Stephen R. LaHoda, First Asst. Public Defender, Levittown, Richard S. Wasserbly, Havertown, for appellant.
Stephen B. Harris, First Asst. Dist. Atty., Peter F. Schenck, Doylestown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion in which Jones, C. J., joined.
On August 19, 1974, appellant, Alton Cooper, was convicted by a jury of murder in the second degree, assault with intent to kill, aggravated assault and battery, and assault and battery in the death of his nineteen-month old daughter. Post-trial motions were filed and denied by a court en banc. On May 21, 1975, the court imposed a sentence of not less than one year nor more than four years in the Bucks County Prison for the conviction of murder in the second degree and concurrent sentences of not less than one year nor more than four years on the convictions for aggravated assault and battery and assault with intent to kill. Appellant appealed the murder conviction to this court and appealed the convictions for aggravated assault and battery and assault with intent to kill to the Superior Court, which in turn certified the record to this court on July 1, 1975.
Appellant argues that the district attorney's comment in his summation, concerning appellant's exercise of his Fifth Amendment right, after his arrest, not to speak to police without an attorney present, was improper and prejudicial. We agree.
The following excerpt is that portion of the district attorney's summation which we consider improper comment on appellant's exercise of his constitutional right not to be interrogated without his attorney present:
". . . Mrs. Cooper, you saw her testify on the stand in front of you. You had an opportunity to evaluate her credibility. She was frank in admitting that, yes, on several occasions she did discipline the child with something else than her hand. She told you about disciplining the child and what happened. You will have to evaluate that testimony on the basis of your own experience and say to yourselves, 'Is that testimony credible?'
"We know that Mr. Cooper gave a statement, that he talked to the police, and that he was up to the District Attorney's office and gave another statement. And before he gave those statements he was warned of his constitutional rights. He was told that anything he said could and would be used against him in a Court of Law. And is there anything in this case other than the argument of Mr. LaHoda, to suggest that this was some kind of a cover-up, that Mr. Cooper was, somehow, going to take the rap for his wife. I would submit to you that there is not.
"He gave a statement after being thoroughly warned of his rights, and he told us in detail exactly what had happened. What did happen when he left the District Attorney's Office after he had been interrogated? What happened was that they went down into their car and drove away. They got up by the shopping center and Mr. Cooper told Mrs. Cooper about hitting with the sandal and she suggested that they go back and be truthful about that. You will recall up to this point the ...