Robert F. Simone, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Frank DeSimone, Asst. Dist. Atty., Carolyn E. Temin, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, O'Brien and Nix, JJ., concur in the result. Manderino, J., filed a dissenting opinion in which Roberts, J., joins. Jones, C. J., did not participate in the consideration or decision of this case.
Miguel Rivera, the appellant was convicted by a jury of the offenses of murder of the first degree, rape and conspiracy. After the denial of his post-verdict motions, appellant was sentenced to life imprisonment on the murder charge and to a concurrent ten to twenty year imprisonment for rape. Sentence on the conspiracy conviction was suspended. This appeal followed.*fn1
The Commonwealth's evidence at trial was that Rivera was one of six men in the early morning hours of June 27, 1973 who participated in the rape of a young girl and the drowning of her boyfriend in the reflecting pool in front of the Philadelphia Art Museum. It is not necessary
that we recount here the sordid details of these revolting crimes; suffice it to say that after reviewing the record,*fn2 we are satisfied that the evidence was sufficient to permit the jury to conclude beyond a reasonable doubt that appellant was a participant in the rape and murder. We thus proceed to consider the assignments of error made by appellant in support of his prayer for a new trial. Finding them to be without merit, we will affirm.
Appellant first contends that the trial court erred in failing to grant a motion for a mistrial. The motion came during the course of the re-direct examination of the principal Commonwealth witness, appellant's co-defendant, Juan Garcia. On cross-examination, defense counsel had attempted to impeach the credibility of Garcia by questioning him about inconsistencies in various statements he had given to the police concerning the crimes. In an apparent attempt to rehabilitate Garcia, the assistant district attorney began to read from one of those statements.*fn3
"'About three days after the incident in the park I ran into this guy Mike [the defendant] whom I know at 17th & Greene.' Now, this is the statement that I am referring to that you gave at 7:15 a. m. on the morning of July 7. Now I'm quoting the words from the statement. 'He is a junkie . . .'"
Defense counsel objected at this point and moved for a mistrial. The objection was overruled and the motion denied. Appellant asserts that reference to him as a "junkie" was improper and prejudicial because it permitted the jury to infer that he ...