[J-28-2018] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JAVONN ERIC CLANCY,

Appellant

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No. 42 WAP 2017

Appeal from the Order of the Superior 

Court entered on February 22, 2017, 

at No. 1037 WDA 2016 affirming the 

Order of the Court of Common Pleas 

of Beaver County entered June 16, 

2016 at No. CP-04-CR-0001902-2012

SUBMITTED: March 5, 2018

CONCURRING OPINION

JUSTICE DONOHUE DECIDED: AUGUST 21, 2018

In 1936, this Court roundly condemned a prosecutor’s reference to a criminal 

defendant in closing argument as a “cold blooded killer.” Commonwealth v. Capalla, 185 

A. 203, 205 (Pa. 1936). In so doing, we unambiguously ruled that while the prosecutor 

had every right to argue that the evidence he had presented to the jury proved that the 

defendant was guilty as charged, he had no right to stigmatize him by engaging in crass 

name-calling. Id. We emphasized that “[t]he application of epithets to a defendant on 

trial ... has no legitimate place in a district attorney’s argument,” since a “closing argument 

can be strong and convincing without them.” Id. at 206. Based upon the principles set 

forth in Capalla, over time this Court repeatedly castigated prosecutors for stigmatizing 

remarks directed at criminal defendants, including “hoodlums” and “animals,”

Commonwealth v. Lipscomb, 317 A.2d 205, 207 (Pa. 1974), the “leader of this pack of 
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murderers,” Commonwealth v. Joyner, 365 A.2d 1233, 1235 (Pa. 1976), and an 

“executioner,” Commonwealth v. Anderson, 415 A.2d 887, 889 (Pa. 1980). 

Today, in sharp contrast, the learned Majority permits, and perhaps even 

encourages, a prosecutor’s use of precisely the same epithet (“cold blooded killer”) that 

we denounced in Capalla. According to the Majority, our law in this area has “evolved,”1

in two ways. Majority Op. at 28. First, the Majority contends that over time we have come 

to “express greater recognition of the prosecutor’s right to advocate.” Id. at 24. 

Derogatory names are now permissible as “offense-centric statements,” and must be 

permitted to allow a prosecutor, as a “zealous advocate,” to exercise greater “oratorical 

flair.” Id. Second, the Majority insists that we have moved away from Capalla’s focus on 

the content of the prosecutor’s remarks to a “two part” test that also requires an evaluation 

of “the effect of the challenged remarks on the jury.” Id. This newfound focus on whether 

the statements at issue were prejudicial, rather than on whether they were improper, 

further expands a prosecutor’s permissible “right to advocate.” Id. at 21. 

I take issue with both of these contentions. With respect to the first, I disagree with 

the Majority’s repeated references to prosecutors as “zealous advocates.” This Court has 

emphasized that because prosecutors, unlike private attorneys, have the added 

responsibility of a “minister of justice,” there are limits to the adversarial nature of their 

conduct. See e.g., Commonwealth v. Eskridge, 604 A.2d 700, 701 (Pa. 1992) (holding 

that the prosecutor “has the responsibility of a minister of justice and not simply that of an 

advocate”); Commonwealth v. Briggs, 12 A.3d 291, 331 (Pa. 2011) (“[A] criminal 

prosecutor ... unlike a private attorney, must exercise independent judgment in 

 

1

 What the Majority describes is a degeneration of the law, not an evolution.
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prosecuting a case and ‘has the responsibility of a minister of justice and not simply that 

of an advocate.”). As explained in the comment to Rule 3.8 of the Pennsylvania Rules of 

Professional Conduct, the responsibility of a minister of justice “carries with it specific 

obligations to see that the defendant is accorded procedural justice and that guilt is 

decided upon the basis of sufficient evidence.” Pa.R.P.C. 3.8 (comment). It does not 

appear that this Court has ever referred to prosecutors as “zealous advocates.”2 Even to 

the extent that prosecutors may be characterized as “zealous advocates,” the use of 

epithets is not zealous advocacy. At best, prosecutors resort to name-calling because 

they are not sufficiently adept at persuasive argument. Capalla, 185 A. at 206 (“A closing 

argument can be strong and convincing without them.”). At worst, prosecutors stigmatize 

defendants to prejudice the jury.

