Ronald W. Shipman, Coffin, DeRaymond, Shipman & Stitt, Joel A. Ziev, Easton, for appellant.
Robert A. Freedberg, Asst. Dist. Atty., Easton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, and Nix, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion.
Kenneth Fiedle Maloney was convicted by a jury of murder of the first degree and the punishment was fixed at life imprisonment. Following the denial of post-verdict motions, sentence was imposed. This appeal followed. The sufficiency of the evidence to warrant the conviction is not challenged;*fn1 however, it is argued that certain errors at trial were so prejudicial, a reversal of the judgment and a retrial is required.
The prosecution stemmed from a fatal stabbing at a carnival in East Bangor, Northampton County, sponsored by a local volunteer firemen's group. The victim, Guy Weaver, a member of a motorcycle club from Bethlehem known as the "Gypsies," arrived at the carnival with four fellow club members. The appellant, Maloney, came to the carnival accompanied by several of his fellow members of the "Bangor Group." Shortly after the latter's arrival a disturbance ensued and Maloney and his companions were ordered off the grounds. This group then visited a near-by tavern but after about an hour returned to the carnival grounds where a fist fight developed between Chester Miller of the "Gypsies" and Thomas Klusko of the "Bangor Group." According to the testimony of three Commonwealth witnesses, who testified they observed the incident, Weaver was standing by watching the encounter when Maloney approached and stabbed him in the chest with a knife without any apparent provocation.
Testifying in his own defense, Maloney denied stabbing Weaver and being in possession of a knife at the carnival. His testimony was corroborated by another individual
who attended the carnival in Maloney's company.
Five assignments of error are presented. For present purposes, only two need to be discussed.*fn2 Both involve the trial conduct of the district attorney. This is the background.
At trial a state police officer, Trooper Wills, was asked whether certain items were taken from Maloney when he was arrested. After receiving an affirmative response, the district attorney asked:
"Now, then what did you do, Mr. Wills?"
"He [Maloney] was taken to the state police barracks in Easton, where he was advised of his constitutional rights again, he signed a state police rights form, and he refused to give a statement, and. . . ." [Emphasis added.]
No objection was then entered. The examination of Officer Wills continued for a short period when the district attorney returned to the subject of Maloney's silence at the time of arrest by asking this question to which he received the following answer.
"Now, you advised the defendant of his constitutional rights and you took no statement from him; is that correct?
One of Maloney's counsel immediately objected and the objection was sustained. A side bar conference ensued during which Maloney's other counsel pointed out to the court that this was the second reference to Maloney's ...