Appeal from judgments of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 493 and 494, in case of Commonwealth of Pennsylvania v. David Lipscomb.
Louis Lipschitz, for appellant.
Benjamin H. Levintow, Assistant District Attorney, with him David Richman, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
This is a direct appeal from the judgments of sentence imposed on David Lipscomb following his conviction by a jury of murder in the first degree and of conspiracy to commit robbery and murder.*fn1
The prosecution stemmed from the fatal stabbing assault on Edward Sweeney, allegedly committed by Lipscomb and six other young men on a public street in Philadelphia. The assistant district attorney's argument to the jury violated the rules of proper professional conduct and was of such a prejudicial character as to deny Lipscomb his constitutional right to a fair trial. We will, therefore, order a new trial.
In part, the representative of the Commonwealth argued to the jury as follows:
"You know, my best witness isn't here today. But if he could come back, if Mr. Sweeney could come back and sit in this chair and face you, the jurors, I believe he would say, 'I didn't want to die. I was only 59 years of age. I think I had a number of years ahead of me, I didn't want to die. I was just walking along the
street, a friend had been kind enough to give me a little bag of groceries to help me out because I was unemployed at the time, and I was on my way home, walking the route I have walked many, many times from my friend's house.
"'I didn't want to die. I didn't know this would be my last walk. I didn't know that a bunch of hoodlums and animals would pounce upon me and tear me apart and would cause my blood to stream out on the sidewalk and beside a tree, on the ice and the water. I tried to save myself. I got up, I tried to put my little belongings in my bag, but I couldn't get them. But, I walked towards home, the only route I knew for years, and I got to my house and I gave out; I gave out, I ran out of gas, and so I just lay there with my back to the steps and my head resting against it. My friend had given me a couple of Reader's Digests which I dropped on the steps, filled with blood. I didn't want to die. Why did I have to die? . . .'
"And I think Mr. Sweeney would say, 'The only way you couldn't find this defendant guilty of murder of the first degree is for me to come alive again before your very eyes and walk out of that door to my home.'" Defense counsel immediately made a ...