More importantly, I do not perceive any shift over time in a prosecutor’s ability to 

advocate forcefully on behalf of the Commonwealth during closing argument. As early as 

1901, this Court observed that upon determining that the accused is guilty of the crime 

charged, the prosecutor should “lead [the jury] to [its] own judgment by pointing out to 

them, intelligently and impartially, the evidence which cannot fairly justify any other 

 

2

 The Majority represents that in Commonwealth v. Starks, 387 A.2d 829 (Pa. 1978), this 

Court, by way of reference to the ABA’s Criminal Justice Standards for the Prosecution 

Function § 3-01.2(a) (“ABA Standards”), indicated that one of the roles of a prosecutor is 

that of a “zealous advocate.” Starks, 387 A.2d at 331. Starks and the ABA Standards, 

however, only refer to prosecutors as “advocates,” not as “zealous advocates.” 

In further support of its contention that prosecutors are “zealous advocates,” the Majority

also cites to the preamble to the Rules of Professional Conduct, which provides that as 

an advocate, a lawyer may “zealously assert the client’s position under the rules of the 

adversary system.” Pa.R.P.C. Preamble [2]. This provision, however, describes the 

functions of lawyers generally, not those of prosecutors. The relevant provision of the 

Rules of Professional Conduct for prosecutors is Rule 3.8 (“Special Responsibilities of a 

Prosecutor”), which does not contain any reference to “zealous” advocacy.
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conclusion.” Commonwealth v. Bubnis, 47 A. 748, 750 (Pa. 1901). Seventy-four years 

later, in Commonwealth v. Cronin, 346 A.2d 59 (Pa. 1975), we indicated that “a district 

attorney must have reasonable latitude in fairly presenting a case to the jury[.]” Id. at 62. 

And four years ago, in Commonwealth v. Burno, 94 A.3d 956 (Pa. 2014), we explained

that prosecutors are “permitted to summarize the evidence, offer reasonable deductions 

and inferences from the evidence, and utilize “oratorical flair[.]’” Id. at 975. Unlike the 

Majority, I see no significant difference in the descriptions of a prosecutor’s latitude during 

closing argument over time. While more recent cases now typically reference a 

prosecutor’s ability to engage in “oratorical flair,” I do not consider this to constitute any 

significant expansion of a prosecutor’s basic function during closing argument or to permit 

argument that this Court previously ruled was plainly improper. Moreover, “flair” is defined 

as “a skill or instinctive ability to ... make good use of something.” https://www.merriamwebster.com/dictionary/flair. There is no skill or instinctive ability involved with namecalling. Indeed, it is the antithesis of oratorical flair. 

I likewise disagree with the Majority’s insistence that this Court now permits “harsh 

characterizations of the defendant” because, over time, we have placed an increased 

emphasis on whether such remarks have the “unavoidable effect” of prejudicing the jury’s 

ability to consider the evidence objectively.3 Majority Op. at 23. According to the Majority, 

Capalla and its progeny (e.g., Lipscomb, Joyner, Anderson) focused solely on the content 

 

3

 While the Majority identifies Commonwealth v. Stoltzfus, 337 A.2d 873 (Pa. 1975) as 

providing the sea change in this regard, the “unavoidable effect” test for prosecutorial 

misconduct was first announced in our 1927 decision in Commonwealth v. Meyers, 139 

A. 374 (Pa. 1927); see also Commonwealth v. Crittenton, 191 A. 358, 361 (Pa. 1937). 
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of the prosecutor’s remarks and placed little or no emphasis on whether those remarks 

resulted in “unavoidable prejudice” to the defendant. Id. at 17-18.

