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decided: October 3, 1975.



Louis Lipschitz, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Pomeroy

[ 464 Pa. Page 139]


Following a trial by jury, appellant was found guilty of murder in the first degree, aggravated robbery, assault and battery with intent to murder, aggravated assault and battery, assault and battery, and burglary. Post-verdict motions were denied and appellant was sentenced to life imprisonment for murder, twenty years probation for aggravated robbery and seven years probation for the assault convictions; all sentences were to run concurrently. Sentence was suspended on the burglary conviction. This appeal followed.*fn1

[ 464 Pa. Page 140]

The offenses of which appellant was convicted stemmed from the attempted robbery of a sporting goods store by Cronin and two other young men, William Flynn and Leon James. The latter two were acting at the behest of the appellant, who both plotted the details of the abortive robbery and served as getaway driver. During the course of the robbery attempt, the two brothers who owned the store, Henry and Louis Cooper, struggled with Flynn and James. Both were shot by Leon James. Louis died as a result of his wounds; Henry was severely wounded in the stomach, but survived.

Appellant Cronin has assigned various errors in the conduct of the trial. We have concluded that reversal is required because of improper statements made by the prosecutor in his closing argument to the jury, and therefore need not consider the other issues presented.*fn2

In the peroration of his argument to the jury, the assistant district attorney concluded as follows:

"Who said that Daniel Cronin, William Flynn and Jesse James had the right to play God and determine the precise moment at which Louis Cooper would leave this veil of tears?

[ 464 Pa. Page 141]

"Who was it that said that these three had the right to play God and leave Henry Cooper in the condition he presently finds himself?

" I say to you that this defendant is guilty of a conspiracy, with Jesse James and William Flynn, and he is guilty of the burglary through this conspiracy and attempted robbery through this conspiracy, and of the murder of Louis Cooper through this conspiracy, and the assault and battery, aggravated assault and battery with intent to kill, through this conspiracy, and the only way, the only way you cannot find this defendant guilty of murder of the first degree is for Louis Cooper to walk through that door. (N.T. 246). (Emphasis supplied)*fn3

Appellant's counsel immediately objected and moved for the withdrawal of a juror,*fn4 which motion was denied. It is now contended that these remarks,*fn5 and particularly the italicized final portion of them, denied appellant a fair trial. We agree.

[ 464 Pa. Page 142]

In two recent cases we have been called upon to consider remarkably similar statements made by prosecuting attorneys during their closing arguments: Commonwealth v. Lark, 460 Pa. 399, 333 A.2d 786 (1975); Commonwealth Page 142} v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974);*fn6 in both cases we found the remarks sufficiently prejudicial to require reversals of the judgments of sentence. In Lipscomb, the objectionable statement was: "'I think Mr. Sweeney [the deceased victim] would say "The only way you couldn't find this defendant guilty of murder of the first degree is for me to come alive again before your very eyes."'" 455 Pa. at 527, 317 A.2d at 207. We made it clear that such rhetoric "is emphatically condemned." Id. at 529, 317 A.2d at 207. In Lark, in language almost identical to that in the case sub judice, the prosecuting attorney declaimed to the jury that "'There's one way that you could find this defendant not guilty, there's only one way, and that's if Irving Rotfort [the deceased victim] walked through those courtroom doors, then you could find the defendant not guilty.'" Id. 460 at 404, 333 A.2d at 789. Reiterating the disapproval of such remarks which we had expressed in Lipscomb, we observed in Lark that "this amounted to a statement by the prosecutor that he was personally convinced that the appellant was guilty, and his innocence was as unlikely as the deceased's resurrection. We held [in Lipscomb ] such personal assertions by the prosecutor on the guilt of the accused were beyond the scope of fair play and were reversible error." Id. at 404-405, 333 A.2d at 789. See Lipscomb, supra, 455 Pa. at 528-29, 317 A.2d at 207; Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974).

[ 464 Pa. Page 143]

Our decisions in the cases cited above were declaratory of Disciplinary Rule DR 7-106(C)(4) of the Code of Professional Responsibility, which provides: "(C) In appearing in his professional capacity before a tribunal, a lawyer shall not: . . . (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to Page 143} the guilt or innocence of an accused ; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein." 438 Pa. xxv, ci-cii (1970) (emphasis supplied).*fn7 See also American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, ยง 5.8(b) (Approved Draft, 1971).

To hold as we do today does not mean, as the Commonwealth suggests, that a prosecuting attorney is no longer "entitled to argue his case to the jury forcefully and, if need be, with eloquence," (Commonwealth's brief at 24) nor does it mean, that "he has been [shorn] of all oratorical emphasis," to use Judge Learned Hand's phrase. See DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). We recognize that a district attorney must have reasonable latitude in fairly presenting a case to the jury, and that the trial judge must have reasonable discretion in deciding whether the bounds of propriety have been exceeded. See Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669 (1974). As the commentary to the ABA Standards puts it, "Of course, a prosecutor must be free to present his arguments with logical force and vigor." Our present holding, like the decisions cited above, is simply that a prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of speech. The summation here challenged was objectionable and prejudicial in both respects.*fn8

[ 464 Pa. Page 144]

The judgments of sentence are reversed and the case is remanded for a new trial.

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