Appeals from judgment of sentence and order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, Nos. 114, 116, 117, and 118, in case of Commonwealth of Pennsylvania v. Martin Valle.
Robert M. Fellheimer, for appellant.
Ian Comisky, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, submitted a brief for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P.j., and Van der Voort, J., dissent.
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Appellant contends that he was denied effective assistance of counsel at trial, because his attorney failed to object to allegedly inflammatory comments made by the prosecutor during closing argument.
On June 14, 1972, appellant was arrested and charged with the June 4, 1972 aggravated robbery of a bar located at 1300 West Allegheny Avenue, Philadelphia. On December 18, 1972, a jury found
[ 240 Pa. Super. Page 413]
appellant guilty, and he was sentenced on April 10, 1973, following the denial of post-trial motions. On May 3, 1973, an appeal to this Court was filed, but the appeal was dismissed on August 14, 1974, for failure of appellate counsel to file a timely brief. On August 29, 1974, appellant filed a petition pursuant to the Post Conviction Hearing Act.*fn1 After numerous hearings, the PCHA court granted appellant the right to file an appeal nunc pro tunc, but otherwise denied relief. This appeal followed.
The closing arguments of counsel were recorded and transcribed. The following excerpts are indicative of the tone of the Commonwealth's summation:
"Now, there is no question in the Commonwealth's mind or in anybody's mind at this particular time that even at this stage of the proceedings, as hard as it is even in this type of a case for us to accept, that under our system of justice that defendant, Martin Valle, as vicious and as horrible an act as he committed, he is still at this stage of the proceedings, as hard as it is to believe, he is still presumed to be innocent until you begin your deliberations. Keep that in mind.
"We have the presumption of innocence in the United States of America. Thank God we have that presumption of innocence. But that is to protect innocent citizens; it is not to protect the Martin Valles, it is not to protect the Al Capones, the vicious people in our society. It is to protect people like yourselves. So, keep in mind he is still presumed to be innocent, as difficult as that may be even under these very trying circumstances, with the overwhelming evidence that you heard from that witness stand." Record at 419-420 (Emphasis added).
"I say to you, if by pleading not guilty that vicious guy over there, Martin Valle, says: I didn't do these things, then I ...