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COMMONWEALTH PENNSYLVANIA v. WENDELL LONG (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
WENDELL LONG, APPELLANT



No. 1572 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, Pennsylvania, of February 23, 1977 on Bills 767, 768, June Term, 1976.

COUNSEL

Mark E. Kogan, Philadelphia, for appellant.

L. Ross, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Com., appellee.

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

Author: Cercone

[ 258 Pa. Super. Page 314]

This is a direct appeal from appellant's conviction following a jury trial, on charges of rape and simple assault. Appellant asserts that the prosecutor made improper and prejudicial remarks during his summation. Furthermore, appellant argues that his trial counsel was ineffective because he failed to object to the prosecutor's remarks. After a careful review of the record, we reverse and remand for a new trial.

[ 258 Pa. Super. Page 315]

The general rule in this area of the law is that a prosecutor must limit his argument to the facts in evidence and the legitimate inferences therefrom. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976); Commonwealth v. Horshaw, 237 Pa. Super. 76, 346 A.2d 340 (1975); Commonwealth v. Shaffer, 224 Pa. Super. 564, 307 A.2d 394 (1973). This is especially important because the prosecution is a quasi-judicial officer representing the Commonwealth. Commonwealth v. Gilman, 470 Pa. at 188, 368 A.2d 253. He stands in the position of an administrator of justice as well as an advocate. As such, his duty is to seek justice, not simply convictions. Commonwealth v. Gilman, supra; Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). The prosecutor has 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.

But, even where the prosecutor has uttered intemperate remarks, this court usually will not reverse a conviction on this basis unless the issue has properly been preserved for appeal. A specific objection must be raised by defense counsel at trial, otherwise this issue is waived. Commonwealth v. Gilman, 470 Pa. 179, 186, 368 A.2d 253 (1977); 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, 454 Pa. 75, 309 A.2d 732 (1973); Commonwealth v. Allen, 443 Pa. 15, 276 A.2d 539 (1971). As the court has explained,

"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. If a defendant raises an objection to the impropriety of a prosecutor's summation in time for curative instructions, the issue is not waived." (Citations omitted.) Commonwealth v. Gilman, supra, 470 Pa. at 188, 368 A.2d at 256.

In the present appeal, trial counsel failed to object to the prosecutor's improper remarks. Normally we would hold

[ 258 Pa. Super. Page 316]

    that appellant is precluded from now raising this issue. However, appellant engaged new counsel prior to the filing of post-trial motions. New counsel, who now brings this appeal, argued in post-verdict motions that trial counsel was ineffective for failing to timely object to the prosecutor's improper statements. The ...


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