                             [J-28-2018] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 42 WAP 2017
                                                :
                      Appellee                  :   Appeal from the Order of the Superior
                                                :   Court entered on February 22, 2017,
                                                :   at No. 1037 WDA 2016 affirming the
               v.                               :   Order of the Court of Common Pleas
                                                :   of Beaver County entered June 16,
                                                :   2016 at No. CP-04-CR-0001902-2012
 JAVONN ERIC CLANCY,                            :
                                                :   SUBMITTED: March 5, 2018
                      Appellant                 :


                                  CONCURRING OPINION


JUSTICE DONOHUE                                     DECIDED: AUGUST 21, 2018

       In 1936, this Court roundly condemned a prosecutor’s reference to a criminal

defendant in closing argument as a “cold blooded killer.” Commonwealth v. Capalla, 185

A. 203, 205 (Pa. 1936). In so doing, we unambiguously ruled that while the prosecutor

had every right to argue that the evidence he had presented to the jury proved that the

defendant was guilty as charged, he had no right to stigmatize him by engaging in crass

name-calling. Id. We emphasized that “[t]he application of epithets to a defendant on

trial … has no legitimate place in a district attorney’s argument,” since a “closing argument

can be strong and convincing without them.” Id. at 206. Based upon the principles set

forth in Capalla, over time this Court repeatedly castigated prosecutors for stigmatizing

remarks directed at criminal defendants, including “hoodlums” and “animals,”

Commonwealth v. Lipscomb, 317 A.2d 205, 207 (Pa. 1974), the “leader of this pack of
murderers,” Commonwealth v. Joyner, 365 A.2d 1233, 1235 (Pa. 1976), and an

“executioner,” Commonwealth v. Anderson, 415 A.2d 887, 889 (Pa. 1980).

        Today, in sharp contrast, the learned Majority permits, and perhaps even

encourages, a prosecutor’s use of precisely the same epithet (“cold blooded killer”) that

we denounced in Capalla. According to the Majority, our law in this area has “evolved,”1

in two ways. Majority Op. at 28. First, the Majority contends that over time we have come

to “express greater recognition of the prosecutor’s right to advocate.”             Id. at 24.

Derogatory names are now permissible as “offense-centric statements,” and must be

permitted to allow a prosecutor, as a “zealous advocate,” to exercise greater “oratorical

flair.” Id. Second, the Majority insists that we have moved away from Capalla’s focus on

the content of the prosecutor’s remarks to a “two part” test that also requires an evaluation

of “the effect of the challenged remarks on the jury.” Id. This newfound focus on whether

the statements at issue were prejudicial, rather than on whether they were improper,

further expands a prosecutor’s permissible “right to advocate.” Id. at 21.

        I take issue with both of these contentions. With respect to the first, I disagree with

the Majority’s repeated references to prosecutors as “zealous advocates.” This Court has

emphasized that because prosecutors, unlike private attorneys, have the added

responsibility of a “minister of justice,” there are limits to the adversarial nature of their

conduct. See e.g., Commonwealth v. Eskridge, 604 A.2d 700, 701 (Pa. 1992) (holding

that the prosecutor “has the responsibility of a minister of justice and not simply that of an

advocate”); Commonwealth v. Briggs, 12 A.3d 291, 331 (Pa. 2011) (“[A] criminal

prosecutor ... unlike a private attorney, must exercise independent judgment in


1   What the Majority describes is a degeneration of the law, not an evolution.


                               [J-28-2018] [MO: Wecht, J.] - 2
prosecuting a case and ‘has the responsibility of a minister of justice and not simply that

of an advocate.”). As explained in the comment to Rule 3.8 of the Pennsylvania Rules of

Professional Conduct, the responsibility of a minister of justice “carries with it specific

obligations to see that the defendant is accorded procedural justice and that guilt is

decided upon the basis of sufficient evidence.” Pa.R.P.C. 3.8 (comment). It does not

appear that this Court has ever referred to prosecutors as “zealous advocates.”2 Even to

the extent that prosecutors may be characterized as “zealous advocates,” the use of

epithets is not zealous advocacy. At best, prosecutors resort to name-calling because

they are not sufficiently adept at persuasive argument. Capalla, 185 A. at 206 (“A closing

argument can be strong and convincing without them.”). At worst, prosecutors stigmatize

defendants to prejudice the jury.

