Commonwealth v. Chandler

¶1Dissenting Opinion by

¶2Appellant contends that certain remarks made by the district attorney during his closing argument were improper, thereby requiring a reversal of his conviction.1

¶3Sometime in August of 1972, Ernest Fullerton, an undercover narcotics agent for the Pennsylvania Department of Justice, met Walter Kerrigan in Pittsburgh. The agent was attempting to infiltrate Kerrigan’s circle of friends who, the agent believed, were engaged in. the sale of heroin. Kerrigan told the agent that he had no drugs for sale, but that he had a friend who was selling heroin in Washington County.

¶4On August 14, 1972, Kerrigan introduced the agent to appellant for purposes of consummating a drug deal. Fullerton offered appellant $100.00. Appellant demanded that the money be handed to Kerrigan. Kerrigan and appellant entered appellant’s automobile where they exchanged the money. Appellant returned with the heroin.

¶5*28Thereafter, on three separate occasions, appellant, Kerrigan, and the agent met and consummated drug transactions. On August 15, and August 23, appellant sold the agent $100.00 worth of heroin, again using a conduit to transfer possession of the drugs. At trial, the agent explained a dealer’s hesitance to deal directly with a buyer: "... a dealer will not hand the heroin directly to you or will cause this subterfuge, where somebody else will be involved. Undercover agents have been known for the past 5 or 6 years now to be infiltrating drug dealers and in order to make it difficult and if they don’t for sure know you or know who you are, they will in turn use other people to hand the heroin to you or to take the money. Someone else will take the money from you.”

¶6The final transaction also occurred on August 23. Agent Fullerton attempted to force appellant to deal directly with him. “Mr. Kerrigan walked directly to me and tried to hand the alleged heroin, the packets to me. At this time I feigned anger with Mr. Chandler and I refused to accept it from Mr. Kerrigan. Mr. Kerrigan went back to Mr. Chandler to tell him this. Mr. Chandler approached me and I said to him ‘Don’t you trust me?’ I said ‘Everybody takes turns handing the junk, or heroin to me’. Chandler then stated to me, ‘You want to make money, don’t you? Does it matter who hands it to you?’ At this point I had to state no, and accepted the heroin from Mr. Kerrigan.”

¶7On November 10, 1972, Agent Fullerton swore out four criminal complaints against appellant. In February, 1973, the Washington County Grand Jury returned a true bill of indictment against appellant charging him in four counts with violation of §780-113(300 of The Controlled Substance, Drug, Device and Cosmetic Act.2 On February 7, 1974, appellant was found guilty as charged *29by a jury. Post-trial motions were denied on August 6, 1974. On September 11, 1974, appellant was sentenced to pay cost of prosecution and a fine of $350.00 and to undergo a term of imprisonment of four to ten years. Appeal was taken from that judgment of sentence.

¶8After the defense closed, appellant’s counsel requested that closing arguments be recorded. During the course of his summation, the district attorney made the following statements which were objected to by appellant’s counsel, but which were permitted by the trial court: “It’s not easy to investigate or to convict [a person of the sale of heroin] and I might say this — I have been proud to be associated with Mr. Fullerton and I think it’s fair for you to reach a similar conclusion based on his demeanor in this Court Room, the way he performed in Court.” Towards the end of his argument, the district attorney stated: “Fullerton is a busy agent, involved in over 100 arrests throughout the Commonwealth within a two year period. You can believe that maybe he fabricated this but I don’t think so and I don’t think the facts indicate it. The defendant places himself at the scene of each one of these buys that Agent Fullerton testified to.”

¶9Appellant contends that the district attorney’s comments were improper because he interjected his personal view of the witness’s credibility into the case.

¶10We noted recently that “[i]t is clearly unethical for a prosecutor to assert his personal opinion as to the credibility of a witness. Commonwealth v. Potter, 445 Pa. 284, 285 A. 2d 492 (1971). . . . Absent an immediate curative instruction and adequate charge, such comment may be reversible error.” Commonwealth v. Pfaff, 233 Pa. Superior Ct. 153, 335 A. 2d 751 (1975) (footnote omitted). We stated, further, however, that the ABA Standards which are cited as the standard of proper prosecutorial conduct are “standards of conduct, not legal principles. A violation of the Code is not per se reversible error. Commonwealth v. McNeal, 456 Pa. 394, 319 A. 2d *30669 (1974).” Pfaff, supra at 160-161, 335 A. 2d at 755 (footnote omitted). Initially, we have no doubt that judged .by the ABA Standards the district attorney’s comments were improper: “It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence ... of the defendant.” ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution and Defense Function §5.8 (b) (Approved Draft 1970). The ABA Code of Professional Responsibility provides:“.... a lawyer shall not ... (4) Assert his personal opinion ... as to the credibility of a witness . . . .” ABA Special Committee on Evaluation of Ethical Standards, Code of Professional Responsibility, DR 7-106 (C) (4) (1969).

¶11In Pfaff, we considered situations in which the Supreme Court has reversed a conviction because of prosecutorial misconduct: “. . . one, where the prosecutor brands the appellant with epithets depicting him as vicious or criminal in nature, thereby arousing the jury’s passions and prejudices, . . .; two, where the prosecutor comments from personal knowledge ... on the guilt or innocence of the accused, thereby implying the existence of some special or additional information not before the jury, . . .; three, where the prosecutor’s comments are not a fair statement of the evidence in the case, thereby misleading the jury and usurping its function.” 233 Pa. Superior Ct. at 161, 335 A. 2d at 755.

¶12In the instant case, the jury heard two versions of the same incidents. The appellant did not deny being present during the alleged drug sales; he denied his involvement in those illegal transactions. Thus, the only issue for resolution by the jury was which witness to believe. The district attorney’s comment that “I have been proud to be associated with Mr. Fullerton . . not only bolstered the agent’s credibility, but also by fair implication could have led the jury to believe that the *31district attorney was by this association privy to information or knowledge not before the court. As stated in Commonwealth v. Russell, 456 Pa. 559, 565, 322 A. 2d 127, 130 (1974): “[wjhere the ultimate issues in the case rest upon a resolution of such conflicting testimony as the jury was faced with instantly, we have no alternative but to hold this is reversible error.”

¶13Judgment of sentence should be reversed and a new trial granted.

¶14Price and Spaeth, JJ., join in this dissenting opinion.