Commonwealth v. DeJesus
2004 Pa. LEXIS 2481, 860 A.2d 102, 580 Pa. 303 (2004)
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Rule of Law:
A prosecutor’s closing argument during the penalty phase of a capital trial that asks the jury to “send a message” with its verdict is prejudicial per se and requires a new sentencing hearing.
Facts:
- In the early morning hours of August 24, 1997, appellant approached David Sims in Philadelphia.
- Appellant heatedly questioned Sims about a stolen gun, to which Sims replied, “I’m sorry, I’m sorry.”
- Appellant punched Sims several times.
- As Sims recoiled, appellant pulled a handgun from under his shirt and shouted, “I’ll show you what sorry is.”
- Sims pleaded, “no please, please don’t, just please don’t” as appellant aimed the weapon.
- Appellant’s first attempt to fire the weapon failed.
- On a second attempt, appellant fired several rounds at Sims as he attempted to flee, fatally wounding him with eleven shots to his back, hip, thigh, and arms.
Procedural Posture:
- Appellant was tried before a jury in the Philadelphia County Court of Common Pleas, a court of first instance.
- The jury convicted appellant of first-degree murder and other related charges.
- At the penalty phase, the jury found two aggravating circumstances and two mitigating circumstances, and determined the aggravating circumstances outweighed the mitigating ones.
- The jury returned a verdict of death.
- The trial court formally imposed the sentence of death.
- Appellant filed a direct appeal of the death sentence to the Supreme Court of Pennsylvania, the state's highest court.
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Issue:
Does a prosecutor's penalty-phase closing argument urging the jury to “send a message” with its verdict constitute prejudicial error per se, requiring a new sentencing hearing?
Opinions:
Majority - Justice Castille
Yes. A prosecutor's penalty-phase closing argument urging the jury to “send a message” is prejudicial per se and requires a new sentencing hearing. The court's previous admonishments against such arguments have been ignored, and this type of rhetoric injects external, irrelevant considerations into the jury's deliberation, diverting them from their sworn duty to weigh only the specific statutory aggravating and mitigating circumstances. This argument is inherently prejudicial because it appeals to emotion rather than reflective judgment and invites the jury to base its life-or-death decision on a non-statutory factor, such as the general deterrence of crime. Similar to the per se ban on religious arguments established in Commonwealth v. Chambers, this Court now establishes a bright-line rule that such misconduct automatically warrants a new penalty hearing, as a curative instruction from the trial court cannot be trusted to remove the prejudice.
Concurring - Justice Eakin
Yes, the prosecutor's argument was improper and a new penalty hearing is warranted in this case, but the court should not adopt a per se rule. While agreeing that “send a message” arguments are improper, creating a rigid per se rule is unwise and goes against the modern legal trend of using a more flexible “totality of the circumstances” test to evaluate potential errors. A per se rule will inevitably lead to more litigation over what qualifies as a “message sending” argument and creates a host of potential complications. The existing jurisprudence is sufficient to handle such misconduct without resorting to a bright-line rule that may prove unworkable.
Analysis:
This decision establishes a new per se rule in Pennsylvania capital jurisprudence, making any prosecutorial argument in the penalty phase that asks the jury to “send a message” automatically reversible error. This elevates the prohibition from a strongly discouraged practice to a bright-line rule, similar to the court's ban on religious arguments in Commonwealth v. Chambers. The ruling puts prosecutors on strict notice that such rhetoric is off-limits and eliminates the need for case-by-case analysis of whether the comment was prejudicial enough to have affected the outcome. It significantly strengthens protections for capital defendants against inflammatory and extra-legal prosecutorial arguments during the critical sentencing phase.
