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2005 Pa. Super. 295

882 A.2d 488

Commonwealth v. Parker

Superior Court of Pennsylvania

Decided August 18, 2005

Superior Court of Pennsylvania · decided 2005-08-18

Cited by 9 later decisions — most recently December 2014

9 state decisions

Relies on Commonwealth v. Gaitling · Commonwealth v. Begley

Good law ✅— No negative treatment on recordhow we know

Decided 2005-08-18

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OLSZEWSKI, J.,

¶1Concurring.

¶2¶ 1 Undoubtedly, the majority has reached the correct destination in this appeal; I must, however, disagree with the route it has taken to get there. Specifically, I cannot see how the display of the weapon during opening statements prejudiced appellant in any manner. I can thus only concur in the result.

¶3¶ 2 Here, the prosecutor chose to actually display the weapon during opening statements. Does that fact make this particular opening statement any different from one where the prosecution gives a verbal (but detailed) description of a weapon it will later introduce? Theoretically speaking, the answer is no: neither the weapon nor the description of the weapon is “evidence” at this point, and neither the weapon nor the description of the weapon is anything other than a reference to “facts that [the prosecutor] reasonably believes will be established at trial.” Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 626 (2001).

¶4¶3 Practically speaking, is there any difference? In cases such as this, where the weapon was later admitted into evidence and the jury was instructed to view opening statements as mere oratory, I am simply unable to see how a defendant can claim being “unfairly prejudiced” by a prosecutor’s decision to display the weapon *496during opening statements: the jury was going to see the weapon at some point, and the mere display during opening statements can only be considered allowable “oratorical flair.”

¶5¶ 4 The question of what to do had the weapon been inadmissible at trial is for another appeal. Suffice it to say, based upon the facts before us now, I believe that appellant was not prejudiced by the prosecution’s display of the weapon during opening statements: the weapon was later properly introduced as evidence and the judge specifically told the jury that the lawyers’ statements are just that, simply statements. Therefore, I concur in the result.

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