      More importantly, I do not perceive any shift over time in a prosecutor’s ability to

advocate forcefully on behalf of the Commonwealth during closing argument. As early as

1901, this Court observed that upon determining that the accused is guilty of the crime

charged, the prosecutor should “lead [the jury] to [its] own judgment by pointing out to

them, intelligently and impartially, the evidence which cannot fairly justify any other


2 The Majority represents that in Commonwealth v. Starks, 387 A.2d 829 (Pa. 1978), this
Court, by way of reference to the ABA’s Criminal Justice Standards for the Prosecution
Function § 3-01.2(a) (“ABA Standards”), indicated that one of the roles of a prosecutor is
that of a “zealous advocate.” Starks, 387 A.2d at 331. Starks and the ABA Standards,
however, only refer to prosecutors as “advocates,” not as “zealous advocates.”
In further support of its contention that prosecutors are “zealous advocates,” the Majority
also cites to the preamble to the Rules of Professional Conduct, which provides that as
an advocate, a lawyer may “zealously assert the client’s position under the rules of the
adversary system.” Pa.R.P.C. Preamble [2]. This provision, however, describes the
functions of lawyers generally, not those of prosecutors. The relevant provision of the
Rules of Professional Conduct for prosecutors is Rule 3.8 (“Special Responsibilities of a
Prosecutor”), which does not contain any reference to “zealous” advocacy.


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conclusion.” Commonwealth v. Bubnis, 47 A. 748, 750 (Pa. 1901). Seventy-four years

later, in Commonwealth v. Cronin, 346 A.2d 59 (Pa. 1975), we indicated that “a district

attorney must have reasonable latitude in fairly presenting a case to the jury[.]” Id. at 62.

And four years ago, in Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), we explained

that prosecutors are “permitted to summarize the evidence, offer reasonable deductions

and inferences from the evidence, and utilize “oratorical flair[.]’” Id. at 975. Unlike the

Majority, I see no significant difference in the descriptions of a prosecutor’s latitude during

closing argument over time.          While more recent cases now typically reference a

prosecutor’s ability to engage in “oratorical flair,” I do not consider this to constitute any

significant expansion of a prosecutor’s basic function during closing argument or to permit

argument that this Court previously ruled was plainly improper. Moreover, “flair” is defined

as “a skill or instinctive ability to … make good use of something.” https://www.merriam-

webster.com/dictionary/flair. There is no skill or instinctive ability involved with name-

calling. Indeed, it is the antithesis of oratorical flair.

       I likewise disagree with the Majority’s insistence that this Court now permits “harsh

characterizations of the defendant” because, over time, we have placed an increased

emphasis on whether such remarks have the “unavoidable effect” of prejudicing the jury’s

ability to consider the evidence objectively.3 Majority Op. at 23. According to the Majority,

Capalla and its progeny (e.g., Lipscomb, Joyner, Anderson) focused solely on the content




3 While the Majority identifies Commonwealth v. Stoltzfus, 337 A.2d 873 (Pa. 1975) as
providing the sea change in this regard, the “unavoidable effect” test for prosecutorial
misconduct was first announced in our 1927 decision in Commonwealth v. Meyers, 139
A. 374 (Pa. 1927); see also Commonwealth v. Crittenton, 191 A. 358, 361 (Pa. 1937).


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of the prosecutor’s remarks and placed little or no emphasis on whether those remarks

resulted in “unavoidable prejudice” to the defendant. Id. at 17-18.

