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decided: October 4, 1983.


Direct Appeal No. 80-1-148, from the Judgments of Sentence Entered June 27, 1980, in the Court of Common Pleas of Fayette County, Criminal Division, No. 1 of 1975; William J. Franks, Judge.


Steve P. Leskinen, Uniontown (court-appointed), for appellant.

Gerald Solomon, Dist. Atty., Samuel J. Davis, Uniontown, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., files a dissenting opinion in which Roberts, C.j., and Zappala, J., join.

Author: Per Curiam

[ 502 Pa. Page 269]


Judgments of Sentence Affirmed.

FLAHERTY, Justice, dissenting.

I dissent. The appellant, Hugh L. Fant, brings this direct appeal from judgments of sentence imposed after convictions by a jury of murder of the third degree and voluntary manslaughter. The charges arose out of the slayings of two persons at a lounge near Uniontown, Pennsylvania.*fn1

Appellant challenges trial counsels' effectiveness for failure to object to portions of the prosecutor's closing remarks. It is clear that a prosecutor must have latitude in arguing that the facts presented at trial and reasonable inferences therefrom establish the guilt of the accused. Notwithstanding the human tendency toward zeal and emotion, however, it is the prosecutor's duty to temper his remarks to enable the jury to dispassionately and objectively evaluate the evidence and render a verdict based on the evidence, not one inspired by vengeance. Those remarks are improper whose unavoidable effect is to prejudice the jury, forming in the

[ 502 Pa. Page 270]

    jurors' minds fixed bias and hostility toward the accused, and rendering the jury unable to render a true verdict based on the evidence. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976).

The remarks complained of appear in context as follows:

That was about 1:30 a.m. The crowd was dispersed. Bruce Fisher apparently felt he had done his job, dispersed the crowd. Nobody got hurt. Nobody got beat up. There was a slap and nothing more. You know, when you think about that slap, [defense counsel] wants to know -- he wanted to know from Martin Urban, did you ask [appellant] if you could slap him? Did you know he had a right not to be slapped? You know he had a first amendment right to use these words, mother this. He had all these rights. What about Bruce Fisher's rights? He had a right to life. What about John Shlosky's rights? What about his constitutional rights? [Defense counsel] wants to know when they read him the rights -- you didn't know he was seventeen years old. You read him these rights, you didn't know if he understands. Nobody read Bruce Fisher his rights. Nobody told him he had a right to an attorney. Nobody told him he had a right to a phone call, the one he tried to make that night. Nobody read him his rights. Nobody read John Shlosky his rights. We didn't get into that. Didn't they have any rights? I submit they did. They at least had the right to life. Forget about the constitutional rights. He had a right to life. . . .

[ 502 Pa. Page 271]

. . . . [T]hat is basically what happened. Smith with the handgun, Fant with the rifle. Mark Collins standing outside, and Jack Rogers with a bottle. Four men, they were judge, they were jurors.

Defense counsel did not object to any of these remarks. The Commonwealth argues counsel's failure to object did not constitute ineffectiveness on the theory that the prosecutor merely argued with zeal and fervor within the bounds of the law. It is clear, however, that the prosecutor continually exceeded the bounds of permissible argument.

Although a prosecutor in a homicide case may properly remind the jury that the victim is dead, argument constituting a reference to the victim which is likely to inflame the passions and prejudices of the jury is not proper. Commonwealth v. Van Cliff, 483 Pa. 576, 583-84, 397 A.2d 1173, 1177

[ 502 Pa. Page 272]

(1979), cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). The prosecutor's reference to the victims' right to life was an appeal to the jury's emotions and a clear attempt to distract the jury from its duty to render a verdict based on the evidence. In Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977), we held a prosecutor's statement in effect referring to the victim's right to life, "[The victim] had no trial like this, without judge, no jury," to be an impermissible attempt to distract the jury from its duty to render a verdict based on the evidence.