Contrary to the Majority’s assertion, the Court in Capalla did in fact place an 

emphasis on unavoidable prejudice. We cited to Commonwealth v. Ronello, 96 A. 828 

(Pa. 1916), in which this Court held that a curative instruction by the trial judge after a 

prosecutor advised the jury of his personal belief of the defendant’s guilt “was wholly 

inadequate to the protections of the defendant rights,” and “could give no assurance that 

the prejudice otherwise certain to result to the defendant had been averted.” Capalla, 

185 A. at 205 (quoting Ronello, 96 A. at 829). We then indicated that “[t]here is very slight 

difference in the character of the statement condemned by this court in [Ronello] and the 

statement complained of in this case[.]” Id. Whether by calling the defendant a “cold 

blooded killer,” as in Capalla, or by telling the jury that “[m]y own conviction is that [the 

defendant] did that dastardly deed,” as in Ronello, the result is, in all but the rarest of 

cases, the same – specifically, unavoidable prejudice to the defendant.

While I disagree with its reasons, I must concede the result of the Majority’s 

analysis -- that our more recent cases have largely abandoned the sound principles set 

forth in Capalla. As the Majority indicates, the law began its regrettable turn in 

Commonwealth v. D’Amato, 526 A.2d 300 (Pa. 1987), where the prosecutor in closing 

argument referred to the defendant as a “clever, calculating and cunning executioner.” 

Id. at 313. The D’Amato Court chose to ignore our 1980 decision in Anderson, in which 

we reversed, based upon careful adherence to Capalla, a jury’s verdict when the 

prosecutor likewise referred to the defendant as an “executioner.” Anderson, 415 A.2d 

at 889 (“Similarly [to Capalla], we here condemn the district attorney's application of the 
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term “executioner” to Anderson. This term was equivalent to an expression of belief by 

the district attorney that Anderson was guilty of murder of the first degree.”). In D’Amato, 

breaking from our long tradition of faithfulness to Capalla, we instead ruled that calling 

the defendant an “executioner” was, while “unfortunate,” not prejudicial because the 

remark was in response to an argument by defense counsel that that the defendant was, 

inter alia, “an uneducated and ignorant man who was duped” into making a confession. 

D’Amato, 526 A.2d at 313. We so ruled without discussion of why we were departing 

from continued obedience to Capalla’s foundational principles.

Following D’Amato, we completed our abandonment of Capalla in Commonwealth 

v. Chamberlain, 30 A.3d 381 (Pa. 2011).4 In closing argument in Chamberlain, the 

prosecutor told the jury that during the trial, “we’ve been in the presence of a murderer.” 

Id. at 406. He later asked the jury to “say to him what I say now, that when you rise you 

will announce before God and this court and us that you, Terry Chamberlain, are guilty of 

taking human lives. You’re guilty of murder. You are a murderer.” Id. (emphasis in 

original). Viewing this name-calling “in context,” the Court accepted the trial court’s 

argument that referring to the defendant as a “murderer” was entirely appropriate, since 

it was not merely a “label” but rather an inference drawn from the evidence. Id. at 408. 

According to the trial court, as adopted by this Court without further comment or 

 

4

 Unlike the Majority, I do not consider our decision in Commonwealth v. Hall, 701 A.2d 

190 (Pa. 1997), to reflect any movement away from Capalla. In that case, the prosecutor 

made an indirect reference to the appellant’s “cold heart.” Id. at 200. This was not an 

instance of name-calling, but rather merely a summary of the evidence demonstrating 

proof of legal malice – as “hardness of heart” has always been one description in the 

definition of that term. See, e.g., Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) 

(citing Commonwealth v. Drum, 58 Pa. 9 (1868)).
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explanation, because the evidence showed that Chamberlain was guilty, “the prosecutor 

did not advocate his personal belief of [Chamberlain’s] guilt.” Id.

The precedential basis for our ruling in Chamberlain was not clear. We cited to, 

inter alia, Capalla for the proposition that “a prosecutor may argue to the jury that the 

evidence establishes the defendant’s guilt.” Id. (citing Capalla, 185 A. at 206). We then 

cited to, inter alia, D’Amato for the proposition that “arguments from personal opinion as 

to the guilt of the accused are not proper.” Id. (citing D’Amato, 526 A.2d at 309). These 

two propositions of law, taken together, however, cannot support the Court’s adoption of 

the trial court’s view that calling the defendant a “murderer” is acceptable prosecutorial 

practice. In Capalla, the Court unambiguously explained that stigmatizing the defendant 

through the use of epithets is, by definition, an expression of the prosecutor’s personal 

belief in his or her guilt. Capalla, 185 A. at 205-06 (calling the defendant a “cold blooded 

killer” was “equivalent to an expression of belief on the part of the district attorney that the 

defendant was guilty of murder in the first degree”). As such, in attempting to understand 

the Court’s rationale in Chamberlain, we must either conclude that “murderer” is not a 

pejorative term, or that the core principles of Capalla were no longer worthy of application.

