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Commonwealth v. Ogrod12/30/2003
dict." Id. This standard permits us to grant a new trial based on the comments of a prosecutor only if the unavoidable effect of the comments prevented the jury from considering the evidence. A prosecutor must have "reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor." Commonwealth v. Brown, 711 A.2d 444, 454 (Pa. 1998).
In the instant case, the prosecutor asked the jurors to ask themselves why it was that Appellant confessed to the police, and she asked them about his admission to his mother, as told by Mr. Banachowski. To make sure that the jury did not believe that Appellant made no statement about his mother the prosecutor questioned how it was, if Appellant did not tell his mother that he killed Barbara Jean, that his mother suspected him. All these questions were appropriate. However, the prosecutor acted inappropriately by posing some of the answers to the question of why his mother suspected him if he had not told her and suggesting that the answer might be that he liked child pornography when she had been directed not to discuss that. Defense counsel correctly objected and the trial court correctly sustained the objection. N.T. 10/7/96 at 61. The trial court also cautioned the jury that the closing statements were not evidence and that they should guide the jury only "insofar as they are supported by the evidence and appeal to [the jury's] reason and judgment." Id. at 72. Although the comments of the prosecutor were inappropriate, they did not rise to the level that would have the "inevitable effect . . . prevent[ing the jury] from properly weighing the evidence and rendering a true verdict." Jones, 683 A.2d at 1199. Therefore, we decline to grant Appellant a new trial and reject his claims of ineffectiveness of trial counsel with regard to the comments of the prosecutor.
Photographs
Appellant next contends that, during trial, the prosecutor improperly presented photographs that depicted children's clothing and stuffed animals in an attempt to evoke passion and emotion against Appellant. The Commonwealth responds that it introduced fifty-six photographs at trial and that Appellant fails to: (1) identify which ones were allegedly improper; or (2) cite to the portion of the record where the contested photographs were introduced.
As we stated in the previous section, Pennsylvania Rules of Appellate Procedure 2119(c) and 2132 require an Appellant who makes an argument based on the record to provide "immediately" a reference to the page within "the record where the matter referred to appears." Pa.R.A.P. 2119(c). Again, Appellant has failed to reference the portion of the record where the prosecution presented the photographs he claims are offending, nor does Appellant provide copies of the photographs or state whether his attorney objected to them. Obviously, it is difficult to review such an amorphous claim.
However, we do understand that Appellant asserts that the unidentified pictures that depicted children's clothing and stuffed-animals were irrelevant and inflamed the passions of the jury against him. Relevance as well as the admissibility of photographic material are matters trusted to the sound discretion of the trial court. Commonwealth v. Baez, 720 A.2d 711, 726 (Pa. 1998), cert. denied, 528 U.S. 827 (1999). Because Appellant has failed to identify the photographs, we are not inclined to replace our judgment with that of the trial court. Moreover, even if the trial court's relevance decision was in error, any prejudice Appellant may have suffered was de minimis and was insignificant compared to the evidence of guilt. Commonwealth v. Moore, 633 A.2d 1119, 112
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