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HomeMy WebLinkAbout00-0141 criminalCOMMONWEALTH :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 00-0141 CRIMINAL :CHARGE: (1) INDECENT ASSAULT- .~,. ... (2) CORRUPTION OF MINORS STEVEN TROY COONS, SR.,: Defendant :AFFIANT: DET. RICHARD KILLINGER IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Before HOFFER, P.J. OPINION On May 9, 2000, defendant, Steven Troy Coons, Sr., was convicted, after a jury trial held May 8 and 9, 2000, of one count of indecent assault and one count of corruption of minors. In defendant's Concise Statement of Matters Complained of on Appeal, the defendant sets forth why he is entitled to a mistrial. Defendant claims that the Court erred in not granting defendant's motion for mistrial based upon the District Attorney's closing argument In her closing argument, the District Attorney stated the following: "Ladies and gentlemen, you should not believe these two young ladies because there is no evidence in this case. You should believe these two young ladies and believe they're credible because they are credible. You saw for yourself that they came up here and they testified and they told you the truth." (Notes to Testimony of Jury Trial held May 8 and 9, 2000, hereinafter N.T., p. 61). "These girls get put on trial. And they get everybody pointing fingers at them saying that they are lying, they are not telling the truth. These girls are back there crying as we speak because they probably just heard Mr. Adams stand up here and tell you all not to believe them." (N.T., p. 61). It is well-settled law that allegedly improper comments by a prosecutor must be examined within the context of defense counsel's conduct. Commonwealth v. Clayton, 516 Pa. 263, 284, 532 A.2d 385, 396-(19.87), ce.rt. denied, 485 U.S. 929, 108 S.Ct. 1098 (1988). In the present case, defense counsel stated in his closing argument to the jury that there was no evidence presented to them and the victims' allegations were not verified, thus implying to the jury that the statements made were false. Because of this, the prosecutor's comments were a fair response to defense counsel's argument. While it is improper for a prosecutor to express a personal belief or opinion as to the guilt of the defendant or the credibility of the defendant and other witnesses, Commonwealth v. Simmons, 541 Pa. 211, 247, 662 A.2d 621,639 (1995), such comments by the prosecutor will not constitute reversible error unless the unavoidable effect is to prejudice the jury so that they could not weigh the evidence and render a fair and impartial verdict. Commonwealth v. Anderson, 501 Pa. 275, 282,461 A.2d 208, 211 (1983). Here, the prosecutor did not imply that she had special knowledge or an innate ability to determine credibility based upon her position as a prosecutor. The prosecutor's comments were not an expression of her personal opinion as to the credibility of any one particular witness, but as a comment to the closing argument of opposing counsel's suggestions. Additionally the District Attorney stated in her closing argument: "1 am sure many of you have small children or had small children. And you know how difficult it would be for a child that age to make that kind of report and to sit up here and have to talk to a group of twelve strangers about things that most of us would be embarrassed to talk about..." (N.T., p. 64). -- -~- -.. A prosecutor is generally allowed to vigorously present and argue her case, as long as the comments are supported by evidence and contain inferences, which are reasonably derived from that evidence. See Commonwealth v. Kemp, 753 A.2d 1278, 1281 (Pa. 2000); citing Commonwealth v. La Cava, 542 Pa. 160,666 A.2d 221, 231 (1995); Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1109 (1988). Here, the victims were girls aged eleven and thirteen. An inference to be derived from this is that the girls are young and it would be difficult for them to talk about embarrassing things in front of strangers. Therefore, the challenged statements were fair comment with oratorical flair by the prosecutor based on the reasonable inferences drawn from the evidence. A fair reading of the transcript in its entirety shows that defendant is taking phrases out of context. No where in the above quoted material does it say nor imply that the District Attorney said that the jurors would not want their children to have the experience of the victims. Such a strained reading is not only inaccurate, but it also borders on violating an attorney's ethical requirements of candor to the tribunal. Another controverted statement was the following: "And I am not asking you to believe these girls simply because we said something happened. I am sure Detective Killinger would tell you he doesn't arrest - make an arrest every time somebody says something happens, until he feels that he has more probable cause that he is willing to sign a probable cause affidavit and vouch for that." (N.T., p. 67). Because the evidence was properly before the jury, the District Attqr..~ey was permitted to argue that the facts in evidence supported a connection between the evidence and defendant's guilt. A prosecutor does not commit misconduct by presenting relevant and admissible evidence. Kemp, 753 A.2d 1278, 1284 (Pa. 2000). The District Attorney merely stated that the police officer needed probable cause in order to sign his name to the document. With the last complained of statement, defendant has again misquoted the record. The actual statement was: "Eleven year olds, thirteen year olds do not come in and, if they lie there, as Mr. Adams said, they are flat. These girls are emotional. How many of us could just cry spontaneously when we decide to lie? I suspect not many. Especially not a child." (N.T., p. 68-69). The District Attorney did not state that the witness could not be lying because she cried on the stand. The statement goes to the girls' emotional state when making the statements. Again, the complained-of comments must be considered in the context of the entire summation. As such, the prosecutor's comments were an accurate summary of the testimony given by the witnesses. Prosecutorial remarks constitute reversible error only where the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. 4 Holloway, 524 Pa. 342, 572 A.2d 687 (1990). An examination of the entire context in which the District Attorney's statements were made leads the Court to conclude that it did not form a fixed bias nor hostility in the minc~ of-the jury towards defendant since there was other sufficient evidence presented at trial. It is well-settled law that attorney's statements or questions at trial are not evidence. See Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544, 562 (1990). The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984). We note that the jury was instructed following closing arguments that the jurors are the sole finders of facts from the evidence presented at trial, the sole judge of a witness's credibility, that they must resolve discrepancies, and that during deliberations, they must draw their own inferences guided by their own recollections. N.T., p. 75, 76, and 79. This charge cured any prejudice that might have occurred as the result of the prosecutor's closing arguments. It is within the discretion of the trial court to determine whether a defendant has been prejudiced by misconduct or impropriety to the extent that a mistrial is warranted. Commonwealth v. Gardner, 490 Pa. 421,426, 416 A.2d 1007, 1009 (1980). Moreover, a mistrial is only warranted where the incident upon which the motion is based is of such a nature as to deny the defendant a fair trial. Commonwealth v. Bracey, 541 Pa. 322,340-341,662 A.2d 1062, 1071 (1995). The focus of this Court's consideration of claims regarding the improper prosecutorial statements is to determine whether the defendant was deprived of a fair trial and not whether the defendant was deprived of a perfect triaJ. Holloway, 524 Pa. 342, 572 A.2d 687 (1990). The prosecutor's statements were a fair comment on the evidence presented and did not rise to the level of prejudice which would deprive defendant of a fair trial. Because the prosecutor was referring to facts in evidence, the statements were not improper and no relief is warranted.