loss of victim’s formal statement did not deny due process where her testimony cohered with contemporaneous police report and defendant declined to test her credibility with aid of report
How later courts described this case
- loss of victim’s formal statement did not deny due process where her testimony cohered with contemporaneous police report and defendant declined to test her credibility with aid of report
Written by the judges who cited it.
The opinion
WIEAND, Judge,
concurring:
I concur that appellant is not entitled to a new trial. In so doing, I agree fully with the majority’s disposition of appellant’s contention that the prosecution deprived him of due process by “concealing or destroying possibly exculpatory evidence.” However, I am unable to agree when the majority says the prosecutor’s statements (1) that the alleged victim’s “testimony is worthy of belief;” (2) “she was telling you the truth as honestly as she could;” and (3) “I want you to understand, by golly, she is telling you the truth” were not expressions of opinion. In my judgment they were exactly that. They can be excused, however, as relatively mild responses to a highly improper and inflammatory argument by defense counsel. This argument included counsel’s opinion that the alleged victim was a “liar,” that she was a “perjurer” and that her testimony was, inter alia, “a cock and bull story,” “ridiculous,” “bunk,” “balogna,” “nonsense,” “made up,” “bull,” and “preposterous.” In view of defense counsel’s highly charged and improper, emotional tirade against the veracity of the prosecution witness, the District Attorney cannot be condemned for protesting that her testimony was “worthy of belief” and that “she was telling you the truth as honestly as she could.” Certainly, such responses do not require that appellant be awarded a new trial. See: Commonwealth v. Brown, 490 Pa. 560 , 417 A.2d 181 (1980); Commonwealth v. Stoltzfus, 462 Pa. 43 , 337 A.2d 873 (1975); ABA Project on the Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8 (Approved Draft, March, 1971) (commentary: prosecutor may be justified in making a reply to an argument by defense counsel which may not have been proper if made without provocation). See generally: Commonwealth v. Rigler, 488 Pa. 441 , 412 A.2d 846 (1980); Commonwealth v. *380 Kjersgaard, 276 Pa.Superior Ct. 368, 419 A.2d 502 (1980); Commonwealth v. Baynes, 269 Pa.Superior Ct. 563, 410 A.2d 845 (1979).
For these reasons, I concur in the result achieved by the majority but do not join its opinion.