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COMMONWEALTH v. BROOKS (10/03/73)

decided: October 3, 1973.

COMMONWEALTH
v.
BROOKS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 87 of 1971, in case of Commonwealth of Pennsylvania v. Wayne Eugene Brooks.

COUNSEL

Howard B. Krug, with him John W. Purcell, for appellant.

James G. Morgan, Jr., Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Mr. Justice Manderino concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones joins in this concurring opinion.

Author: O'brien

[ 454 Pa. Page 76]

On August 12, 1970, Mrs. Ethel Mumma, sixty-seven-year-old motel owner, was robbed, beaten and shot to death. Her body was found in her apartment above her establishment the following day. During the course of a police investigation of the crime, a weapon was recovered which was traced to one Nancy Hopewell, who was living with appellant in Indianapolis, Indiana. On or about August 20, 1970, members of the Lower Paxton Township Police Department and a Pennsylvania State Policeman went to appellant's home in Indianapolis with a warrant for the arrest of Nancy Hopewell on a credit card violation, unrelated to the murder. While effecting this arrest, one officer observed bullet holes in the walls of the residence. Accordingly,

[ 454 Pa. Page 77]

    on August 22, 1970, Pennsylvania law enforcement officials again went to appellant's home in Indianapolis, this time with a search warrant for the removal of the bullets in the walls. The bullets were removed and returned to Harrisburg, where they were later matched with the bullets that killed Mrs. Mumma. Later, after being arrested on a fugitive warrant for the crime of burglary, unrelated to the murder of Mrs. Mumma, and being returned to Dauphin County, appellant was formally charged with the murder of Mrs. Mumma.*fn1 A jury found appellant guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

Appellant's main allegations of error center around the trial conduct of the prosecuting attorney. Appellant alleges that remarks made by the district attorney during appellant's trial were so prejudicial as to deny him a fair trial, particularly when the district attorney told the jury, in his closing remarks: "I say to you, Nancy lied to you. I say to you, Wayne Brooks lied to you. . . ."

Appellant premises his argument on Commonwealth v. Potter, 445 Pa. 284, 287, 285 A.2d 492 (1971), where we stated: "The prosecutor, in branding appellant's testimony as a 'malicious lie' exceeded the permissible bounds of cross-examination. Furthermore, he injected his highly prejudicial personal opinion of appellant's credibility into evidence. . . ." See also Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972).

However, unlike Potter and Revty, appellant failed to object to the offensive statement of the district attorney when it was made. Since the trial judge clearly instructed the jury that they "were the sole judges of

[ 454 Pa. Page 78]

    credibility of each and every witness who has testified" and since the offensive statement was not objected to, we do not believe that it requires reversal. However, we must again admonish prosecuting attorneys that, in the words of the ABA Standards Relating to Prosecution Function: "It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the ...


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