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COMMONWEALTH v. REVTY (10/04/72)

decided: October 4, 1972.

COMMONWEALTH
v.
REVTY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1956, No. 107, in case of Commonwealth of Pennsylvania v. Peter Revty.

COUNSEL

Timothy J. Sullivan, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy dissent.

Author: Nix

[ 448 Pa. Page 514]

On January 4, 1956, appellant Peter Revty stabbed Winston Hollis to death in the dining room of the Western Penitentiary where both men were inmates. Four days earlier, Hollis had beaten the appellant badly during an altercation in the Penitentiary auditorium, after which the appellant spent three days fashioning a knife out of a soup ladle in preparation for their next confrontation. When appellant and Hollis met in the dining room, words were spoken, fighting ensued, and the appellant stabbed Hollis four times causing his death.

The appellant was indicted on charges of murder and voluntary manslaughter. The trial commenced on September 24, 1956, and on September 28, 1956, the jury returned a verdict of guilty of murder in the first degree, recommending a sentence of life imprisonment. Appellant was so sentenced on July 18, 1957. Also on that date, appellant moved for a new trial, alleging that remarks by the District Attorney were prejudicial and that the trial judge incorrectly instructed the jury on voluntary manslaughter. The motion was denied and no appeal was taken.

On April 3, 1968, appellant filed a petition pursuant to the Post Conviction Hearing Act*fn1 alleging incompetent counsel, obstruction of his right to appeal, and the abridgment of a retroactive right. After a hearing at which appellant had counsel, the petition was dismissed in an opinion dated May 8, 1969. As of this date, no appeal has been taken from the ruling on the P.C.H.A. petition. In addition to his ruling on the P.C.H.A. petition, the trial judge reaffirmed his rulings of July 18, 1957 and allowed the appellant to appeal

[ 448 Pa. Page 515]

    from those rulings "as if such an appeal had been timely filed." The date of his order was May 8, 1969. Appellant again failed to file an appeal within the appropriate time and on March 23, 1971 filed a Petition for Allowance of an Appeal, nunc pro tunc. On April 7, 1971 we granted that petition.

We will discuss only one of the two objections raised by the appellant since we believe it has merit and requires a new trial.*fn2

The appellant objects to certain comments that the District Attorney made in his final speech to the jury. During that summation, the District Attorney implied that the appellant had attempted to deceive the jury intentionally as to the circumstances of his discharge from the United States Army and that the jury therefore could infer that the self-defense plea was a similar deception.

These remarks were preceded by the following occurrences: During direct examination counsel for the appellant questioned his client extensively concerning his prior life. He brought out numerous prior juvenile and adult arrests as well as the circumstances surrounding appellant's dishonorable discharge from the service. On cross-examination, the District Attorney referred to the fact that appellant had an honorable discharge pin in the buttonhole of the suit he was wearing. Appellant explained that the suit had been borrowed and that the buttonhole was sewn in such a manner that he was unable to remove the pin prior to entering the courtroom. At this point, the following ...


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