fair response defense in Pennsylvania

2024See Commonwealth v. Turner, 454 A.2d 537, 539-540 (Pa. 1982) (“Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related [his version of events] to the police at the time of arrest when in fact he remained silent”); Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (“[W]here a prosecutor’s reference to a defendant’s silence is a fair response to a claim - 19 - J-A26021-23 made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination”)

2022This includes making “a fair response to a claim made by defendant or his counsel at trial.” E.g., Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998).

2015Our Supreme Court has acknowledged that, “where a prosecutor's reference to a defendant's silence is a fair response to a claim made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination.” Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (citing United States v. Robinson, 485 U.S. 25, 32 (1988)).

2015(W)here as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege [against compulsory self-incriniinauon]." Id. at 32 . 3 Appellant's opening statement included the following: I take it a step further, I said please put the cop on, put the cop n (sic).

2024See Judy, supra. Contrary to Appellant’s assertion, the ADA’s comments were not improper personal opinions.

2024See Smith, 995 A.2d at 1162 ; Judy, 978 A.2d at 1020 .

2013See Trial Court Opinion at 10; Hutchinson, 25 A.3d at 307 (“[T]he prosecution must be permitted to respond to defense counsel’s arguments.”); Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102, 1109 (1996) (concluding that a prosecutor’s comments during closing argument concerning the possibility of commutation were “a fair response to defense counsel’s anticipated argument that a life sentence meant that [the] appellant would spend his entire life in prison”). 16 The trial court did not abuse its discretion in refusing to grant a mistrial.

2013See Trial Court Opinion at 10; Hutchinson, 25 A.3d at 307 (“[T]he prosecution must be permitted to respond to defense counsel’s arguments.”); Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102, 1109 (1996) (concluding that a prosecutor’s comments during closing argument concerning the possibility of commutation were “a fair response to defense counsel’s anticipated argument that a life sentence meant that [the] appellant would spend his entire life in prison”). 16 The trial court did not abuse its discretion in refusing to grant a mistrial.

2015Ohio, 438 U.S. 586 (1978) (holding that where defense counsel informed the jury during opening argument and during the defense case in chief that the defendant would testify, and where defendant did not testify, and where the prosecutor remarked in his closing argument that the evidence was uncontradicted, the prosecutor's comments, taken in context, did not violate defendant's right to remain silent); Commonwealth v. DiNicola, 866 A.2d 329, 336 (Pa. 2005) (applying Robinson's fair response doctrine and finding that an investigator's testimony on cross-examination that defendant had invoked hi

2014Specifically, in DiNicola , we allowed reference to a defendant’s refusal to speak to a trooper as a fair response to defense counsel’s questioning of the adequacy of the trooper’s investigation. 866 A.2d at 335-36 .

2021See id. at 240 .

2017Our Supreme Court has observed that a “prosecutor’s closing remarks” may be “a fair response to defense counsel’s closing argument.” Commonwealth v. Carson, 913 A.2d 220, 239 (Pa. 2006), cert. denied, - 13 - J-S10042-17 552 U.S. 954 (2007).

2015For this reason, we need not engage in a harmless error analysis. ____________________________________________ 7 United States v. Young, 470 U.S. 1, 5-11, 20 (1985), concerned the fair response doctrine, and whether the prosecutorial misconduct in that case was plain error under Fed.R.Crim.P. 52(b), i.e., error not requiring an objection to be preserved for appeal.

2014The fair response doctrine requires courts to consider whether the prosecutor’s remarks during closing argument “were invited, and did no more than respond substantially in order to right the scale, in which event such comments would not warrant reversing a conviction.” United States v. Young, 470 U.S. 1, 12-13 (1985) (internal citations omitted); accord Commonwealth v. Brown, 417 A.2d 181, 184 (1980) (“we may thus determine if the comments were made in fair response to defense argument” since “a prosecutor may be justified in making a reply to an argument by defense counsel which may not have

2000See Commonwealth v. Simmons, 541 Pa. 211, 250 , 662 A.2d 621 , 640 n. 14 (1995) (“The injection of parole is more serious and plainly prejudicial if the prosecutor also speculates as to what a defendant might do if released from jail.”). 21 Furthermore, this Court has found that a mistrial is not warranted when a prosecutor’s allusion to the possibility of a pardon or a commutation, viewed in the proper context, was a fair retort to defense counsel’s comments regarding the issue of “life means life.” Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102 (1996), cert. denied, 522 U.S. 977 , 118

