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COMMONWEALTH PENNSYLVANIA v. ROBERT GILMORE (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT GILMORE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, at No. 1913 February Term, 1975. No. 802 October Term, 1976.

COUNSEL

Gerald Jay Pomerantz, Philadelphia, for appellant.

Deborah E. Glass and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Cercone and Van der Voort, JJ., dissent.

Author: Jacobs

[ 245 Pa. Super. Page 29]

Appellant, Robert Gilmore, appeals following a jury verdict of guilty of criminal conspiracy and not guilty of robbery and possession of an instrument of a crime. His sole allegation on appeal is that prejudicial comments made by the attorney for the Commonwealth in his closing address operated to deny him a fair trial. We agree and reverse.

The charges upon which appellant was arrested stemmed from the robbery of a doctor's office on December 6, 1974. The Commonwealth's evidence showed that appellant, together with two other youths, one of which was armed with a gun, entered the office of an eye doctor and threatened him with the gun, demanding money. Upon receiving $180 they bound and gagged him then fled with the money. The doctor as eyewitness specifically identified appellant as the assailant who threatened him with his own ophthalmoscope. Appellant's defense was that although he was present with the two others in the doctor's office, he was not aware that a robbery was planned and upon observing it taking place he was too

[ 245 Pa. Super. Page 30]

    frightened to disassociate himself from the others. He denied threatening the doctor with his instrument.

In his closing address to the jury, the assistant district attorney made the following remarks in speaking of his own position and the testimony of his complaining witness: "I am interested in truth. You are interested in the truth. For part of my job is not only to prosecute the guilty, but to see that the innocent are speedily turned loose if they are innocent. In this case you saw [the complaining witness]. You observed his demeanor. You observed his testimony, and as one writer said . . . 'Truth crushed to the earth must rise again.' In this case, the cross-examination is an attempt to crush truth to the ground. . . .

". . . .

"You were picked for one purpose. That purpose was to find the truth. I have faith in your finding the truth in this matter. The doctor had faith in your finding the truth, for he came before you. He testified truthfully, and the truth was that this Defendant, Robert Gilmore, ...


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