Commonwealth v. Reid, A., Aplt

[J-79-2012] [M.O.: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 563 CAP
:
Appellee : Appeal from the Order of the Court of
: Common Pleas of Philadelphia County,
: Criminal Division, dated November 16,
v. : 2007 at No. CP-51-CR-0602521-1989
:
:
ANTHONY REID, :
: SUBMITTED: June 20, 2012
Appellant :
CONCURRING OPINION
MR. JUSTICE BAER DECIDED: August 20, 2014
I join the Majority Opinion, subject to my reservation discussed below with regard
to Appellant’s claim of prosecutorial misconduct.
As the Majority describes, Appellant argues that his due process rights were
violated by several statements the prosecutor made during closing argument during the
guilt phase. See Maj. Slip Op. at 43. Among other statements Appellant finds
objectionable is the prosecutor’s derogatory comment characterizing him as a
“gangster” and “gun slinger” “marauding the streets,” and the prosecutor’s plea to the
jury to take Appellant “and his kind” off the streets. See Maj. Slip Op. at 46 (citing Notes
of Testimony (N.T) 8/13/1990, at 1208-10) (“. . . three potato chip gangsters, robot gun
slingers, marauding your streets. . .”); id. (“Because we have Anthony Reid and his kind
on your streets; and we have him there because overnight he just sprung up
everywhere, the macho man.”); Id. at 48 (citing N.T. 8/13/1990, at 1212-15) (“What is
wrong with a society of Anthony Tone Reids. . .?”); id. at 49 (citing N.T. 8/13/1990, at
1217-1219) (“I’m going to ask you to cut his kind, cut his kind out from the streets. Cut
his kind out from shooting people at the slightest whim.”).
As we have explained, “[c]omments by a prosecutor constitute reversible error
only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed
bias and hostility toward the defendant such that they could not weigh the evidence
objectively and render a fair verdict.” Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa.
2008). Notwithstanding this high standard for reversal, we have “stridently condemned”
certain prosecutorial statements which, for example, urge a criminal jury to “send a
message” to the community or the criminal justice system. Commonwealth v. Patton,
985 A.2d 1283, 1287 (Pa. 2009).
In Commonwealth v. LaCava, 666 A.2d 221, 237 (Pa. 1995), where the
prosecutor argued to the jury in the penalty phase that the defendant was a drug dealer,
that drug dealers (“people like him”) had wrecked the neighborhood, and that “these
guys,” and “guys like this,” had made the streets unsafe, we found that the prosecutor
crossed the line and engaged in misconduct. We explained that “the sole purpose of
the prosecutor's comments was to attempt to turn the jury's sentencing of appellant into
a plebiscite on drugs and drug dealers and their destructive effect on society.” Id. at
237. See also Commonwealth v. Johnson, 533 A.2d 994 (Pa. 1987) (holding that the
prosecutor’s argument suggesting guilt by association, by pointing out that the
witnesses were criminals and the defendant associated with them, was improper, not
[J-79-2012] [M.O. - Todd, J.] - 2
cured by a curative instruction, and required a new trial); but see Commonwealth v.
Morales, 701 A.2d 516, 528 (Pa. 1997) (finding that the prosecutor’s comment that it
was up to the jury to decide whether “we will be a law abiding society or whether we will
be reduced to barbarism” was oratorical flair that did not entitle the defendant to a new
trial).
The Majority holds that the comments made in this case were sufficiently rooted
in the evidence because they referred specifically to the three individuals, including
Appellant, who responded to a thrown snowball by chasing a group of children through
city streets, and to Appellant specifically, who fired into a crowd of people, killing the
victim. I view this as a very close case. While I ultimately agree with the Majority that,
in carefully reading the prosecutor’s closing argument in its totality, one can conclude
that there was an adequate basis in the record for the prosecutor’s remarks, and that
the comments did not have “the unavoidable effect” of prejudicing the jury to the extent
that they could not render a fair verdict, see Commonwealth v. Patton, 985 A.2d 1283(Pa. 2009) (stating that the comments of a prosecutor, “when directed exclusively to
events underlying the case, will be evaluated on a case-by-case basis.”), they are
nonetheless troublesome to say the least.
Prosecutors who appeal to the jury to consider the actions of individuals other
than the defendant, “his kind,” in the prosecutor’s words, risk reversal by injecting
irrelevant considerations of general criminality in society into the jury’s deliberations.
Such comments may be construed as designating the defendant as the representative
of such criminality, and may encourage the jury to convict as a way of curing the
broader social affliction of rampant crime perpetuated by “his kind.” Here, this potential
[J-79-2012] [M.O. - Todd, J.] - 3
for reversible error was exacerbated when the prosecutor referred to Appellant as a
gangster, gun slinger, marauder, and macho man. Although with some hesitation I join
the Majority Opinion herein because the prosecutor artfully tied his comments to the
record, his arguments were as close as I can conceive to reversible error, without
reaching that threshold. I suggest that prosecutors would be well-advised to avoid
comments such as these in the future.
Thus, while I ultimately agree with the Majority in its resolution of this issue, I
admonish prosecutors to curb their excesses and to try their cases on the evidence
against the defendant, rather than on criminality unconnected to the evidence in the
case. Moreover, prosecutors should avoid the gratuitous name-calling prevalent herein.
By continually testing the outer limits of oratorical flair, prosecutors may well cross the
line into prosecutorial misconduct and invite a reversal. This instance came perilously
close.
[J-79-2012] [M.O. - Todd, J.] - 4