Is a Prosecutor's Reference to Supressed Evidence During Closing Argument An Error Insufficient to Entitle a New Trial ?

In Commonwealth v. Smith, 494 Pa. 518, 521-523, 431 A.2d 975, 976-977 (1981), the Supreme Court affirmed a murder conviction, holding, inter alia, that the prosecutor's reference to suppressed evidence during closing argument (in response to the defense counsel's reference to the absence of evidence of record regarding a struggle) was error but was insufficient to entitle the appellant to a new trial. During closing argument, defense counsel suggested to the jury that, if as the Commonwealth alleged, the victim had been brutally beaten at the scene, the Commonwealth would have presented evidence of a struggle. 431 A.2d at 976. Such evidence did, in fact, exist, but had been ruled inadmissible, upon defense counsel's motion, by the suppression court on grounds that the evidence was obtained by means of a search conducted without a warrant. In response, the prosecutor stated during closing argument that, "because of a ruling prior to trial, we cannot introduce that evidence." Id. at 978. Defense counsel objected to this remark and the trial judge gave a curative instruction to the jury.