       Contrary to the Majority’s assertion, the Court in Capalla did in fact place an

emphasis on unavoidable prejudice. We cited to Commonwealth v. Ronello, 96 A. 828

(Pa. 1916), in which this Court held that a curative instruction by the trial judge after a

prosecutor advised the jury of his personal belief of the defendant’s guilt “was wholly

inadequate to the protections of the defendant rights,” and “could give no assurance that

the prejudice otherwise certain to result to the defendant had been averted.” Capalla,

185 A. at 205 (quoting Ronello, 96 A. at 829). We then indicated that “[t]here is very slight

difference in the character of the statement condemned by this court in [Ronello] and the

statement complained of in this case[.]” Id. Whether by calling the defendant a “cold

blooded killer,” as in Capalla, or by telling the jury that “[m]y own conviction is that [the

defendant] did that dastardly deed,” as in Ronello, the result is, in all but the rarest of

cases, the same – specifically, unavoidable prejudice to the defendant.

       While I disagree with its reasons, I must concede the result of the Majority’s

analysis -- that our more recent cases have largely abandoned the sound principles set

forth in Capalla.    As the Majority indicates, the law began its regrettable turn in

Commonwealth v. D’Amato, 526 A.2d 300 (Pa. 1987), where the prosecutor in closing

argument referred to the defendant as a “clever, calculating and cunning executioner.”

Id. at 313. The D’Amato Court chose to ignore our 1980 decision in Anderson, in which

we reversed, based upon careful adherence to Capalla, a jury’s verdict when the

prosecutor likewise referred to the defendant as an “executioner.” Anderson, 415 A.2d

at 889 (“Similarly [to Capalla], we here condemn the district attorney's application of the




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term “executioner” to Anderson. This term was equivalent to an expression of belief by

the district attorney that Anderson was guilty of murder of the first degree.”). In D’Amato,

breaking from our long tradition of faithfulness to Capalla, we instead ruled that calling

the defendant an “executioner” was, while “unfortunate,” not prejudicial because the

remark was in response to an argument by defense counsel that that the defendant was,

inter alia, “an uneducated and ignorant man who was duped” into making a confession.

D’Amato, 526 A.2d at 313. We so ruled without discussion of why we were departing

from continued obedience to Capalla’s foundational principles.

       Following D’Amato, we completed our abandonment of Capalla in Commonwealth

v. Chamberlain, 30 A.3d 381 (Pa. 2011).4 In closing argument in Chamberlain, the

prosecutor told the jury that during the trial, “we’ve been in the presence of a murderer.”

Id. at 406. He later asked the jury to “say to him what I say now, that when you rise you

will announce before God and this court and us that you, Terry Chamberlain, are guilty of

taking human lives. You’re guilty of murder. You are a murderer.” Id. (emphasis in

original). Viewing this name-calling “in context,” the Court accepted the trial court’s

argument that referring to the defendant as a “murderer” was entirely appropriate, since

it was not merely a “label” but rather an inference drawn from the evidence. Id. at 408.

According to the trial court, as adopted by this Court without further comment or




4  Unlike the Majority, I do not consider our decision in Commonwealth v. Hall, 701 A.2d
190 (Pa. 1997), to reflect any movement away from Capalla. In that case, the prosecutor
made an indirect reference to the appellant’s “cold heart.” Id. at 200. This was not an
instance of name-calling, but rather merely a summary of the evidence demonstrating
proof of legal malice – as “hardness of heart” has always been one description in the
definition of that term. See, e.g., Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017)
(citing Commonwealth v. Drum, 58 Pa. 9 (1868)).

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explanation, because the evidence showed that Chamberlain was guilty, “the prosecutor

did not advocate his personal belief of [Chamberlain’s] guilt.” Id.

       The precedential basis for our ruling in Chamberlain was not clear. We cited to,

inter alia, Capalla for the proposition that “a prosecutor may argue to the jury that the

evidence establishes the defendant’s guilt.” Id. (citing Capalla, 185 A. at 206). We then

cited to, inter alia, D’Amato for the proposition that “arguments from personal opinion as

to the guilt of the accused are not proper.” Id. (citing D’Amato, 526 A.2d at 309). These

two propositions of law, taken together, however, cannot support the Court’s adoption of

the trial court’s view that calling the defendant a “murderer” is acceptable prosecutorial

practice. In Capalla, the Court unambiguously explained that stigmatizing the defendant

through the use of epithets is, by definition, an expression of the prosecutor’s personal

belief in his or her guilt. Capalla, 185 A. at 205-06 (calling the defendant a “cold blooded

killer” was “equivalent to an expression of belief on the part of the district attorney that the

defendant was guilty of murder in the first degree”). As such, in attempting to understand

the Court’s rationale in Chamberlain, we must either conclude that “murderer” is not a

pejorative term, or that the core principles of Capalla were no longer worthy of application.

