Lead Opinion
This is a direct appeal from a sentence of death imposed by the Philadelphia County Court of Common Pleas. Following a capital jury trial, which commenced on September 10, 1999, appellant was convicted of first-degree murder,
We begin, as we do in all death penalty direct appeals, by independently reviewing the evidence to ensure that it is sufficient to support the first-degree murder conviction. Commonwealth v. Zettlemoyer,
The evidence adduced at trial established that, in the early morning hours of August 24,1997, appellant approached David Sims near the corner of Randolph Street and Allegheny Avenue in Philadelphia. As the two men walked together, appellant heatedly questioned Sims about a stolen gun. Sims replied, “I’m sorry, I’m sorry.” Appellant nevertheless proceeded to punch Sims several times. As Sims recoiled from the blows, appellant pulled a weapon, possibly a “TEC-9” handgun, from underneath his shirt and shouted, “I’ll show you what sorry is.” Sims pleaded, “no please, please don’t, just please don’t” as appellant aimed the weapon and pulled the trigger. But appellant’s first attempt to fire the weapon failed—perhaps because he had not deactivated the safety mechanism. On a second attempt, however, appellant fired several rounds at Sims as he attempted to flee, fatally wounding him. The medical examiner determined that the cause of death was multiple gunshot wounds; Sims had sustained eleven shots to the back, hip, thigh, and arms.
Three eyewitnesses testified at appellant’s trial that they saw appellant, or someone resembling appellant, commit the murder. Luis Castillo, who lived with his family on Randolph Street, testified that he saw the shooting from his second-floor bedroom window, but did not recognize the shooter, whom he described as a “Puerto Rican male.”
The other eyewitnesses, Luis’ brother, Antonio, and Antonio’s then-girlfriend, Jennifer Zlatnik, were outside in front of the Castillo home at the time of the shooting. Antonio testified that he saw appellant, whom he recognized from the neighborhood, fire multiple shots at Sims after a brief argument and a physical altercation. Zlatnik likewise testified that she saw appellant shoot Sims multiple times with “some type of machine gun.” N.T. 9/10/99, at 67-83. She further testified that appellant looked at her “real hard” as he walked away from the scene of the shooting. Id. at 73. In a statement to police on the night of the murder, she described the shooter as a nineteen- to twenty-year-old, light complexioned, Hispanic male, with a nose-ring, gold medallion, and a baseball cap. Several months later, police presented Antonio, and later, Zlatnik, with a photographic array which had been compiled based upon Zlatnik’s crime-scene description of the shooter. Both witnesses identified appellant’s photograph as that of the shooter.
This evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports appellant’s first-degree murder conviction. Sims was unlawfully killed, as there is nothing on this record to support that the use of deadly force against him was legally justified. The eyewitness testimony identified appellant as the person who deliberately shot the victim. The evidence that appellant stated, “I’ll show you what sorry is,” as he drew his weapon, unsuccessfully attempted to fire it and then, after another
Appellant claims, however, that the evidence was “insufficient” to support the convictions because the only evidence linking him to the murder is what he deems the “highly inconsistent” testimony of Antonio Castillo and Zlatnik. Appellant contends that the witnesses’ testimony is “tainted” by the fact that they failed to implicate appellant in the murder until months later after they themselves had been charged with serious crimes. Appellant further argues that numerous inconsistencies as to whether they witnessed the murder while in their car, on the steps, or in the house, rendered their testimony unreliable.
Appellant’s claim challenges the weight, not the sufficiency, of the evidence. The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. Commonwealth v. Johnson,
Appellant cites this Court’s decision in Commonwealth v. Farquharson,
In reaching the verdict, the jury was free to weigh and reject the questions trial counsel raised concerning the eyewitnesses’ credibility. As we will not disturb the jury’s credibility determinations, this claim fails. See Commonwealth v. Simmons,
Turning to appellant’s other claims, we note initially that appellant raises several allegations of ineffective assistance of trial counsel at both the guilt and the penalty phases of trial. This Court recently abrogated the procedural rule requiring new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity when new counsel is appointed. Commonwealth v. Grant,
Appellant also raises a claim that is a hybrid trial error/counsel ineffectiveness claim. Specifically, he argues that the “district attorney erred” when he elicited impermissible reputation evidence from Antonio Castillo and then improperly exploited the evidence during his closing argument. Appellant cites to the prosecutor’s direct examination where he asked Castillo why he had not identified appellant’s picture when police presented him with a photographic array on the night of the murder:
