# Commonwealth v. Brown > Supreme Court of Pennsylvania · July 3, 1980 · 490 Pa. 560 URL: https://www.frixlaw.com/law-library/cases/9650828 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Daniel BROWN, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** July 3, 1980 - **Citations:** 490 Pa. 560; 417 A.2d 181; 1980 Pa. LEXIS 729 - **Precedential status:** Published - **Opinion:** Dissent by Roberts - **Judges:** Eagen, O'Brien, Roberts, Nix, Larsen, Flaherty, Kauffman - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650828 ## How later opinions describe it (automated extraction) - applying former Rule 1119(B) in a 1980 decision ## Opinion text ROBERTS, Justice, dissenting. In the course of closing argument, the prosecutor asked the jury: “Is it a system of vigilante self-style execution that we are dealing with here? . . . Now, is this an attempt to protect oneself, or is this a slaughter?” Remarkably, the majority concludes that such argument is neither improper nor prejudicial. I must dissent. The responsibilities of a prosecutor extend beyond the role of advocate. “The duty of the prosecutor is to seek justice, not merely to convict.” ABA Standards Relating to The Prosecution Function § 1.1(c) (Approved Draft, 1971); see Code of Professional Responsibility EC 7-13. “Although the prosecutor operates within the advocacy system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.” ABA Standards Relating to The Prosecution Function, supra, Commentary to § 1.1. This special responsibility arises from three considerations: “(1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts.” Code of Professional Responsibility EC 7-13. As the United States Supreme Court explained, the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to *575 govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935). A prosecutor’s closing argument is of particular concern because of the possibility that the jury will give it “special weight” in light of the prosecutor’s prestige and superior factfinding facilities. See ABA Standards Relating to The Prosecution Function, supra, Commentary to § 5.8. “It is fair to say that the average jury, in a greater or less degree, has confidence that [a prosecutor’s special duties] ., which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, supra at 88, 55 S.Ct. at 633 . Consequently, the ABA has set forth express and specific limitations on prosecutorial 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. *576 (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.” ABA Standard Relating to The Prosecution Function, supra, § 5.8. In applying these limitations, this Court has held that a prosecuting attorney may not indulge in personal assertions of guilt of the accused either by direct statement or indirectly by figure of speech. See Commonwealth v. Van Cliff, 483 Pa. 576, 586 , 397 A.2d 1173, 1178 (1979); Commonwealth v. Cronin, 464 Pa. 138, 143 , 346 A.2d 59, 62 (1975). Nor may a prosecutor unfairly characterize or stigmatize the accused. See Commonwealth v. Gilman, 470 Pa. 179 , 368 A.2d 253 (1977) (prosecutor called defendant “cold-blooded killer” and characterized him as “sly, calculating and deceiving”); Commonwealth v. Lipscomb, 455 Pa. 525 , 317 A.2d 205 (1974) (prosecutor called defendant a “hoodlum” and “Criminal”); Commonwealth v. Capalla, 322 Pa. 200 , 185 A. 203 (1936) (prosecutor called defendant a “cold-blooded killer”). Surely the prosecutor’s reference in this case to “vigilante self-style execution” and “slaughter” with respect to appellant is as unduly inflammatory and prejudicial to appellant as the prosecutorial comments in the cases noted above. The majority attempts to justify these references by speaking of them as mere “questions,” bereft of the prosecutor’s personal opinion. Such justification by the majority is disingenuous. It is perfectly clear that these “questions” were rhetorical attempts by the prosecutor to characterize appellant in a highly inflammatory and impassioned fashion. The majority also suggests that the prosecutor’s comments are to be excused as a “fair response” to what the majority terms as defense counsel’s intemperate closing argument. Unlike the majority, I am unwilling to permit the prosecu *577 tion to resort to any self-help remedies. Rather we must rely, as we have always done, upon the trial judge to ensure a fair trial. The ABA Standards Relating to The Function of the Trial judge (Approved Draft, 1972) provide in relevant part that the “trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. . The trial judge should require that every proceeding before him be conducted with unhurried and quiet dignity . . .” § 1.1(a) & (b). It is manifest that the trial judge not allow the adversary process to “become a mere game, but [rather to control it] . to the extent needed to make our courts ‘swift and certain agents of justice.’ . . . [I]t is the proper role and function of the trial judge to exercise his judicial powers in such a manner as to give the jury opportunity to hear the case free from irrelevant issues and appeals to passion and prejudice. . . . [I]t is ultimately the authority and responsibility of the trial judge to maintain the atmosphere appropriate for a fair, rational and civilized determination of the issues, and to govern the conduct of all persons in the courtroom, including the attorneys.” ABA Standard Relating to The Function of the Trial Judge, supra, Comment to § 1.1. Thus it is clear that the only permissible remedy available to the prosecutor for defense counsel’s closing remarks was to request judicial correction. The doctrine of “fair response” is a secondary means of redress, intended only to provide the prosecutor an opportunity to respond to defense counsel’s injection of extraneous issues. See ABA Standards Relating to The Prosecution Function, supra, Comment to § 5.8(d); accord ABA Standards Relating to The Trial Judge Function § 5.10 (final argument to the jury). This doctrine, however, does not and cannot give prosecutors license to engage in misconduct. As the ABA Standards’ discussion of “fair response” makes clear, the “better solution to this problem lies in having advocates adequately instructed as to the limits of proper argument and trial judges willing to enforce fair rules as to *578 such limits.” Id. Prosecutorial misconduct thus cannot be excused here. Accordingly, I would grant appellant a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650828. Public record. Not legal advice.