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decided: October 9, 1970.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1965, No. 23, in case of Commonwealth v. Douglas Lowery.


Charles Jay Bogdanoff, with him Julian E. Goldberg, for appellant.

J. Bruce McKissock, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion.

Author: O'brien

[ 440 Pa. Page 362]

Appellant, Douglas Lowery, was arrested on March 14, 1965, for the murder of James Young, which killing

[ 440 Pa. Page 363]

    occurred earlier that day. He was tried before a judge and jury on March 29 through April 1, 1966. At the trial, the evidence introduced by the Commonwealth included testimony from an eyewitness, who was in the victim's company on the evening of his death, that appellant had approached Young, had a few harsh words with him and then pulled a gun and shot the victim twice. Other witnesses who were riding in a car with appellant immediately prior to the killing testified that when appellant saw Young walking in the street, he made derogatory comments about Young, stated that he would kill Young, took a gun from his wife, and left the car in pursuit of Young a few minutes before Young was killed. Another witness testified that several hours after the shooting, appellant arrived at the home of the witness and stated that he had just shot somebody. The jury returned a verdict of murder in the first degree and appellant was sentenced to life imprisonment.

No attack is made on the basis of the sufficiency of the evidence or error during the course of the trial, either during the presentation of the evidence, the closing statements or the court's charge to the jury. Instead, in the appeal from the denial of his posttrial motions, which had been delayed until April 8, 1969, due to dissatisfaction with various court-appointed counsel, appellant emphasized only the remarks of the district attorney, which, it is alleged, so tainted the trial wih constitutional error that for this reason alone, appellant is entitled to a new trial.

The following colloquy occurred during the district attorney's opening remarks: "Mr. Heckscher [the district attorney]: Sir, could I briefly discuss the problem of premeditation with them? The Court: Yes, you may proceed on this. Mr. Heckscher: I believe His Honor will charge you that where a killing is accomplished by premeditation, that that killing, such a killing is murder

[ 440 Pa. Page 364]

    in the first degree. For this reason, Ladies and Gentlemen of the Jury, I ask you to listen closely, particularly to the testimony that the Commonwealth will introduce which will show that well in advance of this brutal, senseless killing that this defendant had formed the intention and the design to do what he did. "I will also ask you to listen very closely to testimony from Commonwealth witnesses and from the defendant himself if he gets on the stand that will show this defendant's callous attitude not only towards the decedent, whom he brutally slayed [sic], but also towards all human life and the life which he had snuffed out. Mr. McCrudden: Your Honor, this is objected to. The Court: Sustained. I think, Mr. Heckscher, at this juncture an outline of your case and what you proport [sic] to prove is the substance of your opening address. Mr. McCrudden: Your Honor, it goes further than that now. There's a tendency on this, before trial even begun [sic], to attempt to prejudice the Jury, or any fact finder, against the defendant. What he's doing in effect is saying what his attitude is towards the defendant. I think it is a serious error and I think a Juror should be withdrawn because of it. The Court: Denied. Mr. McCrudden: I think the Jury should be instructed to ignore what statements he made. The Court: Which statements? Mr. McCrudden: With regard to the attitude of the defendant, not only towards the decedent, but towards the Police Department and others. Mr. Heckscher: I didn't say the Police Department. Mr. ...

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