Ronald J. Brockington, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeal Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Manderino, JJ., concur in the result.
Appellant, Jimmie Lee Lark, was convicted of murder in the second degree and aggravated robbery in the robbery-murder of Irving Rotfarb on September 3, 1970. Timely motions for a new trial and in arrest of judgment were denied and appellant was sentenced. This appeal followed.*fn1
The evidence adduced at trial disclosed that on the morning of September 3, 1970, the appellant, seventeen years old, and his adult brother, Nathaniel, observed the victim's automobile pull up to the residence of a neighbor, Gary Taylor, also known as Gary Bloch. Appellant asked Gary Taylor why the victim was at the residence and was told that the man cashed checks for Gary's mother. Appellant's brother, Nathaniel, said that they were going to "get" the victim. Appellant agreed to participate.
He ran to the corner to act as a lookout for his brother. Nathaniel Lark approached the victim, shot and robbed him. The two boys ran home; on the way, appellant told a neighbor, Joseph Beard, that appellant and his brother robbed a man and that his brother had shot him. Inside the house Nathaniel gave the appellant thirty-five dollars out of an undetermined amount of money taken from the victim.
Appellant assigns as error several matters, including the contention that the remarks of the prosecutor during his summation to the jury were so prejudicial as to require a new trial.*fn2 We agree.
The prosecutor in his closing made the following remarks to the jury after each of which defense counsel interposed his objection and was overruled.
". . . Remember we didn't come in here and wave any bloody shirts in front of your faces. We didn't bring in grieving widows or grandchildren. I mean, there was a man that died here. He had a family. He had people that loved him. He was 57 and working, maybe he was going to retire in a few years. I think there are other voices in this room. He may have said to you, I wanted to go on living. All right, I was 57, I had a family, grandchildren, but I wanted to live. I wanted to live with my family.
"And that's how it all happens. That's right, he wasn't taken to the University of Pennsylvania, to the law library, and sat down there for tea. He wasn't taken to the home of the Bishop of Boston for a conference. It doesn't work that way, because ...