The opinion of the court was delivered by: BECKER
Edward R. Becker, District Judge.
On February 19, 1971, relator, a state prisoner serving a life sentence following his conviction for murder in the first degree in the Court of Quarter Sessions of Philadelphia County, filed a petition for a writ of habeas corpus alleging that his right to remain silent under the fifth amendment, as applied to the states through the fourteenth amendment [ Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)], was violated by the Assistant District Attorney's remarks in his opening statements to the jury.
Relator was tried and found guilty before Judge James T. McDermott and a jury on April 1, 1966. The Commonwealth's evidence was to the effect that: (1) relator, while riding in an automobile, saw the victim, James Young, walking on the street in the vicinity of 21st Street and Columbia Avenue in Philadelphia; (2) relator, after making derogatory comments about Young and stating that he would kill Young, took a gun from his wife and left the auto; and (3) relator approached Young, had a few harsh words with him, and then shot him twice. While the defense was predicated upon inadequate identification by the Commonwealth's eyewitnesses, the jury believed them.
On April 5, 1968, relator filed motions for a new trial or in arrest of judgment. On April 8, 1969, Judge McDermott entered an opinion and order denying these motions. Thereafter, relator attacked his conviction by appealing from his judgment of sentence to the Supreme Court of Pennsylvania. On appeal, relator relied upon the same grounds upon which he now bases his writ of habeas corpus. On April 9, 1970, the Supreme Court, in an opinion by Justice O'Brien, affirmed the judgment of sentence. Commonwealth v. Lowery, 440 Pa. 361, 269 A. 2d 724 (1970). Relator has therefore exhausted all available state remedies and his case is in proper posture for an adjudication of his constitutional claim.
After a careful review of the entire state court record, including the Assistant District Attorney's opening remarks, we conclude that relator's right to remain silent under the fifth amendment was not violated. During the Assistant District Attorney's opening remarks, the following colloquy took place:
"MR. HECKSCHER [Assistant 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 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, but also towards all human life and the life which he had snuffed out.
MR. McCRUDDEN [counsel for defendant]: Your Honor, this is objected to.
THE COURT: Sustained. I think, Mr. Heckscher, at this juncture an outline of your case and what you purport 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 ...