decided: June 2, 1978.
COMMONWEALTH OF PENNSYLVANIA
ANTHONY GWALTNEY, APPELLANT (TWO CASES)
Nos. 384 & 402 January, 1976, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment Nos. 612 and 613, July Term, 1975.
Joel Every, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
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Appellant, Anthony Gwaltney, was convicted by a jury on December 8, 1975 of murder of the third degree and criminal conspiracy. After denial of post-trial motions he was sentenced to consecutive terms of imprisonment of 10-20 years on the murder charge and 5-10 years on the conspiracy charge. This appeal followed.*fn1
The record discloses that on November 21, 1974, at approximately 11:00 A. M., John Wearing alighted from an automobile in North Philadelphia in order to make a purchase at a state liquor store. Standing nearby were defendant and several other persons, all members of a gang known as the Moon gang. They swarmed around Wearing, accusing him of the recent stabbing of a member of their gang. Seized with panic, Wearing fled, only to be pursued and overtaken by Gwaltney and the other gang members. Appellant then plunged a knife into Wearing's back. Decedent was again stabbed as he attempted to enter an automobile, but who inflicted the latter wound does not appear. Wearing died soon thereafter. Based upon this evidence, the jury found Gwaltney guilty of murder of the third degree, and conspiracy.
Appellant contends that he is entitled to a new trial because of improprieties in the closing argument of the prosecutor.*fn2 We disagree and will affirm the judgments of sentence.
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In his closing argument to the jury the prosecutor recited the general definitions of the crimes of murder, conspiracy and possession of an instrument of crime. He then argued that the evidence presented during the trial satisfied the respective elements of these crimes. Appellant does not say that the prosecutor misstated or confused the applicable law; rather, it is argued that such a reference to the applicable law in the closing by the assistant district attorney infringed upon the province of the court and unduly prejudiced the jury.
It is true, of course, that it is the role of the trial court to instruct the jury as to the law which applies to the case being tried. See e. g., Commonwealth v. McKetta, 469 Pa. 223, 227, 364 A.2d 1350, 1352 (1976); Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968); Commonwealth v. Smith, 221 Pa. 552, 70 A. 850 (1908). Thus it is not proper for a lawyer to argue to the jury that one rule of law rather than another should apply,*fn3 or to discuss legal questions not
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germane to the case being tried,*fn4 or to argue novel theories of law to the jury.*fn5 It is also obviously improper for counsel to misstate the law*fn6 or to state it in a manner calculated to confuse the jury.*fn7 It does not follow, however, that counsel must refrain from any discussion whatever of applicable law. See Commonwealth v. Glenn, 321 Pa. 241, 183 A. 763 (1936); Commonwealth v. Renzo, 216 Pa. 147, 65 A. 30 (1906). Closing argument is a critical stage in a trial, for there the lawyer has the opportunity to marshall the evidence and to present it, along with the permissible inferences arising therefrom,*fn8 to the jury in the best possible light on behalf of his client, and to attempt to explain away the evidence which is unfavorable.*fn9 A lawyer should not be expected to discuss the facts in a vacuum, however; it is generally necessary to consider them in light of the rules of
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law which a case involves. When he refers to those rules or principles, the lawyer should normally tell the jury that they will receive their authoritative instruction on the law from the court, whose version must prevail.
In the case at bar, the prosecuting attorney did preface his comments concerning the law with a statement that the trial court's charge concerning the law was controlling.*fn10 Then, in a general but accurate manner, the assistant district attorney discussed the evidence presented as it related to the elements of the crimes involved. When thereafter the trial court charged the jury, the judge emphasized that his instructions and not counsel's remarks concerning the law were controlling. We think this procedure was proper and see no prejudice to appellant as a result of it. We agree with the reasoning of Court of Appeals of the District of Columbia in the case of United States v. Sawyer, 143 U.S.App.D.C. 297, 443 F.2d 712 (1971):
"It is often suggested that permitting counsel to argue questions of law tends to confuse the jury. If counsel's view of the applicable law differs from that of the court, then of course there is great danger of confusion. In that case the jury should hear a single statement of the law, from the court and not from counsel. But if the applicable principles are undisputed, as in this case, then a statement by counsel might well be helpful rather than confusing. Counsel may emphasize a point that would otherwise be overlooked in the context of lengthy jury instructions that are themselves often confusing. And if a single point of law is the linchpin of the defense, there is every reason to permit defense counsel to state the point
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as emphatically as possible." [footnotes omitted] 143 U.S.App.D.C. at 299, 443 F.2d at 714.
Appellant's arguments to the contrary must be rejected.
Judgments of sentence affirmed.