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Commonwealth v. Ogrod12/30/2003
cause of the murder, the victim would not be able to be with his children or his family. Id. In Ligons, the prosecutor stated:
What you heard today revolved around one person, the defendant. You heard nothing about Clarence Johnson [the victim] today but you must remember that that this case really is about Clarence Johnson and the fact that he did not have opportunities to be with his family, to be with his children, to be with his wife, mother, brothers, sister, after this incident. Id.
In this case, Appellant also presented detailed evidence about how difficult his life was. He did not say he was sorry for what the family of Barbara Jean went through. At the close of her statement to the jury at the end of the penalty phase, the prosecutor noted that the killing of Barbara Jean harmed more than just the victim; it hurt her family and her community. Specifically, the prosecutor stated:
We submit to you, Ladies and Gentlemen, that this man deserves the ultimate penalty. Not because we do not like him, but because of the kind of person he is, just the kind of person his mom . . . saw in him so many years ago when he was 11, when she tried to have him hospitalized because she thought he might kill her.
Well, he did kill. It wasn't the mother, but he did kill, and he killed not just Barbara Jean, but her entire family and the entire community.
N.T. 10/9/96 at 87. "A prosecutor is permitted wide latitude in making arguments to the jury." Commonwealth v. Marshall, 633 A.2d 1100, 1107 (Pa. 1993). " hile a closing argument must be based upon evidence in the record or reasonable inferences therefrom, a prosecutor is permitted to respond to defense evidence and engage in oratorical flair. Indeed, greater latitude in presenting argument is afforded during a penalty phase, as the presumption of innocence is no longer applicable." Ligons, 773 A.2d at 1238 (quotations and citations omitted). The brief comments of the prosecutor in this case were made in response to the attempts of Appellant to make the jury feel sympathy for him, and did not prevent the jury from weighing the evidence and rendering a true verdict. Id. Accordingly, the comments of the prosecutor do not entitle Appellant to a new sentencing hearing.
Appellant also claims that his attorney was ineffective for failing to object to the statements of the prosecutor during her closing. To rebut the presumption that counsel is effective, a defendant must demonstrate: "(1) that the underlying claim is of arguable merit; (2) that counsel's performance was unreasonable; and, (3) that counsel's ineffectiveness prejudiced ." Commonwealth v. Edmiston, 634 A.2d 1078, 1092 (Pa. 1993). Because we have determined that the claims of Appellant lack merit and would not have altered the result of the penalty hearing, the ineffective assistance of counsel claim must also fail.
Age of the Victim Was Not an Aggravating Circumstance
Appellant asserts that the prosecution argued that the jury should consider the age of the victim as an aggravator. Brief of Appellant at 34-36, 52-55. Although the prosecution requested that the trial court allow it to prove the age aggravator, the court denied the request and the Commonwealth proceeded with only one aggravator: that the killing occurred during the commission of a felony. Both the prosecution and Appellant referred to the facts of the case. The jury convicted Appellant of the killing a four-year-old girl. It would be inappropriate to prohibit the prosecution from stating that fact. Because the court prohibited the use of the age aggravator, which it determined was not yet in effect, and the prosecution did not seek to prove the aggravat
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