decided: January 28, 1977.
COMMONWEALTH OF PENNSYLVANIA
MERLE RONALD GILMAN, APPELLANT
Daniel J. Ackerman, Richard H. Galloway, Greensburg, for appellant.
Albert M. Nichols, Dist. Atty., John J. Driscoll, Greensburg, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., dissents.
[ 470 Pa. Page 182]
OPINION OF THE COURT
Appellant Merle Ronald Gilman was convicted of first degree murder and sentenced to life imprisonment after a jury trial. At trial appellant objected to several remarks made by the prosecutor during closing argument and moved for a mistrial. Appellant preserved these objections in his post-trial motions. The prosecutor's remarks included an attempt to disparage appellant's trial strategy, a personal attack on appellant himself, and an appeal to the emotions of the jury. Appellant contends that he is entitled to a new trial.*fn1 We agree. The prosecutor's remarks were improper and denied appellant a fair trial. We reverse the judgment of sentence and remand for a new trial.*fn2
[ 470 Pa. Page 183]
The Commonwealth presented evidence at trial to establish that the decedent, Lee Ann Grimm, and a companion, Sandra Johnson, were hitchhiking to Cramer, Pennsylvania, during the late evening hours of July 5 and the early morning hours of July 6, 1973, when appellant stopped and gave them a ride. They stopped at a roadside tavern to buy beer. The trip continued with three more stops during which appellant propositioned his passengers to engage in sexual acts. The last stop was in a secluded, wooded area where Ms. Grimm agreed to submit to appellant's demands if he would then take them home.
After engaging in sexual acts with appellant, Ms. Grimm asked Ms. Johnson to likewise submit to appellant's demands. When Ms. Johnson refused, appellant tried to pull her from the car. A struggle ensued during which appellant struck both women about the head and neck with a blunt instrument. Ms. Johnson escaped into the woods. Ms. Grimm's wounds were fatal.
Appellant was arrested in North Carolina and brought to Westmoreland County where he was indicted. A motion for change of venue was granted because of adverse pre-trial publicity and the case was transferred to Northampton County for trial.
At trial, appellant did not deny the slaying but contended it was voluntary manslaughter. He introduced psychiatric testimony to prove that he killed Ms. Grimm in the heat of passion. He did not testify on his own behalf. In a statement to the police which was introduced by the Commonwealth at trial, appellant claimed that one of the two women first struck him with a blunt instrument which he took away and used against the women.
[ 470 Pa. Page 184]
The prosecutor's remarks which form the basis of this appeal were made during closing argument. They are as follows:
"In this case distinguished defense counsel . . . got up before you to tell you that on behalf of their client they accept the responsibility of voluntary manslaughter. Well, at first blush it would seem to be a magnanimous gesture. Why would they do that? You know, oftentimes to avoid the true and final verdict you get up before a jury and are willing to accept and tell the jury that your client is guilty of a lesser offense. You try to becloud the issue . . . by saying: 'I am guilty. Judge me.' It is smart; it is shrewd. I hope that you people here in this jury box . . . are not deceived by such trial tactics.
Ladies and gentlemen of the jury, Merle Ronald Gillman is a cold-blooded killer. Merle Ronald Gillman is cunning, he's sly, he's calculating, he's deceiving. He does not deserve your consideration, your pity, nor your sympathy.
What forms the basis or the alleged basis of this effort to sneak out with a voluntary manslaughter is this statement here, made approximately five days after the offense occurred. Right after Merle Ronald Gillman coldly and brutally beat severely Lee Ann Grimm to her death, he took off for North Carolina.
MR. GALLOWAY [defense counsel]: If the court please, I object to that as being not supported in the evidence.
THE COURT: The objection is overruled.
MR. MARTIN [district attorney]: (continuing to the jury): He went down to North Carolina, and five
[ 470 Pa. Page 185]
days he had a chance to think, to connive, to concoct the story, and this is the story that he came up with, an incredible story to try to justify that cold blooded brutal murder of Lee Ann Grimm.
