeatedly expressed personal opinions, made arguments not supported by the evidence, and indulged in appeals to sympathy, in an effort to belittle the Commonwealth’s contrary theory that the killing was intentional.4 Such tactics are improper. ABA Project on the Standards for Criminal Justice, Standards Relating to the Defense Function, §§ 7.8, 7.9 (Approved Draft, March 1971). in response, the prosecutor discussed the evidence which revealed that appellant told the police to leave his home so he would be free to implement his plan to shoot those persons involved in the dispute. The discussion included the following comments:

You heard from officers’ testimony that the police came multiple times to the corner of Newkirk and Master, to Newkirk Street, to 2814 West Master. Now what they were told? They were told that they weren’t needed. They were told that they weren’t called. Who told them this?
The defendant told them this. Now, I ask you in the use of your common sense and your logic, the police in Philadelphia go four times, two times, three times to a street to offer what? To offer assistance? Each time to *568be told that they’re not needed. Why? What was the reason behind it? Did the defendant say that? Did he have some plan of his own? Is it a system of vigilante self-style execution that we are dealing with here?
[D]o you believe, instead, what the Commonwealth says, that the girl, after her mother had bought her a suit, was on her way to go to a party in West Philly, and when she left at 5:30, she was okay. She never made it off that corner, and the Atwell boy said that she had just gotten there a couple seconds when he saw her hit. And after she went down, there was more firing.
Now, is this an attempt to protect oneself, or is this a slaughter?

Significantly, unlike defense counsel, the prosecutor did not express her personal opinions, but posed two questions as part of her discussion of the evidence, which fully supported the inference drawn. Moreover, both counsel and the trial court repeatedly cautioned the jury that the arguments of counsel should not be considered as evidence. In these circumstances, we cannot conclude that the prosecutor’s closing argument was improper or prejudicial. See Commonwealth v. Van Cliff, supra; Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975)).5

II.

Appellant next argues that the trial court erred in allowing twenty peremptory challenges to each side during jury selection. He notes that twenty challenges are allowed only in capital prosecutions and that seven challenges are permitted in noncapital trials. Act of October 7, 1976, P.L. 1089, No. 217, § 1,19 P.S. § 811a. The murder trial below began six days after the date of our decision in Common*569wealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978), wherein we invalidated the death penalty then in effect. Thus, the appellant argues that only seven peremptory challenges should have been allowed because murder was not a capital offense at the time of the trial. We disagree.

In its opinion, the trial court explains that “in the ensuing confusion over the consequences of the Supreme Court’s action in . [Moody], it appeared to this Court that allowing too many rather than too few peremptory challenges was the course of action better designed to protect defendant’s rights.” (Trial court opinion at 7)6 In the circumstances of this case, the trial court’s cautious ruling was not an abuse of discretion. See Commonwealth v. Torres, 467 Pa. 39, 354 A.2d 539 (1976).

III.

The appellant, who is black, further alleges that the prosecutor systematically excluded black persons from the jury, noting that all of the sixteen people peremptorily excluded by the prosecution were black. In his brief, counsel for appellant adds his personal observation that in the two years prior to the trial, he represented black defendants in five Philadelphia murder trials during which the prosecution used peremptory challenges in a discriminatory fashion.7 The record here shows that one black person did in fact serve on the jury.

In Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975), we discussed the issue of racial discrimination in jury selection and adopted the approach taken by the United States Supreme Court in Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773-74 (1965):

*570In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenge to obtain a fair and impartial jury to try the case before the court The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the ease at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.
[The presumption is overcome] when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries ...

(Emphasis in original.)

Commonwealth v. Martin, supra, 461 Pa. at 296-97, 336 A.2d at 294. We conclude that appellant has not met his “initial burden of demonstrating a prima facie case of discrimination.” Id., 461 Pa. at 296, 336 A.2d at 293.

IV.

Finally, appellant contends that the trial court improperly denied his requested charges on self defense and burden of proof. Since objections on these points were not among those raised by appellant following the trial court’s charge, they have been waived. Pa.R.Crim.P. 1119(b); Commonwealth v. Martinez, 475 Pa. 331, 337, 380 A.2d 747, 750 (1977) (plurality).

Judgments of sentence affirmed.

*571ROBERTS, J., filed a dissenting opinion. NIX, J., filed a dissenting opinion.

. Jurisdiction is vested in this Court by the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S.A. § 722(1) (Pamph. 1979).

. Appellant fails to specify where in the record the words “slaughter” and “execution” appear. This is a serious oversight since we can determine if prosecutorial comments are prejudicial only by reviewing them in context. See Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979).

. A substantial number of jurisdictions have adopted rules making it permissible for a prosecutor to respond in kind to an improper defense closing. People v. McDaniel, 16 Cal.3d 156, 127 Cal.Rptr.467, 545 P.2d 843 (1976); People v. Stock, 56 Ill.2d 461, 309 N.E.2d 19 (1974); Commonwealth v. MacDonald, 368 Mass. 395, 333 N.E.2d 189 (1975); State v. Bowden, 113 R.I. 649, 324 A.2d 631 (1974); cert. denied sub nom. Picard v. Rhode Island, 419 U.S. 1109, 95 S.Ct. 782, 42 L.Ed.2d 805 (1975); State v. Cydzick, 60 Wisc.2d 683, 211 N.W.2d 421 (1973); State v. Yancey, 32 Wisc.2d 104, 145 N.W.2d 145 (1966); United States v. Esposito, 523 F.2d 242 (7th Cir. 1975), cert. denied *567425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 768 (1975); United States v. Lewis, 423 F.2d 457 (8th Cir. 1970), cert. denied 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142 (1970); United States v. Johnson, 527 F.2d 1381 (D.C.Cir. 1976).

. For instance, defense counsel labelled as “most absurd” and “just ridiculous,” the critical testimony of a Commonwealth eyewitness that appellant’s attack was unprovoked. At several points in his closing, defense counsel, without evidentiary support, assailed the “cunningness” of the prosecutor in concealing evidence that showed appellant acted in self-defense. In addition, defense counsel improperly urged the jury, when evaluating appellant’s testimony, to put themselves in appellant’s place. Compare e. g., Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977) (improper for the prosecutor to ask the jury to put themselves in the victim’s place when evaluating her testimony).

. Appellant also alleges that the Commonwealth did not comply with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because it “did not provide the defense with exculpatory materials until well into the trial of the case.” (Appellant’s brief at 10). Appellant fails to identify any such “exculpatory material,” however. Absent such a specific allegation, we will not consider the claim.

. Indeed, the validity of the death penalty remained uncertain until July 3, 1978, when the United States Supreme Court denied the Commonwealth’s petition for certiorari. Pennsylvania v. Moody, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978).

. Counsel has not supplied this Court with the docket numbers or any other citation to the cases referred to, but has provided only the surnames of the defendants.