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COMMONWEALTH PENNSYLVANIA v. ELSON R. BROWN (02/04/81)

February 4, 1981

COMMONWEALTH OF PENNSYLVANIA,
v.
ELSON R. BROWN, JR., APPELLANT



Nos. 416, 509 January Term, 1978, Appeals from Judgments of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division, at Nos. 1137, 1138 and 1139 November Term, 1976, entered September 18, 1978.

COUNSEL

Louis J. Presenza, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Marianne Cox, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the result. Kauffman, J., files a dissenting opinion, in which Larsen, J., joins.

Author: Roberts

[ 492 Pa. Page 321]

OPINION

In Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974), the prosecutor in closing argument engaged in a

[ 492 Pa. Page 322]

    rhetorical attack upon the defense, calling to the jury's attention the defendant's failure to call as reputation witnesses members of the clergy or neighbors. In speaking for a unanimous Court holding that the prosecutor's remarks were improper and unwarranted, Justice (later Chief Justice) Eagen expressly admonished:

"There is no burden on a criminal defendant to establish his previous good reputation. If he fails to introduce testimony in this regard, no adverse influence may be drawn therefrom, nor may such an adverse inference be drawn merely because only a limited number of witnesses were called to testify as to the good reputation of the accused. And, by the same token, no such adverse inference may be drawn merely because the accused failed to call some particular individual as a character witness. The assistant district attorney asked the jury to do just that. His argument was much more than just an attack on the quality of the character testimony offered by Lipscomb -- as the Commonwealth contends."

455 Pa. at 530-31, 317 A.2d at 208.

During closing argument in this case, the prosecutor asked the jury:

"Where are the school teachers to say that this gentleman is a good boy or a good man? If you were on trial, or a member of your family were on trial, how ...


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