Commonwealth v. Bullock

MONTGOMERY, Judge,

dissenting:

I dissent.

While the District Attorney’s comments may have been based on substantial testimony and a fair deduction of the evidence, and while admittedly they were not part of a lengthy harangue which appealed to the passions of the jury or invoked improper sympathy for the victim, the comments in the final analysis must be characterized as an expression of the District Attorney’s personal opinion of the appellant’s *612veracity. Such conduct has clearly been held to be an improper intrusion upon the jury’s exclusive function of evaluating the credibility of witnesses. Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978), Commonwealth v. Grosso, 274 Pa.Super. 370, 418 A.2d 452 (1980). Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979).

Our Supreme Court noted in Commonwealth v. Kuebler, supra, that “ ‘Prosecutorial misconduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor’s argument.’ ” 482 Pa. at 363-364, 399 A.2d at 118-119, quoting American Bar Association Standard Relating to the Prosecution Function, § 5.8 Commentary (approved draft, 1971). It is true that the prosecutor must walk a fine line in addressing the jury with his argument. On the one hand he must rigorously clarify the inconsistencies and contradictions throughout the testimony but on the other hand, he must leave the final conclusions to the trier of fact. Unfortunately, in the case at bar the prosecutor crossed the line of permissible argument and entered the sole domain of the jury. This he is forbidden to do.

The prosecutor must exert restraint in voicing his own personal conclusion about which versions of the facts should be accepted as the most viable. Only by doing so will the jury’s determination of guilt be:

“. . . rationally compelled after a disinterested, impartial, and fair assessment of the testimony that has been presented.” Commonwealth v. Gilman, 470 Pa. 179, 189, 368 A.2d 253, 258 (1977).

In light of the prejudicial nature of the District Attorney’s comments, the only appropriate relief is the granting of a new trial. I therefore support the original disposition of this matter. Commonwealth v. Bullock, 266 Pa.Super. 526, 405 A.2d 943 (1979), and I dissent from today’s decision.

HOFFMAN, J., joins in this dissenting opinion.