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COMMONWEALTH PENNSYLVANIA v. SHELDON BROOKS (01/26/87)

submitted: January 26, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
SHELDON BROOKS, APPELLANT



Appeal from the Judgment of Sentence of September 4, 1986 in the Court of Common Pleas of Cumberland County, Criminal Division, at Nos. 912 Criminal 1983 913 Criminal 1983.

COUNSEL

John F. Goryl, Carlisle, for appellant.

John M. Eakin, District Attorney, Carlisle, for Com., appellee.

Beck, Kelly, and Hoffman, JJ. Kelly, J. concurs in the result.

Author: Hoffman

[ 362 Pa. Super. Page 237]

This is an appeal from the judgment of sentence for attempted homicide, two counts of aggravated assault, and two counts of assault by a prisoner. Appellant contends that the lower court erred in denying his exceptions to the prosecutor's closing remarks. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

Appellant, an inmate at the State Correctional Institution at Camphill, was charged with assaulting two guards on September 12, 1983. Following a jury trial, appellant was found guilty of attempted homicide, two counts of aggravated assault, and two counts of assault by a prisoner. He was sentenced to five-to-ten-years imprisonment for attempted homicide and a concurrent three-to-five-year term of imprisonment for one of the aggravated assault charges, and the remaining charges merged for sentencing purposes. This appeal followed.

Appellant contends that the lower court erred in denying his exceptions to the prosecutor's closing remarks. He argues that the district attorney, by making several statements about matters not in evidence, improperly testified during his closing argument. We agree.

[ 362 Pa. Super. Page 238]

A prosecutor must limit closing remarks to the facts in evidence and the legitimate inferences that may be drawn therefrom. Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980); Commonwealth v. Harvell, 458 Pa. 406, 410, 327 A.2d 27, 30 (1974). The prosecutor may not argue facts outside the record "unless such facts are matter of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice." Commonwealth v. Danzy, 234 Pa. Superior Ct. 633, 638, 340 A.2d 494, 497 (1975). The reason for this rule is that, because of the very nature of the prosecutor's position, any facts testified to by a district attorney are likely to be accorded great weight by the average jury. Commonwealth v. Bolden, 227 Pa. Superior Ct. 458, 460, 323 A.2d 797, 798 (1974). "Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Id. (emphasis in original) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). To hold otherwise would create "the danger of a jury's reliance upon hearsay or the prosecutor's conclusions, and the possibility that the jury's verdict will be based on evidence not presented at trial." Commonwealth v. Caesar, 224 Pa. Superior Ct. 266, 271, 302 A.2d 846, 848 (1973) (HOFFMAN, J., Opinion in support of reversal). Accordingly, "[m]atters not developed at trial should not be presented to the jury at the conclusion of the case." Id. In addition, we note that the Code of Professional Responsibility provides that:

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(3) assert his personal knowledge of the facts in issue, except when ...


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