decided: April 28, 1978.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
ORLANDUS SMITH, APPELLANT
No. 120 January Term 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, denying Post-Conviction Relief at Nos. 469-472, February Sessions 1970.
Maryann Conway, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Dept. Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion in which Nix, J., joined.
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OPINION OF THE COURT
On November 2, 1970, Orlandus Smith was convicted by a jury in Philadelphia of voluntary manslaughter, robbery, burglary with intent to commit a felony, and carrying a concealed deadly weapon. The charges arose out of the fatal stabbing of Dr. Oliver Wilson. Prison sentences were imposed, and on direct appeal we affirmed the judgments. Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973).
On December 15, 1975, Smith filed a petition seeking post-conviction relief pursuant to the provisions of the Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. [Hereinafter: PCHA]. After a counseled evidentiary hearing, relief was denied. This appeal is from that order.
In his post-conviction relief petition, Smith contended, inter alia, he was denied the assistance of effective counsel in post-verdict motions and on direct appeal. At both stages, he was represented by the same counsel. Different court-appointed counsel, however, represented Smith at his PCHA hearing, after which the Court of Common Pleas held that Smith's trial and appellate counsel were competent and effective. In this appeal, in which he is represented by still another court-appointed counsel, Smith raises the ineffectiveness of counsel at three stages: trial, appellate and post-conviction.
Smith asserts three incidents of ineffectiveness by his counsel in support of his claim for relief. First, he asserts trial counsel should have repolled the jury or clarified the record when there was confusion as to the jury's finding of the degree of guilt on the homicide bill. Next, Smith argues counsel, in post-verdict motions and on direct appeal, should have assigned as error the trial court's overruling of his objection to the assistant district attorney's closing argument to the jury. Finally, Smith argues post-conviction
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relief counsel should have obtained the testimony of Smith's original trial counsel and should have presented Smith's pro se post-conviction petition claims to the court in a "legally meaningful way."
Since we find that counsel's failure to pursue the issue of prosecutorial misconduct at trial in post-trial motions and on direct appeal amounted to a denial of Smith's constitutional right to representation by effective counsel, and since this basis for relief was advanced at the post-conviction hearing, it is unnecessary to consider the remaining claims.
The charge of prosecutorial misconduct at trial arises from these remarks made to the jury by counsel for the Commonwealth during closing argument:
"Now, ladies and gentlemen, the doctor made a very, very big mistake. And, ladies and gentlemen, he paid for that mistake. Unfortunately, in this day and age we have to say it was a mistake. His mistake was a natural mistake to all of us, a mistake borne out of rage, a mistake which is borne out of surprise, he fought back. He resisted. He said I will not be robbed and he struggled with a vicious, desperate criminal who would kill for a nickel in this struggle . . . ."*fn1
At the conclusion of the prosecutor's argument, defense counsel objected to the characterization of Smith as a "vicious, desperate criminal who would kill for a nickel," and moved for a mistrial. The motion was denied. Defense counsel filed motions for a new trial and in arrest of
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judgment but did not assert prosecutorial misconduct as a basis for these motions.
It is well-settled that "[c]counsel is not obligated to raise every adverse ruling made during the trial in his post-trial motions." Commonwealth v. Harrison, 228 Pa. Super. 42, 45, 323 A.2d 848, 849-50 (1974). See also Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Learn, 233 Pa. Super. 288, 335 A.2d 417 (1975). While counsel should raise in post-trial motions any issue which has a reasonable possibility of success on appeal, he is not required to raise issues which are obviously without merit. As was recently stated by this Court in Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977):
"It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for the post-trial counsel's decision not to pursue the matter."
This Court has frequently condemned argument to a jury which expresses a district attorney's personal belief or opinion as to the guilt of a defendant or which otherwise stigmatizes a defendant. As stated in Commonwealth v. Capalla, 322 Pa. 200, 204, 185 A. 203, 205 (1936):
"It is no 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 as charged in the indictment, but for the district attorney himself to characterize the defendant as 'a cold blooded killer' is something quite different. No man on trial for murder can be officially characterized as a murderer or as 'a cold blooded killer,' until he is adjudged guilty of murder or pleads guilty to that charge." [Emphasis added.]
Accord, Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); Commonwealth v. Lark, 460 Pa. 399, 333 A.2d 786 (1975); Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).
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A prosecutor's expression of his personal belief as to a defendant's guilt clearly violates professional standards of conduct. See ABA Standards, The Prosecution Function, § 5.8(b) (1971); Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974).
In this case the prosecutor's characterization of Smith as a "vicious, desperate criminal who would kill for a nickel" was clearly improper and prejudicial. Moreover, because the prosecution's evidence was largely circumstantial, there was a greater likelihood that such a comment could have affected the jury's decision to convict.
Having determined that the claim of prosecutorial misconduct was of arguable merit, we must next decide whether post-trial counsel's failure to pursue the claim in post-verdict motions and on appeal amounted to ineffective assistance of counsel.
The standard for determining whether post-trial counsel was ineffective was articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):
"[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." [Emphasis in original.]
Here the prejudicial remarks were made in the assistant district attorney's closing argument. Trial counsel objected and moved for a mistrial which was denied. The PCHA record reveals no rational basis for post-trial counsel's failure to assign as error the court's denial of the motion for a mistrial based on a claim of arguable merit. Absent such a rational basis, we must conclude that post-verdict motions and direct appeal counsel were ineffective.
Ordinarily, a finding of ineffective assistance of counsel at the post-verdict motions stage of proceedings would dictate a remand to allow appellant to file post-trial motions nunc pro tunc to raise the allegation of prosecutorial misconduct. However, in this case, the efficient administration
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of justice requires that we reverse for a new trial since Smith's underlying claim of prosecutorial misconduct clearly warrants reversal. Under the established precedent of this Court, a new trial is required when comments by a prosecutor may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Gilman, supra.
Accordingly, the order denying post-conviction relief is reversed, the judgments of sentence are vacated, and a new trial is ordered.
LARSEN, Justice, dissenting.
I dissent. The prosecutor's comment to the jury during closing argument which is alleged to have been prejudicial wherein he stated the following, was proper.
"Now ladies and gentlemen, the doctor made a very, very big mistake. And, ladies and gentlemen, he paid for that mistake. Unfortunately, in this day and age we have to say it was a mistake. His mistake was a natural mistake to all of us, a mistake borne out of rage, a mistake which is borne out of surprise, he fought back. He resisted. He said I will not be robbed and he struggled with a vicious, desperate criminal who would kill for a nickel in this struggle . . . ." (Emphasis added.)
The fact is, whoever committed this crime upon the deceased was "a vicious, desperate criminal who would kill for a nickel". The reference was not specifically to the defendant. Further, as we stated in the case of Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975):
". . . [E]ven where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa. Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its 'unavoidable effect
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would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.' Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Myers [sic], 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court."
Assuming, in the present case, that there was something prejudicial, in the abstract, about the prosecutor's statement, the jury obviously wasn't affected by it because the jury found the defendant guilty of voluntary manslaughter as opposed to murder.