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COMMONWEALTH PENNSYLVANIA v. RENE FERGUSON (09/28/79)

filed: September 28, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RENE FERGUSON, APPELLANT



No. 1536 October Term, 1979, Appeal from the judgment of sentence in the Court of Common Pleas of Philadelphia County, Trial Division - Criminal Section, Nos. 462, 463 September Term, 1977

COUNSEL

William Lee Akers, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Gates*fn* and Dowling,*fn* JJ.

Author: Dowling

[ 270 Pa. Super. Page 186]

Appellant, Rene Ferguson, was tried before a jury and found guilty of rape and involuntary deviate sexual intercourse. His contentions, on direct appeal, concern the putative prosecutorial misconduct in the Commonwealth's summation and cross-examination of Defendant.

The standards for judging prosecutorial misconduct are well established. Any caustic, ill-advised or otherwise improper remarks by the Commonwealth are not necessarily grounds for a new trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873. Reversible error attaches only where:

". . . the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not

[ 270 Pa. Super. Page 187]

    weigh the evidence objectively and render a true verdict." Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974).

The effect of such remarks depends upon the atmosphere of the trial. Commonwealth v. Stoltzfus, supra; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). Whether the bounds of propriety have been exceeded is within the reasonable discretion of the trial court.

Defendant initially contends that the Commonwealth's putatively argumentative and sarcastic questions during cross-examination were an improper expression of its view that the defendant was incredulous and guilty. ...


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