Com. v. Green

• Decision Date: 06 July 1992
• Citation: 611 A.2d 1294,417 Pa.Super. 119
• Parties: COMMONWEALTH of Pennsylvania v. Anthony GREEN, Appellant.
• Court: Pennsylvania Superior Court

Page 1294

611 A.2d 1294

417 Pa.Super. 119

COMMONWEALTH of Pennsylvania v. Anthony GREEN, Appellant.

Superior Court of Pennsylvania.

Submitted May 14, 1992.

Filed July 6, 1992.

John P. Cotter, Philadelphia, for appellant.

Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, OLSZEWSKI and KELLY, JJ.

WIEAND, Judge:

Anthony Green was tried by jury and was found guilty of aggravated assault in connection with the shooting of Anthony Gunter in Philadelphia on October 14, 1988. ¹ The same jury found him not guilty of possessing an instrument of crime. Post-verdict motions were denied, and Green was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal, Green argues that the trial court erred when it allowed (1) evidence to be introduced of a "stale" robbery conviction and (2) improper jury argument by the prosecuting attorney which injected the number of annual homicides in Philadelphia and the motives for highway shootings in Los Angeles. Green also contends that the trial court erred when it applied the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712 for aggravated assault after the jury had found him not guilty of possessing an instrument of crime. ²

The circumstances surrounding the shooting were as follows. On October 14, 1988, Anthony Gunter went to 2406 North Reese Street, Philadelphia, to pick up his daughter from Wanda Boyd, who was the girl's mother and Gunter's former girlfriend. An argument ensued between Gunter and Boyd, during which Boyd's uncle, Anthony Green, appeared on the scene. The prosecution contended and attempted to prove that Green arrived with a gun in his possession and shot Gunter without provocation. The defense contended, however, that the gun had been in the possession of Gunter and had discharged accidentally during a struggle in which Green sought to defend himself against physical assault by Gunter. Although the testimony was in sharp dispute, the jury found Green guilty of aggravated assault.

The actual date on which appellant committed a prior robbery does not appear, but the record does establish that, on June 22, 1978, he was sentenced for robbery to serve a term of imprisonment for not less than one year nor more than two years. When appellant was tried for aggravated assault in February, 1991, the prior conviction was more than ten years old. Appellant contends that because of the lapse of time, this conviction was neither relevant nor material and should have been excluded by the trial court.

This issue, however, has not been preserved for appellate review. It was not raised in post-trial motions and is being argued for the first time on appeal. Only issues raised in post-trial motions are preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Heckman, 366 Pa.Super. 224, 227, 530 A.2d 1372, 1373 (1987). Because the issue was not preserved, we express no opinion regarding the trial court's evidentiary ruling.

During the prosecuting attorney's closing argument, the following argument was made and objections recorded:

And more on motive. The defense has argued what motive was there for him to shoot Mr. Gunter. Simply turned around, what motive was there for him to shoot the defendant? He is there to pick up his daughter, but first I am going to shoot the defendant.

Ladies and gentlemen, last year in Philadelphia [sic] we had 525 homicides--

MR. COTTER: Objection, Judge. Objection. Could I see the Court at side bar?

MR. MARGIOTTI: Judge, I really extended him a lot of courtesy in his closing.

MR. COTTER: Judge, I want to see the Court at side bar on this particular issue, this is very important.

THE COURT: Howard, come on, please.

(Side bar discussion as follows:)

MR. COTTER: Judge, I would move for a mistrial. The issue this jury has to decide is not the state of the criminal activity in Philadelphia. The issue for this jury is to decide whether this man committed a crime.

THE COURT: I know. It is hyperbole, it is argument. And I don't know what he is going to say about that.

MR. COTTER: Well, Judge, I don't want to wait until what he is going to say. Now he is saying there is a lot of homicides.

MR. MARGIOTTI: But there is nothing wrong with what I am saying.

MR. COTTER: Yes, there is something wrong.

MR. MARGIOTTI: No, there isn't.

MR. COTTER: You are bringing in the fact that something else or there are other crimes.

(Back in the courtroom as follows:)

MR. MARGIOTTI: As I said, ladies and gentlemen, there were 525 homicides in Philadelphia last year. How many of those have what we would call or consider, a good motive, a legitimate motive, a reason to shoot somebody? Ladies and gentlemen, in Los Angeles they are shooting people on the highway--

MR. COTTER: Objection. Judge, what does that have to do--

THE COURT: Well, it is argument. It is hyperbole, he is passionate. I will allow it.

MR. MARGIOTTI: Thank you. Your Honor, could I have his interruptions kept to the end? Maybe we can deal with them all at one time?

MR. COTTER: Judge, the Court knows that the Supreme Court says that I have to make the objection when it is stated. I have got to do that, Judge.

THE COURT: But not during a speech.

MR. MARGIOTTI: Thank you. Okay.

Ladies and gentlemen, as I said before I was interrupted again, in Los Angeles they are shooting people on the highway for cutting them off because the highways are too crowded. Motive is not a part of this crime. This is a crime of madness. The law--when the Judge reads you the law, he is going to say, intended to cause bodily injury with a deadly weapon or intended to cause serious bodily injury. But it doesn't say you have to determine his motive. I can't get into his head, you can't get into his head why he did it. That is not for you to decide.

In reviewing the remarks of the prosecuting attorney, we have examined once again the words of the late Justice Roberts who, when writing for the Court in Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), reviewed the role of the prosecuting attorney as follows:

In advocating the cause for this Commonwealth, prosecutors are to seek justice, not only convictions. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); see ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function § 1.1 (Approved Draft, 1971) [hereinafter cited as ABA Standards]; Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974). This obligation to seek justice includes the responsibility to assure that the defendant receives a fair and impartial trial. See Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Toth, 455 Pa. 154, 314 A.2d 275 (1974); ABA Standards § 1.1, commentary at 44.

This Court has established that the conduct of the prosecutor at closing argument is circumscribed by the concern for the right of a defendant to a fair and impartial trial. We have held that a prosecutor's expression of personal opinion regarding a defendant's guilt, credibility, or strategy is prejudicial and amounts to reversible error. We have also held that improper statements of the evidence and references to what the victim might have said are improper.

Moreover, our cases emphasize that the prosecutor must not seek to divert the jury from its duty to decide impartially the facts of the case before it. As Mr. Justice Nix has stated for this Court, "[t]he determination of guilt must not be the product of fear or vengeance but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that has been presented." Commonwealth v. Harvell, 458 Pa. 406, 411, 327 A.2d 27, 30 (1974). The jury must not be diverted by statements appealing to its emotions or which may lead the jury away from its responsibility to resolve the case on the basis of the facts presented. See Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974); Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).

In defining impermissible conduct during closing argument, we have followed Section 5.8 of the ABA Standards. Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976); Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). Section 5.8 provides:

"Argument to the jury.

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

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

(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict."

The policy underlying this section and our decisions which follow it is that limitations are needed to check the possibility that jurors will give undue weight to the arguments of the prosecutor. The commentary to Section 5.8 points out:

"As the culmination of his efforts in the case, the prosecutor's argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness which should characterize all of the prosecutor's conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury...