Prosecutor’s Closing Argument Characterizations of Murder Defendant

Com. v. Clancy, 2017 WL 696836 (unreported), allocatur granted September 11, 2017, 42 WAP 2017

Background: 

In his Post Conviction Relief Act (PCRA) petition, petitioner raised numerous claims including that the district attorney’s characterization of defendant in closing argument of murder trial as a “cold blooded killer” and a “dangerous man” constituted prosecutorial misconduct because it was an expression of the prosecutor’s personal belief, in violation of the rule in Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936).

Rejecting petitioner’s argument, Superior Court quoted at length from and adopted the PCRA’s court’s reasoning that the Capalla ruling had essentially been superseded by more recent Supreme Court cases that treated such rhetoric as “oratorical flare” that is permissible:

[Appellant] cites…[Commonwealth] v. Capalla, 322 Pa. 200, 204, 185 A. 203, 205 (1936), in which the Pennsylvania Supreme Court held that it was reversible misconduct for a prosecutor to refer to the [d]efendant as a “cold blooded killer.” This [c]ourt has devoted substantial research to this issue, and has determined that the last time this case was cited in a published decision was in 1991, [Commonwealth] v. MacBride, …587 A.2d 792, 796-97 ([Pa.Super.] 1991),[appeal denied, 529 Pa. 618, 600 A.2d 534 (1991)]…. The last time it was cited by the Pennsylvania Supreme Court was in 1987, [Commonwealth] v. White, 515 Pa. 348, 352-53, 328 A.2d 596, 598-99 (1987)…. Thus, Capalla has not been cited once for twenty-five years, and not with reference to calling a defendant a “cold blooded killer” in over thirty years.

More recent precedent, particularly [Com. v. ]Hall [549 Pa. 269, 287, 701 A.2d 190, 199 (1997)[, cert. denied, 532 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998)]] and [Com. v] Chamberlain [612 Pa. 107, 153, 30 A.3d 381 408 (2011)[, cert. denied, ___ U.S. ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012)], …indicates that…referring to a defendant in a murder trial as a “murderer” or “killer,” or a killing as “cold blooded,” may be regarded as oratorical flare where there is sufficient evidence to support the allegations that the defendant killed the victim in the case. The context in this case should be particularly noted. The sole issue presented to the jury was whether [Appellant] was guilty of voluntary manslaughter due to provocation or murder of the first degree. [Appellant]’s trial counsel argued strenuously and repeatedly that [Appellant] could only be found guilty only of voluntary manslaughter. In this  context, the prosecutor’s reference to a “cold blooded” killing could well be regarded by the lay person and jury member as argument that the killing was not due to provocation but rather a “willful, deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502; Merriam-Webster, Merriam-Webster’s Collegiate Dictionary, 224 (10th ed. 1995) (defining “in cold blood” as “with premeditation: DELIBERATELY”).

….

Thus, based upon the more recent precedent, the plain meaning of the prosecutor’s words, and the context of the Commonwealth’s argument, the [c]ourt finds nothing objectionable in these statements which [Appellant] complains of.

The Supreme Court has granted allocatur on the issues, rephrased as follows:

(1) Where, in closing argument, the district attorney characterized the Petitioner as a “cold blooded killer” and a “dangerous man,” did the district attorney violate the ruling of this Court announced in Commonwealth v. Capalla, 185 A. 203, 205 (Pa. 1936)?

(2) Were the district attorney’s characterizations of the Petitioner during closing argument permissible oratorical emphasis consistent with Pennsylvania Rules of Professional Conduct 3.4(c) and ABA Standards for Criminal Justice 3-5.8?

For more information, contact Kevin McKeon or Dennis Whitaker