Q. [The Prosecutor:] When they showed you the pictures, did you see [appellant’s] picture?
A. [Castillo:] Yeah, I did.
Q. When you saw his picture, did you tell the police that’s the man you saw?
A. No, I didn’t.
Q. Why not?
A. ‘Cause for one, you know, I didn’t want to get involved. I knew about his reputation.
N.T. 9/13/99, at 13. Appellant further notes that during the guilt-phase closing arguments the prosecutor reminded the jury that Castillo had initially refused to identify appellant because he knew of his reputation: “Antonio knows [appellant] from the street. Antonio knows his reputation. Antonio did not want to get involved....” N.T. 9/14/99, at 75. No objection was raised to either of these events.
Appellant contends that Castillo’s testimony, together with the prosecutor’s closing argument, was highly prejudicial to him because it implied that he had a violent reputation. Appellant also argues that “there should have been an in limine hearing to determine whether the probative effect [of Castillo’s testimony] outweighed any prejudicial aspect.” Brief of Appellant at 42. Appellant further argues that his trial counsel should have objected to both references to appellant’s “reputation.” The Commonwealth counters that the prosecutor’s emphasis on Castillo’s fear of appellant was a fair response to defense counsel’s suggestion in his opening and closing arguments that Castillo’s belated identification of appellant was not credible. The Commonwealth also argues that counsel cannot be deemed ineffective because he made “tactical use” of Castillo’s explanation of why he delayed in identifying appellant. Thus, counsel suggested that Castillo’s belated identification of appellant
Appellant’s failure to object to these references would ordinarily render this claim unreviewable as a claim of trial court error. Pa.R.A.P. 302(a). However, given that appellant filed his brief before this Court abrogated the direct capital appeal relaxed waiver doctrine in Commonwealth v. Freeman,
Appellant next claims that his right to due process was undermined when the prosecutor made several improper and inflammatory statements during his guilt phase closing argument.
Without citing to specific objectionable statements, appellant notes in a cursory manner several instances in which the prosecutor supposedly suggested that appellant had a burden to produce evidence. In the first such instance, appellant alleges that “the prosecutor told the jury that the defense had an obligation to present police officers” to testify. Brief of Appellant at 50-51.
Preliminarily, we note that appellant’s defense rested primarily upon challenges to the eyewitnesses’ credibility. As part of this effort, defense counsel questioned whether the police had presented Ms. Zlatnik with a photographic array on the night of the crime, which included appellant’s photograph, but that she had failed to identify appellant. There was no evidence that this event occurred. Indeed, Ms. Zlatnik testified that she was not shown any photographs on the night of the murder. Nevertheless, in his summation, defense counsel suggested that the Commonwealth was obliged to produce witnesses to negate his bald contrary assertion:
If Jennifer Edwards [Zlatnik] really didn’t look at photographs, it’s [the Commonwealth’s] burden to present evidence about that, because we certainly have no way of proving it. [The detectives who were] there the night ofthe shooting and could say Jennifer, for some reason, for some reason nobody can explain, for some reason common sense tells us does not exist, for some reason when Jennifer Edwards says, oh, I’d recognize that man if I saw him again, for some reason was not shown photographs. Their burden.
N.T. 9/14/99, at 44-45 (emphasis added). The prosecutor responded by noting the impracticability of producing every possible witness to negate defense speculation:
Now, when defense counsel tells us, and remember this, why didn’t I call [those detectives] ..., would you like to be here with me for the next three months? Because it’s like the judge said. It’s the answer that is evidence, not the questions.
... So if you want to be here for the rest of your life, I have to call every detective to testify. You know what the sergeant testified to. You know why he’s here. Because he asked me, would you bring the sergeant here, and I brought him and he testified.
Id. at 66-67.
We do not believe that the prosecutor’s comments here improperly suggested that appellant had a burden of proof or production. In any event, to the extent that they were not a fair response to trial counsel, we note that the trial court sustained appellant’s objection; instructed the jury to disregard the prosecutor’s comments; and specifically instructed the jury that appellant was not required to present evidence or prove anything in his own defense. Thus, this claim fails. See Bridges,
In a similar vein, appellant alleges that the prosecutor acted improperly in “ask[ing] why the defense did not present the prison log as to who contacted Ms. Zlatnik at prison.” Brief of Appellant at 51. In his closing argument, defense counsel had challenged the truthfulness of Zlatnik’s testimony that she had not had any contact with Antonio Castillo while she was incarcerated.
