holding that a prosecutor’s statement that “there is no doubt I think from this evidence that indeed his intention was to shoot at or kill Erica,” was proper because he related his suggested conclusion back to the evidence
How later courts described this case
- holding that a prosecutor’s statement that “there is no doubt I think from this evidence that indeed his intention was to shoot at or kill Erica,” was proper because he related his suggested conclusion back to the evidence
- holding no new trial was warranted based on allegations of prosecutorial misconduct in closing arguments, where prosecutor’s statement was based on evidence as to how jury should resolve conflicting testimony; arguments on how jury should resolve conflicting testimony are not considered expressions of personal opinion if based or relate back to evidence presented at trial; rejecting “cumulative impact” of various claims of prosecutorial misconduct as makeweight or bootstrapping, where no number of failed claims can collectively attain merit if they could not do so individually
- finding trial court’s instruction to jury not to draw any adverse inference from prosecutor’s comment upon defendant’s post-arrest silence during closing argument sufficient to cure any potential prejudice therefrom
- presenting a fabricated defense through suborned perjury admissible to show consciousness of guilt
Written by the judges who cited it.
The opinion
NIX, Chief Justice,
concurring and dissenting.
I join in that portion of the majority’s opinion which affirms the defendant’s conviction for first degree murder. However, I must dissent to the affirmance of the imposition of the death sentence. I would vacate the death penalty and remand for a new sentencing hearing because of the ineffective assistance of counsel at the penalty phase.
We have set forth the following three part test for proving ineffective assistance of counsel: 1) the issue underlying the claim of ineffectiveness has arguable merit; 2) the course chosen by counsel does not have a reasonable basis designed to serve appellant’s interest; and 3) the appellant has suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Chester, 526 Pa. 578, 609 , 587 A.2d 1367, 1382 (1991). In this ease, the threshold inquiry is whether the argument that the attorney has failed to raise and the argument he did raise were of arguable merit. There is no question that there was no merit to the attorney’s arguing to the jury that the defendant was innocent, particularly because it detracted from the argument that the defendant was under extreme emotional duress at the time of the killing. By making two mutually *292 exclusive arguments — that he did not commit the murder and that he did commit it while under extreme duress — defense counsel created the real possibility that the jury would accept neither argument. Additionally, the limited argument by counsel regarding the “extreme duress” mitigating factor prejudiced the defendant. The trial court found, in its opinion in support of its denial of post-trial motions, that Erica Higgins had cut Jean Hargrove (who was seven months pregnant with the defendant’s child) with a knife and that the defendant was aware that Ms. Hargrove was in danger of suffering a miscarriage as a result of the fight. Commonwealth v. Williams, Nos. 2563-66, May Term, 1987, slip op. at 16 (Court of Common Pleas of Philadelphia County, Apr. 25, 1990). These facts should have been stressed at the penalty phase, and should not have been undermined by defense counsel’s weak argument that the defendant was innocent of the crime. The argument of defense counsel was ineffective and lacking any merit, there was no reasonable basis for it, and it prejudiced the defendant. Therefore, I would vacate the sentence imposed and remand the case for a new sentencing hearing pursuant to the Death Penalty Statute, 42 Pa.C.S. § 9711(h)(4).