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decided: April 28, 1978.



John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., concurs in the result.

Author: Jacobs

[ 254 Pa. Super. Page 456]

This appeal is taken from appellant's conviction by a jury of simple assault*fn1 and from the denial of his post verdict motions for a new trial and in arrest of judgment. Appellant first contends that he is entitled to be discharged because of the Commonwealth's alleged violation of Pennsylvania Rule of Criminal Procedure 6013(g).*fn2 We deem this issue waived for failure to file a written petition to dismiss prior to trial as required by Rule 1100(f).*fn3 Commonwealth v. Blanchard, 251 Pa. Super. 424, 380 A.2d 853 (1977). We must therefore consider appellant's grounds for a new trial. Since it is clear that the prosecutor was guilty of misconduct which prevented the rendition of an objective verdict by the jury, we reverse and order a new trial without reaching the remaining assignments of error.

Appellant, an inmate of the House of Correction in Philadelphia at the time of this incident, was charged and convicted of simple assault upon Jeffrey Harris, a guard at the prison. A fight between the two erupted on the evening of October 29, 1975, apparently because appellant persisted in sitting or leaning on the guard's desk despite several requests to refrain from doing so. At trial the testimony of

[ 254 Pa. Super. Page 457]

Harris, and that of the defense witnesses differed greatly concerning which of the two combatants threw the first punch. The jury resolved this credibility question in favor of the Commonwealth.

Appellant contends that various remarks of the Assistant District Attorney, particularly during his closing argument, statement, were so inflammatory as to warrant a new trial. It is, of course, true that if the cumulative effect of improper statements made by the prosecuting attorney so prejudices the jury as to prevent a fair trial, reversible error exists. Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). The attorney for the Commonwealth admitted in chambers following his closing, that he had at various times referred to appellant and one defense witness as "robbers" and "rapists." N.T. at 501-02. He attempted to justify this by saying: "How inflammatory is that of calling a person what he is? It's identical of calling a snake or a vicious animal or a homicidal maniac. . . ." N.T. at 502. He also admitted asking the jury how they would like to step into an alley with appellant or his principal witness, but sought to explain this as a comment on the credibility of these witnesses. N.T. at 506. In addition, the prosecutor, allegedly in response to defense counsel's closing argument, compared the rights of "robbers" and "rapists" to those of the guard who was involved in the altercation. N.T. at 504-05. Defense counsel objected to each of these remarks at the time they were made and moved for a mistrial as required by Pa.R.Crim.P. 1118(b).*fn4

[ 254 Pa. Super. Page 458]

The prosecutor's justifications for the use of epithets and inflammatory innuendoes evidence a serious misconception of the prosecutorial function.*fn5 Section 5.8(c) of the ABA Project on Standards of Criminal Justice, Standards Relating to the Prosecution and Defense Function (Approved Draft 1971), states: "The prosecutor should not use arguments calculated to inflame the passions of the jury." Since "[t]he prosecutor is both an administrator of justice and an advocate," he must be circumspect in the performance of his functions. Standards Relating to the Prosecution Function § 1.1(b) (Approved Draft 1971). It is his duty to seek justice, not merely convictions. Id., § 1.1(c). "[T]he conduct of the prosecutor at closing argument is circumscribed by the concern for the right of a defendant to a fair and impartial trial." Commonwealth v. Cherry, 474 Pa. 295, 301, 378 A.2d 800, 803 (1977).

[ 254 Pa. Super. Page 459]

"'It is no part of a district attorney's duty, and it is not his right, to stigmatize a defendant.'" Commonwealth v. Lipscomb, 455 Pa. 525, 528, 317 A.2d 205, 207 (1974), quoting Commonwealth v. Capalla, 322 Pa. 200, 204, 185 A. 203, 205 (1936). Characterization of a criminal defendant as a "robber" or "rapist" can no more be condoned than the use of epithets such as "hoodlums" and "animals." See Commonwealth Page 459} v. Lipscomb. The Assistant District Attorney's closing demonstrated "a highly regrettable zeal for conviction which caused [him] to lose sight of his duty to remain objective and not to exploit the influence of his ...

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