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COMMONWEALTH PENNSYLVANIA v. GORDON L. GRAHAM (06/05/89)

decided: June 5, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GORDON L. GRAHAM, APPELLEE



Appeal from the Order of Superior Court dated June 10, 1987, at No. 1392 Pittsburgh, 1986, reversing the Order of the Court of Common Pleas of Cambria County, Criminal Division, dated September 24, 1986, at Nos. 0097-82 (A), (B), (C), 0098-82, and 0099-82. Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., joins in this majority opinion and files a concurring opinion. Zappala, J., concurs in the result. Nix, C.j., dissents.

Author: Larsen

[ 522 Pa. Page 117]

OPINION OF THE COURT

The issue presented for our consideration by this appeal is whether Superior Court erred in finding ineffectiveness of trial counsel (and thus remanding the matter for a new trial), where trial counsel failed to object when the prosecutor, during closing argument, expressed his personal opinion regarding the credibility of the defendant with respect to certain portions of the defendant's testimony.

On January 28, 1982, a search warrant was executed at the residence of appellee, Gordon L. Graham, in Cresson, Pennsylvania, by a six-person team of law enforcement officers. The officers seized, among other items, 26 pounds of marijuana packaged in separate one pound bags, 2,288 tablets of LSD, a .44 Magnum Winchester rifle, a .12 gauge Smith and Wesson shotgun, a .12 gauge Fox double-barrel shotgun, an electronic scale that could be used for weighing small items such as drugs, a sword cane, and approximately $33,000 in cash. As a result of the evidence gathered, appellee was charged with possession with intent to deliver marijuana, possession of LSD, possession of a prohibited offensive weapon, receiving stolen property, and two counts of false reports to law enforcement authorities.*fn1

Appellee was tried by a jury in the Court of Common Pleas of Cambria County and was convicted of all charges.

[ 522 Pa. Page 118]

Post-trial motions were denied, and appellee was sentenced to consecutive terms of imprisonment totaling eight to eighteen years. Appellee filed a direct appeal to Superior Court, which affirmed, Commonwealth v. Graham, 334 Pa. Super. 170, 482 A.2d 1277 (1984), and we denied appellee's petition for allowance of appeal (368 W.D. Allocatur Docket 1984, petition denied Feb. 25, 1985). A petition for post conviction relief was filed on appellee's behalf by newly retained counsel. Appellee alleged, among other claims, that trial counsel was ineffective for failing to object to the prosecutor's improper closing remarks.

The trial court, following a hearing, denied appellee's petition. Appellee filed an appeal to Superior Court, and that court reversed and remanded for a new trial after determining that trial counsel was ineffective for failing to object to the prosecutor's improper closing remarks. Commonwealth v. Graham, 364 Pa. Super. 498, 528 A.2d 620 (1987). Superior Court did not consider any of appellee's other claims of ineffectiveness. The Commonwealth, appellant herein, filed a petition for allowance of appeal to this Court, and we now reverse.

The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In the case presently before the Court, the claim underlying appellee's assertion of trial counsel's ineffectiveness involves the prosecutor's expression of personal opinion as to the credibility of certain portions of the appellee's testimony.

Clearly, "it is improper for a prosecutor to express a personal belief or opinion as to the truth or falsity of evidence of defendant's guilt, including the credibility of a witness." Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983). This Court, however, has noted that:

[ 522 Pa. Page 119]

[E]ven where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and ...


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