stating deliberate attempts by the prosecutor to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be the product of the emotions rather than reflective judgment will not be tolerated
How later courts described this case
- stating deliberate attempts by the prosecutor to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be the product of the emotions rather than reflective judgment will not be tolerated
- misstatement of fact by prosecutor in closing that defense counsel was formerly an Assistant District Attorney did not constitute error or warrant a new trial since evidence did not show that misstatement was deliberately done
- “It is clear that the prosecution may, in its closing address, attempt to meet the pleas and arguments made by defense counsel in his summation.”
- misstatement of fact by prosecutor in closing did not constitute error or warrant a new trial because evidence did not show that misstatement was deliberately done
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
dissenting.
I would grant a new trial on the ground that the testimony of witness Calvin Lesster was only marginally relevant and highly prejudicial. At trial, Lesster attempted to demonstrate how to use a manriki, a martial arts weapon. The manriki was not the murder weapon, but was found near the victim’s body. The trial judge, cognizant of the inflammatory nature of the testimony, interrupted the demonstration. The following colloquy ensued:
“THE WITNESS: It is used to strangle, to strike it in such a way (indicating)—
THE COURT: Stop it. Now, cut this charade and this nonsense out. I don’t know if he is proficient or not. Suppose it hits somebody here. I don’t want any more of this nonsense going on. Stop any inflammatory type of demonstration here, immediately.
MR. KING: Your Honor—
THE COURT: If you want to ask him about demonstration, he can demonstrate without putting anybody’s life in danger here.
MR. KING: Your Honor, if Mr. Lesster put anyone’s life in danger, I would apologize to that, or for that. It was in the process of demonstrating for the benefit of the ladies and gentlemen of this particular jury, an item that was found near the body of the deceased.
THE COURT: It was found alongside of the body of the deceased, and there was no evidence that it was used on *308 him at all. Now, let’s not make it any more inflammatory. You are getting on the borderline now. Does he know anything about this case? Ask him more questions, I don’t want to tell you how to run your case, but go ahead.
MR. KING: Your Honor, it is my intention that Mr. Lesster has been qualified as an expert. Other than by the means of a hypothetical question, Mr. Lesster did not participate in the investigation or apprehension of any of the defendants in this case. Therefore, in the true sense of the word, no, he does not know about the facts of this particular case.
BY MR. KING: Q. Sir, what would be the effect of the use of the Manriki in a strangling kind of a fashion, as far as it immobilizing an opponent?
A. Well, it would cut off his air.
Q. By cutting off his air—
A. By pulling his Adams Apple and strangling him, so would cut off his air, which means that he would have no strength to fight back with.
Q. This particular weapon, sir (indicating) assuming for the sake of this hypothetical question, if a victim was approximately six foot two inches tall, approximately 260 pounds in weight, what would be the effect of using this particular device by a smaller person upon—
MR. SANTAGUIDA: Objection, Your Honor.
THE COURT: Objection sustained . . .”
(N.T. 11/3/76, pp. 185-188)
Unlike the majority, I fail to see how the remarks of the trial judge “cured” the prejudicial effect of the aborted demonstration. Rather, this colloquy only served to further “inflam[e] the minds and passions of the jurors,” Commonwealth v. Batty, 482 Pa. 173, 177 , 393 A.2d 435, 437 (1978); Commonwealth v. Martinez, 475 Pa. 331 , 380 A.2d 747 (1977) (plurality opinion). Counsel therefore had no reasonable basis for not preserving his objection in post-verdict motions. Appellant should be awarded a new trial.