Commonwealth v. Barren

LIPEZ, Judge,

concurring:

This ease presents the all too oft-recurring situation of a carefully tried case foundering because of the prosecuting attorney’s excessive zeal in his closing address to the jury. I agree that he overstepped the permissible bounds of forceful advocacy, as Judge Wieand’s able opinion demonstrates, and that appellant is entitled to a new trial. I should like however to offer a number of observations and suggestions which in my judgment would minimize the resultant prejudice from such improper remarks.

It is apparent that the adversary process in criminal trials,. when left to the actions and judgment of trial counsel alone is not sufficient to protect the rights of both society and defendants.¹ Time and again we see the sorry spectacle of the failure of defense counsel to object to improper remarks of the prosecuting attorney, which failure, though waived on direct appeal, finally comes back to haunt us on ineffectiveness of counsel contentions.

The trial judge, in jury cases, “is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321, 1324 (1932). See also Commonwealth v. Claiborne, 175 Pa.Super.Ct. 42, 50, 102 A.2d 900 (1953). 75 Am.Jur.2d Trial S.87. It has long been recognized in this Commonwealth that the trial judge not only has the power, but in proper cases the duty as well to “supervise the addresses of counsel so far as may be necessary to protect prisoners or parties litigant from injurious misrepresentations and unfair attack, and the jury from being misled. When this power should be exercised must be left to the sound discretion of the judge, and he should not hesitate to act where the fair administration of justice requires him to do so.” Commonwealth v. Mudgett, 174 Pa. 211, 257, 34 A. 588 (1896). “The trial judge may, and should, confine arguments within the limitations of legitimate advocacy.” Commonwealth v. Ross, 190 Pa.Super. 145, 154, 152 A.2d 778 (1959). Commonwealth v. Phillips, 183 Pa.Super. 377, 385, 132 A.2d 733 (1957). See also Sadler, Criminal Procedure in Pennsylvania, 2d Ed. § 561, 562, 563. He should in my judgment take an active role in the trial process where the circumstances warrant it; and, when it is apparent to him that the remarks of counsel are improper or bordering on the improper, should sua sponte call counsel to side bar, caution him or her against the line of argument being pursued, and where necessary, give appropriate cautionary instructions.

I hope also that our Supreme Court, in the exercise of its supervisory powers, would restore once again the longstanding practice which prevailed prior to Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287² (1976), requiring objection to be made as soon as the objectional language is used regardless of whether or not the closing argument is recorded. I think the prior rule has at least two important advantages: (1) It not only gives prompt warning to the court and opposing counsel of the improper argument, but serves as a reminder to counsel to desist from further argument along such lines, and (2) enables the trial judge to give immediate cautionary instruction before the objectionable argument becomes firmly implanted in the jury’s mind.³

And finally I venture to suggest that since the proposed procedure is within the Supreme Court’s rule making powers, that the Criminal Procedural Rules Committee fashion and the Court adopt an appropriate Rule mandating immediate objection.

1 . A.B.A. Standards for Criminal Justice, The Function of the Trial Judge 1.1 General Responsibility of the trial judge:

“(a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.”

2 . In Adkins, the Supreme Court ruled that where the closing address was recorded, it was unnecessary to make objections during argument.

3 . In Commonwealth v. Wilcox, 112 Pa.Super. 240, p. 250, 170 A. 455 (1934), Judge Keller, one of the great judges of this Commonwealth speaking for this court cogently pointed out:

“In a long extended trial, especially, it is only fair to the court and jury, no less than to the district attorney, that if the latter’s, remarks to the jury be deemed objectionable exception be taken to them at once, so that the court may immediately instruct the jury to disregard them, if the matter is not so objectionable as to require the withdrawal of a juror, and warn the speaker to be more careful in the future, restricting himself to fair discussion of the evidence, the inferences reasonably to be drawn therefrom and fair and restrained argument to the jury based thereon. Otherwise in the ardency sometimes incident to the trial of a hotly contested case, and in reply to counsel who have forcefully and enthusiastically presented the defendant’s case in perhaps a more favorable light than it deserved, the Commonwealth’s officer may not be aware that what he is saying is objectionable to the defendant, and thus go on repeating and adding to what would have been eliminated if the defendant’s counsel had promptly and at once voiced his objection.”