# Commonwealth v. DeJesus > Supreme Court of Pennsylvania · October 21, 2004 · 580 Pa. 303 URL: https://www.frixlaw.com/law-library/cases/9763311 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Jose DeJESUS, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 21, 2004 - **Citations:** 580 Pa. 303; 860 A.2d 102; 2004 Pa. LEXIS 2481 - **Precedential status:** Published - **Opinion:** Concurrence by Eakin - **Judges:** Cappy, Castille, Eakin, Former, Newman, Nigro, Saylor, Zappala - **Cited by:** 210 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/9763311 ## How later opinions describe it (automated extraction) - explaining that where an appellant fails to establish that an out-of-court identification was impermissibly tainted, it is not necessary for the reviewing court to address the derivative assertion that an in-court identification should have been suppressed - holding that questions concerning inconsistent testimony go to the credibility of the witness, and hence, implicate the weight, rather than the sufficiency, of the evidence - noting we may not substitute our judgment for that of the factfinder—whether a jury or the trial court—because it is the province of the factfinder to assess the credibility of the witnesses and evidence - noting that both eyewitnesses testified that the “appellant shot [the victim] multiple times after a brief argument and a physical altercation during which [the victim] had pleaded in vain for mercy” ## Opinion text Justice EAKIN, concurring. I agree the prosecutor here crossed the line. Most “message sending” statements indicate the advocate lacks a better reason for the verdict sought; a solid case does not require a resort to such vagaries and extra-judicial social commentary. All verdicts send peripheral messages of one kind or another, but such collateral consequences are not a proper basis for a jury’s decision and hence are not for counsel to argue. However, I believe a per se rule is unwise and unnecessary. This may be similar in concept to invoking the deity, but it is not on a par with religious hyperbole, nor is the problem so pervasive as to be beyond the leash of existing jurisprudence. A per se rule will, of necessity, lead to more litigation, not less, for now any words by the prosecutor that may somehow be interpreted as implying a request for a message will be challenged; indeed, must now be challenged on pain of ineffectiveness. It is likewise improper for defense counsel to ask for a message to be sent, but there is no meaningful curative sanction in the immediate trial. The prosecution has the right of fair response—may that response include a request for a contrary message? Can a curative instruction be asked for by defense counsel who thinks the penalty phase has gone well; is a new penalty phase the only cure, or may the objection to a per se rule of this Court be waived? We will undoubtedly have to face these questions and a host of variations in the not too distant future. *332 Per se rules addressing the fluid and extemporaneous flow of trial advocacy are not the cure-all they may appear. Hence, the trend of the criminal law is away from fixed recipes for evaluating error and toward a totality of the circumstances perspective for review. See, e.g., Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991) (rejecting per se rule prohibiting police from randomly boarding buses as means of drug interdiction); Commonwealth v. Smith, 575 Pa. 203 , 836 A.2d 5 (2003) (applying Bostick’s totality of circumstances test); Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (standard for evaluating whether probable cause exists is totality of circumstances); Commonwealth v. Gray, 509 Pa. 476 , 503 A.2d 921 (1985) (totality of Gates’ circumstances test for determining existence of probable cause meets requirements of Article I, § 8); Commonwealth v. Druce, 577 Pa. 581 , 848 A.2d 104 (2004) (declining to adopt per se rule requiring recusal of judge for violation of Judicial Code of Conduct); Commonwealth v. Perez, 577 Pa. 360 , 845 A.2d 779 (2004) (holding voluntary statements by accused, given more than six hours after arrest when accused has not been arraigned, no longer inadmissible per se; courts must examine totality of circumstances surrounding confession); Commonwealth v. Mack, 568 Pa. 329 , 796 A.2d 967 (2002) (declining to adopt bright-line rule that consent to search is per se involuntary when police advise suspect they “would have to get a search warrant” if suspect refuses search); Commonwealth v. DeJesus, 567 Pa. 415 , 787 A.2d 394 (2001) (rejecting per se rule that declaratory statements by police concerning charges against suspect are functional equivalent of interrogation; rather, totality of circumstances test applies). I believe this evolution is wise and appropriate; creating a new per se rule is neither. Our present tests allow courts to address each situation individually. Allowing flexibility is preferable to creating bright-line rules then creating exceptions when the inevitable variation on the facts arises; I suspect that in a very few years, we will have our share of exceptions to this per se rule as well. *333 Accordingly, I join in reversing the penalty imposed, but cannot agree with the creation of a per se rule as pronounced by my colleagues. Justice NEWMAN joins. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763311. Public record. Not legal advice.