Appeal from judgment of Court of Common Pleas of Fayette County, No. 498 of 1970, in case of Commonwealth of Pennsylvania v. James Shaffer.
Joseph M. George, with him Ray, Buck, Margolis, Mahoney and John, for appellant.
Donald J. McCue, Assistant District Attorney, with him Richard D. Cicchetti, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., dissent.
[ 224 Pa. Super. Page 565]
Appellant contends that the trial court erred in refusing to grant his request for a new trial on the ground that the district attorney's inflammatory summation so prejudiced the jurors against him as to deny him a fair trial.
The appellant, James Shaffer, was indicted and charged with fornication and bastardy in the Court of Common Pleas of Fayette County. During the trial, the prosecutrix testified that she had sexual relations with the appellant on December 24, 1969, January 2, 1970, and January 10, 1970. A child was born out of this alleged liason on October 9, 1970.
Following the presentation of the evidence, opposing counsel argued their respective cases to the jury. The district attorney argued that if the jurors did not find the appellant guilty as charged, the burden of supporting the child would fall upon the unemployed prosecutrix or on the taxpayers of Fayette County. The defense counsel properly lodged an objection to this remark with the court and moved for the withdrawal of a juror. The trial judge refused to grant the motion.
Pennsylvania courts have allowed the prosecution broad latitude in presenting its summation to the jury.
[ 224 Pa. Super. Page 566]
Thus, a district attorney may argue all facts introduced into evidence and he may draw all the reasonable inferences from these facts. Commonwealth v. Neff, 149 Pa. Superior Ct. 513, 517, 27 A.2d 737 (1942). Where the prosecutor, however, exceeds the permissible scope of argument and defense counsel moves for the withdrawal of a juror, his contentions must be examined to determine whether or not a new trial should be granted to the defendant. If "'under all the circumstances of the case, the verdict rendered is a just one, the language of the prosecuting officer which will justify reversal must be such that its unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh in his behalf such circumstances of doubt, extenuation or degree of guilt that may be present in the case, and thus make them unable to render a true verdict.'" 149 Pa. at 517. The appellate courts will "grant relief to a defendant whose rights have been disregarded by a district attorney" provided that the prosecutor's remarks were so prejudicial as "to create an improper prejudice in the minds of the jurors and thus tend to prevent a fair trial." Commonwealth v. Massarelli, 304 Pa. 335, 339, 156 A. 101 (1931).
The American Bar Association has taken these considerations into account in setting forth the standards which an attorney should ...