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decided: May 30, 1980.


No. 481 January Term 1979, Appeal from Judgment of the Court of Common Pleas, Philadelphia, Criminal Trial Division, at No. 161 March Term 1971


Colie B. Chappelle, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Kenneth Gallant, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the result.

Author: Eagen

[ 490 Pa. Page 227]


James Ricketts Anderson, appellant, was found guilty by a jury of murder of the first degree. Post-verdict motions were denied by the court en banc, and Anderson was sentenced to life imprisonment. We affirmed the judgment of sentence by an equally divided court. Commonwealth v. Anderson, 473 Pa. 13, 373 A.2d 454 (1977).

On September 20, 1978, Anderson filed a pro se petition for post-conviction relief under the Post Conviction Hearing Act.*fn1 Counsel was appointed,*fn2 and an amended petition was filed on January 29, 1979. Post-conviction relief was denied on December 3, 1979.*fn3 This appeal followed.

[ 490 Pa. Page 228]

Anderson argues, inter alia, that trial counsel was ineffective for failing to timely object*fn4 to prejudicial comments made by the district attorney in his summation to the jury. Anderson argues further that these comments were not supported by the evidence; that they constituted an appeal to the prejudices, passions, and fears of the jury; and, that they deprived him of a fair trial. We agree and, accordingly, reverse and remand for a new trial.*fn5

Anderson urges the following remarks, made by the district attorney, deprived him of a fair trial:

"And it's even possible that they [Anderson and George Bonds, a co-actor] went there that night, waiting for Middleton [the victim] to come in, waiting to kill him, just like they did. This was an assassination.

[ 490 Pa. Page 229]

"Well, there is no provocation here at all, no evidence whatsoever of any kind of provocation, members of the jury, to justify taking another life. Nothing. This defendant [Anderson] didn't even have the argument. He had nothing to do with the decedent. He was nothing more than the executioner.

"Was the decedent killed because he went to the police? Was he killed because maybe he violated a code?"

We have repeatedly said the district attorney is a quasi-judicial officer representing the Commonwealth, and his duty is to seek justice, not just convictions. See Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978); Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977). The district attorney must limit his remarks to facts in evidence and legitimate inferences therefrom. Commonwealth v. Mayberry, supra; Commonwealth v. Gilman, supra; Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973); Commonwealth v. Principatti, 260 Pa. 587, 104 A. 53 (1918). The district attorney may not ask the jury to draw unwarranted deductions from the evidence. Commonwealth v. Touri, 295 Pa. 50, 144 A. 761 (1929). During summation, the district attorney must present the facts in a manner which allows the jury to dispassionately and objectively evaluate the testimony in a sober frame of mind and which produces a verdict warranted by the evidence, not one inspired by emotion. Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). Finally, we have condemned remarks by the district attorney which stigmatize a defendant. Commonwealth v. Smith, 478 Pa. 76, 385 A.2d 1320 (1978); Commonwealth v. Lark, 460 Pa. 399, 333 A.2d 786 (1975); Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936). As we stated in Commonwealth v. Capalla, supra, 322 Pa. at 204, 185 A. at 205:

"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

[ 490 Pa. Page 230]

    we here condemn the district attorney's application of the term "executioner" to Anderson. This term was equivalent to an expression of belief by the district attorney that Anderson was guilty of murder of the first degree. Moreover, this expression of belief was bolstered by the district attorney's unfounded suggestion that Anderson and Bonds were lying in wait for the victim.

The Commonwealth argues the term "executioner" was properly applied to Anderson. The Commonwealth theorizes Anderson did not act because of provocation by the victim, but killed because Bonds had had an argument with the victim. The Commonwealth urges that "[o]ne who kills for another can properly be called an executioner." We are not persuaded by this argument. Again, as we reasoned in Commonwealth v. Capalla, supra, 322 Pa. at 206, 185 A. at 206:

"There are no facts in the record warranting any such belief [that Capalla was a cold-blooded killer] on the part of anyone, and even if there were, the first officials who had the right to give expression to that belief were the jurors after the case was committed to their keeping. The application of epithets to a defendant on trial, and expressions of personal belief in a defendant's guilt have no legitimate place in a district attorney's argument. A closing argument can be strong and convincing without them." [Emphasis supplied.]*fn6

The standard for determining whether trial counsel is effective has been articulated by this Court 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

[ 490 Pa. Page 232]

    chosen by counsel had some reasonable basis designed to effectuate his client's interests." [Emphasis in original.]

In addition, we will only examine the basis for trial counsel's action if we are persuaded the course of action foregone had "arguable merit." Commonwealth v. Smith, supra; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Instantly, the claim that the district attorney's summation was prejudicial and denied Anderson a fair trial certainly possesses arguable merit. We are also persuaded trial counsel's decision to forego a timely objection is not supported by any reasonable basis.*fn7

Accordingly, the order denying post-conviction relief is reversed, the judgment of sentence is vacated, and a new trial is ordered.

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