Today the Majority makes clear that the laudatory core principles of Capalla are 

no longer in vogue.5 This case is a lost opportunity for this Court to right the ship. Our 

 

5

 I cannot agree with the Majority’s contention that it is merely summarizing and applying 

the law “as it exists today.” Majority Op. at 26-27 n.17. I likewise cannot agree with the 

Majority’s decision to condone (indeed, approve of) the prosecutor’s bad behavior here 

on the highly questionable ground that Clancy’s counsel’s failure to object is excused 

because he could not be expected to “predict future developments or changes in the law.” 

Id. (citing Commonwealth v. Spotz, 896 A.2d 1191, 1246 (Pa. 2006)).

Until today, despite our unfortunate decisions in D’Amato and Chamberlain, Capalla

remained good law in this Commonwealth, and it required no predictions of future 
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cases since D’Amato have drawn conclusions without clearly elucidating the reasons for 

departure from requiring epithet-free closing arguments by prosecutors. Instead of 

reestablishing the predominance of the prosecutor’s position as a minister of justice, the 

Majority provides an apologia for our jurisprudence’s departure from that emphasis. 

In my view, this Court’s rejection of Capalla is most unfortunate for several 

reasons. The personal opinions of prosecutors, expressed in epithets hurled at criminal 

defendants, are neither evidence that the jury may consider in reaching its verdict nor 

reasonable inferences from the evidence of record.6 The ABA Standards with respect to 

the closing arguments of prosecutors, adopted by this Court in Cronin, 346 A.2d at 62, 

instruct that prosecutors should summarize the evidence of guilt and may argue all 

reasonable inferences from this evidence. ABA Standards § 3-6.8(a). At the same time, 

the ABA Standards expressly forbid prosecutors from making arguments “in terms of 

counsel’s personal opinion” or which are “calculated to appeal to improper prejudices of 

 

developments or changes in the law for a prosecutor to know that stigmatizing a 

defendant by calling him a “cold blooded killer” was not permitted. When the prosecutor 

in this case called Clancy a “cold blooded killer,” Capalla expressly and emphatically 

forbade the use of precisely this epithet. Even in Chamberlain, we cited to Capalla with 

approval. It is today’s decision that, for the first time, overrules Capalla, freeing 

prosecutors to call defendants “cold blooded killers” in their closing arguments in this and 

future cases.

6

 One federal court has cogently explained that name-calling results in an especially 

pernicious form of prejudice:

This type of shorthand characterization of an accused, not 

based on evidence, is especially likely to stick in the minds of 

the jury and influence its deliberations. Out of the usual welter 

of grey facts it starkly rises – succinct, pithy, colorful, and 

expressed in a sharp break with the decorum which the citizen 

expects from the representative of his government.

Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969)
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the trial of fact.” Id., § 3-6.8(b), (c). There is a world of difference between a prosecutor 

summarizing the evidence presented at trial and arguing that it fairly demonstrates that 

the defendant killed in cold blood (i.e., with malice), as opposed to calling the defendant 

a “cold blooded killer.” The former constitutes an argument based upon reasonable 

inferences from the evidence presented; the latter constitutes the prosecutor’s personal 

opinion, which this Court has always considered to be well “beyond the scope of fair play.” 

See, e.g., Commonwealth v. Lark, 333 A.2d 786, 789 (Pa. 1975); Lipscomb, 317 A.2d at 

207; Cronin, 346 A.2d at 61. 

