John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion.
On February 11, 1975, appellant, Enos Brenizer, was convicted by a jury of murder in the second degree and kidnapping. Post-trial motions were filed and denied by a court en banc. On April 8, 1975, the court imposed a sentence of life imprisonment for second-degree murder and a concurrent term of not less than ten nor more than twenty years' imprisonment on the kidnapping indictment. Appellant appealed the murder conviction to this court and also appealed the kidnapping conviction to the Superior Court, which in turn certified the record to this court on July 3, 1975.
The facts surrounding this appeal are as follows. On August 31, 1974, appellant, accompanied by four companions, went to the Cove Bar in Plum Borough, outside Pittsburgh, to meet the decedent, Michael Nelson, who was a bartender at the Cove Bar. The purpose of the meeting was to confront the decedent concerning the alleged rape of one of the group's girlfriends. Two witnesses testified that they saw the decedent being beaten by appellant and his companions and also witnessed the decedent being forced into an automobile by the group. Nelson's body was found early the following morning and appellant and four members of the group that accompanied him to the bar were arrested for the homicide.
Appellant argues that the district attorney's "explanations" of appellant's not-guilty plea in his summation were improper and prejudicial comments upon appellant's not taking the stand in his own defense. We agree. The following is the complained of portion of the district attorney's closing remarks:
"This defendant has pleaded not guilty. I for one wonder just exactly how that applies in this case. Evidentally
[sic] he says he didn't do anything, that he is no way involved or culpable. I guess that's what we can discern from this plea.
"But really what does it mean? Does it mean that he wasn't there at all? Does it mean, 'I've never seen these people before in my life, I wasn't out there on the Saturday evening, I wasn't with Lamonna?" Seriously, I don't think that it means that because we have witnesses here, some disinterested witnesses, who saw him in the bar, saw him in that car. So I take it it doesn't mean that.
" Well, what does it mean? Does it mean, 'Well, I was there but I didn't know what was going to happen. I just happened to be an innocent bystander. Oh, I got blood on my pants because I was standing next to him. That's all. It got all the way up to my knees. From his head and face somehow it got down to my ankles, my ...