Particularly offensive is the prosecutor's appeal to the jury to ignore the Constitution. Such an utterance in a court of law is akin to blasphemy, no matter how intended, or in what context. The Constitution is the essence of the fundamental law of our land against which all actions of the government must be judged and in violation of which any governmental act is null and void. It is the sworn duty of all lawyers in this Commonwealth to uphold and defend the Constitution of the United States and of this Commonwealth. Thus, any appeal to a jury to disregard the Constitution must be deemed improper comment.

Furthermore, as appellant correctly notes, the defense made an issue at trial of the reliability of appellant's statement in view of the fact there had been no interested adult present at the time he was given his Miranda warnings and questioned. The voluntariness of this statement was an issue for the jury's consideration, and the prosecutor's remarks amounted to a plea to the jury to deny appellant his legal rights because someone had denied the victims their right to life. Such an argument is clearly improper.

Likewise, the prosecutor's reference to the victims' "bright future[s]" and to their mothers' suffering at the loss of their sons was improper as an attempt to evoke sympathy for the victims and their families. See, Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977). The Commonwealth contends this ill-concealed closing plea for sympathy was warranted as a response to a comment made by defense counsel in his opening argument to the jury three days earlier.

[ 502 Pa. Page 273]

Although our cases have excused improper comments when they were made in response to improper closing argument of defense counsel, see, e.g. Commonwealth v. Van Cliff, supra, there can be no justification for a prosecutor's resurrecting comments made at such a remote time as a pretext for an improper comment. Nor has the Commonwealth cited any authority for such justification. Additionally, we note that immediately after defense counsel's opening remark was made, the trial court sua sponte cautioned the jury to base their verdict not on sympathy for appellant, but on the evidence to be presented. Under these circumstances, there can be no justification for the prosecutor's appeal to the sympathies of the jury.

We have stated many times that a prosecutor may not indulge in personal assertions of the accused's guilt, Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986, 989 (1980) and cases cited therein, and this is so whether there is a bald assertion of the prosecutor's belief or an indirect assertion made by stigmatizing the accused through use of epithets. Commonwealth v. Smith, supra, Commonwealth v. Russell, 456 Pa. 559, 563, 322 A.2d 127, 129-30 (1974). In Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980), we held the prosecutor's characterization of the accused as an "executioner" was an impermissible expression of his belief the accused was guilty, and reaffirmed the Court's reasoning in Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936):

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 characterize the defendant as 'a cold-blooded killer' is something quite different. No man on trial for murder can be officially characterized as a murderer or as 'a cold-blooded killer,' until he is adjudged guilty of murder . . . . [Emphasis in original.]

[ 502 Pa. Page 274]

. . . 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.]

Id. 490 Pa. at 229-31, 415 A.2d at 889-90. See, also, Code of Professional Responsibility, DR 7-106(C)(4) Trial Conduct:

In appearing in his professional capacity before a tribunal, a lawyer shall not assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

Not content to simply stigmatize appellant as an "executioner," the prosecutor in the instant case also commented on his personal belief in appellant's guilt "beyond all doubt." This Court condemned an assertion of the personal belief of the prosecutor in the accused's guilt in Commonwealth v. Joyner, supra, 469 Pa. at 339, 365 A.2d at 1235-36 (1976), where the prosecutor announced, "It is perfectly clear that this man is guilty, if not more, being a high school graduate, custodian of the grenades, clearly guilty of murder in the first degree." Similarly, in Commonwealth v. Russell, supra, testimony of a former assistant district attorney that the accused was only arrested "when there was no doubt, no doubt whatsoever, that he had masterminded this crime" was held to be an improper, prejudicial expression of personal belief of the accused's guilt.

The prosecutor's argument in this case exceeding the bounds of proper comment in several instances, any reasonable basis for defense counsels' failure to object to these comments is inconceivable. Appellant was denied effective

[ 502 Pa. Page 275]


*fn1 This was appellant's second trial. This Court reversed his first conviction and granted a new trial at Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978); cert. denied 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979).

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