Appeal from order of Superior Court, Oct. T., 1972, Nos. 1118 and 1119, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1971, Nos. 832 and 833, in case of Commonwealth of Pennsylvania v. Calvin Henderson.
Seymour I. Toll, for appellant.
Benjamin H. Levintow, Assistant District Attorney, with him Albert L. Becker, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones dissents.
The appellant, Calvin Henderson, was tried before a jury and found guilty of aggravated robbery and aggravated assault and battery. Post trial motions were filed and denied, and a sentence of ten to twenty years imprisonment was imposed on the aggravated robbery conviction, and a sentence of one and one-half to three years was imposed on the aggravated assault and battery conviction, to run concurrently with the aggravated robbery sentence. An appeal was filed in the Superior Court, which affirmed without opinion. We
granted allocatur and now, after considered review of the primary question, we reverse and remand for a new trial.
The salient facts are as follows:
On August 2, 1971, at approximately 1:45 a.m., one Jasper Brown was robbed on a public street in Philadelphia. Brown testified at trial that he was accosted by appellant, who struck him with a nightstick, and took eighteen dollars from his person. Brown stated that after the robbery, he followed appellant to the residence of Mrs. Lavern Bighum, Brown's next-door neighbor, and as the two men stood on the steps of the two adjacent houses, appellant again confronted him and asked what he wanted. Brown entered his residence, called the police, and directed them to the Bighum house. The police arrested appellant, who was then in bed.
The appellant did not testify at trial, but did offer the testimony of an alibi witness.
The only issue which requires discussion evolves out of the closing argument to the jury by the district attorney. The district attorney stated:
"You know, after this arrest was made Mr. Brown told you he testified at a preliminary hearing. You know he was in Court yesterday. You know he is in Court today, and he might have been in Court before that. He has done what you would want any good citizen to do. You know, you hear about people that don't want to get involved, that just say to the police I don't want to come into Court and testify. I don't want to be a witness. Leave me alone. Don't let me get involved. When that ...