When you talk about [Castillo] and Jennifer communicating, think of this.' She was in jail. [Castillo] couldn’t get a hold of her ... [Defense Counsel] could have, it was very simple, notified the prison and bring the log of who’s allowed to write. He didn’t bring that because he was on that list. Lord knows it would have been under your nose. He’s on the list. He’s on the letter list.... He wasn’t. And that’s why you didn’t see them. But if you want to stay three months of a year with me, then I have to bring every piece of paper in the world. .
N.T. 9/14/99, at 72. Appellant immediately objected, and requested a side bar. The trial court denied the request for a side bar, but sustained the objection.
The prosecutor did not claim that appellant was obliged to introduce the prison log. Rather, he simply argued that there was no evidence of record to support defense counsel’s claim that Antonio had contacted Ms. Zlatnik while she was incarcerated. The prosecutor did not shift the burden of proof by noting that appellant
Appellant also avers that the prosecutor improperly criticized defense counsel’s cross-examination of Zlatnik by referring to evidence not of record. Appellant cites the following portion of the prosecutor’s closing argument in which he implied that defense counsel misled the jury about the content of Zlatnik’s police statement:
[T]hink of Jennifer’s statement.... Remember how the defense attorney kept saying [to her], and you told them you could identify him, and I objected. I said, can you tell me the page, and he wouldn’t tell me. And I asked the judge, could you tell him to tell me the page. He never did. Because it’s three pages—and I know I’ll be corrected if I’m wrong—she was never asked that question, if you saw him again could you identify him. Never asked that question. In fact, she said, I never saw him before. So now, in his closing he.kept saying that. It’s not here. It’s not. He wants you to believe it. Just like the judge said, it’s the answer, [not] the question____
N.T. 9/14/99, at 77-78.
Appellant does little to focus his argument. Rather, appellant simply contends that, because Zlatnik’s police statement had not been formally introduced into evidence, the prosecutor should not have suggested that defense counsel’s cross-examination was inconsistent with that statement. Zlatnik made clear on cross-examination, however, that her police statement did indeed include the assertion that she could identify appellant if given the opportunity. Thus, we fail to see how the prosecutor’s responsive remarks were improper, much less how they prejudiced the defense.
Finally, appellant asserts that, on several occasions during closing argument, the prosecutor improperly conveyed his opinion regarding appellant’s guilt. To support this argument, appellant lifts the prosecutor’s statements out of context. Appellant first cites the following remark by the prosecutor: “This is a very simple case. [Appellant] did it. They saw him and Antonio knows him from the street, Antonio knows his reputation....” Id. at 75. Appellant then cites an instance in
A prosecutor should not offer his personal opinion as to the guilt of the accused. See, e.g., Commonwealth v. Peterkin,
Appellant next claims that the trial court erred in denying his motion to suppress the photographic arrays shown to Antonio Castillo and Zlatnik and “all evidence” related to their identifications of appellant’s photograph. Appellant argues that the photographic arrays were unduly suggestive because he was the only “bald” person included in the selection, and thus, his likeness stood out among the other photographs. No relief is due.
A photographic identification is unduly suggestive if, under the totality of the circumstances, the identification procedure creates a substantial likelihood of misidentification. Commonwealth v. Johnson,
Two photographic arrays are at issue. The first photo spread, which police detectives presented for Castillo’s review on the night of the murder, consisted of black and white photographs of Hispanic males. Castillo did not identify appellant on the night of the murder. The second photo spread, which Castillo reviewed more than eight months later, consisted of eight color photographs of young Hispanic males with nose-rings. This latter photographic array was a random, computer-generated compilation based upon Zlatnik’s crime-scene description of the shooter, i.e., a young, light-complexioned, Hispanic male, with a nose-ring. Castillo selected appellant’s photograph without hesitation and without prompting from the detectives. In doing so, he noted that appellant had shorter hair than he had had in the photograph shown to him
Based upon this record, the trial court was correct in finding that appellant’s supposed baldness in the second photo array did not create a substantial likelihood of misidentification. Indeed, Castillo actually knew appellant from the neighborhood and had identified his likeness in two separate photo arrays—one in which appellant apparently had more hair than in the other. Also, on the night of the murder, Zlatnik told police that she got a good look at the shooter and gave them a detailed description. At no time did she mention the shooter’s hair, or lack of hair; in fact, she told police that he was wearing a baseball cap at the time of the shooting. Because the out-of-court identifications of appellant were not tainted, we need not address appellant’s derivative assertion that the in-court identifications of appellant should have been suppressed as well. See Johnson, supra, at 103 (having concluded that out-of-court photo-array identification was appropriate, Court need not address argument that witness lacked independent basis for in-court identification). Accordingly, this claim fails.
