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COMMONWEALTH PENNSYLVANIA v. GORDON L. GRAHAM (03/23/87)

submitted: March 23, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
GORDON L. GRAHAM, APPELLANT



Appeal from the PCHA entered September 24, 1986 in the Court of Common Pleas of Cambria County, Criminal Division, at No. 0097-82(A), (B), (C) 0098-82, 0099-82.

COUNSEL

William C. Kaczynski, Pittsburgh, for appellant.

Dennis M. McGlynn, Johnstown, for Com., appellee.

Brosky, Del Sole and Hoffman, JJ.

Author: Del Sole

[ 364 Pa. Super. Page 500]

Appellant takes this appeal from an order which denied his claim for relief under the Post-Conviction Hearing Act. Upon review, we find it necessary to reverse the order of the PCHA court and remand the case for a new trial due to the improper and prejudicial closing remarks made by the prosecutor at Appellant's trial.*fn1

As a result of evidence gathered when the police executed a search warrant at Appellant's home, Appellant was charged with possession with intent to deliver marijuana, possession of LSD and possession of a prohibited offensive weapon, a sword cane. Charges were also filed against Appellant for receiving stolen property, in the form of an electronic scale. During the search the officers also discovered certain firearms which Appellant had on earlier dates reported stolen. Based upon that discovery, two counts of false reports to law enforcement authorities were lodged against Appellant. After a jury trial, Appellant was convicted on all charges. Appellant was subsequently sentenced and a direct appeal was timely filed, which proved to be unsuccessful. See Commonwealth v. Graham, 334 Pa. Super. 170, 482 A.2d 1277 (1984). A petition for post conviction relief was later filed on Appellant's behalf by newly acquired counsel. The petition alleged among other claims, that trial counsel was ineffective for failing to object to the prosecutor's improper closing remarks. A hearing was held on the petition where testimony was taken on other outstanding issues. Although trial counsel was present at the hearing, he was not called as a witness.

[ 364 Pa. Super. Page 501]

Thereafter, the PCHA court issued an order denying Appellant's petition, which order is the subject of our review.

When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the client's interest. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). A finding of ineffectiveness also requires a showing that counsel's action or inaction was prejudicial to the defendant. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). In light of this standard, we turn to an examination of the alleged ineffectiveness of Appellant's trial counsel.

Appellant specifically claims that his trial counsel failed to object to improper closing remarks made by the prosecutor. Appellant characterizes these comments as expressions of the prosecutor's personal opinion as to Appellant's credibility and his testimony elicited at trial. It is Appellant's position that he was prejudiced by these remarks and denied a fair trial.

"It is well established that a district attorney must have reasonable latitude in presenting a case to the jury and that he must be free to present his arguments with 'logical force and vigor'." Commonwealth v. Brown, 332 Pa. Super. 35, 480 A.2d 1171, 1176 (1984) citing Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980) and Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975). Although it is proper for the prosecutor to make fair deductions and legitimate inferences from the evidence and argue to the jury that the evidence establishes the defendant's guilt, a prosecutor may not offer his personal opinion as to the guilt of the accused. Commonwealth v. Brown, supra.

'It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or any evidence of guilt of the ...


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