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[J-2-2009] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : NEAL LAMONT PATTON, : : Appellant : :

No. 34 WAP 2008 Appeal from the Order of the Superior Court entered November 19, 2007 at No. 2130 WDA 2005, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered May 24, 2005 at No. CP-02-CR-0004832-2004. 936 A.2d 1170 (Pa. Super. 2007) ARGUED: March 2, 2009

OPINION

MR. JUSTICE EAKIN

DECIDED: DECEMBER 30, 2009

Appellant shot and killed his brother, Anthony, at a local bus stop. After fleeing to Cleveland, Ohio, he was arrested and returned to Pennsylvania. Loenell Howze, who was with Anthony at the bus stop, initially refused to assist the Commonwealth's investigation; he later explained his initial unwillingness to cooperate was a result of his upbringing. An investigating officer noted "there is a perception that talking to the police is bad" in Howze's neighborhood. N.T. Trial, 2/23/05, at 37. Several days after the shooting, Howze decided to cooperate with police. Howze noted his cousin killed two of his relatives after killing another person, and he believed if someone had cooperated in the investigation of the first killing, his cousin would not have

been able to kill the other relatives. Howze explained at trial this family tragedy inspired him to cooperate with police. The Commonwealth charged appellant with criminal homicide, but did not seek the death penalty. Appellant admitted he picked up the gun prior to going to the bus stop, which he knew Anthony frequented. A forensic pathologist testified the gun shot wound to Anthony's head was consistent with a victim lying on the ground, as Howze described. A criminalist examined the gun and testified it required at least six pounds of force to pull the trigger, making it unlikely the gun was accidentally discharged twice. Therefore, sufficient evidence supported the jury's first degree murder verdict. See Commonwealth v. Spotz, 756 A.2d 1139, 1148 (Pa. 2000) (where evidence of first degree murder was overwhelming, court refused to grant new trial); Commonwealth v. Dennis, 715 A.2d 404, 409 (Pa. 1998) (when evidence of guilt is such that there is no indication outcome of case would have been different absent error, no new trial is warranted). At appellant's jury trial, the prosecutor, in her closing argument, stated: Ladies and gentlemen, I'm asking you to find a verdict of guilty of murder in the first degree and send a message back that [Howze] did the right thing. The system works and it's right to come forward and tell what happened and the second message I want to send to [appellant] is to tell him he can't get away with murder. N.T. Trial, 2/25/05, at 107-08. Appellant objected, and the trial court agreed to give a curative instruction but failed to do so. The jury convicted appellant of first degree murder, and the trial court imposed the mandatory life sentence. The Superior Court affirmed the judgment of sentence. Commonwealth v. Patton, 936 A.2d 1170, 1178 (Pa. Super. 2007). Before the Superior Court, appellant argued the prosecutor's "send a message" arguments were per se prejudicial under Commonwealth v.

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DeJesus, 860 A.2d 102 (Pa. 2004), which held "penalty phase arguments requesting that the jury send a message with its verdict are prejudicial per se." Id., at 119. Noting DeJesus was a capital case, the Superior Court concluded DeJesus prohibited "send a message" arguments in support of the imposition of the death penalty, but concluded the DeJesus per se rule was inapplicable when the remark was not made in an effort to procure a death sentence. The court found the prosecutor's remark inappropriate, but in context found it was not egregious enough to deny appellant a fair trial. The court construed the remark as merely encouraging the jury to commend Howze for his cooperation with police, and not as an attempt to diminish the jury's objectivity. The court further held "the prosecutor's comment that the jury should send a message that `[[a]ppellant] can't get away with murder' was not reversible error." Patton, at 1175. We granted allowance of appeal to determine "[w]hether the per se rule of DeJesus applies in non-capital cases; if not, was the within request improper and prejudicial?" Commonwealth v. Patton, 952 A.2d 1166, 1166 (Pa. 2008) (table). This is a purely legal question; thus, our standard of review is de novo, and our scope of review is plenary. In re Milton Hershey School, 911 A.2d 1258, 1261 (Pa. 2006) (citations omitted). Appellant argues the DeJesus presumption of prejudice should be applied to all criminal proceedings. Appellant contends a per se rule is necessary to force prosecutors to abide by this Court's prohibition; appellant argues prosecutors make improper "send a message" arguments to secure a conviction, then hope the appellate court will conclude the improper argument was harmless error. Appellant admits there are differences between

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capital cases and non-capital cases,1 but asserts juries in non-capital cases are equally vulnerable to these emotional arguments. Appellant notes this case, where he shot his own brother, was especially emotional and contends "send a message" arguments destroy the ability of juries to objectively deliberate and weigh the evidence. Appellant further argues the prosecutor's remarks, even if not prejudicial per se, were prejudicial enough in this case to warrant a new trial. Appellant admits there is sufficient evidence to convict him of third degree murder; however, he contends the evidence supporting his first degree murder conviction is not overwhelming. Appellant, characterizing the remark as sending a message to a community of reluctant witnesses, submits the prosecutor's remark meant any verdict besides first degree murder would devalue cooperation with the police. The Commonwealth argues DeJesus should be limited to the penalty phase of capital cases. It contends the DeJesus per se rule is inextricably linked to a jury's balancing of aggravating and mitigating circumstances under Pennsylvania's death penalty statute, 42 Pa.C.S.

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