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COMMONWEALTH v. STROUD (09/11/69)

decided: September 11, 1969.

COMMONWEALTH
v.
STROUD, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1968, Nos. 721, 723, 724, 725, and 729, in case of Commonwealth of Pennsylvania v. Hilton Stroud.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, with him R. Barclay Surrick, Assistant Public Defender, and Charles J. Odgers, Jr., Public Defender, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 215 Pa. Super. Page 189]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant together with two co-defendants was convicted of robbery by a jury after a trial on June 17 and 18, 1968. At trial, there was testimony that one of the robbers carried a 22 caliber revolver and fired it twice during the robbery. The following colloquy occurred during the district attorney's summation to the jury: "Mr. Prodoehl [defense counsel]: I think for the purpose of the record, the District Attorney, Mr. McEwen, made an analogous [sic] in summing up to the Jury. This analogy consisted of a 22 caliber revolver

[ 215 Pa. Super. Page 190]

    and he analogized it to the assassination of Robert F. Kennedy. The Court: What did he say you are objecting to? Mr. Prodoehl: I am objecting to the statement that this was an analogous [sic] to the recent assassination. That is my objection. Mr. Prodoehl: I believe it is inflammatory. The Court: Mr. District Attorney, confine yourself only to the evidence in the case. Members of the Jury, disregard any statements made by the District Attorney that is [sic] not strictly in accord with the evidence and do not permit that in any manner, shape or form to affect your judgment in your deliberation in the case of these Defendants."

Despite the court's admonishment, the district attorney continued as follows: "Mr. McEwen: Just so the record was clear, may I make clear on the record that I am talking about a 22 caliber revolver in this case and that a 22 revolver being sufficient to cause the death of a great American recently. If you will, the connection of a 22 caliber revolver is not in any sense ...


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