       Today the Majority makes clear that the laudatory core principles of Capalla are

no longer in vogue.5 This case is a lost opportunity for this Court to right the ship. Our


5 I cannot agree with the Majority’s contention that it is merely summarizing and applying
the law “as it exists today.” Majority Op. at 26-27 n.17. I likewise cannot agree with the
Majority’s decision to condone (indeed, approve of) the prosecutor’s bad behavior here
on the highly questionable ground that Clancy’s counsel’s failure to object is excused
because he could not be expected to “predict future developments or changes in the law.”
Id. (citing Commonwealth v. Spotz, 896 A.2d 1191, 1246 (Pa. 2006)).
Until today, despite our unfortunate decisions in D’Amato and Chamberlain, Capalla
remained good law in this Commonwealth, and it required no predictions of future



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cases since D’Amato have drawn conclusions without clearly elucidating the reasons for

departure from requiring epithet-free closing arguments by prosecutors.           Instead of

reestablishing the predominance of the prosecutor’s position as a minister of justice, the

Majority provides an apologia for our jurisprudence’s departure from that emphasis.

       In my view, this Court’s rejection of Capalla is most unfortunate for several

reasons. The personal opinions of prosecutors, expressed in epithets hurled at criminal

defendants, are neither evidence that the jury may consider in reaching its verdict nor

reasonable inferences from the evidence of record.6 The ABA Standards with respect to

the closing arguments of prosecutors, adopted by this Court in Cronin, 346 A.2d at 62,

instruct that prosecutors should summarize the evidence of guilt and may argue all

reasonable inferences from this evidence. ABA Standards § 3-6.8(a). At the same time,

the ABA Standards expressly forbid prosecutors from making arguments “in terms of

counsel’s personal opinion” or which are “calculated to appeal to improper prejudices of



developments or changes in the law for a prosecutor to know that stigmatizing a
defendant by calling him a “cold blooded killer” was not permitted. When the prosecutor
in this case called Clancy a “cold blooded killer,” Capalla expressly and emphatically
forbade the use of precisely this epithet. Even in Chamberlain, we cited to Capalla with
approval. It is today’s decision that, for the first time, overrules Capalla, freeing
prosecutors to call defendants “cold blooded killers” in their closing arguments in this and
future cases.
6 One federal court has cogently explained that name-calling results in an especially
pernicious form of prejudice:
              This type of shorthand characterization of an accused, not
              based on evidence, is especially likely to stick in the minds of
              the jury and influence its deliberations. Out of the usual welter
              of grey facts it starkly rises – succinct, pithy, colorful, and
              expressed in a sharp break with the decorum which the citizen
              expects from the representative of his government.

Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969)


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the trial of fact.” Id., § 3-6.8(b), (c). There is a world of difference between a prosecutor

summarizing the evidence presented at trial and arguing that it fairly demonstrates that

the defendant killed in cold blood (i.e., with malice), as opposed to calling the defendant

a “cold blooded killer.” The former constitutes an argument based upon reasonable

inferences from the evidence presented; the latter constitutes the prosecutor’s personal

opinion, which this Court has always considered to be well “beyond the scope of fair play.”

See, e.g., Commonwealth v. Lark, 333 A.2d 786, 789 (Pa. 1975); Lipscomb, 317 A.2d at

207; Cronin, 346 A.2d at 61.