The use of epithets is, of course, “beyond the scope of fair play” because it is highly 

prejudicial to the defendant’s right to a fair trial. The personal opinions of a prosecutor 

may well take on overarching significance to the jury, as he or she is a representative of 

the Commonwealth (and, indeed, of the people of the Commonwealth). When a 

prosecutor resorts to name-calling, he or she abandons the role of a minister of justice

with its concomitant obligation to see that justice is not compromised in an effort to obtain 

convictions. See, e.g., Commonwealth v. Collins, 341 A.2d 492, 493-94 (Pa. 1975); 

Commonwealth v. Revty, 295 A.2d 300, 302 (Pa. 1972). The only reason for a prosecutor 

to engage in name-calling, as opposed to presenting a reasoned summary of the 

accumulated evidence of guilt, is to obtain convictions at any cost. Capalla’s prohibition 

against permitting a prosecutor to stigmatize a defendant should apply equally today as 

it did in 1936. To “stigmatize” a person is to describe them as “worthy of disgrace or great 

disapproval.” https://en.oxforddictionaries.com/definition/stigmatize. It is no part of a 

prosecutor’s function to obtain convictions by belittling the defendants he or she 
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prosecutes, rather than maintaining a single-minded focus on the evidence proving his or 

her guilt.

This Court has made clear that “the prosecuting attorney enjoys an office of 

unusual responsibility, and that his trial conduct should never be vindictive or attempt in 

any manner to influence the jury by arousing their prejudices.’” Starks, 387 A.2d at 381 

(quoting Commonwealth v. Toney, 266 A.2d 732, 736 (Pa. 1970)). This Court has always 

emphatically rejected the notion that prosecutors may appeal to the fears or base 

prejudices of the jury, and in so doing prejudice the jury function by “forming in their minds 

fixed bias and hostility toward the defendant, so that they could not weigh the evidence 

and render a true verdict.” See, e.g., Commonwealth v. Simon, 248 A.2d 289, 292 (Pa. 

1968). The prosecutor in this case concluded his closing argument by announcing to the 

jury, “That’s a dangerous man. That is a cold blooded killer.” N.T., 4/12/2013, at 48. 

Without any question, these references to Clancy constituted a naked appeal to the “fears 

or base prejudices” of the members of the empaneled jury.

In my view, the prosecutor’s accusation that Clancy is a “dangerous man” and a 

“cold blooded killer” was also prejudicial in another way. These terms are not 

appropriately limited in the scope of their reference, as they suggest not merely that 

Clancy killed the victim in this case, but rather that he is the type of person who is capable 

of killing more generally, and without remorse or feeling. An “epithet” is a term that 

“expresses a quality or attribute regarded as characteristic of the person or thing 

mentioned.” https://en.oxforddictionaries.com/definition/epithet. In other words, namecalling constitutes a statement of personal opinion by the prosecutor on the character of 

the defendant – in this case, a statement on Clancy’s propensity for dangerousness and 
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violence. By effectively overruling Capalla, the Majority allows prosecutors to 

surreptitiously introduce propensity evidence in contravention of Pa.R.E. 404, and to do 

so without the introduction of any character evidence at trial. 

Perhaps it is true that when this Court decided Capalla in 1936, public discourse 

was more genteel than the crassness routinely encountered today. Such does not, 

however, provide any reason why we should abandon the reasonable and sound 

principles for the behavior of prosecutors we adopted in Capalla. To the contrary, it 

constitutes good reason for demanding greater adherence to these principles – to keep 

today’s baseness and crassness out of our courtrooms, allowing juries to decide cases

based solely upon the evidence. We should expect more from prosecutors, not less. 

Because the Majority plainly does not, I cannot join its decision.7 

 

7

 According, I concur only in the result reached by the Majority, namely its affirmance of 

the Superior Court’s determination that Clancy has not established a claim of ineffective 

assistance of counsel. At the evidentiary hearing on Clancy’s PCRA petition, PCRA 

counsel testified that he intentionally did not object to the prosecutor’s name-calling 

because, in his view, it made the prosecutor come across as “combative or dislikable [sic] 

and almost desperate at times, because ... some of the things that you just referenced 

weren’t supported by the facts, and I felt that he was hanging onto calling him names, 

referencing how he’s a killer.” N.T., 2/26/2016, at 56-57. Based upon this unrebutted 

testimony, Clancy failed to satisfy the second required element for an ineffectiveness 

claim – that “counsel had no reasonable strategic basis for his action or inaction.” See, 

e.g., Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).