Commonwealth v. Morales

CASTILLE, Justice,

concurring and dissenting.

I concur with the majority opinion in its disposition of all issues raised in this appeal from the trial court’s denial of appellant’s second petition for post-conviction relief in appellant’s homicide case except for that portion of the opinion which remands the matter to the trial court for a new sentencing hearing because of prosecutorial misconduct during the prosecutor’s closing at the penalty phase of trial. Because I do not believe that the prosecutor’s remarks were improper when viewed in the context in which they were made or that the comments rose to a level which were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, I must dissent from the majority’s remand to the trial court for a new sentencing hearing.

As noted by the majority, appellant contends that he is entitled to a new sentencing hearing since trial counsel was ineffective for failing to object to the following remarks during the prosecutor’s closing at the penalty phase:

I urge you on the basis of this evidence, not because I’m a vindictive person or not because you’re a vindictive person, but because it is the responsibility of citizenship to find aggravation, to find that the killing of a man on one occasion makes the second killing no accident but a deliberate, premeditated and willful act, one for which you are unwilling to forgive, one for which you are willing to say for one time, “I’m going to follow the law and do what the law says.” We all know as members of the community that in a casual conversation there isn’t a week that passes that someone on occasion complains about the liberal judges allowing people to go free or do little time, for instance, and you believe the judge. Well, you are the judges in this instance. There is nobody to blame for the kind of sentence *428 that is meted out here, because you have that responsibility and you as citizens have had that responsibility since June of 1978.

(N.T. 14.49-50) (emphasis added). Generally, comments by a prosecutor during closing argument do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury by forming in their minds a fixed bias and hostility toward the defendant so that they could not weigh the evidence properly. Commonwealth v. LaCava, 542 Pa. 160, 192 , 666 A.2d 221, 236-37 (1995). During the penalty hearing, the prosecutor may employ oratorical flair in arguing for a sentence of death and he is accorded greater latitude in presenting argument since the presumption of innocence is no longer applicable. Commonwealth v. Travaglia, 541 Pa. 108,134 , 661 A.2d 352, 365 (1995).

The majority holds that the prosecutor’s reference to “liberal judges” crossed the line of acceptable oratorical flair by inviting the jury to sentence appellant to death in order to compensate for the evils perpetrated by liberal judges in allowing criminals to go free and to set the balance straight by compensating for the harm done by liberal judges. If the prosecutor’s reference to liberal judges was viewed in a vacuum, I may agree with the majority’s holding on this issue. However, when evaluating whether a prosecutor’s comments were improper, we must look at the context in which they were made. Commonwealth v. Carpenter, 533 Pa. 40, 48-49 , 617 A.2d 1263, 1267 (1992).

Here, a view of the entire context in which the prosecutor made the reference shows that he was reminding the jury that they alone were the decision-maker who had the serious task of deciding whether to impose the death penalty. Also, the prosecutor emphasized that it was the jury’s duty to exercise that power in accordance with the law. The prosecutor’s comment about “liberal judges” does not alter the message being conveyed by the prosecutor that the jury must follow the law when rendering its decision on appellant’s sentence. Moreover, a review of relevant case law demonstrates that this Court has held what I consider were far more impassioned *429 remarks in encouraging a jury to impose the sentence of death to constitute appropriate oratorical flair during closing remarks in the penalty phase of a capital case. See Travaglia, 541 Pa. at 136-37 , 661 A.2d at 366 (prosecutor did not exceed bounds of reasonable advocacy during closing argument in penalty phase of capital case by suggesting that death penalty was only way to protect society); Commonwealth v. Jones, 530 Pa. 591, 622 , 610 A.2d 931, 946 (1992) (no claim for prosecutorial misconduct lies where prosecutor asks rhetorical question to jury “will you get soft in the heart” and “I mean are we into this new morality now or are we into I’m going to make you feel sorry for doing what you got to do”). Therefore, I do not believe that the prosecutor’s reference to “liberal judges” had the effect of forming in the minds of the jury a fixed hostility or bias toward appellant.

I also believe that appellant’s case does not present a situation where a remand for a new sentencing hearing is warranted because it is well-settled law that attorney’s statements or questions during a trial are not evidence. LaCava, 542 Pa. at 181-82 , 666 A.2d at 231 . The trial court instructed the jury in its opening instructions at the first day of trial and its closing instructions of the guilt phase of trial that statements of the attorneys are not evidence. Juries are presumed to follow the trial court’s instructions and appellant presents no evidence which would lead me to conclude that the jury did not follow this charge during the penalty phase of appellant’s trial. Commonwealth v. Baker, 531 Pa. 541, 559 , 614 A.2d 663, 672 (1992) (law presumes that juries follow the trial court’s instructions as to the applicable law). Also, as the majority notes in footnote 19 of its opinion, appellant has never challenged that there was overwhelming evidence of at least one of the two aggravating circumstances found; that at the time appellant was sentenced, he was convicted of another crime for which a sentence of life imprisonment was imposable. 42 Pa.C.S. § 9711(d)(10). Since there was overwhelming evidence of this aggravating circumstance, and no mitigating circumstances found by the jury, the jury was required to *430 impose the death penalty as a matter of law. 42 Pa.C.S. § 9711(c)(l)(iv).

When all of the above considerations are factored into the equation and since this is appellant’s second petition for post-conviction relief, I cannot find that the prosecutor’s reference to liberal judges resulted in a sentence so unfair that a miscarriage of justice occurred which no civilized society could tolerate. See Commonwealth v. Szuchon, 534 Pa. 483, 487 , 633 A.2d 1098, 1100 (1993) (second collateral attack requires showing of miscarriage of justice which no society could tolerate or that defendant was innocent of charge). Accordingly, I must dissent from that portion of the majority opinion remanding this case for a new sentencing hearing.

NEWMAN, J., joins this concurring and dissenting opinion.