                            [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
