stating that the petitioner’s “claim that appellate counsel was ineffective for failing to raise trial counsel’s -9- J-S06021-21 ineffectiveness on direct appeal is meritless since it was, in fact, raised”
How later courts described this case
- stating that the petitioner’s “claim that appellate counsel was ineffective for failing to raise trial counsel’s -9- J-S06021-21 ineffectiveness on direct appeal is meritless since it was, in fact, raised”
- concluding that the petitioner’s “claim that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal is meritless since it was, in fact, raised”
- concluding that the defendant’s “claim that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal is meritless since it was, in fact, raised”
- recognizing that Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings which is generally at the arraignment
Written by the judges who cited it.
The opinion
*417 Justice BAER,
concurring.
I join the majority in full with respect to its denial of Appellant’s guilt-phase claims. I write separately, however, because I cannot give prosecutors free reign during closing arguments to exaggerate charges against criminal defendants. In this case, Appellant was charged with a single count of murder with respect to the killing of Marsha Smith, and five counts of aggravated assault with respect to the other five victims, none of whom passed away. Nevertheless, in his guilt phase closing statement, the prosecutor argued, “[Appellant] made a conscious decision to murder six people.” 1
In finding this statement permissible, the majority relies on Commonwealth v. Anderson, 538 Pa. 574 , 650 A.2d 20, 24 (1994), which held that, for purposes of sentencing merger, the mens rea required to establish aggravated assault, i.e., the intentional, knowing, or reckless infliction of serious bodily injury, is subsumed within the mens rea for attempted murder, i.e., the specific intent to kill. See 18 Pa.C.S. § 2702(a)(1) (aggravated assault); 18 Pa.C.S. §§ 901(a), 2502(a) (attempted murder). This discussion in Anderson was one part of a comparison aimed at deciding if the former was a lesser-included offense of the latter. Ultimately, this Court determined that it was. Although I agree with this holding, I do not believe that our decision in Anderson should be read to countenance the conflating of separate lesser crimes with greater crimes during a prosecutor’s closing statement to intimate that a defendant’s conduct amounts to the greater crime, for which he was not charged or tried.
Accordingly, while I would characterize the prosecutor’s closing statement in this instance as hyperbole beyond acceptable oratorical flair, see Commonwealth v. Williams, 586 Pa. 553 , 896 A.2d 523, 542 (2006) (stating that the prosecution is accorded reasonable latitude to employ oratorical flair in *418 arguing its version of the case to the jury), I would nevertheless conclude that the error was harmless. The well-settled standard for analyzing a prosecutor’s closing comment directs that we consider whether the unavoidable effect of the statement would be to prejudice the jury, “forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.” Williams, 896 A.2d at 542 ; Commonwealth v. Ford, 539 Pa. 85 , 650 A.2d 433, 442 (1994); Commonwealth v. McNeal, 456 Pa. 394 , 319 A.2d 669, 673 (1974).
Applying this standard, I would not consider the prosecutor’s statement sufficiently prejudicial to impair the jury’s ability to weigh the evidence objectively and render a true verdict. Appellant claims he was prejudiced at sentencing by the prosecutor’s guilt-phase comment, but it is unreasonable to conclude that the same jury that convicted appellant of one murder and six aggravated assaults would fail to make this distinction at sentencing. Consequently, under these facts, I find Appellant’s challenge to the prosecutor’s guilt-phase comments harmless error.
. There is the separate crime of attempted murder, see 18 Pa.C.S. §§ 901(a), 2502(a), which includes the specific intent to kill as an element. See Commonwealth v. Anderson, 538 Pa. 574 , 650 A.2d 20, 24 (1994) (stating that attempted murder requires a specific intent to kill). If the Commonwealth wanted to argue Appellant intended to kill six people, it should have so charged him.