Com. v. Kinard, K., Com. v. Kinard, K. No. 3019 EDA 2015

Background

On November 11, 2014, Philadelphia police arrested Keith Kinard at 1700 N. Hollywood St.; during a search incident to arrest officers recovered a .32 revolver from his fanny pack.
Kinard was charged with multiple firearm offenses; he proceeded to a bifurcated jury trial and was convicted of possession of a firearm by a person prohibited, firearms not to be carried without a license, and carrying firearms on public streets in Philadelphia; one charge was nolle prossed.
The parties stipulated that Kinard had a prior predicate conviction, supporting the possession-by-a-prohibited-person conviction.
At sentencing (Sept. 3, 2015) the court imposed an aggregate term of 9 to 19 years; after three profanity-laced outbursts by Kinard directed at the court, the judge found him guilty of criminal contempt and added three consecutive 60–120 day contempt terms, producing an aggregate 9½ to 20 years.
On appeal Kinard challenged portions of the prosecutor’s closing argument as improperly attacking defense counsel and strategy, arguing the remarks denied him a fair trial and violated due process.
The Superior Court affirmed, holding that the prosecutor’s remarks were a fair response to defense counsel’s closing and did not prejudice Kinard or deny him a fair trial.

Issues

Issue	Appellant's Argument	Commonwealth's Argument	Held
Whether prosecutor’s closing comments improperly impugned defense counsel and defense strategy, denying due process and a fair trial	Prosecutor maligned defense counsel and suggested counsel hid the truth; this prejudiced Kinard and denied him a fair trial	Comments were responsive to defense closing and aimed at jury’s role; they targeted counsel’s argument, not appellant, and were fair advocacy	Court held comments were a proper response to defense argument, did not prejudice appellant, and did not amount to a due process violation
Whether trial court abused discretion by overruling objections and denying a curative instruction	Counsel requested objection and curative instruction; denial prejudiced appellant	Trial court did not abuse its discretion because comments were appropriate reply to defense closing	Court found no abuse of discretion; appellant’s claim lacks merit
Whether prosecutor’s remarks created fixed bias in jurors (prosecutorial misconduct standard)	Remarks had the unavoidable effect of creating juror bias against defendant	Remarks did not create bias; they addressed evaluation of evidence and jury’s factfinding	Court applied precedent and concluded comments did not create fixed bias; no reversible error
Whether attacks on defense counsel (rather than defendant) warrant reversal	Attacks on counsel undermined defendant’s trial fairness	Courts are reluctant to reverse where comments target counsel, not defendant, and where comments respond to defense	Court relied on precedents that defense counsel was not on trial and affirmed conviction

Key Cases Cited

Greer v. Miller, 483 U.S. 756 (1987) (prosecutorial misconduct must be sufficiently prejudicial to deny a fair trial)
Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009) (Due Process Clause focuses on fairness of trial, not prosecutor culpability)
Commonwealth v. Holley, 945 A.2d 241 (Pa. Super. 2008) (prosecutorial comments must not create fixed bias impeding objective verdict)
Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002) (standard for prejudice from prosecutorial remarks)
Commonwealth v. Noel, 53 A.3d 848 (Pa. Super. 2012) (review of improper comment claims is abuse-of-discretion)
Commonwealth v. Lewis, 39 A.3d 341 (Pa. Super. 2012) (not every inappropriate remark warrants reversal)
Commonwealth v. Hogentogler, 53 A.3d 866 (Pa. Super. 2012) (prosecutor may fairly respond to defense closing)
Commonwealth v. Carson, 913 A.2d 220 (Pa. 2006) (prosecutor entitled to respond to defense arguments)
Commonwealth v. Brown, 673 A.2d 975 (Pa. Super. 1996) (improper comments may be permissible when responding to defense)
Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995) (comments targeting defense counsel do not automatically prejudice defendant)
Commonwealth v. Faulkner, 595 A.2d 28 (Pa. 1991) (criticisms of counsel did not warrant reversal where defendant not on trial)
Commonwealth v. Culver, 51 A.3d 866 (Pa. Super. 2012) (misconduct that includes threatening gestures and yelling can warrant new trial)
Commonwealth v. Snyder, 275 A.2d 312 (Pa. 1971) (criminal contempt sentencing principles discussed)