       The use of epithets is, of course, “beyond the scope of fair play” because it is highly

prejudicial to the defendant’s right to a fair trial. The personal opinions of a prosecutor

may well take on overarching significance to the jury, as he or she is a representative of

the Commonwealth (and, indeed, of the people of the Commonwealth).                  When a

prosecutor resorts to name-calling, he or she abandons the role of a minister of justice

with its concomitant obligation to see that justice is not compromised in an effort to obtain

convictions. See, e.g., Commonwealth v. Collins, 341 A.2d 492, 493-94 (Pa. 1975);

Commonwealth v. Revty, 295 A.2d 300, 302 (Pa. 1972). The only reason for a prosecutor

to engage in name-calling, as opposed to presenting a reasoned summary of the

accumulated evidence of guilt, is to obtain convictions at any cost. Capalla’s prohibition

against permitting a prosecutor to stigmatize a defendant should apply equally today as

it did in 1936. To “stigmatize” a person is to describe them as “worthy of disgrace or great

disapproval.” https://en.oxforddictionaries.com/definition/stigmatize. It is no part of a

prosecutor’s function to obtain convictions by belittling the defendants he or she




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prosecutes, rather than maintaining a single-minded focus on the evidence proving his or

her guilt.

       This Court has made clear that “the prosecuting attorney enjoys an office of

unusual responsibility, and that his trial conduct should never be vindictive or attempt in

any manner to influence the jury by arousing their prejudices.’” Starks, 387 A.2d at 381

(quoting Commonwealth v. Toney, 266 A.2d 732, 736 (Pa. 1970)). This Court has always

emphatically rejected the notion that prosecutors may appeal to the fears or base

prejudices of the jury, and in so doing prejudice the jury function by “forming in their minds

fixed bias and hostility toward the defendant, so that they could not weigh the evidence

and render a true verdict.” See, e.g., Commonwealth v. Simon, 248 A.2d 289, 292 (Pa.

1968). The prosecutor in this case concluded his closing argument by announcing to the

jury, “That’s a dangerous man. That is a cold blooded killer.” N.T., 4/12/2013, at 48.

Without any question, these references to Clancy constituted a naked appeal to the “fears

or base prejudices” of the members of the empaneled jury.

       In my view, the prosecutor’s accusation that Clancy is a “dangerous man” and a

“cold blooded killer” was also prejudicial in another way.           These terms are not

appropriately limited in the scope of their reference, as they suggest not merely that

Clancy killed the victim in this case, but rather that he is the type of person who is capable

of killing more generally, and without remorse or feeling. An “epithet” is a term that

“expresses a quality or attribute regarded as characteristic of the person or thing

mentioned.” https://en.oxforddictionaries.com/definition/epithet. In other words, name-

calling constitutes a statement of personal opinion by the prosecutor on the character of

the defendant – in this case, a statement on Clancy’s propensity for dangerousness and




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violence.   By effectively overruling Capalla, the Majority allows prosecutors to

surreptitiously introduce propensity evidence in contravention of Pa.R.E. 404, and to do

so without the introduction of any character evidence at trial.

       Perhaps it is true that when this Court decided Capalla in 1936, public discourse

was more genteel than the crassness routinely encountered today. Such does not,

however, provide any reason why we should abandon the reasonable and sound

principles for the behavior of prosecutors we adopted in Capalla. To the contrary, it

constitutes good reason for demanding greater adherence to these principles – to keep

today’s baseness and crassness out of our courtrooms, allowing juries to decide cases

based solely upon the evidence. We should expect more from prosecutors, not less.

Because the Majority plainly does not, I cannot join its decision.7




7 According, I concur only in the result reached by the Majority, namely its affirmance of
the Superior Court’s determination that Clancy has not established a claim of ineffective
assistance of counsel. At the evidentiary hearing on Clancy’s PCRA petition, PCRA
counsel testified that he intentionally did not object to the prosecutor’s name-calling
because, in his view, it made the prosecutor come across as “combative or dislikable [sic]
and almost desperate at times, because … some of the things that you just referenced
weren’t supported by the facts, and I felt that he was hanging onto calling him names,
referencing how he’s a killer.” N.T., 2/26/2016, at 56-57. Based upon this unrebutted
testimony, Clancy failed to satisfy the second required element for an ineffectiveness
claim – that “counsel had no reasonable strategic basis for his action or inaction.” See,
e.g., Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).


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