Appellant also raises several penalty-phase claims, including a claim that the prosecutor’s summation at the penalty-phase was improper and prejudicial. Because we conclude that the prosecutorial misconduct claim warrants relief, we need not reach the other claims.
Appellant argues, inter alia, that the prosecutor ignored enumerated statutory mitigating/aggravating factors and undermined the jury’s ability to render a fair verdict when he urged the jury to “send a message” by sentencing appellant to death:
He has shown you again and . again that he hurts people because he likes to and he want to, and he has earned the right to be on death row. When you think of the death penalty, there are messages to be sent. There’s a message on the street saying, look at that, he got death, you see that, honey, that’s why you live by the rules, so you don’t end up like that. Because they’re in these bad neighborhoods.... You also send a message in prisons. When you peep in that bus and talk and whisper, you can say, death penalty. Maybe you’ve got just one inmate sitting there going, well, he got death, this is serious, I don’t want to end up like that. Maybe your penalty you’ll save one guy, to scare him straight.
N.T. 9/17/99, at 24-25 (emphasis added). When the prosecutor completed his closing argument, appellant moved for a mistrial arguing, among other things, that the prosecutor’s “send a message” statement was prejudicial. The trial court denied the motion. Counsel then asked the trial court to “tell the jury they should disregard everything [the prosecutor] said.” Id. at 31. Appellant did not request a specific cautionary instruction regarding the prosecutor’s “send a message” argument, and the trial court issued no such instruction; however, in its charge concerning the jury’s weighing of aggravating circumstances, the trial court adverted to the argument as follows:
It’s terribly important that you also understand that in your evaluation of aggravators, that’s those things that theCommonwealth says are aggravating circumstances, you should follow the law and you should not base your findings on the possibility of any future crimes that might be committed, and you should not sentence him because one might feel that there is a need to send a message to the community, nor should you sentence him just because the other prisoners need some message.
Id. at 64 (emphasis added).
The Commonwealth argues that the prosecutor was merely employing oratorical license and impassioned argument and notes that a prosecutor is afforded more latitude in doing so at the penalty phase. The Commonwealth also cites two cases in which this Court held that a prosecutor’s “send a message” exhortation was within the bounds of permissible oratorical flair. See Commonwealth v. Peterkin,
Our adversary system permits the prosecutor to “prosecute with earnestness and vigor.” Berger v. United States,
Although there is sometimes a “gray zone” separating acceptable from improper advocacy, this Court has categorically prohibited certain prosecutorial arguments that we have deemed extremely and inherently prejudicial. See, e.g., Commonwealth v. Chambers,
Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty. Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealthrequires its imposition, not because of some other source of law.
Id. at 644.
It is notable that the Chambers per se holding followed upon a series of cases in which this Court “narrowly tolerated” Biblical references, deeming them to be on the limits of oratorical flair but cautioning that such references were “a dangerous practice which we strongly discourage.” Id. In Chambers, we noted that, our cautionary teaching having been ignored, we would no longer tolerate such references, and indeed, would deem such references “reversible error per se” and might also “subject violators to disciplinary action.” Id.
This Court has expressed similar concerns regarding prosecutorial arguments that exhort the jury to return a sentence of death in order to “send a message.” Although until now we have not explicitly adopted a per se prescription similar to that set forth in Chambers, it is fair to say that we have been in the “narrow toleration” and close scrutiny stage for some time. This Court has repeatedly reminded the bench and bar that “send a message” exhortations in criminal trials are particularly prejudicial and should be avoided. See, e.g., Commonwealth v. Crawley,
As the Commonwealth correctly notes, in some of our older cases, this Court determined that, in some contexts, “send a message” arguments may be tolerable. See Peterkin,
We do not believe that the impact of this statement, which is a “matter of common public knowledge based on ordinary human experience,” would have biased or prejudiced the jury or hindered an objective weighing of the evidence, especially considering the district attorney’s explicit directions to the jury to return a verdict of death “solely and exclusively as the law indicates it may be [imposed], based on the circumstances of this case, that it involved a premeditated, intentional killing of a witness to a serious crime, a felony.”
Zettlemoyer,
Similarly, in Peterkin this Court concluded that, while a prosecutor may not exhort a jury to send a message to the judicial system, he may urge them to send a direct message to the defendant.
