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Commonwealth v. Ogrod12/30/2003
was handing out circulars on the date of the murder, Appellant's attorney timely objected and the court sustained the objection before Appellant answered. Id. at 74. Appellant suffered no prejudice there.
Appellant argues that many of the statements of the prosecutor in closing were attempts to prove non-statutory aggravators. We disagree. None of the statements demonstrate that the prosecutor sought to prove non-statutory aggravators and, thus, Appellant is not entitled to a new sentencing hearing. It is also clear from the record that the Commonwealth only sought to prove one aggravator, that the murder was committed during the commission of a felony, and the trial court only charged the jury with that aggravator. N.T. 10/9/96 at 98. The prosecutor did not seek to prove that Appellant tortured the victim as an aggravator; she merely described the act of repeatedly hitting a child on the head with a metal object, as torture. This comment falls within the rhetorical latitude afforded to prosecutors. This statement does not rise to the level of attempting to prove an aggravator or prosecutorial misconduct.
The prosecution is entitled to discuss the evidence Appellant has presented to the jury and to comment fairly on it. Commonwealth v. Marshall, 633 A.3d 1100 (Pa. 1993). The following statements Appellant complains of were fair comments on the testimony Appellant and his witnesses presented during the penalty hearing because Appellant did present testimony consistent with the statements of the prosecutor that: the mother of Appellant was afraid of him (N.T. 10/9/96 at 20); other prisoners don't like Appellant (Id. at 61); the mother of Appellant tried to have Appellant put away years ago because she was afraid he might try to kill her (Id. at 17, 20); he did not get along with his neighbor (Id. at 70); he did not get along with his roommate (Id. at 43, 71); he didn't like his dog (Id. at 44); and, from the time he was little he fought (Id. at 18, 47-48, 66-67).
Appellant presented testimony designed to gain sympathy with the jury. The prosecution responded by pointing out that Appellant did not apologize and cited to the facts of the case that included evidence that Appellant was not remorseful at the time of the crime because he returned home and masturbated. Despite the fact that this statement was somewhat inflammatory, it accurately described the facts of the case and the prosecutor was entitled to refer to them. Commonwealth v. Abu-Jamal, 555 A.2d at 858.
Appellant also argues that the prosecutor committed misconduct by stating that the jury should not think more of Appellant than the people in jail, whom Appellant indicated thought he occupied the lowest rung in the prison hierarchy because of the nature of his crime. Appellant also objects to the following statement of the prosecutor that responded to the argument of Appellant that life in prison would be hell for him: "if he doesn't like the life in prison, then maybe he shouldn't have committed the crime. If he doesn't like life in prison, well, we can take care of that and he won't have to do it." N.T. 10/9/96 at 85-86. While the statements are hardly dispassionate ones, we have repeatedly stated that a prosecutor is entitled to engage in rhetorical flair and "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). The conduct of the prosecutor falls within the "reasonable latitude" that is accorded prosecutors in making their closing arguments and clearly does not have "the unavoidable effect . . . . . . prejudic the jury, . . . prevent them from properly weighi
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