In this case one man, Merle Ronald Gillman, he decided as judge, jury, prosecutor, and ultimately executioner on Lee Ann Grimm -- one man. Lee Ann Grimm had no trial like this without judge, no jury. He decided right here. He made all the decisions. He beat that girl viciously, broke her neck, delivered her such extensive injuries -- you heard Dr. Inquito up here -- beat her like a dog. Sandy Johnson said that he beat her until there were no more groans or moans coming out of that human body. That's how badly he beat that girl. Any why? Why did Merle Gillman do that?
Let me tell you something. Soon after he killed Lee Ann Grimm and Sandy Johnson ran away, he went searching for Sandy Johnson, up and down that road. Recall the testimony. One witness to that perverted act was already gone, will not testify -- no Lee Ann Grimm sat in this chair -- and I submit to you that had he got Sandy Johnson, Sandy Johnson would not have been sitting in this chair. No witnesses to that act.
MR. GALLOWAY: If the court please, may we approach the bench?
(Counsel appear at side bar.)
MR. GALLOWAY: If the court please, I object to the demeanor of the district attorney. He is virtually yelling at the jury. I object to the argument, which is designed to appeal only to the emotions of the jury rather than to their reason. I think it is improper conduct for the district attorney, and I ask for a mistrial.
THE COURT: . . . [B]ecause the question of provocation is a very important one, I think he has a
[ 470 Pa. Page 186]
right to argue what he was arguing. I think it was argumentative. To that extent the objection is overruled."*fn3
At the outset, we must decide whether appellant made a timely objection to the quoted remarks. The Commonwealth contends that appellant waived his objection to all of the prosecutor's remarks except those immediately preceding the objection. We do not agree.
A defendant may waive his objection to an improper closing argument by failing to raise it at trial. Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975); Commonwealth v. Mennyweather, 458 Pa. 12, 329 A.2d 493 (1974); Commonwealth v. Brooks, 445 Pa. 75, 309 A.2d 732 (1973); Commonwealth v. Allen, 443 Pa. 15, 276 A.2d 539 (1971). The purpose of requiring objection to improper argument is to bring the error to the attention of the trial court so that the court may attempt to cure it. Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973). See also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). If a defendant raises an objection to the impropriety of a prosecutor's summation in time for curative instructions, the issue is not waived. See Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976).
In Commonwealth v. Adkins, supra, we held that an objection made immediately after the completion of a prosecutor's closing argument was timely. We stated:
"[S]ince the argument was recorded and its contents undisputed, the trial court had . . . adequate opportunity
[ 470 Pa. Page 187]
to correct the effect of the assistant district attorney's improper argument. Hence, we are not persuaded the objection was untimely."*fn4
Id. at 472, 364 A.2d at 290.
Appellant's objection offered the trial court adequate opportunity to correct the effect of the prosecutor's statement.*fn5 He interrupted the prosecutor's summation with a specific objection to the entire line of argument. The argument was recorded and its contents were not disputed. Since an objection made at the close of the argument would have been sufficient under Adkins, clearly appellant's objection, interposed during the closing argument, was timely. His objection to the inflammatory nature of the prosecutor's argument encompassed all improper remarks made up to the moment the objection was raised.*fn6
[ 470 Pa. Page 188]
Turning to the remarks themselves, we begin by repeating what this Court has said many times: the prosecutor is a quasi-judicial officer representing the Commonwealth. His duty is to seek justice, not just convictions. E. g., Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972); see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, the Prosecution Function, § 1.1 (Approved Draft, 1971) [hereinafter cited as ABA Standards]; Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974).
"Although the prosecutor operates within the adversary system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public."
ABA Standards § 1.1, commentary at 44; See Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974).
During closing argument, the prosecutor has an obligation to
". . . present the facts so that the jury can dispassionately and objectively evaluate the testimony in a sober and reflective frame of mind that will produce judgment warranted by the evidence and not inspired by emotion or passion."
Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). The prosecutor's position as both an administrator of justice and an advocate "gives him a responsibility not to be vindictive or attempt in any manner to influence the jury by arousing their prejudices." Commonwealth v. Revty, 448 Pa. at 516, 295 A.2d at 302, and cases cited therein; Commonwealth v. Collins, supra;
[ 470 Pa. Page 189]
he still alive.*fn11 We have ruled 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, supra, 458 Pa. at 411, 327 A.2d at 30 (emphasis in original).
Here, the prosecutor continually exceeded the bounds of permissible argument. First, he disparaged the legitimate defense strategy of admitting a lesser degree of guilt and seeking acquittal of the higher degree. The prosecutor described it as an attempt to "becloud the issue," "deceive" the jury and "sneak out" with a lesser verdict. In Commonwealth v. Collins, supra, this Court condemned a prosecutor's statement that the defense was setting up a "smoke screen" and attempting to "throw mud in the eyes of the jurors."
After thus dealing with defense counsel, the prosecutor turned his attack upon appellant, characterizing him as a "cold-blooded killer," "sly," "calculating," and "deceiving." In Commonwealth v. Lipscomb, supra, Mr. Justice Eagen, speaking for a unanimous Court said:
"'It is no[t] part of a district attorney's duty, and it is not his right, to stigmatize a defendant. He has a right to argue that the evidence proves the defendant guilty . . . but for the district attorney himself to characterize the defendant as a "cold-blooded killer" is something quite different.'" (emphasis in original).
455 Pa. at 528, 317 A.2d at 207, quoting Commonwealth v. Capalla, supra at 206, 185 A. at 206 (1936). Accord, Commonwealth v. Lark, supra. The prosecutor's statement was an unprofessional expression of his personal belief as to appellant's guilt and credibility. ABA Standards § 5.8(b), supra. See Pennsylvania Supreme Court
[ 470 Pa. Page 191]
Code of Professional Responsibility DR 7-106(C)(4) (1974). See also notes 7 and 8, supra.
In Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971), this Court reversed a conviction because the prosecutor branded defendant's testimony a lie. We stated there:
"[The prosecutor] injected his highly prejudicial personal opinion of appellant's credibility into evidence, thereby clearly and improperly intruding upon the jury's exclusive function of evaluating the credibility of witnesses."
Id. at 287, 285 A.2d at 493 (citations omitted).
In Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975), this Court reversed the conviction because the prosecutor expressed his personal opinion of defendant's guilt.
"[A] prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of speech."
Id. at 143, 346 A.2d at 62.
"[S]uch personal assertions by the prosecutor on the guilt of the accused were beyond the scope of fair play and were reversible error."
Id. at 142, 346 A.2d at 61, quoting Commonwealth v. Lark, 460 Pa. 399, 404-05, 333 A.2d 786, 789 (1975) (emphasis in original).
Finally, the prosecutor referred to appellant as "executioner" and stated that he "beat her like a dog . . . until there were no more groans or moans, coming out of that human body." He added that if appellant "had got Sandy Johnson, Sandy Johnson would not have been sitting in this chair." The foregoing remarks constituted an improper appeal to the passions and prejudices of the jury. Their obvious purpose was to divert the inquiry
[ 470 Pa. Page 192]
from a reasoned pursuit of truth.*fn12 See Commonwealth v. Harvell, supra; Commonwealth v. Lipscomb, supra.
Moreover, the prosecutor attempted to inflame the jury by emotional references to the decedent: "Lee Ann Grimm had no trial like this, without judge, no jury." "One witness to that perverted act was already gone, will not testify -- no Lee Ann Grimm sat in this chair . . . ." We have condemned such attempts to distract the jury from its duty to evaluate the evidence by evoking the memory of the victim. See Commonwealth v. Harvell, supra; Commonwealth v. Lipscomb, supra.
In our view, the prosecutor's closing argument was an emotional harangue which exceeded the bounds of fair play and decency. This effort to inflame the jury and obtain a verdict inspired by revulsion rather than reason was extremely prejudicial. A new trial is required when an improper remark is prejudicial, i. e., when it is of such a nature or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
Accordingly, the judgment of sentence is reversed and a new trial is ordered.