The Peterkin issue is not presented in the case sub judice: the prosecutor here did not exhort the jury to send a message, to appellant. Arguably, the Zettlemoyer/DeHart situation also is not strictly at issue, as this was not an argument concerning the general “deterrent effect” of the death penalty. We would not overstate this distinction, however. We acknowledge that “send a message” and “deterrent effect” arguments are related in that they suggest that such an external factor may properly play a role in the jury’s determination of life or death.
In any event, in the many years since Zettlemoyer and DeHart were decided, this Court has strongly admonished prosecutors to refrain from exhorting jurors to use their verdict to “send a message” to the community or the judicial system. E.g., Crawley,
In LaCava, however, this Court held that improper remarks injecting external considerations during the penalty phase did warrant a new penalty hearing, in part because the remarks could have impermissibly influenced the jury’s balancing of mitigating and aggravating circumstances in favor of a death sentence.
In Hall, this Court reaffirmed its, by then, long-standing disapproval of such “send a message” arguments by announcing a broader prohibition, which applied to any party at any stage of a criminal proceeding.
I would ask you to send a message, and that is, you come out here from Philadelphia, as we have proven, and shoot someone like the defendant did, once in the face and once in the back of the head, you are guilty of first degree murder.
Id. at 202 (quoting prosecutor’s statement). Ultimately, this Court concluded that the prosecutor’s comments did not warrant relief because they were based upon the evidence presented and did not ask the jury to send a message to the judicial system or to potential criminals. Nevertheless, we explicitly warned the bar of this Commonwealth to avoid such exhortations in the future:
While this Court in the past has approved statements concerning the jury sending “messages” with their verdicts in criminal cases, such exhortations, made by either the prosecutor or the defense, in essence urge the jury to ignore their sworn duty to decide a matter only on the proper facts presented in evidence and the applicable law. Accordingly, we advise all parties in criminal matters before any court in the Commonwealth to refrain from such exhortation in the future.
Id. at 203 (emphases added).
Perhaps, as in the line of decisions which culminated in Chambers, this Court’s clear directive in Hall proved too subtle.
This Court well appreciates the pressures and challenges of trying criminal cases, and particularly cases where the ultimate penalty is involved. We also recognize that there are many things that occur in the course of a trial which are beyond the control or anticipation of counsel and the trial judge—such as witnesses, jurors or spectators acting inappropriately. But one aspect of a trial which is far more subject to rational control is the behavior of attorneys—officers of this Court whose professionalism is absolutely indispensable to the fair administration of justice in this Commonwealth. Lawyers have an obligation to be aware of, and to abide by, the law governing the conduct of the matters in which they are involved. This Court’s unambiguous directive in Hall was not aimed at the conduct of witnesses, or police officers, or jurors, or court staff, or judges: it was aimed directly at counsel. Moreover, it concerned a matter and stage of trial over which counsel have unique, indeed premeditated control: i.e., what it is they intend to say to the jury. When this Court issues a directive concerning what is permissible at that stage, we expect officers of the Court to abide by that directive. In light of our explicit directive in Hall, which was but the last in a series of decisions expressing grave concern over this very type of argument, we are dismayed, to say the least, by the government lawyer’s use of such prohibited rhetoric in this case.
We are aware that the trial judge in this case ultimately informed the jury that it “should not” sentence appellant in order to send a message. But we have little confidence that such a charge was adequate to remove the prejudice resulting from the prosecutor’s decision to employ an inherently prejudicial argument that had specifically been deemed off-limits. The jury in this case ultimately found two aggravating circumstances and two mitigating circumstances, and thus was required to weigh the competing factors to determine which ones predominated. In such an instance, the fact that the prosecutor had argued that a collateral external effect of a death verdict would be to send a message to others which might prevent future crimes—a factor which does not exist as a proper statutory aggravating circumstance—may well have played a role, direct or indirect, in at least one juror’s balancing process. See LaCava,
More importantly, we conclude here, as we did in Chambers when confronted with a similar challenge to this Court’s directives concerning what comprises
Accordingly, for the foregoing reasons, this Court affirms appellant’s convictions, but vacates the sentence of death and remands this matter for a new sentencing hearing. Jurisdiction is relinquished.
Notes
. 18 Pa.C.S. § 2502.
. 18 Pa.C.S. § 6108.
. 18 Pa.C.S. § 907.
. The aggravating circumstances were that appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9), and that appellant was convicted of another murder, committed either before or at the time of the offense at issue, id. § 9711(d)(ll). The two mitigating circumstances were appellant's age al the time of the crime, id. § 9711(e)(4), and any other evidence of mitigation concerning the character and record of appellant, id. § 9711(e)(8).
