Commonwealth v. Graham
Commonwealth v. Graham
Opinion of the Court
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.
Appellee was tried by a jury in the Court of Common Pleas of Cambria County and was convicted of all charges.
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:
*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 render a true verdict.” The effect of such remarks depends upon the atmosphere of the trial.
Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) (citations omitted).
In addition, we have held that it is not reversible error for the prosecutor to comment that the defendant lied, in cases where the comment “was a fair inference from irrefutable evidence, rather than a broad characterization of the whole of the testimony as a ‘big lie.’ ” Commonwealth v. Floyd, 506 Pa. 85, 93, 484 A.2d 365, 369 (1984).
Turning to the case presently before the Court, Superior Court set forth five comments from the prosecutor’s closing argument that it determined were improper and on which appellee based his request for a new trial. The first of these comments concerned appellee’s attempt to account for the large amount of cash found and seized during the search of his residence. The officers executing the search warrant found approximately $33,000 in cash in appellee’s bedroom. Appellee testified that he had saved
The second comment that Superior Court found to be improper involved appellee’s defense to the charge of possession of marijuana with intent to deliver. Twenty-six pounds of marijuana packaged in one pound bags was seized during the search of appellee’s residence. Appellee testified that he grew this marijuana for his personal use and that he planted a new crop every year. He further testified that he smoked 40 marijuana cigarettes a day. A state trooper testified that 27,000 cigarettes could be made from 26 pounds of marijuana. The prosecutor argued during closing that it was “totally unbelievable” that appellee smoked 40 marijuana cigarettes a day and that the 26 pounds of marijuana found at appellee’s residence was for his personal use, because this quantity of marijuana would last for years even at the rate of 40 cigarettes a day. Appellee asserts that his trial counsel was ineffective for failing to object to this comment. There is no merit to appellee’s assertion, because it is unbelievable that appellee smoked this much marijuana, and it would have been mathematically impossible for him to smoke the 26 pounds of marijuana in one year.
The third comment made by the prosecutor during his closing argument that was found to be improper by Superi- or Court concerned appellee’s testimony regarding the stolen electronic scale (used for weighing small items) that was found at appellee’s residence during the search. Appellee testified that he met a stranger in a bar and purchased the
The final comments that Superior Court found to be improper were the prosecutor’s references to appellee’s testimony regarding the charges of false reports to law enforcement authorities that were filed against him. On November 8, 1980, (one year and three months prior to the search that gave rise to the convictions leading to the present appeal) appellee reported to the Gallitzin Borough police that his residence had been burglarized.
Appellee also testified that his residence was burglarized a second time in May of 1981. At that time, appellee reported to the Gallitzin Borough police that, among other items, a .12 gauge Smith and Wesson shotgun had been stolen from his home.
Taken individually (and as a whole), in light of the entire record, these assertions that were made by appellee were clearly incredible, unbelievable and false. Therefore, the comments of the prosecutor that portions of appellee’s testimony were unbelievable were “fair inferences from the irrefutable evidence.” Thus, there is no merit to the claim underlying appellee’s assertion of the ineffectiveness of his trial counsel.
Accordingly, we reverse the order of Superior Court and remand to Superior Court for disposition of appellee’s remaining claims of ineffectiveness.
. The counts of false reports to law enforcement authorities were lodged against appellee because the serial numbers of three of the guns seized during the search of appellee’s residence matched the
. This rule of course assumes that the whole of the witness’s testimony is not a "big lie.” If every factual statement made by a witness concerns matters that are incapable of having occurred or existed, then the whole of the testimony could be characterized as a "big lie.”
. Appellee had lived in a trailer in Gallitzin Borough before he moved to the residence in Cresson, Pennsylvania, which was the subject of the search which led to appellee’s arrest.
. Appellee also claimed that a Polaroid camera, several jars of silver quarters and dimes, a tap system, a Bear compound bow and accessories, and a crossbow were taken during the burglary. Appellee submitted a claim for all of these items, including the aforementioned guns, with an estimate of $2,000 in losses to his insurance company, and received $1,000 in insurance proceeds.
. Appellee also claimed that a .25 automatic pistol, a .38 Bulldog pistol, a Canon 35 millimeter camera, a video cassette recorder, a Krako 40 channel CB am/fm radio, a Lake fm cassette player, four pairs of brand new bluejeans, and one Merro cordless telephone had been taken from his residence during the May, 1981, burglary. Again, appellee filed a claim with his insurance company to recover his alleged $2,000 in losses, and again, appellee received $1,000 in insurance proceeds.
. Moreover, the comments of a prosecutor "must be read in their full context, including the defense closing. We may thus determine if the comments were made in fair response to defense argument." Commonwealth v. Brown, 490 Pa. 560, 566, 417 A.2d 181, 184 (1980). In the case sub judice, appellee’s trial counsel stated on four separate occasions during his closing argument that in his personal opinion, appellee had testified truthfully. For example, defense counsel stated: “In this case, Mr. Graham decided to take the stand, and I believe he testified truthfully on the witness stand.” Notes of Testimony at 236 (May 7, 1982). At another point in his closing argument, defense counsel stated: “Mr. Graham told you what he was doing, and he told you what he was not doing. I think he told you that honestly on the stand.” Id. at 243.
The proscription on the expression of personal opinion during closing argument is not limited to the prosecution. See I ABA Standards for Criminal Justice, The Prosecution Function, Comment to Standard 3-5.8(b) ("Neither advocate may express personal opinion as to the justice of his or her cause or the veracity of witnesses.”) (1980). We have recognized that it is no abuse of discretion for a trial court to refuse to declare a mistrial where the remarks of the prosecutor are inspired in part by the conduct of defense counsel. Commonwealth v. Stoltzfus, supra. Although two wrongs do not make a right, otherwise improper comments of the prosecutor are permissible when they merely counter the arguments made by defense counsel, in that such commentary would not have the unavoidable effect of prejudicing the jury.
Concurring Opinion
concurring.
We cannot condone counsel offering a personal belief on to the credibility of any witness. Suffice it to say counsel is there to present evidence not to testify as to its credibility. There is a major difference, however, between offering one’s personal belief and arguing that evidence is unbelievable as offered by a witness. Indeed, it is counsel’s function to comment, criticize, expose the content of the evidence of a witness to its own inconsistency, improbability, interest, conflict with other evidence, physical, chemicals, the common sense of the occasion and any other epistemological defect. So long as he does not offer it as true because he personally believes it to be true, his argument has few limits in the search for truth. Absent such a valuation by counsel; that evidence or testimony is true because he believes it, he may argue from literature, history, analogy, examples of universal experience on questions of what is to be believed by ordinary sensible men and women in matters of importance in their own lives. All of which is the function of jurors and the purpose of argument. I join the majority.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Gordon L. GRAHAM, Appellee
- Cited By
- 33 cases
- Status
- Published