2000See Commonwealth v. Simmons, 541 Pa. 211, 250 , 662 A.2d 621 , 640 n. 14 (1995) (“The injection of parole is more serious and plainly prejudicial if the prosecutor also speculates as to what a defendant might do if released from jail.”). 21 Furthermore, this Court has found that a mistrial is not warranted when a prosecutor’s allusion to the possibility of a pardon or a commutation, viewed in the proper context, was a fair retort to defense counsel’s comments regarding the issue of “life means life.” Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102 (1996), cert. denied, 522 U.S. 977 , 118

2024See Clancy, 192 A.3d at 65 (“we should not preclude or condemn a prosecutor’s characterizations of the defendant that are both based upon the record and that inherently inform elements of an offense at issue, especially where the remarks constitute a fair response to defense counsel's argument”).

2022Commonwealth v. Clancy, 192 A.3d 44, 65 (Pa. 201 8).

2020Per [Commonwealth v.] Chmiel, [ 889 A.2d 501, 543 (Pa. 2005),] a prosecutor is permitted to make a fair response to defense counsel’s argument.

2020Per [Commonwealth v.] Chmiel, [ 889 A.2d 501, 543 (Pa. 2005),] a prosecutor is permitted to make a fair response to defense counsel’s argument.

2024See Commonwealth v. Turner, 454 A.2d 537, 539-540 (Pa. 1982) (“Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related [his version of events] to the police at the time of arrest when in fact he remained silent”); Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998) (“[W]here a prosecutor’s reference to a defendant’s silence is a fair response to a claim - 19 - J-A26021-23 made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination”)

2023Id. at 506 (emphasis in original) (quoting Commonwealth v. Turner, 454 A.2d 537, 539-40 (Pa. 1982)).

2021Thus, under the fair response doctrine, “[c]ounsel’s remarks d[id] not constitute reversible error where they [were] ‘a reasonable response . . . to trial counsel’s attack on [J-51-2021] - 12 the witness’ credibility.’” Id. (quoting Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa. 2011)).

2020As Appellants have argued, I believe that the fair response doctrine applies quite aptly to these circumstances.10 Counsel’s remarks do not constitute reversible error where they are “a reasonable response, in both scope and force, to trial counsel’s attack on the witness’ credibility.” Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa. 2011).

2011Although the Fifth Amendment affords protection against compulsory self-incrimination, "where as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." United States v. Robinson, 485 U.S. 25, 32 , 108 S.Ct. 864 , 99 L.Ed.2d 23 (1988); see also Commonwealth v. Trivigno, 561 Pa. 232 , 750 A.2d 243, 248-49 (2000) (citing Robinson's "fair response" doctrine in concluding that the prosecutor's request to the jury to "decide the case based on the evidence that

2011Although the Fifth Amendment affords protection against compulsory self-incrimination, "where as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." United States v. Robinson, 485 U.S. 25, 32 , 108 S.Ct. 864 , 99 L.Ed.2d 23 (1988); see also Commonwealth v. Trivigno, 561 Pa. 232 , 750 A.2d 243, 248-49 (2000) (citing Robinson's "fair response" doctrine in concluding that the prosecutor's request to the jury to "decide the case based on the evidence that

2000See Commonwealth v. Simmons, 541 Pa. 211, 250 , 662 A.2d 621 , 640 n. 14 (1995) (“The injection of parole is more serious and plainly prejudicial if the prosecutor also speculates as to what a defendant might do if released from jail.”). 21 Furthermore, this Court has found that a mistrial is not warranted when a prosecutor’s allusion to the possibility of a pardon or a commutation, viewed in the proper context, was a fair retort to defense counsel’s comments regarding the issue of “life means life.” Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102 (1996), cert. denied, 522 U.S. 977 , 118

2000See Commonwealth v. Simmons, 541 Pa. 211, 250 , 662 A.2d 621 , 640 n. 14 (1995) ("The injection of parole is more serious and plainly prejudicial if the prosecutor also speculates as to what a defendant might do if released from jail."). [21] Furthermore, this Court has found that a mistrial is not warranted when a prosecutor's allusion to the possibility of a pardon or a commutation, viewed in the proper context, was a fair retort to defense counsel's comments regarding the issue of "life means life." Commonwealth v. Marrero, 546 Pa. 596 , 687 A.2d 1102 (1996), cert. denied, 522 U.S. 977 , 11

1995See Barren, 501 Pa. at 498-99 , 462 A.2d at 235 (finding that a prosecutor’s statement that the victim testified to “bring to you the truth” was a fair response to defense assertions that the victim testified from “rote memorization” brought about by extensive preparation).

1995See Barren, 501 Pa. at 498-99 , 462 A.2d at 235 (finding that a prosecutor’s statement that the victim testified to “bring to you the truth” was a fair response to defense assertions that the victim testified from “rote memorization” brought about by extensive preparation).

2024See, e.g., Commonwealth v. Henry, 706 A.2d 313, 330-31 (Pa. 1997) (references to defense as “ridiculous” did not constitute misconduct); Commonwealth v. Davis, 565 A.2d 458, 466 (Pa. Super. 1989) (no misconduct where prosecutor’s argument, though “arguably sarcastic,” was based on evidence); Commonwealth v. Maxwell, 477 A.2d 1309, 1316-17 (Pa. 1984) (prosecutor’s summation permissibly characterized defense counsel as “blowing smoke”).

1995Maxwell, 505 Pa. at 164-68 , 477 A.2d at 1316-17 .

2024Brief of Appellant, at 4. -5- J-A01015-24 Initially, we note that in reviewing a claim of improper prosecutorial comments, our standard of review “is whether the trial court abused its discretion.” Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997).

2022However, when statements deteriorate into impermissible ____________________________________________ 2 Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997). 3 Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011). -9- J-S12008-22 characterizations and inflammatory name-calling that are divorced from the record or irrelevant to the elements of the crime at issue, they are substantially unwarranted and must be scrutinized for prejudicial effect.

2023"The protective shield of the Fifth Amendment may not be converted into a sword that cuts back on an area of legitimate 19 inquiry and comment by the prosecutor on the relevant aspects of the defense case." Id. (citing United States v. Hasting, 461 U.S. 499 (1983)).

2022Commonwealth v. DiNicola, 581 Pa, 550, 561 n.6, 866 A.2d 329 , 336 n.6 (2005); Commonwealth v. Molina, 628 Pa. 465, 494 , 104 A.3d 430, 447 (2014) (plurality).

2025See Commonwealth v. Powell, 171 A.3d 294, 303 (Pa. Super. 2017) (concluding that trial court properly denied motion for mistrial based on prosecutor’s statements during closing argument where the statements were a fair response to the defense’s closing argument and the trial court provided an instruction detailing the Commonwealth’s burden of proof and other instructions to mitigate any prejudice).

2024See, e.g., Commonwealth v. Henry, 706 A.2d 313, 330-31 (Pa. 1997) (references to defense as “ridiculous” did not constitute misconduct); Commonwealth v. Davis, 565 A.2d 458, 466 (Pa. Super. 1989) (no misconduct where prosecutor’s argument, though “arguably sarcastic,” was based on evidence); Commonwealth v. Maxwell, 477 A.2d 1309, 1316-17 (Pa. 1984) (prosecutor’s summation permissibly characterized defense counsel as “blowing smoke”).

2024See, e.g., Commonwealth v. Henry, 706 A.2d 313, 330-31 (Pa. 1997) (references to defense as “ridiculous” did not constitute misconduct); Commonwealth v. Davis, 565 A.2d 458, 466 (Pa. Super. 1989) (no misconduct where prosecutor’s argument, though “arguably sarcastic,” was based on evidence); Commonwealth v. Maxwell, 477 A.2d 1309, 1316-17 (Pa. 1984) (prosecutor’s summation permissibly characterized defense counsel as “blowing smoke”).

2024See Smith, 995 A.2d at 1162 ; Judy, 978 A.2d at 1020 .

2024Accord Commonwealth v. Riggle, 119 A.3d 1058, 1068 (Pa.Super. 2015) (holding prosecutor’s remark that the victim was “credible and telling the truth” was a fair response to the defense’s contentions that the victim “was a juvenile delinquent, had lied about other events, and also lied about the sexual assaults at issue”).

2023See Commonwealth v. Thompson, 660 A.2d 68, 74 (Pa. Super. 1995) (concluding that the prosecutor’s comment that the jury should be insulted by the defense strategy was a fair response to defense counsel’s arguments).

2023Id. at 506 (emphasis in original) (quoting Commonwealth v. Turner, 454 A.2d 537, 539-40 (Pa. 1982)).