. Pursuant to 42 Pa.C.S. § 9711(h), this Court has automatic jurisdiction to review the court’s judgment of a sentence of death.
. Appellant is Puerto Rican.
. In Commonwealth v. Bomar,
. Appellant raises one claim of counsel ineffectiveness relating to the guilt-phase: whether trial counsel was ineffective for not presenting an alibi witness, Gregorio Torres, to demonstrate that appellant was not present at the time of the crime. In addition, appellant raises several penalty-phase claims involving ineffective assistance of counsel. In light of our grant of penalty-phase relief, these claims are moot. Finally, appellant raises two hybrid trial error/counsel ineffectiveness claims, which this Court discusses, infra.
. Appellant concedes that counsel failed to object to some of the instances of alleged prosecutorial misconduct. Ordinarily, these sub-claims would be waived. Nevertheless, we will review them under the relaxed waiver rule.
. Zlatnik had been arrested on charges of robbery shortly after Sims’ murder and she was incarcerated at the time she identified appellant’s photograph.
. The prosecutor appears to have been referring to the following exchange during defense counsel's cross-examination of Zlatnik:
[Defense Counsel:] You said if you saw the man again, you would recognize him?
[Ms. Zlatnik:] Yes.
[The Prosecutor:] That's what page?
The Court: I don't know. That's just a question, and she's answered it. Yes.
[The Prosecutor:] Okay, judge.
The Court: He’s not impeaching her with that.
[The Prosecutor:] Judge, I just wanted to see the question and the answer in here. That’s all.
The Court: Tell him what page it is, please, and we can move on to something relevant. I mean, his asking the question about the page is not relevant, not your questions. Tell him the page.
[Defense:] Your honor, I have a couple other questions along that line.
The Court: That’s fine. Tell [the prosecutor],
[Defense Counsel:] I’m not referring to a page.
[The Prosecutor:] Okay. Because I'm looking for it. I don’t see it.
The Court: Good. All right.
N.T. 9/10/99, at 114-15.
. Cf. Campbell v. State,
. The prosecutor in Crawley had urged the jury to return a sentence of death in order to send a message to a judge who had supposedly imposed a lenient sentence on the defendant following a previous murder conviction: “And I hope you—I know I will—send this judge a message that had you done your job back in 1971 [the victims] would be here today.” Id.
. Indeed, the Superior Court recently addressed a similar instance in which the prosecutor ignored this Court's disapproval of arguments exhorting jurors to "send a message.” Commonwealth v. Poplawski,
Concurrence Opinion
concurring.
I agree the prosecutor here crossed the line. Most “message sending” statements indicate the advocate lacks a better reason for the verdict sought; a solid case does not require a resort to such vagaries and extra-judicial social commentary. All verdicts send peripheral messages of one kind or another, but such collateral consequences are not a proper basis for a jury’s decision and hence are not for counsel to argue.
However, I believe a per se rule is unwise and unnecessary. This may be similar in concept to invoking the deity, but it is not on a par with religious hyperbole, nor is the problem so pervasive as to be beyond the leash of existing jurisprudence. A per se rule will, of necessity, lead to more litigation, not less, for now any words by the prosecutor that may somehow be interpreted as implying a request for a message will be challenged; indeed, must now be challenged on pain of ineffectiveness.
It is likewise improper for defense counsel to ask for a message to be sent, but there is no meaningful curative sanction in the immediate trial. The prosecution has the right of fair response—may that response include a request for a contrary message? Can a curative instruction be asked for by defense counsel who thinks the penalty phase has gone well; is a new penalty phase the only cure, or may the objection to a per se rule of this Court be waived? We will undoubtedly have to face these questions and a host of variations in the not too distant future.
Per se rules addressing the fluid and extemporaneous flow of trial advocacy are not the cure-all they may appear. Hence, the trend of the criminal law is away from fixed recipes for evaluating error and toward a totality of the circumstances perspective for review. See, e.g., Florida v. Bostick,
I believe this evolution is wise and appropriate; creating a new per se rule is neither. Our present tests allow courts to address each situation individually. Allowing flexibility is preferable to creating bright-line rules then creating exceptions when the inevitable variation on the facts arises; I suspect that in a very few years, we will have our share of exceptions to this per se rule as well.
Accordingly, I join in reversing the penalty imposed, but cannot agree with the creation of a per se rule as pronounced by my colleagues.